Returning, p.23
Returning, page 23
I think his friendship with Frankfurter must have had something to do with Pop’s departure from the German-Jewish norm. Frankfurter had been actively Zionist for decades. He was born and partly raised in Europe. He had kept up closely with the rise of European antisemitism through his relatives who lived there. As a sitting Supreme Court justice, he had to be quieter about his political maneuverings, but he didn’t abandon them; one was doing what he could to get the United States government to recognize the new Jewish state, over the objections of the State Department. Because of his Zionism and his other political stances, Frankfurter had been regularly attacked at the controversial moments of his career for being a Jew with radical, foreign, threatening beliefs. He had never participated in the German-Jewish culture; it’s impossible to imagine him finding a comfortable Jewish identity through sitting in a pew at a Reform temple, listening to the choir singing hymns. Anyway, the truth was that anybody who was Jewish, even very fortunate people like Pop and Frankfurter who operated at the highest possible level, knew that someone who claimed to believe there was no antisemitism in the United States (as many German-Jews did publicly) had to be either disingenuous, self-deluded, or willfully ignorant. The best-off Jews, let alone ordinary Jews, still could not stay in fancy resort hotels, could not buy real estate in many neighborhoods, could not be hired at many companies, and had strictly limited access to the leading universities and to the professions.
A couple of years after his exchange with Alan Steinert, just as the state of Israel was officially declaring its independence, Pop told Frankfurter that he found it impossible to agree with the standard insistence of the Reform movement that Jews are a religion, not a race. One didn’t have to stray into the territory of Nazi race science to believe that Jews were at least an ethnic group, recognizable to one another and usually also to outsiders. More than the high-Protestant denominations that the Reform movement aimed to emulate, the Jews had their own network of organizations and their own social life. And, despite his having grown up in a well-established family, Pop had experienced antisemitism himself, beginning in childhood—though not nearly as much as Frankfurter had. For Pop, less Zionist than Frankfurter but distinctly more tribal than most German Jews, I think his being a Southerner also helps explain the way he thought of himself, and his activities, Jewish and non-Jewish. His life took place entirely within the confines of the Jim Crow system. How could you be enveloped inside a society where every aspect of life, down to casual social interactions on the street, was determined by the racial order, and not be overwhelmingly aware that the world operates by hard-edged human categories, which people put themselves in and are put in by others? Being a Jew was Pop’s category, but in New Orleans, being Black or white was most people’s dominant category. Living there as a Jew, being in some ways set apart, being strange, would make you more aware of the larger form of apartness that prevailed in that place and time. Maybe that explains why Pop, often in partnership with Frankfurter, spent the final years of life being pulled, as if by a strong tide, into the race question, even more than he was into the Jewish question.
Pop’s life beginning in his late middle age looks in retrospect like an endless procession of honors. He’d done a lot to deserve it, and also, the country needed a totemic native Southerner who was prominent and respected at home, but who had fully put the Civil War behind him. Pop was one of a limited number of people who could fit the bill. And there was his friendship with Frankfurter, who almost addictively promoted the careers of people in his network. Pop was constantly being offered important government jobs, often through Frankfurter’s efforts. There was a flurry of letters between the two of them about a federal judgeship in 1938, and another flurry, about another judgeship, in 1942. In 1943 Pop wrote down some notes about a call he’d gotten from Dean Acheson, the under secretary of state and another intimate friend of Frankfurter, who wanted him to serve on “a commission for the purpose of making recommendations as to government of liberated regions between the end of hostilities and the setting up of new self-governments.”
Pop turned all these offers down, explaining that Nettie’s terrible and worsening health made it impossible for him to take on anything new. Her life during those years sounds like a nightmarish succession of long stays in sanatoriums, experimental surgeries, heavy doses of opiates, and painful injections through the back of her rib cage into her lungs, among other tortures. Through the mid-1940s she wrote dozens of long, perfectly typed letters to Father, always downplaying her own afflictions and focusing on him with an intensity that must have been both gratifying and worrisome. Father told me that she had been so sick for so long—it’s all he had ever known—that he had assumed her condition would be somehow, magically, permanent. In the summer of 1946, back from the war, he was in Charlevoix, feeling it was safe to be carefree, when he got the news that Nettie had died of a sudden heart attack, at the age of fifty-two. He rushed home and sat with Pop and Stephen for hours, weeping.
One of Edgar and Edith Stern’s myriad projects in New Orleans, with Pop and Nettie working at their side, was starting a small, private, progressive “country day” school just outside the city; founding such schools was a vogue among patrician liberals in the 1920s. Father and Stephen went there, and so did my sister and I. In the early years there were only a few students and everybody knew everybody else. In 1948 Pop married Mildred Lyons, a widow who had been in charge of the school dining room for years. She lived to be ninety-five, well into my adult life; she was the beloved grandmother I knew growing up. On weekends she’d drive up to Quercus in her Oldsmobile, wearing white gloves, and whisk Nancy and me away to the zoo, or the park, or a meal at the Camelia Grill. We’d spend Mardi Gras at her house because it was near the parade routes and because her sister—to us, Tantine—had a background in the local theater and knew how to get us set up in costumes and makeup. Nettie’s death, and his remarriage, took Pop at least a step away from the heart of German-Jewish New Orleans, which was what Nettie’s large extended family represented.
Pop’s honors continued. In 1949, Fortune magazine published his picture as part of an article about the leading practicing lawyers in the country. Harvard appointed him to visiting committees for the law school and the Department of the Middle East, twice nominated him to its board of overseers, and, after he wasn’t elected, gave him an honorary degree. In 1953 Frankfurter wrote Pop an excited note saying, “If by any chance you are asked to become Solicitor General, don’t you dare turn it down.” In 1956 Frankfurter gave a small dinner in Washington to welcome a new liberal justice, William Brennan, to the Supreme Court, insisting that he wouldn’t set a date until he was sure that Pop could travel from New Orleans to be there. That same year, Pop wrote a letter to John Foster Dulles, the starchy, ardently anti-Communist secretary of state, regretting that he would have to decline another, unspecified proffered appointment. My guess is that this was meant to counter the bitter attacks on the State Department by anti-Communists like Senator Joe McCarthy, who considered Dulles to be too soft. Pop was a regular signer of statements opposing loyalty oaths and other anti-Communist excesses.
The Eyes of the World
Felix Frankfurter’s exalted place on the Supreme Court did not diminish his close friendship with Pop, or his penchant for political maneuvering. His maneuverings beginning in the 1940s actually enhanced his and Pop’s dealings with each other, because Frankfurter’s attention was moving into a new realm, race and civil rights, where Pop could function as his man on the scene. In 1945, a sixteen-year-old Black teenager in St. Martinville, Louisiana, named Willie Francis was charged with murdering his boss, a white pharmacist named Andrew Thomas. He was tried, convicted, and sentenced to death, a sentence that in those days was administered by a crew that traveled around the state with a portable electric chair. On the day of the execution, in the spring of 1946, the electric chair malfunctioned. The crew administered a lethal shock that left Francis still breathing; they readministered the shock, and again he was still breathing. At last they gave up and left St. Martinville, and Francis returned to his jail cell.
As the liberal world got wind of what had preceded the failed execution—Francis’s court-appointed lawyers had tried to prevent him from pleading not guilty, had not called any witnesses, and had not appealed his conviction—the case began to attract attention. New lawyers, including the future federal judge Skelly Wright, took on Francis’s case. They petitioned the Supreme Court to ban a second attempt to electrocute him. The Court heard the case, but it decided that it was up to Louisiana to decide what to do. Officially, Frankfurter should have done nothing else. Instead he wrote Pop privately to ask him to lobby the state parole board to prevent Francis from being executed. “I realize that the eyes of the world are in a sense upon us in this case,” Pop wrote the board, adding that an unnamed prominent lawyer—obviously Frankfurter—had told him that “it would be a serious blot upon our State if Francis was permitted to be executed.” His entreaties didn’t work: in 1947 the portable electric chair returned to St. Martinville, and this time it functioned properly and Willie Francis was killed.
From the present day, you might wonder why any reasonably sympathetic and aware white person in Louisiana wouldn’t choose to support civil rights. But almost none did, especially if they had grown up in Louisiana. The conceptual tools we have most readily available to understand this are the idea that they were racist, or that they were afraid to speak out. Besides these, there is the power of familiarity. The bloody battles that preceded the birth of Jim Crow had faded from memory, or had been purposefully erased through the creation of a powerful white mythology about the end of Reconstruction. The Southern caste system was familiar. It was the way things were. People are not naturally inclined to question basic arrangements, especially ones that work to their advantage. But that raises the question of why Pop was inclined, and willing, to break ranks. His position was secure enough that support for civil rights did not put him at risk. More than most New Orleanians, he moved in a wider liberal world that was finally beginning to awaken to racial injustice. What I can’t completely answer is why being raised on a plantation, in an overwhelming atmosphere of white supremacy, didn’t produce in him the same convictions it produced in almost everybody else who was white and was raised that way.
Whatever motivated him, Pop kept participating in early civil rights stirrings in Louisiana, often after prodding from the president of Dillard University, Albert Dent. Pop wrote to the mayor and the chief of police, complaining that the New Orleans police force almost never hired Black officers even when they got high scores on the civil service exam (at the time, there were only two Black men in the city police department) and, when it did hire someone Black, would not put him in uniform. He wrote again when two Dillard students were arrested, taken to a police station, and not permitted to make phone calls. He congratulated Loyola University for opening up its track to a star Black athlete who had been barred from running on the track in a city park. He protested to one of the local newspapers for referring to a Black woman who had been killed in an automobile accident as “the Blouin woman,” which was “an expression usually reserved for prostitutes,” when if she had been white she would have been “Mrs. Blouin.” He urged the editor of another newspaper to investigate a report he’d heard that more than half of New Orleans’s Black doctors had chosen to relocate to other cities, where there was less discrimination. He chastised Edgar Stern, who by then owned one of the local television stations, after seeing an article in the local Black newspaper, the Louisiana Weekly, “complaining that after a young colored girl was the winner of a prize on a WDSU program, WDSU declined to carry her on the screen because she was colored.” He also accepted an invitation, which Stern had declined, to join an effort to integrate New Orleans’s public libraries. He attended a fundraising dinner for Adlai Stevenson, twice the Democratic presidential nominee in the 1950s, which had to be held on Loyola’s basketball court because there were Black guests seated at the same tables as whites; none of the downtown hotels would permit Blacks to be at an event like that, unless they were waiters. He wrote to President Truman himself, asking that he pardon a Dillard faculty member who had been sentenced to a six-month prison term for being a conscientious objector to military service.
Pop was well aware that the institution most likely to produce meaningful racial progress at that moment was the Supreme Court, because the political system was so resistant. The Democratic Party was dependent on the South, and the South, where most Black people still couldn’t vote, was completely opposed to civil rights; the Democrats’ very small movements in that direction had led Louisiana to vote Republican, for the first time ever, in the 1956 presidential election. Pop’s close friend was a Supreme Court justice, who was thinking more and more about race. A stage was being set. In 1953, Pop wrote to Alan Steinert, after he’d attended a grandly staged public event in New Orleans that included a military parade: “It moved me to see the Negroes marching in the front line with the white standard bearers.” That had happened as a result of Truman’s having integrated the armed forces a few years earlier. Pop went to Dillard to hear a speech by Thurgood Marshall, the tall, elegant, fearless head of the NAACP Legal Defense and Education Fund, who had spent years painstakingly pursuing a legal strategy aimed, ultimately, at getting the Supreme Court to declare segregated public education in the South unconstitutional. This would be a huge step, because it struck at two of Jim Crow’s foundational assumptions: that the federal government had no right to tell the South what to do, and that integrating schools would inevitably lead to the violation of the taboo against free social contact between Black men and white women that lay at the heart of the Southern caste system. In 1952 Pop wrote to another member of his close circle of liberal lawyers who didn’t live in New Orleans, Charles C. Burlingham: “If I were on the Supreme Court I think I might well hold that segregation is per se a denial of equal treatment under law and allow a period of perhaps ten years for the states to arrange for its elimination in the public schools.”
In 1950, one of Thurgood Marshall’s long string of lawsuits, on behalf of a Black student who had been denied admission to the University of Texas’s law school, went to the Supreme Court, which ruled unanimously against segregation. The obvious next step, but a much more consequential and difficult one, would be a challenge to segregation in ordinary public schools. Frankfurter believed that the chief justice, Fred Vinson, who’d grown up in a small town in Kentucky and who had no evident objection on principle to legal segregation, would not be able to lead the court to a clear decision on schools. He also didn’t want the court to agree to take any school cases, let alone hear and decide them, during an election year. So he successfully persuaded the other justices to combine five separate school cases into one, and then to delay considering that case until after the 1952 election. In 1953 Vinson died of a heart attack; this led to a famous remark of Frankfurter’s that “this is the first solid piece of evidence I’ve had that there really is a God.” He meant that it was now plausible to hope for a unanimous decision in the school cases that are now enshrined as Brown v. Board of Education and that were heard after Vinson’s death in 1953 and decided in 1954, a few months before I was born.
Frankfurter worked furiously to produce a unanimous decision. Court records show that he had eleven private meetings with Vinson’s successor as chief justice, Earl Warren, a former governor of California who understood politics but had no previous experience as a judge, during the two months before the Court’s decision was released. He also lobbied the most skeptical justice, Stanley Reed, a Kentuckian like Vinson, until Reed was comfortable joining the majority decision. He persuaded the Justice Department, which officially he wasn’t supposed to talk to about active cases, to file a brief supporting Thurgood Marshall’s position in the case. And he kept in close touch with Pop, his closest friend in the South, about whether it might be possible to keep the former Confederacy’s rage about the decision under control.
In May 1954, the decision—probably the most obviously consequential in American legal history—was announced. Reactions were immediate and copious. Black groups cheered. Liberal groups, including Jewish groups, cheered. President Dwight Eisenhower was notably cautious, urging compliance but not endorsing the decision. Southern politicians vowed to defy the Supreme Court, which would test the legitimacy of the American political system. Pop undertook a campaign to persuade a group of prominent Southern lawyers—people who had taken an oath committing themselves to the legal system—to support a stance more like Eisenhower’s, by signing a statement calling for compliance. Officially, he got the idea for this from Will Alexander, a white liberal who had been president of Dillard before Albert Dent, but it strikes me that Frankfurter must have been involved; Pop certainly was keeping him closely posted. There’s a draft of the statement in Pop’s files, filled with crossings-out and rewordings as he struggled to produce something that he believed his professional peers might sign, but that wasn’t so watered down as to amount to a call to delay endlessly implementing the decision. His anxiety almost rises off the page. Probably because he thought it might be too strongly stated, Pop removed even this innocent-sounding sentence: “It is at this point, we believe, that members of the legal profession have a special responsibility to help clarify the role of the judiciary in our society.” Once he was done, he sent the statement to a long list of lawyers and law school deans he knew whom he thought might be sympathetic—his own law partners not among them. Some of his letters went unanswered, even though the recipients knew him well. Only three people agreed to sign, and only two of the three were living in the South; the third was a man from Arkansas who had recently become dean of the law school at New York University.
