ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 381-385

CHIEF JUSTICE FRED M. VINSON OF KENTUCKY: A POLITICAL BIOGRAPHY by James E. St. Clair and Linda C. Gugin. Lexington, KY: University Press of Kentucky, 2002. 394 pp. Cloth $35.00. ISBN: 0-8131-2247-3.

Reviewed by Paul J. Weber, Department of Political Science, The University of Louisville.

On September 8, 1953 Chief Justice Fred M. Vinson died of a heart attack. President Eisenhower had promised or at least implied that he would offer the popular governor of California, Earl Warren, "the next available spot on the Supreme Court," never dreaming it would be the chief justice spot. Although he had no prior judicial experience and was considered a legal lightweight, Earl Warren took the court by storm. Within a year a unanimous court handed down BROWN v. BOARD OF EDUCATION and "the Warren Court" was launched. Fred Vinson's record of considerable accomplishments and his reputation seem to have been buried with him. Fifty years later the authors of CHIEF JUSTICE FRED M. VINSON OF KENTUCKY reexamine that record. In this reviewer's opinion the book provides a basis for reevaluating Vinson's reputation as a failure on the Supreme Court.

An earlier review of this book published in the Louisville, Kentucky COURIER-JOURNAL argues that the authors "flirt repeatedly with the sort of hagiography that undermines confidence in their work." There is some merit to that viewpoint if one reads only the first six chapters. On the other hand, one can sympathize with the authors. For the greater part of his life Vinson did pile one success upon another. The future Chief Justice was born on January 20, 1890 in the small town of Louisa, Kentucky to a family with a long frontier heritage but modest means. In later years Vinson liked to startle people by claiming he was "born in jail," but his birth actually took place in the residence attached to the Lawrence County jail of which his father was the elected jailer. Young Fred excelled in academics and on both the football and baseball fields but after high school he could only afford to attend the local Kentucky Normal College, an unaccredited teachers' school. Fortunately the founder and owner of the college recognized his star student's academic abilities and persuaded Centre College in Danville, Kentucky to accept him on a probationary basis. Vinson completed both his undergraduate and his legal studies at Centre in three years, while starring on the baseball team and ranking first in his class. Apparently he had a near photographic memory to complement a fierce desire to excel.

Vinson returned to Louisa and practiced law from 1911 to 1921, when he entered and won a race for Commonwealth Attorney for the 32nd Judicial District of Kentucky. The authors relate a marvelous little election anecdote that tells a lot about Vinson. As a child he often chatted with prisoners in the jail. He and his brother "used to slip tobacco to an inmate named Bob Neace, who had been charged with murder but was acquitted during his trial by

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reason of self-defense. Neace told the boys he would never forget them. By the time Fred ran for commonwealth attorney as a Democrat, Neace had become an influential figure in local Republican politics." Fred's brother went to Neace, reminded him of the tobacco and his promise, and then asked if he and his friends would support young Fred. Neace agreed and Vinson won in this heavily Republican District by 857 votes. Two years later Vinson ran for Congress and won. He served two terms, lost in the 1928 debacle when the Democrats ran a Catholic, Al Smith for their Presidential candidate, but then retook his seat when Roosevelt led a Democratic resurgence in 1930. He ran and won three more times until Roosevelt appointed him to the District of Columbia Court of Appeals in 1938.

In many respects it seems that Vinson and Congress were made for each other. The jovial, congenial folksy fellow from Kentucky could joust and negotiate with the best of them, but he also had a knack for numbers and quickly became the House expert on taxation. As chair of a subcommittee of the House Ways and Means Committee he spearheaded creation of the Revenue Act of 1938. Since it included funding the Social Security Act, this was perhaps his greatest Congressional achievement. For the most part Vinson was a loyal New Deal Congressman, including introducing Roosevelt's ill-conceived court-packing plan. However, he also had an independent streak and broke with FDR on several occasions, including his support for veterans' pensions and opposition to the original economic stimulus act. He looked out for Kentucky's interests in tobacco, coal mining and was an enthusiastic supporter of FDR's many efforts to expand employment.

Roosevelt appointed Vinson to the Circuit Court in 1938, partially as areward for faithful service, and partially as part of his plan to place on the bench judges who supported his New Deal policies. The Kentucky Congressman was, in his mind, an excellent choice. Although Vinson did a credible job as judge and appreciated a guaranteed salary, he clearly missed being part of the political action, and perhaps grew bored. In any event, when President Roosevelt asked him to take over as Director of the Office of Economic Stabilization (OES) in 1943 he resigned his judgeship to take his first position in the Executive branch. From the OES he moved
to take charge of the new Federal Loan Agency, then as Director of War Mobilization and Reconversion, and finally as Secretary of the Treasury, all within the space of three years! Vinson was respected as one of the most competent men in Washington, and was even touted as a possible Presidential candidate. With a record like this it is easy to understand why the authors' biography might strike some as too laudatory, but the fact is Vinson was judged, even by his critics, as having been extraordinarily successful during his tenure in Congress and the Executive Branch and certainly competent during his five years as a Court of Appeals judge.

That changed when President Truman announced his selection to replace Chief Justice Harlan Fiske Stone who had died in April 1946. Historians of the Court have tended to believe that Vinson was appointed simply because he was Truman's good friend and poker buddy. That is too facile an explanation. The Supreme Court was sharply divided during Stone's last years and Truman worried that the Justices ever more public battles would undermine public confidence. In view of his outstanding track record in the executive and legislative branches, as well as his five years as a Circuit Court Judge, many Washington

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leaders, including Truman, saw Vinson as an ideal candidate to bring harmony to the Court. Vinson served until his untimely death in 1953 and has been almost universally rated a failure as Chief Justice. What happened? Although chapters seven through ten explore Vinson's years on the Court the authors draw no definitive conclusions. They speculate that Vinson's friendship with Truman may have clouded his judgment and been a factor that led other justices to resist his leadership. Although the authors do not organize their analysis in the following categories, the reasons appear to be a combination of personal, institutional, and contextual factors. On a personal level, the very strengths that served Vinson so well in the political branches may have undermined him in the judicial branch. Those familiar with the Enneagram personality typology will recognize Vinson as a type nine, i.e., a diplomat, negotiator and peace-maker without a strong agenda of his own beyond making peace among the brethren. His easygoing style was inadequate to overcome the huge egos and ideological passions that split Justices Frankfurter and Black. As a firm believer in judicial restraint and deference to the legislature, Vinson could have been a soul mate of Justice Frankfurter. The latter's arrogance, pedantic concurring opinions, and unwillingness to work for consensus except on his own terms gradually drove the Justices apart. (After the funeral Frankfurter wrote to a former clerk that Vinson's death was the one true indicator he had of the existence of a God.) Apparently Justice Jackson was sorely disappointed that he had not been selected as Chief Justice, and his personal feuding with Justice Black did nothing to help collegiality. He, along with several of the other Justices, saw
the new Chief as his intellectual inferior. Vinson's cautious writing style (he seemed to have a reverence for the legislature and precedent not shared even by Frankfurter), his reluctance to pen concurring opinions, and his willingness to assign major and "plum" cases to other Justices did nothing to enhance his personal reputation. Maybe he was just too nice a guy.

On an institutional level Vinson also had difficulty. One of the keys to Chief Justice John Marshall's success had been his ability to persuade his colleagues to abandon the custom of writing individual opinions in each case and issue one majority opinion with limited concurrences and dissents. Vinson understood this and tried in vain to limit concurrences. As Chief Justice he could assign majority opinions, but he still had only one vote and no power to limit concurrences and dissents. One measure of the court's divisions is the number of concurring and dissenting opinions. For example, in "in the 1950 term when the Court had only 88 majority opinions, it also handed down 23 concurring opinions and a whopping 60 dissenting opinions" (p. 187). Also, he could not force the Justices to accept and
decide more cases than they were willing to consider. Before World War II the Court had sometimes taken up to 200 cases a year. During Vinson's first year the Court accepted 142. The decisions issued also dropped to 94 in 1949, to 88 in 1950 and to 89 in 1951. In some respects Vinson can be held personally responsible for this. He firmly believed the Court should reserve its judgments "for cases of high national importance or clear conflict below." In no event should it merely be a revisory board to correct lower court errors and second-guess the legislature. On the other hand, with Justices intent on scoring legal points against one another through concurrences and dissents, they simply didn't have time to decide more cases. Vinson's leadership could not overcome their divisions.

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Finally, the historical context in which Vinson served might well have been such that no one could have led the court successfully until the nation had a chance to settle down after World War II, Cold War dangers were clarified and the threat of Communist infiltration properly assessed. One should recall that during the first half of the century most liberals, confronted with a conservative activist court, were passionate defenders of judicial restraint and more interested in the economic rights of workers than civil rights. One of Vinson's problems, in the eyes of his critics, is that he never moved beyond that position. He was a New Deal liberal
who for the most part trusted government action. However, he was not a civil libertarian in the Warren mode. In that respect he was a man behind his times.

On the other hand, the authors' detailed analysis of Vinson's record in the areas of individual rights and due process in light of contemporary scholarship provides a more nuanced and sympathetic picture. Two examples will suffice. In the late 1940s and early 1950s the extent of Communist influence in government was simply an unknown. Both Senator McCarthy and the House Un-American Activities Committee were riding high. Research from Soviet archives in the 1990s shows that there were indeed efforts to infiltrate American government, although nowhere near the extent or with the success administration critics alleged. Vinson's political
philosophy was that "order must be secured for freedom to exist." When he had to "balance society's need for order and stability against an individual's freedom of speech, Vinson usually came down on the side of order." (p. 232) His majority opinions in AMERICAN COMMUNICATIONS ASSOCIATION v. DOUDS
(1950) and DENNIS v. UNITED STATES (1951) reflected this value. In the current post September 11th climate Vinson's opinions may gain a more favorable hearing.

The second area needing reconsideration is Vinson's approach to the rights of racial minorities. Although often castigated for his cautious adherence to precedent, he did indeed believe that segregation was wrong and worried about how best to attack it. One can make a strong argument that the Vinson court's undermining of PLESSY v. FERGUSON (1896) through a series of cases made its eventual reversal possible. Vinson's first opinion in this area, SHELLEY v. KRAEMER (1948) struck down the power of states to enforce restrictive racial covenants. Three cases decided in 1950, HENDERSON v. UNITED STATES (segregated dining tables based on race violate the Interstate Commerce clause), SWEATT v. PAINTER (rejecting separate law schools for blacks in Texas on the basis that they were inherently unequal) and MCLAURIN v. OKLAHOMA (keeping a Black student separated from his peers in a graduate program) each weakened PLESSY and prepared the country for the Court's sweeping rejection of "separate but equal" in BROWN v. BOARD OF EDUCATION four years later. Vinson wrote the opinions in both SWEATT and MCLAURIN. They may have been cautiously written, but the intent was clear and their impact significant.

Overall this book provides a balanced, objective evaluation of Vinson's career, including a detailed analysis of his years as Chief Justice. In particular, the authors give a fair and not very flattering assessment of Vinson's efforts and accomplishments on the court. An extensive use of private correspondence, contemporary newspaper accounts, interviews with former law clerks and

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critical law review analyses of his judicial record provide a detailed account of the world, in which Vinson worked, the barriers and competitors he faced, and ultimately his victories and failures. This is a "must read" for anyone who hopes to understand the Vinson court. The authors never answer the question as to whether Vinson's rating as a failure needs reassessment, but based on their excellent scholarship I would make that argument.

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Copyright 2002 by the author, Paul J. Weber.