there are many indications in the historicalrecord that frankfurter was surprised by the brief that was filed by the government umand was taken by surprise and uh and relief when he saw in the government's brief in thefirst brown case in the first brief in the first brown case when frankfurter sees thebrief and he sees that the government takes the position that if the court should findthat uh that plessy should be overruled it
What Was Brown Vs Board Of Education, does not have to grant immediate relief tothe plaintiffs in the brown cases because the plaintiff's briefs in all of the browncases all argued that those uh plaintiffs should be entitled to attend integrated schoolsand should be admitted to the white right gradualism was anathema to the black communityi think that's correct i think it is it is
uh except for quote incidental delays necessarydelays uh the idea that a constitutional right should not be uh should not be linked to aremedy for the plaintiffs asserting the violation of the constitutional right was contrary tounderstood law at that point right so what phil told me was that he did not talk to frankfurterabout this because he was sure he was going to be disabused by frankfurter of the possibilityof using that approach because it might be suitable for large mergers and large antitrustcases uh to gradually unwind the merger but and there's a book called the law's consciencei think by a man named hoffer who sort of talks at length about this about this issueyeah but i think that what phil did in the first brief in brown as he saw it and as ithink as others should see it was unprincipled
uh and yet in a certain way brilliant becauseit did indeed uh break a log jam on the court now if you ask the question why was therea log jam on the court it gets to the heart of the controversy because uh from phil'sperspective sitting in the sg's office at the time he sat there uh the naacp was bringingthese cases at a time when the chief justice of the court was vinson who was a segregationistand he was bringing and they were bringing the case at a time when there were other voteson the court certainly to uphold plessy uh so reed for example i mean there were clearvotes to uphold plessy and they were bringing the vote the the cases at a time when therewere justices as phil new at least as well as anybody possibly better than anybody althoughthat's also an question as to who else knew
who could read these votes i think it wasn'ttotally a mystery as to who could read these votes but they were bringing the cases ata time when from frankfurter's description there were possibly only four votes countingfrankfurter to reverse plessy the view was at least from phil's perspective frankfurterfelt that jackson wanted very much to leave it to congress uh and that uh and the numberof sure votes was actually not very uh you had uh black douglas and burton for overrulingplessy from frankfurter's you had reed clark and vinson who were probably for upholdingand you had uh that left jackson frankfurter and minton as the middle votes so from philelman's point of view the question was how do you how do you get those three votes frankfurterjackson and minton how do you make sure that
they vote to overrule pless and the problemfrom the point of view of the justices uh the point of view of frankfurter was uh thatthe plaintiffs in the cases only wanted immediate relief and that the uh even among those whofavored reversing uh uh plessy people like hugo black were convinced that there wouldbe uh major turmoil in the south and were torn about this themselves even though theywould've voted to reverse plessy so from which is what happened which is subsequently closeto what happened so from from phil's point of view uh inserting in the government briefa uh a possible remedy which involved gradualism was the approach that would carry the dayokay frankfurter was searching for a unanimous court right now uh even if you wanted a majorityand this is confirmed there's a letter that
i've seen in the record uh from phillip elmanto paul freund at harvard uh sharing the brief and explaining that he feared the outcomein brown uh might be to uphold plessy or it might well be a split decision which wouldhave the affect of uh uh or it might have as he i think the language was a sock to theegalitarians because frankfurter considered black and douglas the egalitarians and itwould be a sock to them to actually include language which undermined plessy but but thatwas his fear and that was the first brief this excerpt is brought to you by the massachusettsschool of law
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