Today in Supreme Court History: September 8, 1953

9/8/1953: Chief Justice Fred Vinson dies.

Chief Justice Fred Vinson

Comments

[F.D. Wolf]

Chief Justice Vinson's death from a heart attack on September 8, 1953, was sudden and unexpected. Congress was in recess until January, and President Eisenhower wanted the full complement of nine justices for the October session, so he gave Earl Warren a recess appointment as Chief Justice. (Had he not, senior Associate Justice Hugo Black would have served as Acting Chief, which might have made for an interesting session).

The Court had granted certiorari in Brown v. Board of Education while Vinson was still Chief, though, of course, the case was heard and decided under Warren (who would write the opinion for a unanimous Court). Historians debate how things might have been different in the case if Vinson had still been Chief. Even VInson's colleagues on the Court disagreed on the question of how Vinson would have voted.

I believe that, had Vinson survived, the result would have been a unanimous opinion, authored by Vinson, that was substantially similar to the opinion Warren produced. The first place to look is in Vinson's opinions in other important race cases, which in hindsight, were inexorably leading up to Brown.

In Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631 (1948), the Court held that the University of Oklahoma must admit a qualified black student to its law school since it was the only public law school in the state. Though issued as a brief per curiam opinion, its actual author was Vinson. A few months later, in Shelley v. Kraemer, 334 U.S. 1 (1948), Vinson authored the opinion for a unanimous (6-0) Court that racially restricted deed covenants violated Equal Protection. Finally, Vinson authored two unanimous opinions issued on the same day, Sweatt v. Painter, 339 U.S. 629 (1950), and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

In Sweatt, the Court ruled that the University of Texas must admit a black student to its law school, even though the state had a law school for blacks at Texas Southern University (then known as Texas State University for Negroes). The Court compared school resources, such as faculty and library size, and found the schools were clearly not equal. In McLaurin, the school had admitted a black student to its educational doctorate program, but segregated him. For example, he had a separate table in the cafeteria, sometimes even required to eat at separate times than the other students; he had a segregated table in the library, screened off from others; and, in class, his desk would be placed just outside the door or in an open closet. The Court held this denied him "equal protection of the laws".

Professor Carlton Larson offers three other reasons to believe this would have been the result. First, Vinson was a strong supporter of federal government policy, and both the Truman and Eisenhower administration had urged the Court in Brown to strike down school desegregation. Second, Vinson was a fierce anti-Communist, perhaps the most strident anti-Communist to ever serve on the Court, and the federal government, in several filings, indicated that segregation hampered its fight against worldwide Communism. And third, Vinson was an extremely close and devoted friend of Truman, who was committed to ending segregation. To defy him certainly would have caused a rift between the two. (Vinson had written the dissent in the Steel Seizure Case, which would have upheld Truman's right to seize control of the steel mills.) I will add another reason. There was a clear majority for the opinion in Brown, the only potential holdouts being Vinson and Reed. Would Vinson, who always appreciated the value of unanimity, really have wanted to be the author of a one- or two-justice dissent, even if he wasn't completely committed? I suspect he also would have valued assigning the opinion to himself, as opposed to leaving the assignment to the more radical Black. Carlton F. W. Larson, What If Chief Justice Fred Vinson Had Not Died of a Heart Attack in 1953?: Implications for Brown and Beyond, 45 Ind. L. Rev. 131 (2011).

[JoeFromtheBronx]

Allegedly a proof of God's existence.

[CJColucci]

Reportedly, Felix Frankfurter thought so, but I haven't been able to verify the quote.

[The Margrave of Azilia]

I was able to find this claim in Brad Snyder, "Frankfurter and Popular Constitutionalism," UC Davis Law Review, vol. 47 (November 2013), 343-417, at 390-91n295, in which Snyder cites as his source Philip Elman & Norman Silber, "The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation, 1946–1960: An Oral History," 100 HARV. L. REV. 817 (1987), at 840:

"(Upon Chief Justice Vinson’s death, Justice Frankfurter told [Philip] Elman: “I’m in mourning” and “Phil, this is the first solid piece of evidence I’ve ever had that there really is a God.”)."

https://lawreview.law.ucdavis.edu/archives/47/1/frankfurter-and-popular-constitutionalism

(I don't happen to have a link to the original Harvard Law Review article, sorry.)

[The Margrave of Azilia]

To be fair, during Frankfurter's lifetime, a *lot* of stuff happened which provided atheists with fapping material - "where is your God now?"

This may have been the context in which Frankfurter (if he said it) indicated that he had previously had some skepticism about God's existence. It may have been the outraged cry of a member of the human race against the injustice he witnessed.

See also the Psalms.

I'm not saying this to endorse atheism, but to give context to what Frankfurter said, *if* in fact he said it.

[The Margrave of Azilia]

And Frankfurter himself would probably not want me to mention this, but a *lot* of the bad, where-is-God shit which happened in Frankfurter's lifetime involved a people of whom Frankfurter himself was a member.

Frankfurter spent his life becoming a distinguished American jurist. Without his genius, he would not have overcome the obstacles he faced, including anti-Semitism at the University he loved so dearly.

But he considered himself as a distuinguished American jurist. I doubt he'd have wanted the appelation "Jewish-American jurist."

His was a generation of assimilationist Jewish immigrants to the USA. As he got on in years, he witnessed an America which actually looked like it was becoming, not simply "tolerant" of Jews, but, as George Washington proclaimed (aspirationally), welcoming of Jews as full citizens:

https://constitutioncenter.org/the-constitution/historic-document-library/detail/george-washington-letter-to-the-hebrew-congregation-in-newport-rhode-island-1790

By the time Frankfurter passed, it looked like Washington's ideal might actually be in the process of being realized.

Gentiles bought books of Jewish stories and jokes. My Gentile immigrant father cried at *Fiddler on the Roof.* There was much talk of a new sensibility in which the Holocaust made deviation from Washington's ideal look unthinkable in the United States.

What's happening today in America (on the Right and on the Left) can with only slight exaggeration be described as incarnate evil, because there were people (like me, the dumb Gentile) who thought America was *different.*

[JoeFromtheBronx]

The anti-Josh wrote about Vinson's death:

https://www.stevevladeck.com/p/44-eisenhower-vinson-and-warren

He, e.g., links to Carlton Larson's counterfactual. Larson cites a secondhand source (RICHARD KLUGER, SIMPLE JUSTICE) for the quote. Frankfurter's public statement:

“Chief Justice Vinson’s death comes as a great shock to me.”

Another source:

Philip Elman, The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation, 1946–1960: An Oral History, 100 HARV. L. REV. 817, 840 (1987) (reporting Frankfurter’s exact quote as “Phil, this is the first solid piece of evidence I’ve ever had that there really is a God.”)

https://ndlawreview.org/wp-content/uploads/2014/03/NDL301_crop.pdf