Visionaries of the law: John Minor Wisdom and Frank M. Johnson, Jr.

AuthorGarrow, David J.

John Minor Wisdom and Frank M. Johnson, Jr., each served as Southern federal judges for over forty years, and each died in 1999.(1) Both were lifelong Republicans--Wisdom from New Orleans, Louisiana, and Johnson from Winston County, Alabama--whose appointments to the federal bench stemmed from their active support of Dwight D. Eisenhower in the presidential campaign of 1952.(2) Both eventually became justly famous for rulings that desegregated Southern voter registration rolls and previously all-white public schools.

Although their twin legacies share many resplendent parallels, history also reflects significant differences between them. Wisdom's historical reputation as an unusually gifted appellate judge rests upon the remarkably direct and muscular prose that graced his hundreds of opinions for the Fifth Circuit Court of Appeals.(3) Johnson' s prestige as a district judge is grounded on the notable trials he conducted and the ensuing enforcement orders he issued rather than on the prose he employed in rendering them.

But notable complexities mark both men's judicial careers. Judge Wisdom's opinions and remembrances indicate that he underwent a significant ideological evolution over the course of his first nine years on the Fifth Circuit. Even more dramatically, a comprehensive look at Judge Johnson's years in the Middle District of Alabama reveals that rather than personifying liberal judicial activism as some observers have presumed, Johnson instead was an idealistic but resolutely nonideological judicial pragmatist. When occasions presented themselves, he could be just as tough on civil rights proponents as on white segregationists, and he readily applied the same hard ruler for measuring the constitutional misdeeds of racially discriminatory black executives that he previously had employed when analyzing the unconstitutional conduct of white registrars.

Wisdom and Johnson will both go down in history as exceptional jurists who played major roles in imposing the federal rule of law on a region where thousands of white public officials willfully defied or shirked their responsibilities for more than a decade. But neither Wisdom nor Johnson should be reduced to a more simplistic or partisan figure than he actually was.

John Minor Wisdom's fame as the Fifth Circuit's--and indeed, the entire federal judiciary's--foremost voice on behalf of civil rights rests predominantly on a trio of mid-1960s opinions concerning voting rights, the Ku Klux Klan, and school desegregation. On voting rights, a pair of trial-court decisions rendered by Frank Johnson in 1961 and 1962(4) paved the way for Wisdom's own landmark ruling in United States v. Louisiana(5) in November 1963. New federal provisions protecting black Southerners' constitutional rights to register and vote free of racial discrimination had been adopted as part of both the Civil Rights Act of 1957 and the Civil Rights Act of 1960, but as of late 1963, the U.S. Department of Justice and Southern federal courts had been largely unable to break up the logjam of discriminatory registration practices employed by local white registrars to keep the vast majority of voting-age black Southerners off the rolls.(6) Writing on behalf of the majority on a special three-judge district court in the Eastern District of Louisiana, Wisdom rejected the State of Louisiana's effort to institute a new, objective, and very difficult citizenship test for voter-registration applicants in place of the vague and standardless constitutional "interpretation" test that Louisiana's white registrars had previously used with utterly devastating discretionary effect to disenfranchise tens of thousands of prospective black (but rarely, if ever, white) voters. "[T]he new test, or any other procedure more demanding than those previously applied to the white applicants, will have the effect of perpetuating the differences created by discriminatory practices of the past,"(7) he observed. "An appropriate remedy therefore should undo the results of past discrimination as well as prevent future inequality of treatment."(8) Implementation of the tough new test would "freeze the results of past illegal practices" by keeping Louisiana's electorate predominantly white.(9) Thus, unregistered black voter applicants should now be "judged by the same standards used in qualifying those persons already registered" rather than by the far more demanding standards that Louisiana sought to impose,(10) Wisdom's articulation of what came to be called the "freezing principle" or "freezing doctrine"(11) was upheld by the U.S. Supreme Court in March 1965,(12) but congressional passage and executive-branch implementation of the Voting Rights Act of 1965 in midsummer of that year swept aside the evolving regime of case-by-case judicial enforcement.

Next to the Selma, Alabama protests that directly spurred adoption of the Voting Rights Act,(13) the most intense Southern civil rights "hot spot" of 1965 was Bogalusa, Louisiana, where militant black activists were confronted by Louisiana's largest and most energetic Ku Klux Klan klavern.(14) The U.S. Department of Justice moved for an injunction against the Bogalusa Klan, and a special three-judge district court headed by John Minor Wisdom issued the requested order. Wisdom's opinion began by forthrightly declaring that "[t]his is an action by the Nation against a klan."(15) Then, with what the foremost historian of the Louisiana :movement has correctly called "historical insight, literary style, and moral principle,"(16) Wisdom proceeded to offer a tour de force treatment of the Klan's heinous history of violence and intimidation. "The compulsion within the klan to engage in this unlawful conduct is inherent in the nature of the klan. This is its ineradicable evil."(17) Wisdom denounced the "absolute evil inherent in any secret order holding itself above the law" and asserted that "violence and crime follow as the night the day when masked men conspire against society itself."(18) The court not only enjoined the Klansmen from intimidation and threats, but it also required the Bogalusa Klan to file monthly reports detailing its meetings and membership. As Fairclough reports, the court-ordered publicity "punctured the Klan's mystique and eroded its power to intimidate" either black activists or white moderates.(19)

Without a doubt, however, far and away the most famous and substantively important of all of John Minor Wisdom's appellate opinions on civil rights was his lengthy analysis of school-desegregation law in United States v. Jefferson County Board of Education(20) in December 1966. In earlier years, he had been hesitant to push school desegregation too far too fast. "When a case involves the administration of a state's schools, as federal judges we try to sit on our hands," Wisdom wrote on behalf of one thoroughly liberal Fifth Circuit panel in 1962.(21) In mid-1965, however, ten years after the Supreme Court's second ruling in Brown v. Board of Education had ordered segregated school districts to move with "all deliberate speed" toward operating "racially nondiscriminatory" schools,(22) Wisdom declared in Singleton v. Jackson Municipal Separate School District that "[t]he time has come for footdragging public school boards to move with celerity toward desegregation."(23) The most important judicial stimulus for such footdragging had come from the influential Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, John J. Parker. When Briggs v. Elliott, one of the cases that constituted Brown, had been remanded to a special three-judge district court, Parker composed a severely limiting analysis of Brown that became widely famous as the "Briggs dictum."(24) Declaring that "it is important that we point out exactly what the Supreme Court has decided and what it has not decided" in the Brown cases, Parker explained that

[i]t has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This ... the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination.(25) In Singleton in mid-1965, however, John Wisdom asserted that "the second Brown opinion clearly imposes on public school authorities the duty to provide an integrated school system" and declared that Parker's dictum "should be laid to rest. It is inconsistent with Brown."(26) Convinced that the lower federal courts' implementation of Brown "has not worked out well,"(27) in part because "there are so few Supreme Court decisions on school desegregation that inferior courts must improvise,"(28) Wisdom concluded that the Fifth Circuit had no choice but to be "forced into a policy-making position."(29) The Jefferson County case, involving the public schools in Birmingham, Alabama, and heard by a panel comprising Wisdom, fellow appellate judge Homer Thornberry of Texas, and ultra-conservative Mississippi U.S. District Judge William Harold Cox, became the means by which Wisdom chose to tackle the questions that the U.S. Supreme Court had so far left unresolved.(30)

Wisdom reiterated that Brown's reading of the Constitution "requires public school systems to...

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