President Truman’s Justice Department and the Fight for Racial Justice in the Supreme Court

Abstract

President Truman’s Justice Department and the Fight for Racial Justice in the Supreme Court IAN B. FAGELSON Introduction 2017 marked the seventieth anniversary ofan important landmark in the history ofthe Supreme Court. Although the Court’s deci­ sions in the Brown cases1 that destroyed the legal foundations of state-sanctioned racial discrimination were handed down during Dwight D. Eisenhower’s Presidency, much of the groundwork was laid on President Harry S. Truman’s watch. Faced with an unhelpful Congress, Truman’s contributions to civil rights were effectively confined to the bully pulpit (as witness, his speech to the NAACP at the Lincoln Memorial)2 and executive actions (such as establishing the President’s Committee on Civil Rights and endorsing its recommendations;3 desegregat­ ing the federal government4 and the mili­ tary).5 Even before he pledged support for civil rights at the Lincoln Memorial in June 1947, he engaged with Attorney General Tom C. Clark on how to combat the rise in Southern white terrorism and committed his Justice Department to tackling lynching.6 Moreover, on December 5, 1947, the Justice Department broke with tradition by interven­ ing7 for the first time in a case between private litigants where no concrete federal interest such as the interpretation of a U.S. statute was involved.8 At issue was the enforceabil­ ity of racially restrictive housing covenants. Between 1947 and 1952, Truman’s Justice Department participated five times, via written briefs and oral arguments, in private lawsuits urging the outlawing of segregation. The cases concerned housing,9 transporta­ tion,10 public accommodations,11 higher education,12 and, most controversially, ele­ mentary and high schools in Brown itself. In each case, the Supreme Court ruled unani­ mously in favor of the position argued by the 70 JOURNAL OF SUPREME COURT HISTORY Justice Department. However, there is little direct evidence of Truman’s personal in­ volvement in the Department’s actions. Whether the Department’s actions were true instances of Truman administration policy, rather than the work of liberal civil service lawyers in which the top level of the administration merely acquiesced, has been the subject of debate, as has the question of what considerations drove the interven­ tions. This article demonstrates that the story is more complicated than many scholars have suggested. After a brief literature survey and a description of the unique status of the Solicitor General, a study of each case in its historical context reveals that the level of engagement of the President and cabinet-level officials and the considerations that motivated them were not uniform throughout the period. None­ theless, the Department’s interventions must be regarded as acts of administration policy for which the President deserves considerable credit. Literature Survey Some scholars write on the basis of unstated assumptions as to whether the Justice Department acted at Truman’s behest.13 Michael Gardner, without citing hard evidence, asserts that Truman personally caused the Justice Department to act.14 According to Richard Dalfiume, Truman “allowed” the Justice Department to inter­ vene.15 William Berman claims, without citing evidence, that Truman did not autho­ rise, or even know about, several of the briefs.16 However, again without citing evidence, he also asserts that Truman person­ ally authorised the Department’s first inter­ vention in 1947.17 Barton Bernstein views the briefs as primarily the work of Justice Department lawyers in which the administra­ tion acquiesced and says that it is unclear whether Truman was “an enthusiastic supporter or a reluctant endorser of placing the Federal government on the side of civil rights in these cases.”18 In Cold War Civil Rights: Race and the Image of American Democracy,19 Mary Dudziak devotes an extended endnote to the question, concluding that the briefs should be viewed as an important part of Truman’s civil rights program and as “consciously adopted Truman administration policy.”20 The question of the extent (if any) of Truman’s personal involvement with the interventions is intertwined with controversy over Truman’s motivation for supporting civil rights. At one extreme, Richard Dalfiume and Michael Gardner see Truman’s commitment to civil rights as driven primar­ ily by moral convictions.21 At the other extreme, William...