The Black Lives Matter Movement has opened a number of necessary conversations about racial injustice. Tapping into this timely subject, Todd Smith and Jody Sanders visit with Dr. Jack Bass, the author of nonfiction books focusing on southern politics, race relations, and law. Here, Dr. Bass takes us into his book Unlikely Heroes, which is a vivid account of the implementation of Brown v. Board of Education in the South by Fifth Circuit Judges committed to the rule of law. Dr. Bass taps into how these judges overcame obstruction and impacted segregation, desegregation, and voting rights. Listen in on this important discussion to learn more about these brave judges who followed the law and battled racial inequality in an era when it was unpopular to do so.

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Unlikely Heroes: The Fifth Circuit Four | Dr. Jack Bass

Years ago, I read this book when I was taking a class on the Fourteenth Amendment in college. It’s called Unlikely Heroes. It was the story of the Fifth Circuit judges who were pushing through desegregation and voting rights, and all in the wake of Brown v. Board of Education. It’s a fantastic story, one that I think is particularly timely again today, unfortunately. A lot of the things that come up in the book are echoes of things that you hear today, as people have to deal with civil rights issues even into the 2020s. The book captivated me then, and it stuck with me all through law school. I read it again then, and with all the things in the news, I thought, “I wonder if Dr. Bass would be available and want to talk to us.” Thankfully he was. So our guest is Dr. Jack Bass. Thank you so much for joining us. We appreciate it.

I’m looking forward to what follows.

A lot of our readers are lawyers, but I don’t know that they necessarily have heard these stories or read the book. Could you tell us a little bit about your background and how you got interested in this topic and area?

I had gotten grants from the Ford and Rockefeller Foundations to do a book called The Transformation of Southern Politics, which came out in 1976. This was five years before Unlikely Heroes. Out of that, we went to all the former Confederate States and spent a week or two in each of them interviewing people all over the place. One of the people in Arkansas was this 27-year-old lawyer who was just running unsuccessfully for a seat in Congress and his name was William or Bill Clinton. It was published by Simon & Schuster and got a bad review in the New York Times Book Review. They didn’t give it any real push. Unlikely Heroes developed later. It developed from someone in Georgia who I think knew Judge Tuttle well. He had helped. He was also one of those who contributed to the funding. He had an organization, they helped fund that first book. He’s the one who got me started on it, then I got grants again from all three of them.

I had just run for Congress, which I was a terrible candidate according to some people. It was an interesting experience. I had a research assistant, Roy Pulvers, who’s now a lawyer in Portland, Oregon. He helped me with this book, and we ended up working out of the University of South Carolina School of Law. We had an office there and wonderful help from the librarians in doing that research. There was also one member of the faculty who was particularly helpful. I think he was a Yale Law graduate. That was our operating center when we were not on the road.

To give a little bit of context. This book is about the Fifth Circuit, but at the time I think you were writing it, up until the end, a little bit before it came out, the Fifth Circuit went from El Paso all the way to Miami, 6 out of the 11 Confederate States. The Deep South was all within the Fifth Circuit.

There were four judges that Ben Cameron referred to them as The Four, Ben Cameron was from Mississippi. He was referring to the Four Horsemen of the Apocalypse when he was talking about them. You had Judge Elbert Tuttle from Atlanta and Judge John Minor Wisdom from New Orleans, and the two of them had gone to the Republican National Convention. This was the time when the South was all Democratic people who were not happy about Brown. That’s how we got started on it. You had Judge Richard Rives from Alabama, who had been close to Hugo Black. Rives went on to the Court. He had gone to Tulane for one year. He came from an old plantation family that lost everything in the Civil War. He’d read the law, got a law degree. He called Black to see if he thought he was qualified to serve on the Fifth Circuit. Black simply told him you can’t do any harm, so he did. You had Judge John R. Brown of Texas who grew up in Nebraska. At the time we had a senator they had known as the Prairie Populist. Those were the ones that were known as The Four when they were attacked by Judge Benjamin Cameron from Mississippi, as things went on.

The story starts with Brown v. Board of Education and the Warren Court’s decisions. I guess three of them were appointed by President Eisenhower.

Part of that background includes Wisdom and Tuttle having gone to the Republican National Convention. They got the full support of Kennedy’s Justice Department while this was going on and some excellent lawyers. They took cases as they came along.

Judge Wisdom is a name that’s known to us here in Texas. You mentioned he was from New Orleans. The Fifth Circuit Courthouse in New Orleans bears his name. You walk through the doors of the John Minor Wisdom Courthouse when you go to the Fifth Circuit. And then Judge Brown was a Texan.

That is all true.

You and I were talking and you had mentioned the story of how Earl Warren got his seat. It’s Earl Warren and the Warren Court that was the impetus for the desegregation decisions that form the basis of the book. If you wouldn’t mind, would you retell that story?

At that Republican National Convention, Warren was one of the candidates, and then he lost to Eisenhower. Eisenhower was putting together his cabinet. He turned to Herbert Brownell, and he played a key role in all of this. They filled up the cabinet and he said, “We hadn’t done anything for Earl Warren.” They had the secretary of commerce left and said, “I guess you better call him.” Brownell did, and he may have flown out there. Warren said what he’d like to do is get a seat on the Supreme Court. When the Chief Justice died, that led to the opening, and Eisenhower said, “You don’t think he meant Chief Justice, do you?” He said, “I don’t know.” He flew out there and talked to Warren. Warren said, “The first vacancy is the first vacancy.” Eisenhower later thought it was the worst decision he’d ever made.

It definitely changed the course of history. That’s where your book picks up. They issued the Brown decision and Brown II. They did so in a way that left it up to the individual judges. They gave the “all deliberate speed” mandate, then from your book, they wanted to leave it to the judges in the South to figure out how exactly to implement that.

You had this remarkable group of judges on the Fifth Circuit.

TALP 20 | Fifth Circuit

Unlikely Heroes

One of the things that I liked about the book, and the title Unlikely Heroes, they were the unlikely group in the South and enforced Brown‘s mandates over great public outcry. What about them? How did they develop those views, change, and step into those roles?

Wisdom had that position in terms of African-Americans. Once, an African-American showed up at the door of his house and knocked on the door, and Wisdom came out and said, “I’m trying to figure out how to get to such-and-so street,” which is about twelve blocks away. Wisdom said, “Have you got the address?” He said, “Yes.” He said, “Just get in my car and I’ll drive you there.” Tuttle had n experience when he was growing up when he was only about 6 or 7 years old. He was born in Hawaii. His parents ended up moving to Washington. He was sitting on the porch with his mother when he was about seven. This African-American woman was waiting for the next trolley car to come by that she wanted to get a ride. One just went right past her. The second one went right just past her. His mother got up, walked across the street, and stood beside her. The next one stopped. She came back to the porch and he observed it all. It made an important impact on him.

Rives grew up in Montgomery. He’d been on a three-judge court with Judge Frank Johnson. He took three tries to get a three-judge district court. This was for the Montgomery bus boycott that launched the career of Martin Luther King. He had a three-judge court, and they ended up voting 2 to 1 in favor of ending the boycott. That set off King’s career right there. Brown was from Texas, but he grew up in Nebraska. Brown probably spoke the loudest of any of them when he was on the court.

He was well-known in law school circles for the opinions that he wrote, which outside of the civil rights context were colorful and clever. I understand that matched his personality as well.

That’s very true.

You mentioned the three-judge courts and, for those of us that practice in the Fifth Circuit, they do sit in three-judge panels, but this was something a little bit different. This was three judges, meaning three district judges or a combination of district judges and circuit judges that would sit and hear these civil rights cases in the South. Not necessarily an appeal to a three-judge panel on the Fifth Circuit. That’s something that throughout the book you talk about. It was interesting because those procedures still exist, but they’re hardly ever used in litigation now. It’s not something that we see as much. But that was one of the main ways that they were able to move the desegregation decisions through the South was through these three-judge courts.

I think that’s true. Most of the time you had two members of the appeals court and a district judge.

The Fifth Circuit Four judges, particularly the ones that were chiefs at the time, had a big role in picking who was going to sit on those various courts. Some of that is what led to some backlash with Judge Cameron. Do you want to talk a little bit about that? He took some unprecedented steps as a Fifth Circuit judge to air the court’s private laundry and create some issues through all that.

Cameron was a defender of segregation. He would do what he could to block anything that was going to make huge changes in Mississippi, in terms of race and racial equality.

When he was on the court, I know that there was in particular an opinion where he in his dissent laid out a lot of the court’s private laundry about the way that they assigned cases to the three-judge panels and his opinion that he thought that changed the outcomes in cases. He took public a fight that I think would be shocking to most of us who practice in the Fifth Circuit, putting a lot of that private stuff out there. That took up a chapter of your book and that was interesting to see how nasty that fight got internally in a court.

Particularly because it involved the State of Mississippi in the time James Meredith entered Ole Miss.

The three-judge courts were part of what forced that decision through, the desegregation of the University of Mississippi and these Fifth Circuit Judges in particular?

You had some top lawyers from the Justice Department who were involved in this thing. Some really top lawyers. At least one of them stepped in front of a mob and so forth. You put it all together, you had a powerful force running against a strongly powerful opposition in most of those states.

The Fifth Circuit Four, you talked several times in your book about some of the personal backlash that they faced as a result of the jobs that they did.

I’d say it was particularly in Montgomery with Judge Rives. He regularly went to his Presbyterian Church. After he went on the court and issued those first opinions, nobody would sit next to him. They’d usually have their own set of friends. All of them would be getting calls at night from people screaming at them. Judge Tuttle would leave the phone off the hook at about 11:00 at night.

I was going to ask if they had any threats to their physical safety.

Today, the word 'judicial activist' is one that a lot of people view negatively. Click To Tweet

Frank Johnson probably had more than anyone during that time. Later, I wrote his biography, and that didn’t happen by accident. Jacqueline Onassis was my editor. I asked her once when she got interested in Frank Johnson and she kind of looked up and said, “I guess it goes back to hearing Jack and Bobby talk about him.”

You got the book idea to talk about Judge Johnson from Jacqueline Onassis.

He casually mentioned Jacqueline Onassis like it’s no big deal at all.

You surprised us with that name.

What happened on that book, I was teaching at Ole Miss. They had a first-rate editor, former New York Times person, at the Philadelphia Inquirer. They had a magazine at that time. This was when there was going to be a big meeting in Alabama on the 25th anniversary of George Wallace’s stand at the schoolhouse door. I wanted to go and was trying to figure out how I could get the money to pay for a round trip flight. Someone said, “Why don’t you do an article for the magazine?” I was going to do one on how history will look at George Wallace. I called John Hope Franklin and I called a couple of other major Southern historians, mostly from Ivy League Schools.

I decided I’d call Frank Johnson and ask him. He said, “You just don’t know.” I hadn’t planned to say it in there. I said, “Judge, I might be interested in writing your biography one day.” He said, “I wish you would.” That’s how that all happened. When I interviewed him for the first time, he said, “Who’s going to edit this book?” I said, “I don’t know.” I had someone at Simon & Schuster, but I didn’t think she’d be interested. He said, “Jacqueline Onassis would want to edit this book.” That’s how it all happened. I called my agent in Washington. As you may know, that’s the book that they have been giving to every new justice.

At the time of all this, Judge Johnson was on the district court, but he would later go on to be part of the Fifth Circuit as well. You do devote a substantial amount in your book to him. He was one of the frontline people that pushed this through a very deeply segregated state at a great personal cost. One of the things I thought was interesting that would surprise people today is, one of the things the Fifth Circuit did after they realized how much obstruction was going on from the states and sometimes from the district courts, would be to simply come up with their own injunctions and then force the district courts to order them to do whatever it was, which is something that I think would be shocking to see out of the Fifth Circuit these days.

They were creative judges. Their clear objective was making a ruling to make sure that it was enforced.

It seems like the level of enforcement they got sort of ebbed and flowed depending on which administration was in office.

There was some truth in that.

It was interesting to see the differences between the Eisenhower, Kennedy, and Johnson administrations, then later the Nixon administration.

The Nixon administration was the worst by far. The Kennedy and Johnson administrations gave them full support and they had good lawyers from the Justice Department involved in a lot of those cases.

One of the themes that struck me throughout the book here that I don’t really think about practicing now but, in so many of these states they couldn’t find lawyers who would take civil rights cases. They simply wouldn’t represent them for whatever reason. Whether it was a belief that they were wrong or just fear of public retribution. Essentially, they could hardly find anybody.

I think it was mostly the latter. They’d quit getting clients.

Any of these were prosecuted either by those types of groups, rather than the local lawyers who just refuse to be part of it.

TALP 20 | Fifth Circuit

Fifth Circuit: An area where the Fifth Ciruit had a lot of power and really made a huge impact was in voting rights cases.

 

You had some lawyers from the North, came down and they worked on those cases.

One other specific topic I wanted to cover with you that I thought was interesting. We’ve mentioned the Meredith desegregation of the University of Mississippi, but that led to a long multi-year process where the Fifth Circuit was going to hold Governor Ross Barnett of Mississippi in contempt. It was a shocking thing to those of us who practice in the Fifth Circuit. The idea of a Circuit Court holding a state governor in contempt, potentially even sending him to jail overall. Can you talk a little bit about that episode?

That was when James Meredith became the first black applicant at Ole Miss. It took a year for him to get enrolled in college. There was a huge riot on campus. You had the governor of Mississippi, resistant to anything the court did there. I believe I’m correct that they then threatened to hold him in contempt. Finally, you ended up with the Justice Department very much involved in it. It took more than a year for him to actually become a student there. That broke the color line in Mississippi.

The thing that I thought was interesting about the whole contempt proceeding was it went forward and went forward. Nobody was willing to bend until they told the trustees of the University of Mississippi that they might go to jail, then all of a sudden they all back down and tell Governor Barnett that they weren’t going to back him anymore on that.

Right. In one sense, that was one of the—I’m not sure what the term is—it was more than just an interesting case, but one of the most powerful cases in the book.

It was because it was almost a high watermark of federalism and the federal courts’ ability to intervene over state objections to make sure that the 14th and 15th Amendments were enforced in the South.

Yes, that is absolutely true.

We’ve talked about desegregation, but another area where the court had a lot of power and made a huge impact was in voting rights cases. What were some of the things that went along with making sure everybody had the right to vote?

That was the basis of it all, and particularly in those cases, that’s when you began, when you had the maximum amount at least, of assistance from the Justice Department arguing those cases.

It seems like from your book and the civil rights history in general, some of those cases spawned from some of the absolute worst incidents and atrocities that happened in the South. The retribution against people that came in to help register voters and people that tried to make sure that the right to vote was there. It’s amazing how much impact the court was able to have.

I remember at one point, this was after Senator Eastland in the Mississippi had just retired at that time. I called him once and I told him I was working on a book and I’d like to talk to him. He said to come over. This was the time the Freedom Riders or whatever group it was, one of those groups coming into the South to try and register voters. He was saying, “They better stay off my land.” I said, “You’ve got a lot of black people who live on your land you own. If they get registered to vote, they’ll all vote for you.” He said, “That’s a good idea,” which he did. But Eastland was quite a character.

He is one of the main antagonists in the book who was very pro-segregation, pro states’ rights, and status quo. He did a lot to resist what was going on.

One thing that’s not in the book is he was driving me around to all his land and pulled his car over to the side of the road, got out to urinate in the middle of the road and came back. It’s like, “I own it all.”

It sounds like an LBJ-type of character.

I think he went a step further. I’d say that the support we got from the University of South Carolina School of Law was helpful. After we finished all the research, I had a small little cabin that was in what is now North Myrtle Beach on the little stream feeding into the Atlantic. My research assistant and I went there and that’s where I wrote it.

One thing that is so vivid about these stories is it was based on your personal interviews with all the people involved from the judges, lawyers, and senators. It’s amazing to hear firsthand some things that I think had never been put on paper about the decisions and the impact that the court had.

The level of enforcement depends on which administration is in office. Click To Tweet

I think that’s true.

I’m wondering if a book like this could be written today. Even though you were covering a lot of territory, it seems you had a lot of access to the judges. I’m trying to imagine what that would be like now.

I don’t think it would happen.

You think about what might be something approximating this level in terms of the sheer amount of litigation. We had a lot of Texas prison conditions litigation here that was presided over by a federal district judge for something like 20 years. This to me brings that same thing to mind. That scale of the Justice Department having to get involved to try and implement these mandates that came down from the US Supreme Court. It’s hard to imagine something on this scale taking place today, especially in our climate.

I couldn’t agree with you more.

One of the things that you said in the book, and I don’t remember who the quote was attributed to but, the gist of it was these four judges and their work on the Fifth Circuit brought about desegregation and voting rights in the South probably a decade or more earlier than the Supreme Court could have done if they’d been the ones to try and handle it.

I believe that was from someone in the Justice Department who spent a fair amount of time down there. Nothing like that would be going on now from this administration and the current head of the Justice Department.

I think the word judicial activist is one that a lot of people view negatively today, but it seems at the time Judge Wisdom and maybe some of these other judges wore it almost as a badge of honor. That was what they had to do to force the South to take up the mandates of the Supreme Court and enforce the Constitution.

They really were a remarkable set of judges. For somebody, if they were writing it and trying to express it might just say it’s an act of God that they got on there.

When you think about the scope of the social change that happened over what was essentially about two decades. I know that it started a little earlier and ended a little bit later. It was hot and heavy for about two decades. It’s amazing that they reformed the South. Certainly, they had plenty of people helping them. I don’t mean to minimize the roles of many people that had many important things to do with the Civil Rights Movement. From the judicial perspective, they did blaze a new path that would be unfamiliar to many of us that practice in federal courts today.

If you look at the public schools, it’s my opinion, but it’s based on at least a degree of factual knowledge that the South, as far as Southern schools, is far more integrated than those in the North. Part of that began when the Supreme Court began changing and Detroit played a major issue in all of that, the Supreme Court’s opinions after local district judges had moved to integrate the schools. North Carolina, when you had the initial order by Judge McMillan in Charlotte to have the same percentage of blacks and whites in every school. It later got just knocked down. The only thing we know is constant in life is change.

That brings up the ending of the book. You end your tale in the early 1980s when it came out, which is at the time that the Fifth Circuit underwent a huge transformation between judges that had been appointed in the late ‘60s and early ‘70s, from the Nixon administration having an impact on it, and from the split-up of the circuit. It dramatically changed the character and the size of that docket.

Very much so, it did. Now, you’ve got Elbert P. Tuttle Federal Courthouse in Atlanta, Frank M. Johnson Courthouse in Montgomery and John Minor Wisdom Courthouse in New Orleans. I think there’s another one somewhere. The imprint on history will live on.

The story and the period of time that this covers, number one, hopefully, it couldn’t happen again given the things that went on. Also, it wouldn’t happen again with the way that the courts are set up, and the way that the branches interact with one another. It was a remarkable time from a perspective of how courts enforce the constitution in these unique situations.

When Judge Tuttle died, I was spending a semester teaching in France. I told my wife, “I’ve got to fly back for the funeral.”

Did you?

TALP 20 | Fifth Circuit

Fifth Circuit: Decisions impact both the people who make them and the people who have to live with them.

 

I did. My favorite possession that I have is I’ve got a little gavel that Judge Frank Johnson did by hand. In the small end of it at the back, it has FMJ on it. It’s on my mantelpiece in the living room.

It is amazing to think about and remember the personal dimension that goes into judging. Often, especially those of us that practice in these courts, you forget that everybody making those decisions is human. Those decisions have outside impacts both on the people who make them, and the people who are arguing and have to live with them. This book, the first time I read it, drove that home for me. The personal nature and stakes of judges having cases and how much it impacts them.

It clearly impacted you too, Dr. Bass.

It did.

We want to be respectful of your time, and we appreciate you coming and joining us to share these stories and share your own reminisces and experiences with that. This is an important story that doesn’t get told nearly enough, because it’s one that I think people forget about when you’re talking about all these events, that the court did have a big role, particularly the Fifth Circuit. We appreciate you being here.

I enjoyed it, too.

Thank you, Dr. Bass.

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About Dr. Jack Bass

TALP 20 | Fifth CircuitJack Bass is author or co-author of eight nonfiction books about the American South. His works have focused on Southern politics, race relations, and the role of law in shaping the civil rights era. He is Professor Emeritus of Humanities and Social Sciences at the College of Charleston.

A graduate of the University of South Carolina, Bass studied as a Nieman Fellow at Harvard and received a Ph.D. in American Studies from Emory University. After 13 years as a newspaper reporter and editor, twice named South Carolina “journalist of the year,” he spent two years as a research scholar at Duke University and 18 months at the Institute of Legal History at University of South Carolina. He served five years as director of American South Special Projects at U. S. C., where he produced a 14-part television course, “The American South Comes of Age” and a PBS documentary, “A Different Dixie: Portraits of Change.” He taught for 11 years as a professor of journalism at the University of Mississippi. He has written for The New York TimesThe Los Angeles TimesAtlanta ConstitutionWashington PostThe New Republic, and The Nation.

In announcing Bass the winner of the 1994 Robert Kennedy Book Award grand prize for Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr., Arthur Schlesinger Jr. acclaimed it as “a strong and evocative work that illuminates the struggle for racial justice.”