Fred M. Vinson

On October 7, 1946, Hugo Black made the announcement from the bench: "The President, with the advice and consent of the Senate, has appointed Fred M. Vinson, of Kentucky, to be Chief Justice of the United States." Friedman and Israel's judgment of what he made of the Court he was given is two sentences long: "In most areas, however, he failed, despite the attractiveness of his personality, to obtain unity. No one, it seems, could have done so." The record on this site shows the shape of the failure. In his seven terms the Chief was out of the majority in about eleven cases of every hundred and the rest of the bench in about twenty-one. The Court divided, and it divided around him. His closest colleague was Stanley Reed, with whom he agreed in 77.0 percent of the 525 divided cases they decided together; his furthest was William O. Douglas, 42.1 percent of 478. He ran the office differently from his predecessors. John P. Frank, in the appraisal Friedman and Israel call "extremely valuable," wrote in a passage Philip Kurland quoted the same year that Vinson "turned the once lonely job of Chief Justice of the United States into a staff operation"; most of the clerks came from Northwestern, and their collective memoir for the 1954 series opens on a working habit: "We learned early that the Chief was a good listener."

His first great opinion was about obedience. In March 1947, in United States v. United Mine Workers, the government was operating the country's bituminous coal mines and the miners had struck in the face of a federal court's restraining order; Vinson, for the Court, held the union in contempt whether or not the order would survive on appeal. "Violations of an order are punishable as criminal contempt even though the order is set aside on appeal," he wrote, and the sentence that carries the opinion is the one a Commonwealth's attorney from Louisa might have written: "The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter." The theme would come back. Vinson believed in authority duly exercised, by courts and by governments, and the hard cases of his Chief Justiceship were the ones that asked him to choose between that belief and the individual on the other side of it.

On race, he chose the individual, and he took the whole Court with him. Shelley v. Kraemer, decided on May 3, 1948, was the case of a Black family who had bought a house in St. Louis under a covenant of 1911 that barred its occupancy by "people of the Negro or Mongolian Race." Reed, Jackson and Wiley Rutledge took no part, and the six who remained were unanimous. Vinson conceded that "the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment." What the Constitution forbade was the courts' enforcing them, because a judge's order is the State's act: "The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals." The covenant's defenders had argued that the courts would enforce such agreements against white buyers too, and he answered in a sentence: "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Two years later, on June 5, 1950, he wrote both of the graduate-school cases. In Sweatt v. Painter the University of Texas had refused Sweatt "solely because he is a Negro" and the State had opened a law school for Negroes instead, and the Court ordered him admitted to the University of Texas, because the university possessed "those qualities which are incapable of objective measurement but which make for greatness in a law school," and because "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts." In McLaurin v. Oklahoma State Regents the student had been admitted and then seated apart, "in a row specified for colored students," and "State-imposed restrictions which produce such inequalities cannot be sustained." Neither drew a dissent, and neither reached the question underneath them: "Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation."

Friedman and Israel's verdict on this part of the record is the warmest sentence they give him: "He did help to improve the legal status of Negro Americans, and in this area of the Court's work he did unite the Justices." The site's instruments cannot see it, and the reason is worth a sentence. A unanimous decision has no gap in it; every justice voted the same way. What the gap measures is the divided cases, and there the Chief sat to the conservative side of his bench in every area but taxation and federalism. In the 762 cases the database codes he was liberal in 45.1 percent of his votes against 53.9 for the colleagues beside him, a gap of 8.8 points that ranks twentieth of the thirty-three justices the site can measure; 44.6 against 60.2 under the database's civil-rights heading; 31.1 against 52.2 in criminal procedure; and 25.0 against 46.7 in the First Amendment cases, the widest of the areas. He could carry the Court when he was the one leading it somewhere new. When it divided, he was on its conservative side, and furthest so where the government stood against a speaker or a defendant.

The First Amendment number has a name, and it is Dennis v. United States. On June 4, 1951, the Court affirmed the Smith Act convictions of the leaders of the American Communist Party. Vinson announced the judgment in an opinion that Reed, Burton and Minton joined; Frankfurter and Jackson concurred separately; Black and Douglas dissented; Tom Clark, who as Attorney General had brought the prosecution, took no part. The opinion recast the clear and present danger test in Learned Hand's words, which Vinson quoted: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." "We adopt this statement of the rule." The rest followed from it. "Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction." A government that saw the danger did not have to wait: "Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited." Black's dissent ended on a hope that "this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society," and Friedman and Israel, sixteen years after Vinson's death, sided with the hope: "It seems doubtful that the situation was as dangerous as Vinson believed."

The one great case he lost was the one in which he was most himself. On the night of April 8, 1952, with a work stoppage threatened, Truman directed his Secretary of Commerce to take possession of the steel mills, and on June 2 the Court held six to three that he had no power to do it. Black wrote for the Court; Frankfurter, Douglas, Jackson and Burton wrote concurrences, and Tom Clark, the President's own appointee, concurred in the judgment. Vinson dissented, with Reed and Minton. The opinion is not on the free carriers that print the rest of the case, which stop short of page 667, and it has gone mostly unquoted on this site for that reason; C-SPAN's Landmark Cases edition prints it whole. It is a Treasury man's opinion, and a congressman's. "Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times." To deny the President the power to hold the line until Congress acted was, in his view, to make him an errand-runner: "Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon." Its last sentence is the vote: "Accordingly, we would reverse the order of the District Court." Friedman and Israel read the case as the exception that proves their verdict: "Although Vinson's associates forced the President to function within limits that the Chief Justice regarded as too narrow, the Vinson Court usually provided broad scope for the operations of government."

By then he had already answered the other question. On October 18, 1951, a reporter put it to Truman directly, "In the event that you don't run, would you like to see Justice Vinson run?" and the President said, "I will answer that question when I make my announcement." A month later came Key West. Murphy went to see him at his apartment at the Wardman Park to ask when he would give the President his answer, and Vinson asked him, "Charlie, did the President send you to ask me this question?" Told that he had not, the Chief Justice said, "Well, I'm not going to tell you. I'll tell him." Murphy never learned the reason and gave two guesses in 1969, that running would have "eroded the distinction between the Court and the executive branch," and that "it also may be that Mrs. Vinson didn't want him to do it." He added: "That I don't know." Neither does anyone else on the record reached here. The Chief Justice who would argue in June that the Presidency was no messenger boy's office had turned down the chance to hold it.

His last term held two of the cases by which his Court is remembered, and he finished neither as the Court would. Brown v. Board of Education was argued before him on December 9, 10 and 11, 1952, and instead of deciding it the Court set it down to be argued again the next term. In June 1953 the Rosenberg case came back to the Court in an unusual way. Douglas had stayed the Rosenbergs' execution on June 17; the Court was called back into special term on the Attorney General's application, and on June 19 it vacated the stay over the dissents of Black, Frankfurter and Douglas. "We think the question is not substantial," the order said. Vinson filed the Court's full opinion on July 16, and its first sentences are plain about what had been done: "A Special Term of the Court was convened upon the Attorney General's application to review a stay of execution in this case issued by MR. JUSTICE DOUGLAS. Our action was unusual. So were the circumstances which led to it."

He died at 3:15 in the morning of September 8, 1953, in Washington, of a heart attack, at sixty-three, before the Brown reargument; the Court reheard it in December under Earl Warren. The services were at the Cathedral Church of Saint Peter and Saint Paul in Washington on September 10 and at the Louisa Methodist Church the next day, and he was buried in Pine Hill Cemetery at Louisa. President Eisenhower's statement recorded a fact easy to forget: "He was my close personal friend for many years." When the Court sat on October 5, Black spoke for it: "His colleagues of this Court respected him for his integrity and ability. They loved him for his kindness, sympathy, understanding and fairness." One of them is supposed to have said something else. Felix Frankfurter is reported to have greeted the news as the first evidence he had ever had that there was a God, and the remark is told and retold in the histories of Brown; but it comes in at least two wordings ("the first indication I have ever had that there is a God," in Klarman as he is quoted, and "the first solid piece of evidence I've ever had that there really is a God," in later writers citing Philip Elman's oral history of 1987), and in at least two settings, to a clerk soon afterward or at the funeral in Kentucky. It is a story about Frankfurter, and it is recorded here as one. What the Court thought it had lost is in the memorial it held on October 25, 1954, at which Sam Rayburn chaired the Bar's resolutions committee and the Bar remembered a man "genuinely interested in 'folks,'" and Warren, answering for the Court, said that "he rose from humble beginnings to the highest offices in all three Branches of our Government."

Friedman and Israel's verdict begins with time: "His service as Chief Justice had been brief, only seven years, while his predecessors had averaged fourteen. This limited opportunity made it difficult, if not impossible, for him to reach the top rank of the men who had held that position." The rest of it is about power. "He failed to make the Court a major force in American life, but he did not wish to do so. He believed that the Court should restrain itself and allow other agencies of government to play the most active roles." The term-by-term series behind the site's figures is too short to give a drift, but it shows who moved. In his first term the bench he sat with was liberal in 57.6 percent of its votes and he in 49.3; in his last, the bench in 48.4 and he in 37.4. The bench moved nine points, to a little past where he had started, and he moved twelve, further on. The man who believed in governments was more consistent than his reputation allows: he believed in Congress's power to punish the Communist leaders, in a court's power to punish a union that defied it, in the President's power to keep the mills open, in the State's duty not to put its courts behind a covenant, and in the Court's obligation to stand aside for all of them most of the rest of the time. Offered in 1951 the one office in the government that would have let him use that power himself, he stayed in the one that asked him to defer to it. Truman had needed an hour and a half to decide on him for the Court. Vinson took longer over the Presidency, and the answer was no.