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Unlikely Heroes

“The book emphasizes the judges’ courage and integrity in the face of strong local opposition.”


“Bass has a good story to tell, and valuable ideals to honor; he shows convincingly that his protagonists deserve the tag of ‘hero’.”
-The Washington Post Book World

“An excellent text in classes on civil rights law, in and out of law school.”
-Law Books in Review


In Her 1949 book, Killers of the Dream, Lillian Smith lamented, “Had there been a few men in the South with enough strength . . . with enough integrity and energy to act out their own beliefs and with a strong belief in freedom and a clear vision of a new way of life, our people might have been swung around with their faced turned to the future.”

Less than a decade later, a handful of such men emerged as federal judges in the South. Operating in the eye of a storm, they made the Fifth Circuit Court of Appeals the institutional equivalent of the civil rights movement itself. One of them, District Judge Frank M. Johnson, Jr., told Boston University law graduates in 1979, “If the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history.”

Many today no longer seem to view the effects of past racial discrimination worth of special consideration. But the legacy of Brown v. Board of Education, whose 50th anniversary will be observed in 1954, reflects a social revolution linked to political and economic transformation that has created a new society in the American South—one linked to the past through cultural continuity. Despite a period of turmoil, disruption, and instances of violent upheaval, the change essentially occurred peacefully. The rule of law prevailed.

Judges Elbert P. Tuttle, John Minor Wisdom, Richard T. Rives, and John R. Brown operated in the eye of a storm, making the Fifth Circuit Court of Appeals the institutional equivalent of the civil rights movement itself. For a decade and a half after the Supreme Court’s basic school desegregation decision, they translated it into a broad mandate for racial justice and equality under law.

Burke Marshall, in charge of the civil rights division of the Justice Department under Presidents Kennedy and Johnson and later a law professor at Yale, once told Bass, “Those four judges, I think, have made as much of an imprint on American society and American law as any four judges below the Supreme Court have done on any court.” Interacting with them for two decades, District Judge Frank Johnson demonstrated the potential creative force of a single trial judge.

All but Rives were Republicans at a time when white Democrats dominated one-party politics in the South. Tuttle in Georgia, Wisdom in Louisiana, Brown in Texas, and Johnson in Alabama all played leadership roles in the 1952 campaign to nominate and then elect President Dwight Eisenhower. They worked closely with Herbert Brownell, his campaign manager and subsequently attorney general. Despite his image as an establishment Wall Street lawyer, Brownell had grown up in Nebraska shaped by the Progressive tradition of Sen. George Norris. A proud cousin of Susan Brownell Anthony, that relationship developed for him a quiet passion about civil rights. The outlook of the men he helped select as federal judges in the South became important.

Questions about the modern Republican Party’s relationship to the legacy of Abraham Lincoln makes this story especially timely. The Fifth Circuit then encompassed six former Confederate states—Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. After the Supreme Court issued its decree in Brown, striking down the “separate but equal” doctrine, the question remained as to what form compliance would take in a region where white supremacy served as the dominant historical force in shaping social, political, and economic institutions. The Supreme Court provided little direction to the lower courts. The Fifth Circuit filled a vacuum.

In fleshing out the Supreme Court’s mandate, the Fifth Circuit Court of Appeals became the legal battleground for the civil rights movement. Only month after Frank Johnson became at 37 the nation’s youngest federal judge, he and Rives sat on a three-judge panel to her the Montgomery bus boycott case. Their 2-1 opinion extended the principles of Brown to a non-school situation, setting the direction for the Fifth Circuit as a trail-blazing court. In unanimously upholding their opinion, the Supreme Court nodded its approval that the Fifth Circuit’s course was correct.

As chief judge in the 1960s, Tuttle recognized that state officials were using delay as a tactical weapon in a strategy aimed at wearing down outside forces of change. “In resisting change, especially in political sociological areas, time is what counts,” Tuttle would say in a law review article. In a formal tribute to him in 1967, Chief Justice Earl Warren said, “Judge Tuttle has combined . . . administrative talents with great personal courage and wisdom to assure justice of the highest quality without delays which might have thrown the fifth Circuit into chaos.

In Gomillion v. Lightfoot, Judge Brown declared in a powerful dissent, “There can be no relief at the polls for those who cannot register and vote.” His opinion helped persuade the Supreme Court to enter the “political thicket,” leading to the reapportionment cases that restructured state legislatures, congressional districts, and local governments. By releasing the urbanizing South from political dominance by rural minorities, these changes advanced democratic principles that accelerated the forces of modernization.

In 1967, Wisdom transformed school desegregation law when he declared for the Fifth Circuit that school boards had “the affirmative duty under the Fourteenth Amendment to bring about an integrated, unitary school system in which there are no Negro school and no white schools—just schools.” This ruling shifted the burden to end discrimination from black parents to school boards. Wisdom’s opinion also provided the Constitutional rationale for affirmative action programs. “The Constitution is both color blind and color conscious,” he wrote, “ . . . the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.” This doctrine subsequently has come under attack from a divided Supreme Court.

These judges suffered reprisals and threats with quiet dignity. They all shared an unspoken passion for fulfilling their oath of office “to administer justice,” a word they came to define as the absence of injustice. They battled to make the rule of law prevail during a period of social upheaval. Their response to cases involving unresolved issues of fundamental rights granted by the Civil war amendments to the Constitution made their court an active and vital force in transforming the American South and reshaping the nation. The issues they confronted in their courtrooms demonstrated to them that precedent may be inadequate when applying law to solve new problems.