The Opposition to Expanding the Supreme Court in 1937 Was Primarily Driven By Race

Ed Sebesta

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CHAPTER B SUPREME COURT EXPANSION AND RACE – Ed Sebesta 10/10/2020 Before relating this history of the fight over the Supreme Court expansion some historians need to be censured.

Further a failing to write the history of the proposal to expand the Supreme Court is that it is written uncritically. There is a presumption that FDR was entirely wrong and his opponents are heroes for saving the U.S. Constitution. Larger issues about the functioning of the Constitution and democracy and how democratic change is structurally blocked aren’t considered and whether the Constitution basically works so elites can contain democratic impulses that they don’t like. In general the Constitution itself has been uncritically thought about. It is put on an altar and all are to bow down to it. This worship is not history however. Only recently has there been a serious public discussion that it was written by slave owners and that maybe even one of the impetuses for the American Revolution was to protect slavery.

FDR in response to the Supreme Court pronouncing some of the New Deal programs unconstitutional wanted to expand the Supreme Court from nine members to fifteen with the appointment of six additional judges. The U.S. Constitution doesn’t specify how many judges there should be in the Supreme Court.

On February 5, 1937 FDR presented his proposed bill to expand the Supreme Court to a group of Congressional leaders including Sumners. After the meeting Sumners is famously supposed to have said, “Boys, here’s where I cash in my chips.” That is call in political favors to oppose the bill. The Texas State Historical Association Handbook calls this statement, “part of congressional lore.”1 The use of the term “lore” in this case is unintentionally very appropriate for “lore” also includes mythologies which make up

1

Patenaude, Lionel V., “Court-Packing Plan of 1937,” TSHA, https://tshaonline.org/handbook/online/articles/jzc01, 5/13/2020, for the date of the meeting with FDR. Monroe, Mary Catherine, “Sumners, Hatton William,” TSHA, https://tshaonline.org/handbook/online/articles/fsu04, 11/15/2018 for the “congressional lore.”

Ed Sebesta

Ed Sebesta

First is the use of the term “packing” in regards to President Franklin Delano Roosevelts’ (FDR) desire to expand the U.S. Supreme Court. A historian might personally regard the proposal to expand the Supreme Court as “packing.” Individuals reading the history of FDR’s proposal might judge it to be “packing.” It is alright for a historian to state their opinion and explain why they see it as being “packing.” However, writing objective history requires not using prejudicial terminology, especially in those cases where the term is making a judgement without representing itself as a judgment. In those cases the reader can be propagandized subtly without realizing it or recognize that it is a propagandizing term which they think they are uninfluenced by but are. The American history profession needs to stop this garbage and become professional in writing about the proposal to expand the Supreme Court.

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traditional beliefs. It doesn’t seem to be in press reporting of the time and is perhaps a recollection of Sumners or someone.

Given the power of House committee chairmen and Sumners opposition was one of the reasons FDR submitted his plan to the U.S. Senate to expand the Supreme Court.2 Sumners also got his bill to provide full benefits for retired Supreme Court justices passed into law. Several Supreme Court justices did not retire for fear of loss of benefits and also their retirement would be subject to income tax and so retirement would be a substantial loss in income. Sumners’ bill created the position of retired justice who would be available for special service. The House passed the bill on Feb. 10, 1937 and the bill became law March 1, 1937. Sumners urged FDR to accept the retirement bill as an alternative. FDR rejected it as being an alternative.3 The passage of this bill would result in an expectation that a change in the Supreme Court would be coming and there wouldn’t be a need to expand the Supreme Court. Two Supreme Court judges did shortly after the passage of the bill did announce their plans to retire.4 Sumners spoked out against FDRs plan on July 13, 1937 in the House which showed that if the bill to expand the Supreme Court passed the Senate it would still face considerable opposition in the House.5 So the period of his active opposition to the Supreme Court expansion was from Feb. 5, 1937 to July 13, 1937.

This writing of the history of FDR’s efforts to expand the Supreme Court and the defeat of his efforts as a heroic defense of the Constitution would require that the issue of race would be excluded. If much of the opposition to the expansion of the Supreme Court was about maintaining white supremacy in the South the happy history presented in school history textbooks and other history books would not be possible. There is to be found in some historical papers a sentence or two vaguely stating that some Southerners were concerned, but it is like a stray minutiae in history. In more recent histories race is brought up as an issue, but a minor issue.

Sumners was the leading figure in the defeat of the Wagner-Costner anti-lynching act.

He developed an entirely new strategy to oppose federal anti-lynching legislation. He 2

Champagne, Anthony, “Hatton Sumners and the 1937 Court-Packing Plan,” East Texas Historical Journal, Vol. 26 Issue , article 9, page 46-49, item on page 49.

3 Champagne, Anthony, “Hatton Sumners and the 1937 Court-Packing Plan,” East Texas Historical Journal, Vol. 26 Issue, article 9, page 46-49. See also Cushman, Barry, “Court-Packing and Compromise,” Constitutional Comment, Vol. 29, No. 1, 2013, https://scholarship.law.nd.edu/law_faculty_scholarship/954, saved to pdf, 5/13/2020, pages 1 - 30.

Item on Sumners and the date of passage of bill page 17. For date of Bill passing the House see “House Passes Bill to Permit Judges to Quit,” DMN, Feb. 11, 1937, pages 1, 16.

4 Cushman, Barry, “Court-Packing and Compromise,” Constitutional Comment, Vol. 29, No. 1, 2013, https://scholarship.law.nd.edu/law_faculty_scholarship/954, saved to pdf, 5/13/2020, pages 1 - 30. Retirements pages 18, 26. Salt.

5 Champagne, Anthony, “Hatton Sumners and the 1937 Court-Packing Plan,” East Texas Historical Journal, Vol. 26 Issue, article 9, page 46-49. Item on page 48.

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was a leading figure in the opposition to the Supreme Court expansion. Sumners being the Chairman of the Judiciary Committee in the House is a very likely reason FDR decided to have the U.S. Senate take up his Supreme Court expansion rather than the U.S. House.

Further the period of time of these two political struggles largely overlaps. Sumners was a major figure in both political struggles. Yet the history of these struggles are written as if they took place in separate channels. Surely someone in the American history profession in the 20th century should have considered that these two currents in American history are intertwined. I will do so in this chapter. XXXX The time period for Sumners’ opposition to the Costigan-Wagner act will be defined as when Sumners took action against the specific anti-lynching legislation of 1937.

Sumners had an ongoing interest in opposing federal anti-lynching legislation so it could be argued that the period was from 1922 to 1937, but for comparison only the timelines for the opposition of the Supreme Court expansion and the opposition to the Wagner-Costner act will be used.

Sumners issues a dispatch on why he is opposed to federal anti-lynching legislation which is distributed by the United Press news service and published in the DMN on Feb. 22, 1937.6 His speech in Congress was on April 15, 1937.7 On July 8, 1937 in the House he gave a correction to the number of lynchings in 1936 as being eight instead of nine. 8 The primary period of his opposition to anti-lynching legislation was Feb. 22, 1937 to April 15, 1937, a time span within the time span of his active public opposition to the Supreme Court Expansion from Feb.5, 1937 to July 13, 1937.

In the South, the risk to the system of white supremacy there with a Supreme Court expansion, was realized fairly soon. The Florence Morning News in South Carolina had a Feb. 15, 1937 editorial attacking the proposed expansion pointing out the risks to white supremacy stating: Thinking people are giving serious consideration to the consequences that would result from the rout of the greatest court in the land.

On needs but read the history of the south to agree that had it not been for the supreme court this beloved southland of ours would never had recovered from the blows of the civil war and the days of reconstruction.9

6

HWS essay, distributed by United Press dated 2/21/1937, published in DMN, “Sumners Fights Antilynch Bill as Foe of Lynching,” Feb. 22, 1937, page 1,8.

7 Congressional Record, 75th Cong. 1st Sess., Vol. 81 Part 3, April 15, 1937, pages 3531-3536.

8 Congressional Record, Appendix, Extension of Remarks, July 8, 1937, page 9082.XXXX 9 Editorial, Florence Morning News, (Florence, South Carolina, Feb. 15, 1937, page 4.

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What the editors are stating here is that the Supreme Court in a series of rulings sustained the establishment of white supremacy after the Civil War and Reconstruction Period.

Frederic Nelson in a column in the Baltimore Sun where he was an associated editor,10 in discussing the issues of the proposed court expansion asserts that a prior expansion of the Supreme Court permitted an attack on the south stating: Gerald’s defense is respectable enough, although a certain willingness to stretch a point in Mr. Roosevelt’s favor does appear. Thus Mr. Johnson leans heavily on previous packings, although why Mr. Roosevelt should be cheered by such dubious precedents is more than I can understand. The reconstruction legislation by the radical Republicans after the Civil War is now generally regarded as a villainous piece of business, and yet the deal by which it was rammed through the Supreme Court is cited as a commendable act.11 The radical Republicans are those who after the Civil War advocated civil rights for African Americans and helping the newly freed slaves which was subjected to denunciation by white supremacist historians known as the Dunning school.

In a Feb. 23, 1937 letter to the editor in the Fort Worth Star-Telegram W.H. Garrett of Colorado, Texas states that the proposal to expand the Court, “is the most dangerous proposition made in these 150 years.” Garrett says that the power to expand the Court will be passed on to future presidents the danger of which he explains: Suppose in years to come some President concludes that our Southern racial laws are against the general welfare. Millions of negro sympathizers in the East, North and West think that now. With this same power, now sought by Roosevelt, judges may be placed on the Supreme Court who would declare our separate marriage laws, our separate school laws and our separate coach laws null and void. Any president in the future could thrust negro social equality upon the South. This is not a matter to pooh-pooh at and dismiss it with a sneer. It is not what Roosevelt will do. It is a matter of what every other President may do in the future. It is a danger that every white man and every white woman in the South ought to be deeply concerned about.

And the racial laws are only an example. Any other law or system having the ill will of any President in future years may be likewise destroyed without the consent of Congress or of the people.12 10

Obituary for Frederic C. Nelson, New York Times, Jan. 2, 1982, Section 2, page 22 of National Edition, downloaded from New York Times, 6/15/2020.

11 Nelson, Frederic, “It’s All In the Family,” Baltimore Sun, Feb. 14, 1937, page 8.

12 Garrett, W.H., “Letters from the People,” Fort Worth Star-Telegram, Feb. 23, 1937, page 6.

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In The Birmingham News in a Feb. 22, 1937 article announces the formation of the Women’s Constitutional Committee headed by Mrs. Charles Sharp. The goal of the organization is to oppose the expansion of the Supreme Court. Multiple reason are given and one of them involves race as follows: Time and again the Supreme Court has saved the nation by preventing local, state and national authority from asserting despotic power. The South was permitted to work out its salvation during and after reconstruction, solely because the Supreme Court declared that the reconstruction acts adopted by an angry Congress and signed by Gen. Grant violated the constitution. We are now in the midst of reconstruction no less extensive and no less angry.13 In an anonymous Feb. 25, 1937 letter to the editor in The Montgomery Advertiser with the author given as “Lifelong Democrat,” the fear of how a Supreme Court expansion might overthrow the racial hierarchy of the South is explained at length: There is one very vital matter in connection with the Supreme Court controversy which I have not seen alluded to in any newspaper, and that is the race question in the South. I do not believe the relationship between the white people and the negroes in the South has been better since the War Between the States than it is today. And that friendly and peaceful relationship is due largely to the fact that certain very sensible laws governing these relationships have been passed by the several States in the South, tested in the courts, declared to be constitutional, and to a very large extent accepted without further protest. Some of these laws which we the very foundations of the structure of white supremacy were carried to the United States Supreme Court. Now this question occurs to me: “Would a court of the type which President Roosevelt would probably appoint sustain these laws?” or putting the question in reverse: “Isn’t it reasonable to assume that his appointees would be of the Tugwell-Hopkins-Frankfurther type of liberals, and isn’t it a ten to one safe bet that this type of liberal would play havoc with any Southern States law which undertakes to keep “social justice” from the negro?”

You may reply by referring to Roosevelt’s Georgia home, his Southern leaders, Southern sympathies, etc., but let me remind you the Democrats may not always be in power, and since 1850 there has always been a strong and powerful element in the Republican Party ever ready to force social equality on the South.

When Theodore Roosevelt was running for President on the Bull Moose ticket, I heard him say in a speech in Montgomery: “The Republican Party? Why there is no such party—it’s dead beyond resurrection”, and yet, four years later the Democratic candidate for president was overwhelmingly defeated, and not until 13

No author, “Women Will Fight F.D.R. Court Plan,” Birmingham News, (Birmingham, Alabama), Feb. 22, 1937, Page 15.

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1932 was the Republican part dead again. So I am not so sure that party is dead “beyond resurrection”, and if it should ever come to life you may be sure there will be a plenty of the old venom against the South. Then, with a Supreme Court, packed with ultra liberal judges fairly dripping “social justice” from every pore of their self-righteous bodies what will become of your “Jim Crow” laws, your separate school laws, and other such laws which we, of this generation take as a matter of course along with the sunshine and Summer showers, but which cost our fathers many sleepless nights and heroic efforts, and which have gone through the courts from time to time, contested inch by inch by fanatical “liberals.”

But you don’t have to wait for a Republican administration to see some of the handwriting on the wall. Rock-ribbed Republican Pennsylvania through all the decades of Republican rule never had laws compelling hotels to accept negro guests or suffer having damages—but as soon as he Democratic administration of Democratic Governor Earl (mentioned frequently as a possible successor to President Roosevelt) got into power, such a law was passed and has the vigorous approval and backing of the Governor.

How any Southern Senator or Congressman who has ever heard or read of the problems of Reconstruction can swallow this dangerous proposal is beyond my power of comprehension. Surely the Alabama Legislature will not go on record approving this dangerous change.

LIFELONG DEMOCRAT14 Most white Southerners didn’t need to be told that the Supreme Court was critical to the maintenance of white supremacy in the South. The nonsensical rulings of the Supreme Court nullifying the 14th and 15th Amendment to the U.S. Constitutions as well as civil rights legislation that had been passed during Reconstruction showed how critical Supreme Court rulings were to the maintenance of white supremacy in the South. The testimony of African American leader John Preston Davis before the Senate committee considering Roosevelts’ expansion, which will be included in this chapter, shows how white supremacy critically depended on these nonsensical contrived opinions of the U.S. Supreme Court.

Nor were the interpretations of the Supreme Court in the maintenance of white supremacy in the distant past. The Supreme Court was continually engaged decisions constructing the limits of white supremacy in the South.

14

Lifelong Democrat, “The Supreme Court and Racial Peace in the South,” Montgomery Advertiser, (Montgomery, Alabama), Feb. 25, 1937, page 4.

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African American communist Angelo Braxton Herndon while organizing in Atlanta, Georgia was arrested and charged with inciting insurrection under the Georgia Insurrection Act based on the literature in his possession in 1932. It was the start of five years of a case going through the Georgia and federal court system. The Supreme Court first time ruled lack of jurisdiction in May 1935 to much public criticism, the Court dismissed a rehearing on Oct. 1935. Ultimately on April 26, 1937 the Insurrection Act was struck down by the U.S. Supreme Court and Herndon got his freedom. The case got both national and international attention.15 The July 14, 1936 DMN article, “Negro Communist One Step Nearer Chain Gang Term,” revealing the editors hopes certainly, reports that the Georgia Supreme Court had unanimously upheld the Insurrection Act neither violated the Georgia state or the federal constitution. The article points out that Herndon’s attorneys are going to appeal to the Supreme Court.16 Another case was the infamous Scottsboro case which also got national attention and which went before the Supreme Court. One of the issues raised was about African Americans being excluded from being jurors.17 DMN had a April 3, 1935 article, “Negroes on Juries May be Result of High Court Ruling,” about the reversal of the Scottsboro conviction by the Supreme Court based on the exclusion of African Americans as jurors in their trial in Alabama. The article makes it clear that though there are no laws in effect excluding African Americans as jurors in Texas but that certain practices effectively do so.18 Later, May 16, 1935 the DMN in an editorial tittled, “Negro Juror Ruling,” suggested a mechanism to comply with the Supreme Court ruling and yet minimize the presence of African American jurors. They suggested, “Should each State fix high standards of literacy, education and accepted standing in the community for its juries, the latter would come closer to being all white and might be materially improved in quality.”19 An April 2, 1935 front page DMN article is, “Supreme Court Says Texas Democrats May Refuse Negroes Vote in Primary.” The article also points out that two African Americans in the Scottsboro case were granted a retrial.20 The boundaries of white supremacy in the South and its powers were continually engaged with by the Supreme Court and prominently reported in the news. The public in the South and Southern elites as well as elected representatives would be continuously reminded of the importance of the Supreme Court in support of the 15

Angelo Herndon Case, “New Georgia Encyclopedia,”

https://www.georgiaencyclopedia.org/articles/history-archaeology/angelo-herndon-case, pdf saved 6/15/2020.

16 17

No author, “Negro Communist One Step Nearer Chain Gang Term,” DMN, June 14, 1936, page 5.

No author, “The Scottsboro Boys,” National Museum of African American History & Culture,

https://nmaahc.si.edu/blog/scottsboro-boys, pdf made Jun 15, 2020.

18 19

No author, “Negroes on Juries May Be Result of High Court Ruling,” DMN, April 3, 1935, page 3.

Editorial, “Negro Juror Ruling,” May 16, 1935, page 2.

20

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fundamentals of white supremacy in the South for the racial order in the South to continue. It would be obvious what the possible implications of an expanded Supreme Court could be and hence shortly after Roosevelts’ announcement of his plan opponents to it in speeches, articles and letters to the editor sounded the alarm was made that the racial order in the South was in peril.

On March 2, 1937 before a joint session of the Texas Senate and House U.S. Senator Tom Connally denounced the proposed court expansion. It was a lengthy speech but part of it reviewed the Supreme Court and the preservation of the Southern racial hierarchy excerpted here: Now, a little more history. Many of you don’t remember personally, but you remember the history of that dark and dismal period after the War between the States,—that cruel period that we refer to as the days of Reconstruction. Let me remind you that the South had been disfranchised; its members had been expelled from Congress. Its fair fields had been ravaged by war; its slaves had been freed. The courageous soldier that had carried the banners of the Confederacy had been required to take test oaths, denied the right to hold office, denied the right to vote; and the South was stricken with suffering; and a rabid majority in the United States Congress, led by that southern hatred, enacted the most oppressive and the most rigorous laws which all the deviltries of passion and prejudice could [d]evise for the regulation of the South. One of those laws was called the Civil Rights Bill. What did that law provide? It provided that anybody in the South who denied to colored people—negroes—the same facilities in hotels and in boarding houses, and in theaters, and trains, or in any other public assembly, should be subject to a penal offense, and either to a heavy fine or to imprisonment in the penitentiary. If you refused to place yourself upon social equality with the colored people of that time and that period, you became a felon and a law breaker. Of course, the law was unconstitutional, but Congress passed it. It was signed by the President, who said it was legal. Here we had the Executive and Congress approving this law. What happened? Finally, they were able to get the case into the Supreme Court of the United States, and what did that Court do, though it was a Republican Court? It held that act was unconstitutional and void; it held that act invaded the rights of the states in controlling their own internal affairs and in regulating their police power.

Why, my friends, what did they do in Congress? They immediately in Congress demanded to destroy the Supreme Court because it had upheld the Constitution in favor of the South. There arose a demand that there be taken away from the Court[,] the power to hold acts unconstitutional. And, if President Gran had had his way the South would have had to live under all that agony and suffering, with no pen and no tongue can depict; and if the Congress of the United States had had its way, in spite of the Constitution, and in spite of the Supreme Court the South would have had to live on terms of social equality with their recently Ed Sebesta

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enfranchised slaves, and to drag their women and daughters down to a life of infamy and degradation. But thank God, we had a Supreme Court that said fearlessly: “Mr. Government, Mr. Congress and Mr. President, you cannot invade the rights of the Southern people; you cannot invade the rights of her private citizens; thus far can you go, and no farther.” (applause) That is only one of a whole series of laws. They passed another law in Congress at that period providing for Federal control of elections within the states, and making it a Federal offense for state officers to do certain things. They wanted to control the election machinery of the South. Congress passed it, and the President approved it; and the Supreme Court of the United States,—again a Republican court, but an honest court, a fearless court,—rose up and said, “You can’t do it, Mr. President; you can’t do it, Mr. Congress; these people have rights that are put down here in the Constitution of the United States.”

There were other cases,—the test oath cases. Congress passed a law that every Southern soldier must take a test oath before he could again be a citizen. That test oath required that he foreswear his service in the Confederacy. He must either commit perjury or be denied citizenship; and the Supreme Court of the United States rose up and declared that act of Congress unconstitutional; yet, if Grant had had his way, and if the American Congress had had its way, the South would have had to live under this terrible and obnoxious law.21 The version published in the Texas state records seems to be different than what was reported in more than one paper.

The Fort Worth Star-Telegram Associated Press story reported, “Connally credited a Republican Supreme Court with saving the white civilization of the South in ‘that dark period of reconstruction after the War Between the States.’”

Further the article made a more extensive quote.

A rabid and madden Congress was intent upon humiliating and grinding into the dust the Southern people. The civil rights bill was enacted. It provided that in the South, anyone who discriminated against the admission of colored people to hotels, theaters, railway trains or any public place whatever on equal terms with white people, should be subject to a criminal charge. It commanded absolute social equality between the races on the subject matter included in the bill.

21

U.S. Senator Tom Connally, speech, “Journal of the House of Represenatives of the Regular Session of the FortyFifth Legislature Begun and Held at the City of Austin, January 12, 1937,” pages 815-830, excerpted section pages 825-26.

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The Supreme Court was independent and was wise enough to hold the legislation unconstitutional. Had the court yielded to the wild waves of party passion, had it trembled before the overwhelming and bitter partisan majority in Congress, the ruins of our white civilization now would be lying in ashes at our fee. The civil rights case is but one of a number of similar acts of Congress during the reconstruction period aimed at the destruction of the South’s political and social system which the Supreme Court held in violation of our fundamental rights.22 Though the Reconstruction references were only two pages out of fifteen in Connally’s speech, they were a substantial fraction in the Associated Press story distributed to the nation.

Virginia U.S. Senator Carter Glass denounced the proposed Supreme Court expansion in March 29, 1937 on a nationally broadcast radio address. He also brought up the issue of white supremacy in the South. From his address: There has been some talk about “organized propaganda” against this unabashed proposition to pack the Supreme Court for a specified purpose! Propaganda was first organized in behalf of the scheme right here in Washington and has proceeded with unabated fury from the white house fireside to nearly every rostrum in the country. Political janizaries, paid by the federal treasury to perform services here and charged with no official responsibility for determining questions affecting the nation’s judiciary, are parading the states in a desperate effort to influence the public against the Supreme Court of the United States.

One of these visionary incendiaries spoke recently in a Southern state and exceeded all bounds of rational criticism in his vituperation of the eminent men who have of the eminent men who have served with great distinction on the supreme bench. He is said to have been applauded by the audience of his partisans, which caused me to wonder if they could have known the type of person to whose unrestrained abuse of the Supreme Court and the great jurists who constitute its membership they approvingly listened.

Did they know that he recently reproached the South for providing separate public schools for the races; that he urged repeal of every statute and ordinance of segregation; that he practically committed the administration at Washington to a new force bill for the South, declaring that not since Lincoln’s day has it better been realized than now the necessity of laws to strictly enforce the three post-civil war amendments to the constitution which kept the South in agony for years and retarded its progress for well night half a century?

22

Associated Press, dated March 2, 1937 in the Fort Worth Star-Telegram, March 3, 1937, page 2.

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This infuriated propagandist for degrading the Supreme Court practically proposes another tragic era of reconstruction for the South. Should men of his mind have part in picking the six proposed judicial sycophants very likely they would be glad to see reversed those decisions of the court that saved the civilization of the South and, in spite of the menace of passionate partisans with their violent threats to “reorganize” the court, prohibited the seizure and confiscation, without pay, of the estates of private citizens.

It was the Supreme Court of the United States that validated the suffrage laws of the South which saved the section from anarchy and ruin in a period of unspeakable outrages of which nearly all the nation recalls with shame.

This, however, is merely an incidental aspect of the case, reflecting my intense personal resentment and sharply revealing the sectional animosity of some of the fierce defamers of the Supreme Court. Infinitely graver questions are presented.

This entire nation is aroused over the many definite proposals to reverse the deliberate judgments of an independent court and to substitute for them the previously pledged opinions of the judicial subalterns. With men of this undisguised radical type campaigning the country, and freely applying their wretched opprobriums to the Supreme Court, those who resist the shocking movement are impertinently reproached with “organizing propaganda”!23 The address was a March 29, 1937 Associated Press story published as a front page story in the DMN on March 30, 1937.24 Though the references to Reconstruction and racial equality were just a minor part of Glass’ address, it was a substantial part of the Associated Press article. Also, unlike Connally’s address to the Texas legislature, Glass pointed out that there was a person in the Roosevelt administration that did criticize the Supreme Court for its rulings on issues related to race and also was a contemporary critic of racial relations in the South. This would make the proposed expansion of the Supreme Court more immediate threat to white supremacy, rather some hypothetical future threat.

However, opponents of Roosevelts plan to expand the Supreme Court did feel they had aroused enough fear over the fall of white supremacy in the House they had John Preston Davis, Secretary of the National Negro Congress testify about the plan before the Senate Judiciary Committee on April 18, 1937 with extensive questioning by Connally. In this testimony Davis makes it clear that he hopes the expansion of the 23

Glass, Carter, “Constitutional Immorality,” radio address March 29, 1937. It is from the Appendix of “Carter Glass: A Biography,” by Rixey Smith and Norman Beasley, Pub. Longmans, Green and Co., New York, 1939, pages 496-510. What radio network this was on, isn’t in the newspaper articles I have found nor in the Smith and Beasley Appendix for the address in their biography.

24 Associated Press story, March 29, 1937. “Glass Sees Plan to Shift Court as Abominable,” DMN, March 30, 1937, page 1.

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Supreme Court will allow the reversal of the many rulings by the Supreme Court which had stripped African Americans of their civil rights and made them a subordinate racial caste in America.

I am going to quote it in full since it shows the tactics of Texas U.S. Senator Tom Connally to use the issue of race to block the Court expansion plan. Also, and perhaps more importantly to show the infamous behavior of the Supreme Court in American history as ably pointed out by Davis. Another reason to have it fully included here rather than in an appendix is that the DMN published the entire testimony on April 25, 1937.25 It is clear that John P. Davis, an African American Rhodes scholar, graduate from the Harvard Law school and also with a master’s degree in journalism from Harvard, understood both comprehensively and in detail the rulings of the Supreme Court which sustained white supremacy in American including the South. As such he would make the potential expansion of the Supreme Court a nightmare to white supremacists everywhere in the United States.

What led the DMN to publish the entire testimony was the claim by the Tyler Telegraph that Senator Connelly had put words in Davis mouth. In an editorial by the DMN published on April 24, 1937, the day before they published the entire testimony and exchange between Davis and Connally they refute the Tyler Telegraph’s claim and make it clear how they understand the meaning of Davis’ testimony. Note the little propagandist touches such as the use of the term “surplus.” The DMN never really changes.

Before the Senate hearing on the Presidents judiciary change plan appeared a few days go John P. Davis, secretary of the National Negro Congress, speaking for 600 negro clubs, to argue for the Roosevelt idea of surplus Judges. In nearly two thousand words read from manuscript, the President’s witness argues that the failure of the United States Supreme Court over almost three quarters of a century to enforce three constitutional amendments has practically disenfranchised the Negro or has kept him in practical servitude. The contentions of the witness are not very sound. It is obvious, however, that his criticism, even if just, applies not so much to the present court as to the whole line of Justices from the Civil War to today. Davis is unequivocal in his insistence that the President’s plan will cure this situation.26

The following is the testimony and John Preston Davis facing rabid racist Texas U.S. Senator Tom Connally.

25

No author, “Secretary of Negro Congress Arguing for Roosevelt Court Plan Questioned by Senators,” DMN, April 25, 1937, page 12.

26 Editorial, “A Question of Fairness,” DMN, April 24, 1937, page 2.

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April 18, 1937.

STATEMENT OF JOHN P. DAVIS, NATIONAL SECRETARY OF THE NATIONAL NEGRO CONGRESS The CHAIRMAN. Please state your full name.

Mr. DAVIS. John P. Davis.

The CHAIRMAN. Where were you born?

Mr. DAVIS. Washington, D. C. The CHAIRMAN. Are you a citizen of the United States?

Mr. DAVIS. Yes. The CHAIRMAN. What is your occupation or profession?

Mr. DAVIS. I am the national secretary of the National Negro Congress.

The CHAIRMAN. You may read from manuscript if you choose.

Mr. DAVIS. I might say that I am secretary of a federation of some 600 organizations throughout the United States, and we are here to register our approval of the plan submitted to Congress by President Roosevelt.

The issue now placed before the country in these proposals of the President is of grave concern to the Negro people. As a minority group in America we have frequent occasion to resort to the courts for the protection of our constitutional rights as citizens. It is important to us that constructions given the Constitution by the PAGE 1645 courts shall be consistent with the principles of democratic government embodied in that Constitution and its amendments.

No one who knows the history of the thirteenth, fourteenth, and fifteenth amendments to the Constitution can deny that these great amendments were designed to establish untrammeled rights of citizenship for all Americans regardless of race, creed, color, or previous condition of servitude. Yet the plain fact is that today there are substantial abridgements of these citizenship rights so far as the Negro people are concerned. And if we look for the reasons for these Ed Sebesta

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abridgements we will find them in the tortured construction which Justices of the Supreme Court of the United States have given to these amendments during the last 60 years or so.

Practically every major citizenship right guaranteed Negro people by these amendments has been either seriously limited or rendered a nullity by biased decisions of the United States Supreme Court. Scarcely had these amendments, become effective when a 5-to-4 decision of the Supreme Court in the Slaughter House cases (16 Wallace 36) declared that the States still had power to grant privileges to one class of its citizens and to deny these privileges to another.

Mr. Justice Swayne, in his dissent in this case, anticipated the result of such a decision when he said: It (the fourteenth amendment) is necessary to enable the Government of the Nation to secure to everyone within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy.

Without such authority any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats, by a limitation, not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone. By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. But the arm of our jurisdiction is, in these cases, stricken down by the judgment thus given. Nowhere than in this Court, ought the will of the Nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the majority seems to me to lie far in the other direction.

I earnestly hope that the consequences to follow may prove less serious and farreaching than the minority fear they will be.

Unfortunately for the Negro people the fears expressed by Justice Swayne were realized all too soon.

Congress, representing the will of the people of the United States, adopted a national Civil Rights Act. This act was intended expressly to give proper legislative enforcement to the thirteenth, fourteenth, and fifteenth amendments.

Yet the Supreme Court Justices presumed to override the will of Congress and the will of the people and to declare that the Federal Government could not enact a law to guarantee equal rights and privileges to all citizens.

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The social consequences of this decision are now known to all. Robbed of protection of the Federal Government, the Negro freeman was rapidly pushed back into a state of semislavery in the South. The Ku Klux Klan rode again.

Negroes were prevented from voting by hooded mobs. Fraudulently elected State officers in the South refused to enforce the guaranty of the Constitution to the Negro. And the Supreme Court became by its decision in the Civil Rights cases (109 U. S. 3) the active agent in defeating the ex PAGE 1646 pressed will of the people of the United States, and, what is more, retarded the economic and social development of the South as a whole.

It did not take long for the Supreme Court to validate State legislation which further nullified the constitutional rights of Negro citizens. Jim Crow laws were validated in Plessy v. Ferguson (163 U. S. 537). The Supreme Court held that it was within the Constitution to segregate Negro passengers on publictransportation systems.

The Court sought to cover this cover unwise decision with the sophistic reasoning that separate accommodations for Negroes were equal. But any lawyer who studies Supreme Court decisions as to what constitutes equality will readily appreciate the stupendous farce which has been perpetrated upon the Negro people by the United States Supreme Court.

Equality, as interpreted by the Supreme Court, has been held to mean Pullman cars and dining cars and de luxe accommodations for white passengers and filthy, dust-ridden coach accommodations for Negroes. Such is the only reasonable conclusion to be drawn from the decision in the case of McCabe v. Atchison, Topeka, and Santa Fe Railway Co. (235 U. S. 151).

The Supreme Court validated laws providing for Jim Crow schools. And today we have the sorry spectacle in democratic America of per-capita expenditures in Southern States for white children eight times those for Negro children. And such conditions are declared to represent equal treatment by the Supreme Court.

Now, in the Slaughter House cases much was made by the Justices who framed the majority decision of the distinction between citizenship in the United States and citizenship in a State. The natural inference from such a distinction would seem to be that at least the fourteenth amendment was designed to guarantee absolutely equal treatment to citizens of the United States. One would expect, therefore, that Congress, having power to legislate for territorial possessions of the United States, would be compelled to deal equally with all citizens of the United States therein. But not so. In the case of Wall v. Oyster the Supreme Court Ed Sebesta

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upheld the right of Congress to create segregated schools for Negro children in the District. of Columbia. And today as a result of such discrimination we find appropriations proposed for the fiscal year 1938 by the present House of Representatives for capital outlay for buildings and grounds for Negro schools in the District of Columbia to be 17.7 percent of the total, although the Negro school population here is 36.4 percent of the total.

Negroes are herded into residential ghettoes as result of Supreme Court decisions. It is true that the Court could not permit itself to go so far astray from reasonable interpretation of the Constitution as to allow States to establish Jim Crow residential areas. But it did accomplish the same result when it lent its entire judicial weight to the enforcement of covenants between private citizens of the United States which restricted the sale or rental of property to white persons, in the case of Corrigan v. Buckley (271 U. S. 323). Thus the courts have declared that what it is unconstitutional for a State to do, may still be done by private citizens conspiring to defeat the constitutional guaranty of citizenship. The practical conPAGE 1647 sequence of this decision has been to herd the Negro people into ghettoes, to encourage disrespect on the part of citizens of the United States for the basic guaranties of our Constitution.

In innumerable decisions the Supreme Court has nullified the constitutional rights of Negroes and deprived them of the full stature of citizenship. I know of no more fundamental an example of this statement than can be found in the actions of the present Supreme Court Justices in the case of Grovey v. Townsend (295 U. S. 45) popularly known as the Fourth Texas Primary case. Now, every student of government knows that a basic part of the right of franchise in this country is the right to vote in a primary election. Especially in the South, where one party has been dominant for generations, does the right to vote in the primaries become the major element of the right of franchise. Yet following the more subtle procedure which it had arrived at in the case of Corrigan v. Buckley, the Supreme Court, in Grovey v. Townsend, decided that although State machinery could not constitutionally exclude Negroes from voting in primary elections, yet the State could permit political parties to bar Negroes. Freed from its high-flown verbiage this decision is a blunt denial by the Justices of the Supreme Court of the right of 3,000,000 Negro voters to exercise the sacred privilege of effective franchise in the South.

Today the stain of mob violence and lynching blots the fair name of the American Nation. Polls of American public opinion indicate that 70 percent of the people of Ed Sebesta

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the Nation and 65 percent of the people in the South favor a Federal antilynching law. Yet I heard members of the other House, who come from the South, declare yesterday that such a law designed to prevent so hideous a crime would be declared unconstitutional. And in the light of the decisions which I have just discussed there is grave reason to believe that five of the Justices will so decide.

They will decide so not because the law is unconstitutional, not because it does not express the will of the people, but because they will assume the right to set a social pattern for America consistent with their views.

I do not desire to discuss other trends of Supreme Court decisions with regard to labor and social legislation, which are just as harmful to Negroes as a minority group as they are to all labor and all farmers. Already other persons have discussed this subject.

It is to be hoped that the undemocratic denial of citizenship rights to Negroes accomplished by Supreme Court decisions, will soon be remedied. It is our belief that remedy of these evils should not depend on the whims and caprices of one man. Too much is at stake. For, Mr. Chairman, America can never hope to accomplish the promise which our heritage of democracy so brilliantly offers until for every citizen there is complete equality of citizenship. In these days social forces are moving rapidly and not the least slowly among the Negro people.

In these days there is need for a Supreme Court whose judicial temper can accurately reflect the social trends of the period in which we live. We cannot wait for amendments while 3,000,000 Negroes are denied the right to vote. For who can say that the new amendments will not share the same fate as the old. The power of the Supreme Court to alter the effect of the will of the people must be curbed. The Roosevelt proposals now before you offer at least a partial and effective remedy to accomplish this.

PAGE 1648 Negro voters throughout the country give their complete support to the President’s proposals.

I want to thank you, Mr. Chairman. I would like very much to support this with a brief, which I would like to introduce into the record at this time, dealing with other cases.

The CHAIRMAN. Any objection to that?

Senator BURKE. It will be examined by the subcommittee?

The CHAIRMAN. Yes.

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Mr. DAVIS, we have a rule that applies not only to you but to all, that briefs filed will be examined by a committee composed of Senators Austin and Logan. That applies to all.

Senator BURKE. I have been trying to determine in my own mind just what the basis of your complaint against the Court is. I think I was a little dumb in not following it closely, and you can straighten me out on it. Do you complain because the Court has declared too many acts of legislative bodies unconstitutional, or because it has not often enough exercised the right to declare them unconstitutional?

Mr. DAVIS. Both, Senator Burke?

Senator BURKE. You get them going and coming?

Mr. DAVIS. First, the Supreme Court began prohibiting the right of Congress to take any effective means to give legislative enforcement to the thirteenth, fourteenth, and fifteenth amendments. That began with the act of May 31, 1870, 16 United States Statutes 140, an act which provided that all citizens within the United States should be qualified to vote at any election, and made further provision that the persons, election officials, denying them that right should be punished, should be guilty of a misdemeanor. That was declared unconstitutional, in the cases of the United States v. Reese in 92 United States Statutes 214, in the year 1875. And then a second act of Congress was declared unconstitutional, which protected the right of franchise against intimidation, bribery, or the threats of depriving such persons of employment or occupation, and so forth.

Senator BURKE. Without going fully into all the cases, you have a doublebarreled complaint against the Court; on the one hand, that they have declared certain legislative acts unconstitutional, and, on the other hand, in other cases, that they have declared the acts to be constitutional. But I want to direct your attention now to just one phase of that. In many cases the complaint is that the Court has upheld legislative enactments, that you feel took away the rights to which you feel the members of your race are entitled. That is true, is it not?

Mr. DAVIS. Yes. Senator BURKE. And you, as I understand, propose to correct that evil which was based upon the acts of legislative bodies by making the legislative bodies supreme?

Mr. DAVIS. The important, distinction to remember, however, is that it has been State laws of the South which have been validated, and those are the laws which Ed Sebesta

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discriminate against Negroes, which deny them the privileges guaranteed them under the Constitution. And it has been acts of the United States Congress protecting the rights of Negroes which have been invalidated.

Senator NORRIS. You feel that the decisions of the Court have been discriminating against your race?

PAGE 1649 Mr. DAVIS. That is correct.

Senator NORRIS. Both ways?

Mr. DAVIS. Yes. Senator BURKE. But, to go just one step further, as I recall your statement, you pointed to a situation here in the District of Columbia where the children of the Negro race were not receiving proper education so far as school facilities are concerned, and you gave the figures to demonstrate your case. That was an act of Congress, was it not, that provided for that?

Mr. DAVIS. That was, and the case of Wall against Oyster also involves a validation of an act of Congress. But we are dealing here with a trend of circumstances. What happened was that the Court began first whittling away the rights of Negroes guaranteed them under these amendments.

Senator BURKE. They did that by what means? By upholding the acts of legislatures?

Mr. DAVIS. By invalidating acts of legislatures, beginning with this National Civil Rights Act. Senator BURKE. By invalidating acts?

Mr. DAVIS. Invalidating the National Civil Rights Act, which was popularly known as the Force bill.

Senator BURKE. By invalidating an act of Congress?

Mr. DAVIS. Yes. Senator BURKE. Without pressing that further, I understand, finally, that you fear that if the Senate acts favorably on the Gavagan antilynching bill and the

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President signs it, the Court, as at present constituted, may declare that act to be unconstitutional?

Mr. DAVIS. I believe it would.

Senator BURKE. And one of your very strong reasons for adding new members to the Court would be to make it more certain that we would have a Court, by the time that possible act, if it is an act that would get before it, would uphold it?

Mr. DAVIS. That would certainly be one reason. I think that there are deeper reasons in which we are concerned, in company with our other fellow Americans.

We are equally interested in having farm legislation, of which Senator Brookhart has been speaking, declared constitutional, legislation which would enable some remedy of the social and economic circumstances which have already been created by the acts of the Supreme Court, during the past 60 years.

Senator BURKE. Measures like the Kerr Tobacco Act and the Warren Potato Control Act, and measures of that kind?

Mr. DAVIS. We are more concerned with cotton and tobacco legislation, of course, because 48 percent of the Negroes are agricultural workers or farmers, most of them cash tenants. We are concerned with farm-tenancy legislation, and with other types of legislation in the South.

Senator BURKE. Has the Court invalidated any farm tenancy legislation that you know of?

Mr. DAVIS. None has come before it, but there are grave doubts as to whether the Court would uphold legislation of an adequate nature to correct the evils of farm tenancy. Certainly its decision PAGE 1650 in the Agricultural Adjustment Act might lead us to that conclusion.

Senator CONNALLY. You represent what association, please? What is the name of it?

Mr. DAVIS. The National Negro Congress.

Senator CONNALLY. You made some reference to the Civil Rights cases, and complained that the decision of the Supreme Court in those cases was not satisfactory. I believe it is your view now that if we can get a new Court, they Ed Sebesta

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would not make rulings any longer such as were announced in the Civil Rights cases. Is that correct?

MR. DAVIS. I believe, Senator Connally, that if we had a Supreme Court more in keeping with the temper of the times we would have a reversal of the case of Grovey v. Townsend, which would thus enable some 3,000,000 Negroes to take part in primaries.

Senator CONNALLY. I will get to that. I am not talking about that now. I asked you about the Civil Rights cases. I will get to the election in Texas in a minute. If you will answer my questions we will get along a heap faster. I am speaking about the Civil Rights cases. You know the cases I am talking about?

Mr. DAVIS. Yes; I know.

Senator CONNALLY. All right. Let us talk about that for a while.

Mr. DAVIS. You say, do I believe that the Supreme Court would invalidate them?

Yes; I do.

Senator CONNALLY. That is one of your reasons for supporting this bill?

Mr. DAVIS. Yes; that is correct.

Senator CONNALLY. That is, that if we had a new Court it would validate acts of Congress similar to that dealt with in the Civil Rights cases?

Mr. DAVIS. Yes. Senator CONNALLY. And one of your complaints against the Court is that it so decided in the Civil Rights cases. Now I direct your attention to the report of these Civil Rights cases, in the 109 U. S. Report, page 3, Civil Rights cases, United States against Stanley, United States against Ryan, United States against Nichols, United States against Singleton, Robinson and wife against the Memphis & Charleston Railroad Co., decided October 15, 1883.

The question in that case was the validity of an act of Congress, was it not?

Mr. DAVIS. Yes. Senator CONNALLY. And, Mr. Chairman, if I may be indulged, I want to read briefly from the act of Congress, and show just what the act was, and see what the

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complaint of the witness is against the decision of the Court. The Civil Rights cases involved the following statute of Congress: SECTION 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous conditions of servitude.

SEC. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of Servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial. shall for every offense forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than 30 days nor more than 1 year: Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a party to either prosecution respectively.

That was a statute which made it a criminal offense anywhere in the United States for the proprietor of a boarding house to deny accommodations to anyone because of previous condition of servitude. I want to be perfectly fair. I am not a hater of your race at all. I just want to be frank with this question. I have defended many colored men, and represented many of them against white men, and many times won cases for them. I have no antagonism toward the colored race as such. I hope I have no prejudice whatever, so far as their legal rights are concerned.

Under this act any hotel or boarding-house keeper that would have denied admission, on the same terms, to the same facilities with his white guests, would have been guilty of a criminal offense punishable by a fine and imprisonment, would he not?

Mr. DAVIS. That is correct.

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Senator CONNALLY. And equal accommodations on Pullmans and railroad cars, theaters, and all places of public amusement or public accommodation. That is true, is it not?

Mr. DAVIS. That is true.

Senator CONNALLY. This was an act of Congress, not the act of a State legislature. I want to read the decision, but I will just read a very brief concluding paragraph by Mr. Justice Bradley, who was from New Jersey, who was not a southern man, who was, I think, a Republican in politics. But he was a great judge, anyway.

Senator AUSTIN. In spite of that, you mean?

Senator CONNALLY. No; I do not mean in spite of that. I think there are just as many good judges among the Republicans as among the Democrats, and really I expect more, because they have been at the pie counter longer than, we have, and have had more judges. Since there are more Republican judges than Democratic, there are probably more good ones among the Republicans than there are among the Democrats.

Here is what Mr. Justice Bradley says. He decides this case purely on the constitutional provisions, holding that the fourteenth amendment does not give Congress power to interfere with the police power of the States, unless the State itself does. And you remember the language of the fourteenth amendment is that no State shall do a certain thing, and it was held, I think properly, that it was a protection against State action and not against individual action. This is on page 25. I shall not read but a little, Mr. Chairman.

The CHAIRMAN. Take all the time you wish, Senator. We are not circumscribing anybody as to time, certainly not Senators.

Senator CONNALLY. I will read a little more of it then, under the encouragement of the chairman. And I want to say that I am in PAGE 1652 sympathy with the efforts of the colored race to advance their condition economically, and in my dealings with them I have always undertaken to see that they got a fair deal. I have many friends among them.

Mr. Justice Bradley says as follows:

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When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If since that time the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the thirteenth amendment (which merely abolishes slavery), but by force of the thirteenth and fifteenth amendments.

On the whole we are of opinion that no countenance of authority for the passage of the law in question can be found in either the thirteenth or fourteenth amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned.

Of course, in the Territories Congress could legislate as they pleased.

This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan and of Richard A. Robinson and wife v. The Memphis & Charleston Railroad Company, the judgments must be affirmed. In the other cases the answer to be given will be that the first and second sections of the act of Congress of March 1, 1875, entitled “An act to protect all citizens in their civil and legal rights�, are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered.

The act of March 1, 1875, is the one which I read at length.

That was a case in which white people were indicted first because they did not let colored folks come into their hotels or theaters or into their carriages, and so on.

Now, there was a dissenting opinion in that case, as suggested by the witness. I believe it was a 5-to-4 decision, was it not?

Mr. DAVIS. Yes.

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Senator CONNALLY. But that was the opinion of Mr. Justice Bradley, who rendered the opinion of the Court. In view of your attack on that decision, it is your hope that if this bill is enacted and if a similar statute should be passed, a new Court would declare it constitutional. That is right?

Mr. DAVIS. In partial answer, I wonder if Senator Connally would permit me to insert in the record, directly after the majority opinion, two short paragraphs from the minority opinion of Mr. Justice Harlan.

Senator CONNALLY. I have no objection. I did not submit all the opinion here. I just submitted a little of it. I want to be fair with you.

Mr. DAVIS. This is just two short paragraphs. Mr. Justice Harlan, in commenting on this decision, characterized the majority opinion, at page 26, as follows: PAGE 1653 Constitutional provisions adopted in the interest of liberty and for the purpose of securing through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.

And then he said, at page 53: Its acceptance would lead to this anomalous result: That whereas, prior to the amendments, Congress, with the sanction of this Court, passed the most stringent laws—operating directly and primarily upon States and their officers and agents, as well as upon individuals—in vindication of slavery and the right of the master, it may not now by legislation of a like primary and direct character guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. And now I would say that in the light of this opinion of Mr. Justice Harlan, my answer to the question that you asked me would be “Yes.” Senator CONNALLY. The question was, if we get this new Court, it is your hope and expectation that the new Court, if such a statute would come before it, would hold it constitutional?

Mr. DAVIS. Yes. Senator CONNALLY. And it is your desire that that be done?

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Mr. DAVIS. That is correct.

Senator CONNALLY. You complain about Jim Crow schools. You mean by that the segregation of the races in schools?

Mr. DAVIS. Yes; with the consequent inequities in appropriations that follow.

Senator CONNALLY. The segregation in the schools in the District of Columbia between white and colored is done by statute, is it not?

Mr. DAVIS. That is done by statute; yes.

Senator CONNALLY. So the Supreme Court is not responsible for that?

Mr. DAVIS. The Supreme Court upheld the constitutionality of such a statute in Wall v. Oyster.

Senator CONNALLY: Yes; they upheld it. So you believe in the Court's power to hold laws unconstitutional; do you not?

Mr. DAVIS. Yes. Senator CONNALLY. And your complaint is that the Court should have overruled and held unconstitutional the act of Congress establishing the segregation in the schools in the District of Columbia?

Mr. DAVIS. That is right.

Senator CONNALLY. And you also expect the new Court to hold unconstitutional any State statutes in the South providing for segregation in the schools of white and colored, do you not?

Mr. DAVIS. Yes. I believe they are inconsistent with the Constitution.

Senator CONNALLY. You favor, as I understand it, the admixture in the schools of the white and the colored on the same terms and on the same social plane, and all that?

Mr. DAVIS. Yes; for the reason that experience— Senator CONNALLY. I do not care for an argument. I just want to know if you do.

You do?

Mr. DAVIS. Yes. Salt.

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Senator CONNALLY. You favor it?

Senator BURKE. Would the Senator yield for just a question?

Senator CONNALLY. Yes. PAGE 1654 Senator BURKE. I observe the presence of the mayor of Austin, Tex., who testified in favor of the bill this morning. Except for the fact that the hour is so late, I was going to suggest that we get his opinion on the matter, but I pass it.

Senator CONNALLY. So that one of the purposes at least of some of the proponents—I will not say all of them—at least the purpose of some of the proponents of this bill is to do away with either State or Federal laws that interfere with complete social equality of the races. Is that right?

Mr. DAVIS. That is right, Mr. Senator.

Senator CONNALLY. How far do you go?

Mr. DAVIS. The purpose of the particular proponent of the bill that is now testifying is to see to it, if possible, through the fair interpretation and construction of these amendments, that the present social and economic retardation of a whole group of people, which has led to the impoverishment of the South, the impoverishment not only of the Negroes but of the larger percentage of the white people of the South, the white workers and farmers in the South, which has led to that type of economic maladjustment which makes the South today the poorhouse of the whole Nation in comparison with the industrial East be changed. It is my hope that in the decade to come there will be in the South the development of the type of economic and social improvement which will mean not only an improvement of the economic and social status of my people but will mean an improvement of the social and economic status of your people.

Senator CONNALLY. In other words, you mean then that your idea is, if we should have colored people and white people of the South going to the same schools, that this would rectify the economic situation, and your idea is that if they do away with Jim Crow cars and Pullmans and so on, that would help? I am trying to get your views. I do not want to be unfair to you. I do want to make it clear that the reason you are supporting this bill is that you believe we would get a Court, through this bill, which would declare unconstitutional State and Federal laws that permit, I will say—I do not mean “authorize”, but that permit the

Sebesta

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segregation of the races in schools and boarding houses and theaters, and things of that kind. Is that correct?

Mr. DAVIS. In answering your question, I am sure in the interest of fairness you will permit me to point out that one of the things that I have complained about most bitterly has been the inequalities which have crept into the system of segregation.

Senator CONNALLY. But in my State we give the colored people just exactly the same amount of school money per capita that we give the white people, and in my State every colored man that wants to vote can vote. He does not, vote in the Democratic primary, not because the State denies him that right but because the party through its governing machinery passed a rule that they would restrict their membership, for which the State is not in anywise responsible, and the Court first held unconstitutional, in the case that you mentioned a State law denying the colored people participation in the primary, because that was an act of the State, and therefore violative of the fourteenth amendment. Later, the State, authorities themselves—I mean the political party itself, through its convention or committee or something, I do not know how, passed a similar rule. The PAGE 1655 Supreme Court upheld it on the ground it was not the act of the State but was the act of a political party. Now, that is true, is it not?

Mr. DAVIS. That is the interpretation of the Supreme Court.

Senator CONNALLY. I am stating those decisions correctly, am I not?

Mr. DAVIS. Quite correctly; yes, Senator.

Senator CONNALLY. Upon what do you base your hope and expectation that if we get this Court bill through we will get a Court that will overrule all these decisions? Have you any knowledge as to the possible members of the Court who will be appointed, or anything of that kind?

Mr. Davis. I have not any knowledge as to that.

Senator CONNALLY. I do not mean individuals. I mean the type of men that you hope will be selected, and through whom you expect this result to be accomplished.

Mr. DAVIS. I believe that the type of men selected will be Americans who understand the present development of the country, the social and economic Ed Sebesta

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development, and the need for a shift from the reactionary traditions of the past, which have so long enslaved both the Negro people and the workers and the farmers of the country, with the result that we have the type of crisis that Senator Brookhart was explaining when I interrupted him.

Senator BURKE. As I understand, then, your view would be that you would expect to get a situation wherein, say in Austin, Tex., an attempt might be made to have separate schools for colored and white children, and that such an enactment would be brushed aside and held by this new Court to be illegal, and that all of the children, white and colored, in Austin, Tex., should have the privilege of attending the same schools?

Mr. DAVIS. I would rather say, Senator Burke, if the Negroes in Austin were permitted to exercise their right of franchise, I would be content to abide by whatever the properly elected representatives of the people, either there or throughout the entire State, decided on the thing.

I do not suppose that, after 60 years of the type of segregation that we have had in the South, we are going to have legislative changes overnight—it is not a practical question. Actually your question is a political question, but it will not actually come up in real practice any time in the next few years. That, I am sure, is clearly understood by the committee. What we are concerned with is that we will be able to come before that Court and say, “You interpret equality to mean 12½ cents for the education of a Negro child and $1 for the education of a white child.” This type of thing we hope immediately such a Court would declare unconstitutional.

We hope further that, as a result of the erasing of the type of inequality to which my people have been subjected so long, that soon there would develop the type of harmony, the type of understanding, the type of true friendship between the people who live in the South, so that it would be a better country for both groups concerned.

Senator BURKE. How do you expect to get that result any more from a Supreme Court of 15 members than from one of 9 members?

Mr. DAVIS. I believe that already the decisions of the Supreme Court of the United States, in the last few weeks, have confirmed in PAGE 1656 part the prophecy of Mr. Dooley. They have shown the Court the necessity for relinquishing at least for a time a particular mind-set, a particular social point of view. I want to be perfectly frank and express as my opinion the need for a Ed Sebesta

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change in the mind-set, in the social point of view of the present Court, and I believe that the President’s proposal for increasing the size of the Supreme Court will have that effect.

Senator BURKE. Do you not think it would be better to forget about this bill and just go ahead berating and damning the Court and in that way whip the Court into line to do the things that you think ought to be done, rather than putting a lot of new Justices on who might go along and side right with the present members?

Mr. Davis: The difficulty is that when you are dealing with a minority group, it is a rather costly procedure, and we might not be able to berate sufficiently throughout the Nation to get all these things that Senator Connally says we want.

Senator BURKE. I understood you to say that they were what you wanted.

Mr. DAVIS. Yes; they are.

Senator CONNALLY: Did I misquote you in any way?

Mr. DAVIS. No; you did not.

Senator CONNALLY. You said, “What Senator Connally says we went.” I tried to quote you and to be fair with you. I did not misquote you, did I? Mr. DAVIS. I think, Mr. Senator, in the framing of your questions, around the question of social equality and Negro children going into white schools, rather framing them around what must, I am sure, appear to you the correct issue concerned, namely, equality of education, does lead to confusion of the real issues involved.

Senator CONNALLY. Just a moment. I had not mentioned anything about “Jim Crow” schools until you mentioned it in your manuscript, and if I understand what you mean by “Jim Crow” schools it is schools where colored people are in one school and whites in another. Is that correct?

Mr. DAVIS. Yes. Senator CONNALLY. I did not drag in the “Jim Crow” schools. You mentioned them, and I asked what you meant by that, and asked you if you hoped that, if this new court bill were enacted, the new Court would hold unconstitutional such laws, and you said “yes”; did you not?

Mr. DAVIS. Yes. Ed Sebesta

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Senator CONNALLY. Now, you say that it never could get into the Court, if my State, or in any other Southern State, a pupil in a school were agreed and would go into court and would sue the school authorities on the ground that they were denying him his rights under the fourteenth amendment. Would not that case go to the Federal court? You are a lawyer, are you not?

Mr. DAVIS. Yes. Senator Connally. It would go to the Federal court, would it not?

Mr. DAVIS. Yes. Senator CONNALLY. And when the Court acted, it could finally reach the Supreme Court of the United States, could it not?

Mr. DAVIS. Yes. PAGE 1657 Senator CONNALLY. So it is not an impractical question; it is not one that may not be raised? It may be raised at any time, and your hope is that if this bill passes there will be appointed judges who, when they are seated on the Court and put on their robes, if such an application is made by any citizen in the South and it comes up to the Federal Court, the new Court will hold unconstitutional and void the laws of my State and the laws of any other Southern State which authorize segregation of the races in schools. Is not that a fair statement?

Mr. DAVIS. Yes; that is a fair statement.

Senator CONNALLY. And is not that true that is what you hold?

Mr. DAVIS. That is true.

Senator CONNALLY. And that is one of the reasons that you have in supporting this bill?

Mr. DAVIS. One. Senator CONNALLY. I said “one.�

Mr. DAVIS. But not the major reason.

Senator CONNALLY. I did not say that. I said one. That is one of the reasons?

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Mr. DAVIS. That is one of the reasons.

Senator CONNALLY. You also know about the antilynching bill. I want to say that there is no man on earth who is as much opposed to lynching as I am, and we in the South are struggling with it, and we are winning with it, and the record shows that it has declined to an almost infinitesimal percentage. I do not believe in this legislation that is pending, because it is an invasion of the police powers of the States, and instead of curbing lynching it would aggravate it, because it lessens the resistance of local officers in the performance of their duties. With that brief statement, it is your hope and expectation that if this lynching bill, which is already through the House, passes the Senate, that this Supreme Court would uphold it as being constitutional, is it not?

Mr. DAVIS. Yes. Senator CONNALLY. I do not know of anything else.

The CHAIRMAN. Thank you, Senator. Thank you, Mr. Davis.

BRIEF IN SUPPORT OF TESTIMONY OF JOHN P. DAVIS, NATIONAL SECRETARY NATIONAL NEGRO CONGRESS EXCLUSION OF NEGROES FROM PRIMARIES In 1927 a statute of the State of Texas declaring Negroes ineligible to participate in a Democratic Party primary election of the State was held unconstitutional by the Supreme Court of the United States. Mr. Justice Holmes, delivering the opinion of the Court, found the statute to be a direct and obvious infringement of the equal protection of laws provision of the fourteenth amendment. “The statute of Texas, in the teeth of the prohibitions referred to, assumes to forbid Negroes to take part in a primary election the importance of which we have indicated, discriminating against them by the distinction of color alone. States may do a good deal of classifying that is difficult to believe rational, but there are limits, and it is too clear for argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.� (Nixon v. Herndon (Tex. 1927) 273 U.S. 536.)

Promptly after the announcement of this decision, the Legislature of Texas passed a new act. This repealed its former attempt at exclusion by direct prohibition and substituted for the same, another, authorizing and empowering

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the State executive committees of every political party to prescribe who shall be qualified to vote or participate in such political party.

PAGE 1658 Acting under this new device, the State executive committee of the Democratic Party adopted a resolution permitting only white Democrats to participate in primary elections.

The constitutionality of the statute was upheld by the district court (Nixon v.

Condon, 34 F. 2d 464) and affirmed by the Circuit Court of Appeals, Fifth Circuit (49 F. 2d 1012). The case then went to the Supreme Court on a writ of certiorari.

Mr. Justice Cardozo writing the majority opinion of the Court took the view that the executive committee in passing the resolution, was not acting by virtue of any inherent power but under the authority conferred upon it by the act of the legislature. It therefore was acting as an agency of the State and came under the prohibitions of the fourteenth and fifteenth amendments relating to the guaranty of the equal protection of the laws by the States and the non-abridgement or denial of the right to vote by the States on account of race, color, or previous condition of servitude.

The minority opinion written by Mr. Justice McReynolds, joined by Mr. Justice Van Devanter, Mr. Justice Sutherland, Mr. Justice Butler, dissented from this view. The opinion carefully outlined the powers inherent in a voluntary association and distinguished the resolution in question from the State enactment in the previous case. It contended that the statute in question did not withhold anything from any Negro but merely recognized a power to prescribe qualifications that already existed in the executive committee. The exercise of that power therefore was not State action within the intendment of the Federal Constitution (Nixon v. Condon (Tex. 1932) 286 U. S. 73).

It is significant to note that the decision in the Nixon v. Condon case, supra, is dated May 2, 1932.

As suggested by the minority opinion, on May 24, 1932, the State Democratic convention of Texas adopted a resolution limiting its membership to white citizens solely.

This action was also attacked on constitutional grounds and was carried to the Supreme Court, Mr. Justice Roberts delivering the opinion of the Court.

The Court now held that the refusal to a member of the Negro race of a ballot in a primary election is not State action in violation of the fourteenth and fifteenth Ed Sebesta

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amendments, where such refusal was by virtue of a resolution of a State party convention.

Nor that such exclusion was violative of the Federal Constitution as in effect denying the Negro the right to vote at general election, though it was alleged and admitted that in Texas nomination by the Democratic Party was equivalent to election. (Grovey v. Townsend, 295 U. S. 45) (1935).

Thus discrimination is finally achieved in a constitutional manner.

DENIAL OF THE RIGHT TO WOTE The same road was traveled in order to disfranchise Negroes.

Originally the statutes seeking this object were crudely drawn and declared unconstitutional. They sought to impose “grandfather” requirements upon the right to vote or coupled the same with a literacy test. That is, unless you were a lineal descendant of a person who was entitled to vote you were required to pass a literacy test. The test as imposed in the Oklahoma statute was the ability “to read and write any section of the Constitution.” The Supreme Court in invalidating these statutes indicated that the literacy tests standing by themselves were not unconstitutional (Guinn v. U. S. (Oklahoma), 238 U. S. 34; Meyers v.

Anderson (Maryland), 238 U. S. 368).

This was seized upon by the State of Louisiana, which passed a sweeping statute requiring of an applicant for registration to “be able to read any clause in this constitution or the Constitution of the United States, and give a reasonable interpretation thereof.” Even a Supreme Court judge would find it difficult to comply.

The validity of the statute was upheld by the district court and affirmed by the circuit court of appeals (Trudeau v. Barnes, 1 F. Supp. 453; Trudeau v. Barnes, 65 F. (2d) 563 (1933)).

The Supreme Court refused to grant a review, thus upholding the lower courts (Trudeau v. Barnes, 290 U. S. 659 (1933)).

It must be said, however, that there still remains the possibility of one taking the test and appealing from the arbitrary decision of the registrar. This means, however, that to establish the right to vote each individual person would have to go through a test, hearing, trial, appeals through the State courts, and to the PAGE 1659

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Supreme Court of the United States. The practical effect of this statute is to absolutely deny the right to vote to the Negro people.

This recent development is of the utmost seriousness and danger. It deprives the Negro race of its strongest weapon in its struggle for social, political, and economic liberty.

JIM CROW AND OTHER DISCRIMINATORY PRACTICES The record of the Supreme Court in this regard is full of evasions and subterfuges in order not to set them aside.

In the civil-rights cases it invalidated acts of Congress seeking to protect equal privileges to the accommodations in inns, public conveyances, etc. This was held not to be authorized by the thirteenth or fourteenth amendments to the Constitution but remaining in the States (Civil Rights Cases, 109 U. S. 3).

However, when the State of Louisiana in 1869 passed an act requiring those engaged in transporting passengers on vessels within that State to give those passengers equal rights and privileges in all parts of the vessel, Without distinction as to race or color, it was held unconstitutional as an interference with interstate commerce and only within the powers of Congress to enact (Hall v. De Cine, 95 U. S. 485).

Subsequently it ruled that an interstate colored passenger on a train must occupy a separate compartment from that occupied by White passengers. Although admittedly interstate commerce in the absence of legislation on its part, carriers can by reasonable regulation Separate white and colored (Chiles v. Chesapeake and Ohio Ry. Co. 218 U. S. 71 (1910)).

In other instances it has refused to set aside discriminations based on race or color on the ground that they were not against “public policy” nor prohibited by the thirteenth and fourteenth amendments because they were not “actions by the State” governed solely by these amendments (Corrigan v. Buckley, 271 U. S. 323 (agreement to refuse to sell real estate to any person of Negro blood) (1925)).

In Berea College v. Kentucky (211 U. S. 45) the Supreme Court held it proper for the State of Kentucky to prohibit by statute individuals and corporations from conducting schools and teaching classes of Negro and white students jointly.

It also upheld a tax levied on both Negro and white to provide high-school education, even though only white students were furnished with this privilege and Negro children ignored (Cummings V. Richmond County, 175 U. S. 528).

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Senator HUGHEs (presiding). I am directed by the chairman to state that an executive committee meeting, an executive session of the committee will be held in the usual room, the Judiciary room in the Capitol, tomorrow morning at halfpast 10 o'clock.27 Given that the base of support for the Democratic Party was in the South a campaign against the expansion of the Supreme Court based on an assertion, that the expansion would demolish or at least severely undermine white supremacy in the South would be effective in undermining support for the Court expansion and it did.

Roosevelt didn’t speak out on racial matters and even sent the Japanese Americans to concentration camps. There is always the excuse that he had to pragmatically ignore the issues of race to keep support in the South for the New Deal. But as it turns out in both the blocking of the Supreme Court expansion and as revealed in Sumners’ political career, anti-New Dealers realized the power of an alliance between themselves and racists. It needs to be questions how well Roosevelt’s policy of appeasement of racism and avoidance of pointing out the alliance of anti-New Dealers has worked then and in providing a direction for the future.

The U.S. Senate Judiciary Committee voted to reject the plan 10 to 8 on May 18, 1937 and their reports rejecting the plan were issued June 14, 1937.28 On July 13, 1937 Sumners spoke out against the expansion plan in the U.S. House, and as the head of the House Judiciary Committee ended the bills prospects. His speech against the plan did not bring up the issue of race, but instead mostly focused that it had been divisive in the Senate and was divisive for the nation and that instead given the current economic crisis the nation needed unity. Sumners also argued it wasn’t necessary since a better plan for Supreme Court justices’ retirement had been made and the problem of a Supreme Court being too old or out of touch with contemporary issues would be solved. He did mention “Anglo-Saxon institutions.” He spoke of, “Our AngloSaxon people,” thus defining a particular ethnic identity for Americans, and there was mentioned, “Anglo-Saxon governmental instincts.” Tacitus and his observations of the Germans were not mentioned. Sumners talked about dictatorship.29 The next day, July 14, 1937, the DMN had an article, “Sumners Breaks with Roosevelt on Court Dispute.” The article mentions that, “Sumners’ speech coming late in the day, brought his opposition out into the open for the first time. He said virtually nothing 27

“Hearings Before the Committee of the Judiciary United States Senate 75 th Congress 1st Session on S. 1392, A Bill to Reorganize the Judicial Branch of the Government,” Part 6, April 16 to 23, 1937, pages 1644 to 1659.

28 Cushman, Barry, “Court Packing and Compromise,” Constitutional Comment, Vol. 29 No. 1, 2013, page 6.

Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/954 for the date of the committee rejection.

For the report being issued, No author, “Test on Court Battle Nears as Senate Body Attacks it as Threat to Liberty,” DMN, June 15, 1937, page 1.

29 Congressional Record, 75th Congress, First 1st Sess., Vol. 81 Part 6, July 13, 1937, pages 7141-47.

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when Mr. Roosevelt first sent his bill to Congress, but his distaste for the measure was evident. Some administration legislators credit him with forcing the Senate to act first on the controversial measure.”30 The key word in the July 17th article is “out into the open,” since it does seem to have been guessed at that Sumners was entirely against the bill. In a Feb. 28, 1937 article in the DMN Sumners’ reticence and likely opinion on the expansion plan is hinted at. The article states: Sumners—they call him Judge at Washington—has been an outstanding figure in matters judicial since he came to Congress in 1913 and became a member of the Judiciary Committee, but by odds this is the largest question he has had to deal with in his twenty-four years here. He has not discussed the issue openly and when the subject is brought up talks not at all.

“But,” as one newspaper man put it, “what is more exasperating, he smiles as though he knows something.”31 The Dallas Times Herald, the other major daily for Dallas, ran a Feb. 28, 1937 article titled, “Washington Writer Says Sumners Not Backing F.D. Plan.” The article claimed that though Sumners was not speaking on the topic, a review of his comments in the past reveal that he is not likely to support the president’s Court expansion plan.32 Only part of the correspondence between Hon. Dave A. Frank of Dallas and Sumners was located, but it shows that Sumners was definitely against the Supreme Court expansion which was understood by Frank. Sumners in a somewhat cryptic letter explains his thinking about the Supreme Court and the expansion and his strategy in opposing it.

My dear Dave: I much appreciate your letter of the 4th instant.

I have been trying to utilize the things which I know are inevitable to get the situation here straightened out without doing permanent injury to our institutions. Everybody knows that there are going to be some places to be filled out on the Supreme Court relatively soon. No human will can avoid that; nature will see to that. The longer an incapacitated man remains on the Court the more extreme the opposition will come to be.

30

No author, “Sumners Breaks with Roosevelt On Court Dispute,” DMN, July 14, 1937, pages 1,12.

No author, “Roosevelt’s Chat Seen as Showing Fight Is Not Won,” DMN, Feb. 28, 1937, page 9.

32 No author, “Washington Writer Says Sumners Not Backing F.D. Plan,” Dallas Times Herald, Feb. 28, 1937. Page unknown. Found in DHS Box 131.3.1.

31

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I am convinced that the Judiciary, during the formative period of the Nation, has come quite a distance into field where governmental policy is fixed. The same is true of thee Executive. However, the separation of the powers of the Government with the system of checks and balances which they exercise on each other has not resulted from any conventions or from the minds of political philosophers. It results from the fact that God has imposed limitations upon human capacity which makes it impossible for one man or group of men to determine governmental policy, to execute that policy, and to adjudicate matters of controversy which arise during its execution.

There are a lot of things which go to the foundation which I would like to mention, but I am working under great pressure now. Besides, undertaking to do the thing which I am working at, makes it unwise to discuss my individual opinion. I am trying to get definite results and could get them if I could get a free hand for a little while.

As to the other matter you mention, whether it has ever been in the picture or not, it is out of the picture now. I know you will acquit me of any suspicion of attempting to parade myself when I say that the things involved are so great and so far-reaching, and of so much importance to the whole people, that I have not the slightest concern as to what happens to me as a result of the effort to do what I feel to be not only my duty, but possibly my opportunity to be useful. Whether I can do the thing I am trying to do or not, it seems to be the consensus of opinion here that I am the only person who has a chance to do it.

The whole letter is confidential, but this last is especially so, because it would be misunderstood.33 [Boldface added.]

Though Sumners didn’t bring up the issue of race in his opposition to the Supreme Court expansion it can be assumed that he was well aware of it. In his speech against anti-lynching legislation he mentions that it is unconstitutional. He could expect the public would understand that whether it was judged to be constitutional or not would depend on the Supreme Court. This would be a Supreme Court that might not, or very likely would not, rule on federal anti-lynching legislation in a way that would sustain the South’s racial hierarchy.

Sumners was always alert to possible consequences of legislation to the racial hierarchy of the South. As discussed in an earlier chapter, when in the early 1920s it was proposed to have a federal department of education to aid schools and in particular school districts which were impoverished. Sumners wrote letters against it. In some he argued against the proposed department in terms of governmental inefficiency. In others 33

HWS to Dave A. Frank, March 8, 1937. DHS Box 80.1.26.

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though he argued against the proposed department on the basis that there could be an unforeseen consequence sometime in the future where a federal department of education would result in the end of school segregation. Surely Sumners would understand the potential consequences of a Supreme Court expansion to the racial hierarchy of the South even without Tom Connally’s speech to the Texas legislature, Carter Glass’ radio address, or the testimony of John P. Davis before the Senate Judiciary Committee making it very clear what the potential consequences would be or in Davis’ case also what he would hope they would be.

As it was with seven new judicial appointments just seven years later in 1944 the white primary laws of Texas and in the South were ruled unconstitutional by the Supreme Court and in 17 years Brown vs. Board of Education would rule school desegregation unconstitutional.

As Sumners’ would later point out in his 1944 letters to his supporters, he hoped to maintain the racial hierarchy of the South by not arguing as a Southerner or as a white supremacist but frame his arguments against a civil rights law based on some general philosophical premise which would happen preclude some law that was a threat to the racial hierarchy of the South and appeal to those who were not Southerners or white supremacists.

This practice is what he conformed to in his 1937 campaign against the proposed Supreme Court expansion.

In 1937 there would be no need for him to bring up the issues of race in opposition to the Supreme Court expansion, many others would do so. If Sumners had campaigned on the issues of race against the Supreme Court expansion it would have undermined the credibility of his position against the Supreme Court expansion. It could have even entangled the issue of federal anti-lynching legislation with the issue of the Supreme Court expansion and provide a new reason for the expansion of the Court. Such an entanglement would undermine his opposition to anti-lynching legislation based on general philosophical ideas.

Sumners with his practice of defeating measures that would advance civil rights with his framing of issues as general philosophical issues and not sectional or racial issues defeated both the expansion of the Supreme Court and federal anti-lynching legislation in 1937.

Ed Sebesta