A stately Christmas tree graces the great hall of the U.S. Supreme Court this month. And the court’s east or west conference rooms are the usual locale for the annual Christmas party’s carol sing-along.
But 70 years ago, seven of the nine justices gathered in their conference room to discuss a simmering controversy triggered by their law clerks’ request for a Christmas party that would break with tradition — and never be held.
Retired Justice John Paul Stevens was a clerk that term for Justice Wiley Rutledge. Three years ago, when I first wrote about the controversy over a party that year for The National Law Journal, Justice Stevens told me that if memory served him, he thought the controversy’s source was religion. He thought it was concern that the Christian holiday party might offend court clerks and employees who were Jewish.
But through careful research, Ross Davies of George Mason University’s Antonin Scalia Law School, discovered what really happened in the conference room that Dec. 20, 1947.
The court’s secretaries, who hosted the Christmas party the year before with the law clerks, balked at the clerks’ request for a building-wide party that would include the court’s messengers, who were African American, according to an entry in the book, “From the Diaries of Felix Frankfurter,” published in 1974 by Joseph Lash. The secretaries refused to participate, and the court’s marshal, unless ordered by the chief justice, declined to authorize a room for the party if the messengers were invited.
Chief Justice Fred Vinson called his colleagues into conference to solicit their views.
Davies, in an interview with me three years ago, said, “In 1947, we have this uncomfortable moment where the justices are confronted with what amounts to a demand for desegregation within the court. For whatever reason, they could not bring themselves to do what they were about to tell the American people that they had to do” seven years later in the landmark Brown v. Board of Education, ending segregated public schools.
Davies is editor of The Green Bag, an entertaining law journal dedicated to publishing good writing. He was drawn to the 1947 controversy while doing research for an article about the high court’s internal newsletter, known as the Docket Sheet. The first issue in 1959 announced that there would be a building-wide Christmas party that year for the first time. This seemed odd to him because he remembered a reference to a 1946 Christmas party in Justice Frankfurter’s diaries. Going back to that reference led him to Frankfurter’s account of the 1947 controversy.
Relying on and paraphrasing Justice Frankfurter’s account, Davies, in his GreenBag article, wrote:
“At first it appeared that the clerks would get their way, with the Chief Justice and Justices Hugo Black and Stanley Reed speaking first and voting for the plan. But then Justice Robert Jackson objected on two grounds—first, that the clerks should not be permitted to use a social event at the Court to ‘make a demonstration of the matter’ of one of the ‘great social conflicts in the country,’ and second that ‘there is a good deal of justice on the part of the girls in not wanting the kind of a party that the boys have insisted upon.’ (It is puzzling that Justice Jackson went out of his way to express sympathy for the secretaries’ preference for a segregated party when the question before the Justices was whether to permit the clerks to have a party with the messengers, not the secretaries.) He was then joined by Justice Frankfurter in a proposal to avoid the whole controversy by banning all social functions at the Court other than the Justices’ own. After deliberating at some length and with some heat, the Justices voted 5-2 against the Jackson-Frankfurter proposal. (Justices Frank Murphy and William O. Douglas were absent at the time of the vote.) And there the matter ended, unresolved. Instead of ordering the Marshal to permit a desegregated Christmas party at the Court, the Court hosted no party at all.
“The following year no effort at all seems to have been made to organize a Court Christmas party.”
Justice Stevens, in our 2014 interview, said that although he didn’t remember race being the problem with the party in 1947, it could have been. In 1947, he explained, “It was generally understood that the Supreme Court, not with its opinions, but its employment policies, was really a Southern institution, and blacks were assigned to less desirable jobs.But I’m not aware of any feelings that had any impact on its jurisprudence. Blacks generally had an inferior position at everything in the court.”
The law clerks that term, he added, were a step ahead of some of the justices on issues of race and the Constitution. Justice Stevens, by the way, hired the first black secretary at the court in 1975.
Despite no Christmas party in 1947, Justice Frankfurter did hire the first black law clerk in 1948: the late William Coleman Jr. who, later recruited by Thurgood Marshall, was an author of the legal briefs that successfully urged the court to prohibit segregated public schools in 1954’s Brown v. Board of Education. Almost 20 years later, the second black law clerk — Tyrone Brown — was hired by Chief Justice Earl Warren in 1967.
The high court still lags behind diverse hires by law firms and graduates of law schools in increasing the diversity of its law clerks. The National Law Journal recently published a series of stories on that topic, examining the last 12 years of the Roberts Court. If interested, a look at each justice’s hiring pattern can be found here.
Best wishes for 2018, and thanks for reading.