By Marcia Coyle, From Supreme Court Brief

The week of Christmas 1947: Outside, the record shows, the air was a bracing 38 degrees. Inside the conference room of the U.S. Supreme Court, the temperature was rising. Seven of the nine justices had gathered to resolve a controversy over their law clerks’ desire to sponsor a Christmas party that ultimately will never be held.

Was the source of the controversy religion in an institution sensitized to others’ beliefs by a recent string of Jehovah’s Witnesses cases? Or was race simmering below the surface of the court’s own segregated marble halls?

A young John Paul Stevens was clerking that term for Justice Wiley Rutledge. Nearly seven decades later, in an interview with Supreme Court Brief, he said that the controversy was, to the best of his recollection, religion.

“There was concern that a Christian holiday event might be offensive to law clerks and employees of the court who were Jewish,” he said.

But inside the justices’ private conference room on Dec. 20, 1947, a different story unfolded, one revealed years later in the diaries of Justice Felix Frankfurter (left) and brought more recently to light by Ross Davies of George Mason University School of Law.

Stevens’ clerk class wanted an inclusive holiday party with invitations to the court’s messengers, all of whom were African American, and all of whom had been excluded from the court’s 1946 Christmas party.

The first party?

That the clerks during the October 1947 Term would seek an inclusive holiday celebration was not surprising. They were, as a class, a step ahead of some of the justices in their views on race and the Constitution, Stevens recalled.

“I remember, generally speaking, that we did have two or three cases involving discrimination in education,” he said. “I remember the law clerks unanimously thought those were all easy cases, clearly violations of the 14th Amendment. The concern was the justices were not up to speed. But the law clerks didn’t see any issue to be debated.”

The court’s secretaries, who had hosted with the law clerks the year before, balked at including the messengers—not, “professedly at least” for racial reasons but for social ones, according to an entry in From the Diaries of Felix Frankfurter, edited and published in 1974 by Joseph Lash. They withdrew from the proposed party. And the court’s marshal refused, without instructions from the chief justice, to authorize use of a room for the party if the messengers were invited.

And so Chief Justice Fred Vinson brought the matter before the conference, to hear what his colleagues thought the court should do.

“In 1947, we have this uncomfortable moment where the justices are confronted with what amounts to a demand for desegregation within the court,” said George Mason’s Davies. “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.

Davies, editor and co-founder of the legal journal, The GreenBag, was doing research into the origins of the court’s internal newsletter, the Docket Sheet, when he encountered what he called a “disconnect.” In a folder full of old Docket Sheets, the very first issue in 1959 announced, “This year, for the first time, we will have a Building-wide Christmas Party.”

How odd, thought Davies, certain that he had read something by Frankfurter about an earlier party. In fact, he had read a reference to the 1946 Christmas party in the Frankfurter diaries, and it was confirmed in the papers of Justice Harold Burton. Examining that reference led him to Frankfurter’s own account of the 1947 party controversy.

“Connecting the dots took awhile,” said Davies, who unfolded the controversy in an article in The Green Bag. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448291)

Connecting dots

As Frankfurter’s diary entries reveal (pages 334-336), and Davies’ article paraphrases:

“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.”

There actually was no courtwide Christmas party for 12 years—until 1959.

Based on Frankfurter’s comments, “It seems like they were ashamed at the time at what they were doing,” said Davies. “If those men were alive today, they would surely be ashamed.”

In 1947, Stevens recalled, “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.”

And while he didn’t remember race having anything to do with the clerks’ Christmas party proposal that year, he said, “It could well have been.” (In 1975, Stevens hired the first black secretary at the court and he was a force for diversity in the hiring of minority law clerks.)

Davies doesn’t believe the “cheery” 1959 announcement of the court’s first buildingwide Christmas party was an attempt to hide the controversy that preceded it. “But it does reflect a kind of disconnect between what is going on out in the world and what’s going on inside the court’s world,” he said.

“On the other hand, it’s nice to see, at least in 1959 when, obviously, desegregation is a very, very hot and controversial topic, it no longer seems to be an issue inside the court—at least in terms of these institutional social matters. Having said that, another decade passes before anyone hires another African American clerk and a long, long time before women are hired.”

In 1948, Frankfurter hired William Coleman, the first black law clerk.

Davies doesn’t have an answer to what we should make of the court lagging behind its admonitions to the American people, but said it is worth reflecting upon.

“How far in the future will it be before some obscure law professor writes a little history about the use of no-protest zones around different kinds of buildings?” he asked. “Why is it okay for abortion and women’s health clinics to be pressed closely [by protesters] but not okay for the Supreme Court? I don’t know the answer. And some day, some justice’s papers are going to tell us what it is and I hope just that they are proud of it.”

Davies likes to think that in that moment during the 1947 conference, “those men in position to decide, if they had been a little more self aware, they might have made a different choice. Clearly, they were capable of making those choices, but that was not the moment.”

IMAGE: John Paul Stevens. Photo: Diego M. Radzinschi/NLJ.

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202713123232/The-Supreme-Courts-Christmas-Party-that-Wasnt#ixzz3Mj0N2FUI