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MSS 86-5

Papers of E. Barrett Prettyman, Jr.


This small and very important collection consists of correspondence and working papers from McReynolds’ clerkship for Justices Robert H. Jackson, Felix Frankfurter and John M. Harlan, 1953-1955. Of significance are the files on Brown v. Board of Education and the notes between the justices; also drafts opinions, memoranda, correspondence and notes of other cases.

1944 (1953-1955)-1982 [Inclusive]
3 Linear Feet

Scope & Contents

The papers of E. Barrett Prettyman, Jr., consist of correspondence files dating from 1944 to 1982, as well as the working papers from his clerkship for Justices Jackson, Frankfurter, and Harlan (1953-1955).

Prettyman had arranged the correspondence by name of the justice who was the correspondent/subject. For each man there is correspondence from Prettyman's clerkship period, and later correspondence with other former clerks about reunions. In addition, the Jackson correspondence contains a few letters from Jackson and a good many related to his death. In the Frankfurter file there are many short, handwritten notes from Frankfurter to his clerk commenting on cases before the Court as they were being heard, making requests, or expressing opinions about other justices' views. Frankfurter's notes are also sprinkled throughout the case materials. The Harlan letters date from the period just before he went on the Court until the time of his death, since Justice and Mrs. Harlan maintained their friendship with Prettyman and his wife Evelyn after the short clerkship ended.

The working papers contain one or more folders on a dozen specific cases, several folders on an assortment of cases, and twelve folders containing Prettyman's certiorari petition memoranda annotated by the three justices. Of the case material, the most significant concerns <em>Brown v. Board of Education</em> and includes drafts of Prettyman's memoranda to Jackson regarding the justice's draft opinion, the map of Spartanburg, Prettyman's memo concerning implementation, and signed copies of the opinion and the decree.

This collection documenting the work of a Supreme Court law clerk is significant because of the stature of the three justices Prettyman clerked for at such an important time in the Court's history. Furthermore, records of Supreme Court clerkships are rare. Legal historians of the<em>Brown</em>era will find these papers valuable and interesting.

Collection Description

    Physical Description

    The size of this collection is four boxes or three linear feet.<extent>1 arbitrary_unit</extent>

    Conditions Governing Access

    There are no restrictions.

    Conditions Governing Use

    There are no restrictions.

    Preferred Citation

    Register of the Papers of E. Barrett Prettyman, Jr., 1944 (1953-1955)-1982, MSS 86-5, Box Number, Special Collections, University of Virginia Law Library.

    Biographical / Historical

    E. Barrett Prettyman, Jr., a life-long resident of the Washington, D.C., area, received his undergraduate degree from Yale University in 1949. He attended law school at the University of Virginia and served on the editorial board of the <em>Virginia Law Review</em>. In addition, he was active in the Student Legal Forum, on behalf of which he extended speaking invitations to Justices Robert H. Jackson and Felix Frankfurter, both of whom accepted. In late 1952, Prettyman was selected to clerk for Justice Jackson after his graduation the following June.

    The Supreme Court was deeply involved in consideration of <em>Brown v. Board of Education</em> when Prettyman began his clerkship. In his history of <em>Brown</em> titled <emph render="italic">Simple Justice</em> (New York: Alfred Knopf, 1975), Richard Kluger describes in detail the work of the justices in early 1954. "[Chief Justice Earl] Warren's highest hope, for a single unanimous opinion, did not look especially bright. It rested in large part on his overcoming the philosophical reservations of both Felix Frankfurter and Robert Jackson, men who could talk, write and think rings around the Chief Justice. Neither was likely to curl up at Warren's mere bidding."(683)

    Justice Frankfurter circulated a memorandum outlining his thoughts in January, and in February Justice Jackson wrote out his ideas in a lengthy draft opinion. He began: "The race problem would be quickly solved if some way could be found to make us all live up to our hypocrisies." Jackson discussed the history of racism from the legislative and judicial perspective and found no acceptable justification for revising the pattern. He finally concluded that segregation should be forcefully put to rest simply because the black population, not the Constitution, had changed.

    Barrett Prettyman read Jackson's memorandum and wrote a thoughtful reply. Of Prettyman's work, Kluger wrote: "It is doubtful if any of the many excellent young men who have come fresh out of the law schools or soon thereafter to serve the Justices of the Supreme Court ever served more faithfully or usefully than Barrett Prettyman served Justice Jackson. What part Prettyman's memo played will never be known, but it is a fact that Jackson, having written this much on the segregation cases, wrote no more."(691)

    Justice Jackson had a heart attack about seven weeks before the decision in<em>Brown</em>was handed down in the spring of 1954. During his subsequent extended hospitalization, Prettyman brought work for him to review, including Chief Justice Warren's draft opinion in <em>Brown</em> and Justice Frankfurter's colorful and verbose reports of the justices' conferences. Despite his poor health, Jackson was on the bench on May 17 when the unanimous <em>Brown</em>decision was handed down.

    During the summer of 1954, Chief Justice Warren appointed six clerks to study and report ways that desegregation might be implemented. Prettyman, a member of this team, was assigned to map out Spartanburg, South Carolina, in terms of its black and white population and to suggest a prototypical plan for integrating its schools; other clerks were given similar assignments. They then pooled their ideas to formulate an approach the Supreme Court should take on implementation of integration, but could not agree on the important question of timing. Prettyman favored a compromise between forcing immediate desegregation and allowing communities an indefinite period of time to act.

    Justice Jackson died in the fall of 1954, and Prettyman went to work for Justice Frankfurter, who had the highest praise for the young man's work and clearly took a personal interest in him. John Marshall Harlan, a judge on the U.S. Court of Appeals for the Second Circuit, was nominated in November 1954 to take Jackson's place on the Court. Harlan's mere name put Senate conservatives on guard because his grandfather had been the sole dissenter in <em>Plessy v. Ferguson</em>; consequently, his nomination was held up in the Senate for four months. In the interim he invited Prettyman to be one of his first two clerks, and Prettyman accepted.

    At the conclusion of his clerkship in the early summer of 1955, Barrett Prettyman joined the Washington, D.C., firm of Hogan and Hartson, where he is now a partner.

    Materials Specific Details

    This collection has been digitized.

fileJustice Harold H. Burton: Letter and miscellaneous documents, 1949, 1954MSS 86-5, Box 1
itemHand-drawn map of Spartanburg, S.C. indicating homes of black and white residents and locations of schools, 1955Law School, Basement, Special Collections Storage, Oversized Files Cabinet [Law Oversized Materials]
fileJustice Tom C. Clark: Correspondence and miscellaneous documents, 1954, 1967-68MSS 86-5, Box 1
fileJustice William O. Douglas: Letters and memorandum, 1947-53, n.d.MSS 86-5, Box 1
fileJustice Felix Frankfurter: Correspondence, 1944-1963, n.d.MSS 86-5, Box 1
fileJustice Felix Frankfurter: Correspondence re reunion of former clerks, 1956-82MSS 86-5, Box 1
fileJustice Felix Frankfurter: Printed Materials and Memorabilia , 1954-1982MSS 86-5, Box 1
fileJustice Robert H. Jackson: Correspondence re reunion of former clerks, 1966-69MSS 86-5, Box 1
fileJustice Felix Frankfurter: Printed material and memorabilia, 1954-66MSS 86-5, Box 1
fileJustice John M. Harlan: Correspondence, 1954-66MSS 86-5, Box 1
fileJustice John M. Harlan: Correspondence among former clerks, 1955-81MSS 86-5, Box 1
fileJustice John M. Harlan: Printed material and memorabilia, 1955-65, n.d.MSS 86-5, Box 1
fileJustice Robert H. Jackson: Correspondence, 1944-56, n.d.MSS 86-5, Box 1
fileJustice Robert H. Jackson: correspondence re reunion of clerks [correspondence re Jackson Lectures], 1964-1965 1966-1969MSS 86-5, Box 1
fileJustice Robert H. Jackson: Memorabilia, 1955, n.d.MSS 86-5, Box 1
file"The Exchange of Destroyers for Atlantic Bases" by Robert H. Jackson, [1954]MSS 86-5, Box 1
fileCorrespondence concerning publication of destroyer articles by Robert H. Jackson, 1955, 1957MSS 86-5, Box 1
fileJustice Robert H. Jackson: Clippings primarily from the time of his death, 1954MSS 86-5, Box 1
fileCase Material: Accardi v. Shaughnessy, 1954MSS 86-5, Box 2
fileCase Material: Brown v. Board of Education, 1954-56MSS 86-5, Box 2
fileBrown v. Board of Education Working papers, [1954-56]MSS 86-5, Box 2
fileBrown v. Board of Education, Signed opinion and decree, 1954, 1955MSS 86-5, Box 2
fileCase Material: Ellis v. Dixon, 1954-55MSS 86-5, Box 2
fileCase Material: Garner v. Teamster, Chauffeurs, etc, 1953MSS 86-5, Box 2
fileCase Material: Irvine v. California, 1953-54MSS 86-5, Box 2
fileCase Material: Miller Brothers v. Maryland, 1953-54MSS 86-5, Box 2
fileCase Material: Net Worth Cases, 1954-55MSS 86-5, Box 2
fileCase Material: Railway Express Agency v. Virginia, 1953-54MSS 86-5, Box 2
fileCase Material: Special List Conference, 1953-54MSS 86-5, Box 2
fileCase Material: U.S. v. Five Gambling Devices U.S. v. Denmark and Braun, 1953MSS 86-5, Box 2
fileCase Material: Weber v. Anheuser-Busch, 1954-55MSS 86-5, Box 2
fileCase Material: Westinghouse Employees v. Westinghouse, 1954-55MSS 86-5, Box 2
fileCase Material: Williams v. Georgia - Working Papers , 1955MSS 86-5, Box 2
fileCase Material: Loose pages of printed opinions annotated by Felix Frankfurter, 1951, 1954, n.d.MSS 86-5, Box 2
fileCase Material: Memoranda primarily by EBP, 1953-55MSS 86-5, Box 3
fileCase Material: Miscellaneous printed Supreme Court documents, 1953-54MSS 86-5, Box 3
fileCertiorari Petition Memoranda, 1953-55MSS 86-5, Box 3
fileEnvelopesMSS 86-5, Box 4
fileEllis v. Dixon: Notes between FF, EBP and Hugo Black during oral argument; also letter from EBP explaining , 1955-04-20 1989-03-16MSS 86-5, Box 4
seriesPhotograph Collection:
itemSnapshot of Chief Justice Earl Warren with Simon Sobeloff, Solicitor General, and Justice Robert Jackson at the ABA convention, 1954Law Special Collections photographs cabinet
itemFormal portrait of the U.S. Supreme Court, 1953Law Special Collections photographs cabinet
itemPhoto and photo of a sketch of Justice John M. Harlan, 1970, n.d.Law Special Collections photographs cabinet
itemReunion of Harlan law clerks, 1965Law Special Collections photographs cabinet
file[Supreme Court office of Justice Robert H. Jackson?], 1954Law Special Collections photographs cabinet