Tom C. Clark

For four terms he was what his appointment said he would be. Dutton counted twelve majority opinions in the first term and found that Clark, "together with the other newcomer, Minton, 'swung' in these cases to the conservative side"; Braden's article on Minton in the same number of the Indiana Law Journal named the four Truman appointees a bloc and made the rule that as they went, so went the Court. Dutton's forecast was modest: "there is much evidence that Tom Clark may prove to be a good working judge, even if, thus far, he has cast no perceptible foreshadow of greatness or immortality." Then, in June 1952, the bloc broke, and it was Clark who broke it. In Youngstown Sheet & Tube Co. v. Sawyer, six justices held that the President had no power to seize the steel mills, and the four Truman men divided three to one: Vinson, with Reed and Minton, dissented; Clark concurred in the judgment. "Tom Clark not only voted against his 'best client,' the President who had appointed him," the resolution says, "but split with Chief Justice Vinson who would have upheld President Truman's extraordinary exercise of executive authority." What the client said is on the record in Clark's own words to the Truman Library: "Even when I wrote the steel seizure concurrence, I never heard from him one way or the other." He heard roundabout from some of the President's people, "but he never did criticize me about it." "I figured that he was just disappointed in my concurrence, but I never heard from him about it."

Vinson died in 1953, and the Court that Warren led was not the one Truman had built. Friedman and Israel's bibliography marks the years from 1957 to 1960 as a period "of great significance" in Clark's career, "his period of conflict with the liberal bloc in the Warren Court," and the record on this site can date the conflict to the term. In the 1957 Term his liberal share fell to 42.0 percent against a bench of 61.0, a gap of nineteen points, the widest of his eighteen years; in the 1960 Term it was eighteen. The voice of those years is his dissent in Jencks v. United States, on June 3, 1957, when Brennan for the Court reversed the conviction of a union president that had rested on the testimony of two FBI informants. Clark, alone, wrote that "unless the Congress changes the rule announced by the Court today," the intelligence agencies of the Government "engaged in law enforcement may as well close up shop," because the Court had "afforded him a Roman holiday for rummaging through confidential information." It was the former Attorney General speaking, and the loyalty program's author; the site's data show what the rest of the bench thought, and what he did.

Then the record turns, and the turn is the reason he is remembered. On June 19, 1961, in Mapp v. Ohio, Clark wrote for the Court that the exclusionary rule, which the Court had declined to impose on the states in Wolf v. Colorado twelve years before, was part of the Fourth Amendment as the Fourteenth applied it: "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Cleveland police had forced their way into Dollree Mapp's house without a warrant and convicted her on what they found. The opinion knew what it was doing and said so. "There is another consideration, the imperative of judicial integrity." "The criminal goes free, if he must, but it is the law that sets him free." Attorney General Bell, at the memorial, took his text from the same opinion: "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Warren, Black, Douglas and Brennan joined him; Stewart concurred in the judgment on other grounds; Harlan, with Frankfurter and Whittaker, dissented. The memorial resolution put the paradox in one sentence: "Despite his firm belief in strong law enforcement, he authored the landmark opinion in Mapp v. Ohio." Burger, answering for the Court, put the wider one: "There is a cliché that lawyers appointed to the Bench from Government service have become infected with a pro-Government bias," and Clark's opinions "reveal that old cliché for precisely what it is."

Two years later he did it again, on the other side of the First Amendment. Abington School District v. Schempp, argued in February 1963 and decided June 17, struck down Pennsylvania's and Maryland's Bible reading and Lord's Prayer in the public schools, eight to one, Stewart dissenting, and Clark wrote the test that would govern the Establishment Clause for a generation: "to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." He wrote it as a churchman, and the opinion took care to say what it was not: "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind." The State "may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion," and nothing in the decision touched the study of the Bible "when presented objectively as part of a secular program of education." The resolution's sentence on it is the pair to its sentence on Mapp: "Although a deeply religious man, Justice Clark wrote the controversial 1963 opinion that outlawed Bible reading exercises in the public schools."

The two opinions the memorial called seminal came in December 1964. Heart of Atlanta Motel v. United States, argued the first week of October and decided on the fourteenth, sustained the public accommodations title of the Civil Rights Act of 1964 as an exercise of the commerce power, and Clark wrote for a unanimous Court: "The action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause." That Congress had legislated "against moral wrongs" rendered its enactment "no less valid," he wrote, given "the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse." Katzenbach v. McClung, the case of Ollie's Barbecue in Birmingham, came down the same day, and he wrote that one too. And on June 6, 1966, in Sheppard v. Maxwell, he wrote for eight justices, Black dissenting, that the trial of Sam Sheppard for the murder of his wife had denied him due process: "The carnival atmosphere at trial could easily have been avoided, since the courtroom and courthouse premises are subject to the control of the court." Sheppard had been deprived of "that 'judicial serenity and calm to which [he] was entitled,'" and the rule for the future was general: "The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences." The State was to release him unless it retried him within a reasonable time.

The record on this site holds both halves of him at once, and that is its use. The Supreme Court Database codes 2,132 of his 2,190 cases, and across them he voted for the liberal outcome 54.1 percent of the time against a bench average of 61.4 in the same cases: a gap of seven points, seventeenth of the thirty-three modern justices by gap and thirteenth of thirty-three by share, the middle of the bench in every sense. He dissented in 12.9 percent of his cases against a bench rate of 18.8, in the lower third of the modern Court. His closest colleague was Minton, at 76.2 percent agreement over 395 divided cases, the closest pair on the site's matrix for either man; his furthest was Douglas, at 43.3 over 1,354. The areas are where the paradox lives. In criminal procedure his liberal share was 36.9 percent against a bench of 62.1, and in the First Amendment cases 37.2 against 68.7: the two fields of Mapp and Schempp are the two in which he stood furthest below his Court. In economic regulation he was at 71.8 against 62.9, and in federal taxation 74.4 against 66.9, above the bench in both, the antitrust lawyer of 1940 still voting. The drift instrument finds no real movement: his early gap was four points, at 44.7 against 49.0, his late gap seven, at 59.0 against 66.5; his own share rose fourteen points, and the bench's seventeen. He moved with the Warren Court, a little less far than it did, and the answer to the question the thread on this site keeps asking is the least dramatic on the shelf: both moved, and the distance between them barely changed.

He left at sixty-seven, and he left for his son. Lyndon Johnson named Ramsey Clark Attorney General in 1967, and the father, in the memorial's words, retired "at the peak of his judicial powers," "with the blessings of Chief Justice Warren," "to avoid any appearance of conflict arising out of President Johnson's appointment of his son Ramsey Clark as Attorney General." Warren's statement from the bench on June 12 says the same thing more carefully: "Under ordinary circumstances, I would say that we approach his retirement with great regret, but realizing the happy circumstances which bring about his retirement I can only say that we view his departure with mixed feelings." "He has been a great companion for us, and he departs with the affection of every member of the Court." Clark's reply thanked the two Presidents, his thirty-six clerks, his secretary of a quarter century, and Mary, and ended on the Crier's words, "God bless the United States and this Honorable Court." "Today our emotions are mixed," he said, "happiness with regrets." "But it is not the last day of which I speak, it is rather the first day of the new life which we shall continue to dedicate to the public interest." The seat went to Thurgood Marshall. The new life was the one Warren had predicted for him that morning, "the improvement of the administration of justice": he became the first Director of the Federal Judicial Center, from 1968 to 1970, and as a senior judge, the resolution records, "he sat on the Courts of Appeals in all eleven Circuits. He even held trial in district court."

The book came in 1974. Merle Miller's Plain Speaking, an oral biography assembled from taped conversations with Truman, has the former President admit a major error in appointing Tom Clark to the Court and be very hard on him for it; Samuel McCracken, reviewing it for Commentary that May, noted that Truman "is so hard on Clark that one hardly notices the admission of error," and in the same review asked "just how edited the transcripts are, whether cleaned up for lucidity and economy," questions "on which Miller is no help at all." Twenty years later Francis Heller went back to the tapes for American Heritage and reported that "the tapes do not support the book's text, not by any means," and that whole chapters were not on them in any form. The Clark passage is not among those Heller checked. The site records the remark as Miller's book prints it and the doubt as Heller and McCracken record it, and sets beside both the one witness who was asked. Two years after the book, in 1976, the Truman Library asked Clark about the President who had appointed him. "I think Mr. Truman will be one of the, oh, five or six greatest Presidents," he said.

He died in New York on June 13, 1977, the day after the tenth anniversary of his retirement, and was buried in Dallas. His papers, 524 linear feet of them, went to the Tarlton Law Library at the University of Texas that year; the Justice Department files, fifty-three feet, are at the Truman Library. The Court met for him on January 23, 1978, Solicitor General McCree presenting the resolutions, Attorney General Bell speaking, and Burger, who had never sat with him, answering with a figure: "The keel of a great sailing vessel is not always visible as it exerts its steadying force," and "of Mr. Justice Clark, it may be said that he was the keel of this Court in difficult waters." The Chief Justice ended with a story from St. Paul, a judge's wife meeting the Justice for the first time and asking, nervously, how one addressed a member of the Supreme Court. "Just call me Tom." Friedman and Israel's chapter, finished while he still sat by designation, ends on the Attorney General and his exaggerated danger, and the site keeps that verdict. But the seat's record is longer than the office's. The lawyer who prosecuted the Communist leaders wrote Mapp; the churchman wrote Schempp; the Texan wrote Heart of Atlanta; the President's man voted against the President and never heard a word about it. The keel is the part of the ship that does not move. Tom Clark moved fourteen points in eighteen years, and the Court moved seventeen, and the distance between them, on this record, is the smallest story on the shelf and the most instructive.