Audio
Oral History Interview with Louis Finger Part 3
Transcript
Louis Finger: Oh, you did a little history of Delaware.
Oloye Adeyemon: Brown versus Board Oral History Collection. Bulah and Belton versus Gephardt court interviews, the third part of the interview with Attorney Finger. Attorney Finger, we, um, in our previous interviews, have, uh, talked first about, uh, some of the context in the background of the case and then we, uh, worked our way up and to, uh, the point that the case has reached appeal—or reached the Supreme Court of Appeal. And we stopped, uh, with your, uh, explanation of what occurred, uh, with the issues that were raised out of the lack of a cross appeal by the, uh, NAACP lawyers, uh, of the Delaware case. And, um, we were at the point when you were about to explain what happened after lunch, after that break for lunch.
Louis Finger: Oh, boy. It was—When I got back, the attorney general told me that Thurgood Marshall had asked [unintelligible 01:45] for us to agree, or at least not object to his 01:52 substitution of him for Jack Greenberg in the argument.
Oloye Adeyemon: Mm-hmm.
Louis Finger: We agreed to it, and Thurgood Marshall argued the rest of the Delaware case—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and he just confined himself to asking the court to affirm the judgment of the Delaware court—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - in the Delaware case.
Oloye Adeyemon: And he wasn’t doing that out of Greenberg not being able to do it, but he was trying to direct things away from this point of confusion. Is that what was going on?
Louis Finger: Or deter—02:32
Oloye Adeyemon: To try and recoup— 02:32
Louis Finger: - your group—your-your-your guess is as good as mine.
Oloye Adeyemon: Okay, but at any rate, he did take over the argument after—
Louis Finger: Yeah.
Oloye Adeyemon: - lunch? Hmm, and I can understand why. Perhaps I’d like to—
Louis Finger: I think-I think what you said is probably correct.
Oloye Adeyemon: Mm-hmm. Um, with the next stage—well, during that first stage, was there anything else that you feel was significant about the, uh, Delaware part of that-that litigation—the appeal of the Delaware case that—in that first stage, at the Supreme Court?
Louis Finger: Of the—the first part—I don’t really remember that much. I didn’t, um, find it that interesting.
Oloye Adeyemon: Right. Now, you had indicated the second phase was of more interest to you. Can you explain why?
Louis Finger: Well, it’s—the issues were pretty much the same, but it was-it was-it was a request by the Court for an argument about history. The intent of the Congress, the intent of the states, while reviewing newspapers, 04:09 the Congressional Record, the history of Delaware. And that was something that I could get my teeth into, and-and-and-and, uh, and-and answer the questions.
Oloye Adeyemon: Okay. Were you more comfortable doing that than defending, uh, the segregation policies of the school system in Delaware?
Louis Finger: Sure. [Crosstalk 04:40]
Oloye Adeyemon: Because you didn’t fully agree with it. You were simply doing that as, uh, an official of the state?
Louis Finger: Yeah.
Oloye Adeyemon: Okay. So in that second phase, uh, I understand that—or am I correct that it was during that phase that Lou Redding, 04:57 uh, brought up the issue that Delaware had a history of, uh, segregation that, uh, with—was significantly, um, w-had a strong history of-of, um, segregation. And did he not raise the issue of the 13th, 14th, and 15th Amendments? Was that in the second phase of the trial, that he brought that up?
Louis Finger: Uh, he didn’t deal much with it, with the history, in the first phase. But he did deal with attempting to show that Delaware was, uh—it was, uh, a real backwards 05:57 state—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and the connection with race relations. And he d-he did mention the fact that Delaware had never ratified 06:07 the 14th Amendment.
Oloye Adeyemon: Now, this was in the second phase, when—
Louis Finger: This was the first phase.
Oloye Adeyemon: Oh, this was in the first phase? Did—was your response to that in the first phase or was that part of your brief in the second phase?
Louis Finger: Part of my brief in the second—
Oloye Adeyemon: That’s—
Louis Finger: - phase.
Oloye Adeyemon: - what I thought. In what context did you raised that, in the first phase? How was that relevant to his argument?
Louis Finger: I think he was just trying to give an atmosphere to the Delaware attitude—
Oloye Adeyemon: I understand.
Louis Finger: I-I really—it-it was not really directly relevant, but he wanted to show that this whole—that just the, uh-the whole color 06:43 from the fact that that is the—that Delaware’s separation of-of the races in the state and the schools.
Oloye Adeyemon: Hi-his argument would have had more relevance in the second phase, wouldn’t it? If it was gonna be raised. ‘Cause wasn’t one of the things that—
Louis Finger: I think it-it probably was, uh, it-with respect to at least one of the questions.
Oloye Adeyemon: Which was the intent of the state’s? Is that correct?
Louis Finger: Uh-huh.
Oloye Adeyemon: Mm-hmm. Okay, so that was how it was that you had prepared to deal with that issue in the second phase? You had—that was-that was part of your plan, in other words, to-to-to deal with that, and not just to deal with it, but to show, in fact, that they had ratified it? Was that what you were doing?
Louis Finger: Well, uh, they wanted to show that they had ratified it. I gave the whole Delaware history; of course, it didn’t really have much bearing on the, uh-on what had happened before, uh, uh, 1897, ’98, when this, uh-the ratification took place—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and to show—I-I gave the whole history of the-of the-a political history of the state, during this period, showing how it was under the, uh, control of the southern segregationists. Uh, but that with-as-as a result of his fellow addicts [laughter] and the-uh, the republicans, uh, uh, got control. And in those days, the Republicans were the anti-racist—They were the-they were-they were-they were these champions—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - of the underdog, at least, the black dog, in that time. And then, uh—and they had—one of their acts—the first-their first act in the legislature—I believe it was their first act—was to ratify the 13th, 14th, and 15th Amendments, which was an announcement of-of-of-of-of-of their position and their attitudes.
Oloye Adeyemon: And those respectively freed those that were enslaved, gave them citizenship, and the right to vote. Is that correct?
Louis Finger: Well, they had that, but that they—the right to vote. Uh, that they-they, uh-the-they had the f-f—-the 13th, 14th, 15th Amend—You mean they-they—that’s what the 13th, 14th, and 15th Amend—
Oloye Adeyemon: Yes.
Louis Finger: - ment had done?
Oloye Adeyemon: Yes.
Louis Finger: That’s correct.
Oloye Adeyemon: Mm-hmm. So can you share with me—I think earlier, you-you referred to, uh, someone 09:21 in-here in Delaware that, earlier on—I think it might’ve been in the southern part of the state—had said something about, um, that-that were not having done that. Can you-you remind me of what you said earlier? Someone saying that we—“No, we haven’t, uh, ratified any—”
Louis Finger: Well, this was before the amendments were ratified. The debates over the-over the m-the amendments.
Oloye Adeyemon: Mm-hmm.
Louis Finger: They released, uh—they relay into speech 09:49 by the-one of the senators from Delaware in the Congress, appeared in the Congressional Record.
Oloye Adeyemon: Mm-hmm.
Louis Finger: In which he said, uh, “Delaware has n-not abolished slavery, and I hope that it never will.”
Oloye Adeyemon: Mm-hmm.
Louis Finger: Delaware, not having seceded, or attempted to succeed-cecede—
Oloye Adeyemon: It was not bound.
Louis Finger: - they were not bound—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - by the, uh-uh, the legislation that-that was, uh, propounded or, uh, by Lincoln. Can’t remember [unintelligible 10:25] uh, w-what it’s called.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Uh, old age has gotten me.
Oloye Adeyemon: Right.
Louis Finger: Uh, but, uh, the, uh-the-the passage—the ratification of the 13th, 14th, and 15th Amendment was made a condition of the s—of a state being accepted back into the Union.
Oloye Adeyemon: Right.
Louis Finger: And, uh, uh-and, uh-and, uh, but it-but since Delaware was already in the Union—
Oloye Adeyemon: Right.
Louis Finger: - they were not obliged to ratify it.
Oloye Adeyemon: Delaware, Maryland, West Virginia, Kentucky, and—
Louis Finger: In—
Oloye Adeyemon: - Missouri.
Louis Finger: - five states.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And, uh-and they had not ratified it, but it had—and I don’t remember the exact point of time the speech was made. It just struck me, uh, this was to show the-the split—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - in the state. And it was not ‘til 1897 that the governing body actually took action. Uh, and the-the-the amend-the f-those amendments had already been ratified with part of the Constitution. But they were sending a signal that they approved to those amendments and that their policies would be, uh, uh, in line with those amendments.
Oloye Adeyemon: Right. So how—Were you—W-Did you add that—Now that I understand that Redding had made that statement in his arguments in the opening phase, was your inclusion of that in your brief for the second phase only in response to the statement he had made? Or had you another reason for bringing that up? ‘Cause it wouldn’t seem like it would otherwise work in your favor.
Louis Finger: It was in-in response.
Oloye Adeyemon: Ah, that makes sense. Okay, so—
Louis Finger: I don’t think I would’ve done that if it hadn’t been.
Oloye Adeyemon: Sure.
Louis Finger: Although it did fit in with the questions which the coordinator asked, but it wasn’t directly in response to—
Oloye Adeyemon: I understand. So what were some of the key elements in your preparation of the brief for the second phase? What were some of the-what were some of the state’s key, uh, points that it was stressing in its argument? [Crosstalk 12:50]
Louis Finger: [Unintelligible 12:48] Get my—
Oloye Adeyemon: Some of them.
Louis Finger: - my brief out [laughter] and tell you what the—12:51
Oloye Adeyemon: Some were, not-not in detail.
Louis Finger: Uh—
Oloye Adeyemon: In general.
Louis Finger: The key points were that the same Congress that passed the 14th Amendment passed a bill relating to the public schools’ creation or forming, whatever it was, and that-and that bill—uh, they added the word “white” before the, uh—in every place you could add it, uh, which—establishing that the school was to remain a white school, and-and-and, uh, be segregated, so that—
Oloye Adeyemon: Both?
Louis Finger: Hmm?
Oloye Adeyemon: There was not a provision in there for a separate black school, at all?
Louis Finger: Well, in this particular bill, the-the-they-the-this-this was related to specific schools, I think—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - would remember. 13:47 And, uh, uh, they-they probably had provisions for separate—those schools. 13:54 But the argument was that the Congress, which adopted the 14th Amendment, did not think it applied to schools because look at what they did at the very same time.
Oloye Adeyemon: Got it. Got it, so these were really two separate acts, but you were able to link them because it was the same freedoms that were—14:14
Louis Finger: What was an answer to a question? What was the intent of the—
Oloye Adeyemon: Got it.
Louis Finger: - Congress?
Oloye Adeyemon: Right.
Louis Finger: They said, “Look.”
Oloye Adeyemon: The same Congress?
Louis Finger: Right.
Oloye Adeyemon: Got it. Were there other points that, you know, you remember that were important to the argument? 14:26 ‘Cause there were several questions they asked.
Louis Finger: Well, that was the main one, and then there was—well, that was the main one, as far as Congress is concerned. There was a question of the state. The states have ratified their first-the-uh, the 14th Amendment—13th, 14th, and 15th Amendment. What was their intent? And I don’t remember really too much about what I wrote. I’d have to review the briefing—
Oloye Adeyemon: Okay.
Louis Finger: - on that. And that—there were a couple of other questions I’d have—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - to look at the brief to read all those. 14:58
Oloye Adeyemon: Between the first phase and the second phase, was the delay or the-or the-the break in proceedings longer than it needed to be, and wasn’t something being done in between those two phases, other than just f-the brief questions?
Louis Finger: The briefing-briefing.
Oloye Adeyemon: Hmm. Was that a situation that was as long as it was, because the lawyers needed time?
Louis Finger: It was long as it was because it required a-a tremendous amount of, uh, study and research to dev-to develop what had been done there. They-they-they circulated the—I think it was the Virginia lawyer—
Oloye Adeyemon: Uh-huh.
Louis Finger: - one of the—circulated tremendous amount of material. And-and that-that she had collected from the lawyers for the various states.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And it was a hit, a very large amount of material to be reviewed. I remember spending considerable time in the Congressional Record, looking through the Congressional Record. And then reading, uh, uh, uh, about the history of-of-of-of this era, particularly one by the-the-the-the Dubois. I think that’s the way you pronounced it—D-U-B-O-I-S. I don’t know if you’ve heard of him, but he was, uh, a historian.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And I was really fascinated with the-the approach and that the-the scholarship was-was the approach, and what he brought up, as compared to—uh, there was a-a-a, uh-another historian had done— the tragic era-era. And he had quite a different point of view on these things, but I relied largely on the Dub-Dubois for that argument. And, uh—
Oloye Adeyemon: Do you remember, in essence, what that argument was?
Louis Finger: The argument was that, uh—[unintelligible 17:16]
[Pause 07:17 - 07:23]
- that the-that practices, uh, that were-were being followed 17:31 were attempted by certain states to be, uh, aggregated. 17:39 In other words, they were trying to, uh, minimize or destroy the attempts, uh, which were embodied in the 13th, 14th—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and 15th Amendments that were modified. 17:53 And, uh-and that the, uh, uh, and-and what the people were doing, and the-the efforts they were-they were-the, uh—did that and-and that the legislatures didn’t represent the people because the legislatures—now, they were largely black because they had disenfranchised white people, and so forth. So and of course, that era came to an end when they had the—the old-the old mindset is, again, entrenched in many of the state capitals, partially entrenched.
Oloye Adeyemon: Do you remember which works of Dubois that you read, that you referred to?
Louis Finger: Give me a copy of the brief 18:39 [unintelligible 18:40]
Oloye Adeyemon: Okay. That’s what we’ll have to do. Uh, so we’ll be able to footnote that. Um, John W. Davis was—became kind of the, uh, lead counsel for the defense—or for—not for the—for the appellees. 18:56 Is that correct?
Louis Finger: He was officially the lead counsel. The actual lead counsel was the attorney general of Virginia.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Uh, uh, John W. Davis had been a candidate from the Democratic ticket, and my parents—I remember telling me—this was back in 1924 or back there, when I was not old enough to know what a candidate was.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And the-they-they-they s-they spent—mentioned him as-as a real orator, telling it— 19:33
Oloye Adeyemon: Oh.
Louis Finger: - to the folks 19:34 and so forth, even though they didn’t look for—well, they didn’t look for—I think there was another one even worse, but— 19:39
[Laughter]
And, uh-and I was a little bit, uh, uh, taken aback. He-he was the one who made the argument. Uh, and of course, he had a lot of the respect of the Court. Knew everybody and even the gentlemen—19:57 They went for lunch. [Laughter]
Oloye Adeyemon: That was because he was respected as one of the leading constitutional lawyers in the country, did it not?
Louis Finger: That is correct.
Oloye Adeyemon: When you say that—you s—you’re saying the Supreme Court justices?
Louis Finger: Yes.
Oloye Adeyemon: Had asked—
Louis Finger: Yeah. In the middle of the—in, yeah, m-in the middle of these arguments, they were—
Oloye Adeyemon: Asked him—
Louis Finger: - talking about—20:16
Oloye Adeyemon: - if he would join you—
Louis Finger: Yeah.
Oloye Adeyemon: - for lunch?
Louis Finger: Yes, they had lunch with him. 20:18
Oloye Adeyemon: But that was just because of the respect? It wasn’t to talk about the case. It was just because of the respect they—
Louis Finger: Of—
Oloye Adeyemon: - had?
Louis Finger: - course, they can talk about the case.
Oloye Adeyemon: Was it perhaps a strategy of the defense? I mean, um, he was there obviously because of his kn-knowledge of the law. But could he have also been there because he was held in such high regard by-by lawyers, including the Supreme Court judge?
Louis Finger: Well, that’s undoubtedly the reason that the southern states hired him as a—uh, to be official. [Unintelligible 20:46]
Oloye Adeyemon: Mm-hmm. Mm-hmm. Oh.
Louis Finger: And he made the arguments, and, uh, I was rather taken aback on his argument that—about the importance of race, that they’re under-underestimating the-this whole thing. You’re 21:08 underestimating the importance of race. And, uh-and then there was an argument, I suppose, to-for the Court not to enter—uh, not to try and-and do anything, which was completely racist. 21:22 So it was—to my mind, it was an outright racist argument they’ve been having. 21:31
Oloye Adeyemon: Explain to me again what his argument was, and how it was racist?
Louis Finger: It was. It—these attempts that are being made are-are—that rather than 21:42 underestimate the importance of race.
Oloye Adeyemon: The arguments that are being made underestimate the importance of race, and what he meant by that was the differences in the races, and the reason they need to be separated? Was that what he was doing, there? 21:56
Louis Finger: That—uh, I, uh—It’s not clear to me. I’m not sure it was clear to me then. As I understood it, what he was saying is that races don’t mingle. They don’t get along. And you’ve got to prove to him that they wouldn’t do it, you know. 22:17
Oloye Adeyemon: In allowing this kind of a system to exist because it’s good for the races?
Louis Finger: Yeah.
Oloye Adeyemon: For that reason, I see.
Louis Finger: Right.
Oloye Adeyemon: And would you say that his—
Louis Finger: The only way I could really get it accurate is to-to get—
Oloye Adeyemon: Sure.
Louis Finger: - out a transcript and read it.
Oloye Adeyemon: Mm-hmm, but it was, uh, in your mind, not a persuasive argument, given the-the-the issues that the case was looking at?
Louis Finger: In my mind, it was a-a-a bit of a shock-a shocking movie. 22:52
Oloye Adeyemon: You watched someone? 22:53
Louis Finger: Well, I thought it was [unintelligible 22:56] uh, the idea that, uh, race was so important, and-and the races are gonna separate and-and-and-and fight, and all that sort of—
Oloye Adeyemon: It wasn’t really a constitutional issue, which was what he was hired to-to argue, right?
Louis Finger: Probably it was with—relative to whether, uh, the general constitution provisions 23:21 really dictated that, I-I think.
Oloye Adeyemon: Was he suggesting, also, that-that-that-that Congress at that time would have held a view similar to his own, in terms of why the-and how they were—their intent? Was he suggesting—
Louis Finger: I’m—
Oloye Adeyemon: - that they—
Louis Finger: I’m—
Oloye Adeyemon: - would attempt—
Louis Finger: - sorry. My ears are not— [crosstalk 23:39]
Oloye Adeyemon: Was he suggesting, also in his argument, that the intent of the Congress at that time would have been along those lines?
Louis Finger: Yeah. I think so. Now, this is a—my memory doesn’t—
Oloye Adeyemon: Yeah, and not only that, but we—
Louis Finger: [Crosstalk 23:54]
Oloye Adeyemon: - we can’t know, unless he told you exactly what he was feeling.
Louis Finger: That’s right.
Oloye Adeyemon: But you do have the value of more than we do from the archival record because you saw the nuances in some of the books, and whatnot?
Louis Finger: Well, I think-I think the archival record’s probably more [laughing] reliable—
Oloye Adeyemon: Sure. In—
Louis Finger: - than what I’m—
Oloye Adeyemon: - terms of the—
Louis Finger: - telling—
Oloye Adeyemon: - detail.
Louis Finger: - you.
Oloye Adeyemon: But your impression from the argument they made w-was, uh, that there may have been, um, some racism involved in that-that thinking—
Louis Finger: Yeah.
Oloye Adeyemon: - process?
Louis Finger: There was. “Races should be kept separate, and they shouldn’t be mixed.” That’s—
Oloye Adeyemon: Hmm.
Louis Finger: - the—
Oloye Adeyemon: Mm-hmm. What they were—What, um—Who do y—Are-are there any other details of the second phase, whether with the Delaware case and whether with the appellants or the appellees—are there any other, uh, things that you think would be worth pointing out to those that would be looking at the transcript, that you think might-might be missed, or might be important that might be overlooked, in terms of your—[unintelligible 25:11]
Louis Finger: No, I think—if-if—as I remember it, if you read the transcript, you’ll see that the Court does not rest with the arguments of-of the, uh, of-of Marshall’s group. When the-when the plaintiffs—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - made the case that this was the intent, uh, and their opinion so reflected that, and, uh, they-they-they did not f- [unintelligible 25:38] of intent, which was not consistent with our argument. And then-and then there-then they-then they’d said that it makes no difference. Uh, this is, uh, uh—that’s-that’s the, uh, way they were then, at that time. And, uh, you can read the opinion and see that right in the opinion. Opinion’s not really all that long.
Oloye Adeyemon: Hmm. I understand. Hmm. I guess what I’m looking for—any insights that you might have, either into the thinking of people at the time, or-or why certain things might have been said. We might be, on the record, able to see what was said, but we might not know what people were intending to do, or what they-what they hoped to gain. And that’s really what I’m wondering, if you have any-anything you can share with us about that particular phase, whether in terms of strategy or-or what might have been, uh, the point of success, point of failure.
Louis Finger: Well, all I know is the evi-the record, and the evidence was overwhelming in f-favor of answers which were not favorable to the plaintiffs.
Oloye Adeyemon: So then what swung things in their favor?
Louis Finger: That the Court agreed with [unintelligible 26:57] uh, on-on the basic-basic issues, and did not-did not rely on that, but they-they, uh, shied—27:08 [Sneezing] They pushed it aside and said, “Well, that’s the way it was then, but now, here are changes that are made,” and so forth.
Oloye Adeyemon: I’m listening.
Louis Finger: And, uh-and we look at it as of-as-as of today.
Oloye Adeyemon: Sure. Now, in that-on that note, was it the case that h—uh, I’ve heard it said, and perhaps you can—you’ve helped us in so many ways, on these points of law. I’ve heard it said that, uh—as a matter of fact, Jack Greenberg called this, uh, Supreme Court case, uh—and said that many have considered it to be either the most important or the second most important case in American history. And was that in part because it [sighs] was much more radical in this decision than courts—especially the Supreme Courts—tended to be? And did it have something to do with the fact that the Court pushed aside those issues, and yet ruled in favor of the Fingers?
Louis Finger: Well, the-I think it was the first—I mean, you mentioned that what was, uh—it was taking into account modern knowledge and our modern understanding, and-and forgetting about or not forgetting about it, which would decide, uh— 28:52
Oloye Adeyemon: I’m listening. Go ahead. Go ahead, Louis.
Louis Finger: - that which is old and that which is out of the—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and-and which might not have been able to have been done 50 years ago.
Oloye Adeyemon: Isn’t that somewhat radical for the court, really? 29:14 Doesn’t it tend to be the more conservative branch of government?
[Pause 29:18 - 29:24]
Louis Finger: Not necessarily. S-that’s the general perception, but the court is not a lot of things, starting with Marbury versus Madison.
Oloye Adeyemon: Mm-hmm. What year was that?
Louis Finger: That would be, uh, when Jefferson was president.
Oloye Adeyemon: Mm-hmm. So there were times when the court took what might be considered a radical, uh, stand?
Louis Finger: When—That’s the, uh—Roosevelt. ‘Cause they-they-they use the term, “pack the court.” 30:03 He-he just criticized these people that were holding his-a lot of his legislation on the Constitution.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And they-they got off and he’d put his own people 30:14 ‘cause we were willing to make decisions with-would do it differently. 30:24
Oloye Adeyemon: Mm-hmm. Mm-hmm.
Louis Finger: And—
Oloye Adeyemon: So that might have been when the Court shifted toward, uh—
Louis Finger: [Crosstalk 30:32]
Oloye Adeyemon: - um, would-would that be-would that be what you would consider more literal reading on the law?
Louis Finger: Oh yes. I think ‘cause it’s more [unintelligible 30:40] constitutional law.
Oloye Adeyemon: Mm-hmm.
Louis Finger: The two leading figures in that were Black and Douglas.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And Frankfurt and Jackson, who were considered sort of, uh, somewhat radical, now were conservatives [unintelligible 30:58]
Oloye Adeyemon: Mm-hmm.
Louis Finger: And, uh-and then Warren told us that the Court is in a lot of churches 31:04 who ran the case—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and that-and other cases like it. And, uh-and this—you’ve got Roe against Wade.
Oloye Adeyemon: Mm-hmm.
Louis Finger: I mean that was—there was just no basis for that.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And that-that-that was a—that-that is an example of, uh, taking the bull by the horns—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - that they can see of big importance. 31:31 There’s another one where Douglas in this—in order to get a-a point across, and then I forgot the-what the point is.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Oh, yeah. It was right of privacy.
Oloye Adeyemon: Hmm.
Louis Finger: The-there was a real recognition in the constitutional law 31:47 Right of privacy.
Oloye Adeyemon: Mm-hmm. Mm-hmm.
Louis Finger: And Douglas managed to give this case and everyone a very good view that there is a right of privacy, and he was successful. And he got charges and their own living. 31:57 [Unintelligible 32:00]
Oloye Adeyemon: Mm-hmm.
Louis Finger: And now you have a situation now where the democrats are screaming, and a number of people are worried about—uh, the main thing they’re worried about with George Bush is that he’s going to, uh, appoint, uh, uh, justices who are not going to be as liberal—
Oloye Adeyemon: As those have been.
Louis Finger: The less liberal would be like [unintelligible 32:29] Scalia and Thomas.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And, uh-and the case of Roe versus Wade—that was really that constitutional—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - right was manufactured—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - out of nothing. [Unintelligible 32:44] we’re talking about a partner of mine mentioning that. And he said, “Well—” He says, “That’s the way it’s done.”
Oloye Adeyemon: Mm-hmm.
Louis Finger: [Laughter]
Oloye Adeyemon: Right.
Louis Finger: And of course, he was in favor of it, and I was in favor of it, philosophically—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - although I had some doubt about it.
Oloye Adeyemon: Now isn’t—
Louis Finger: [Crosstalk 32:59]
Oloye Adeyemon: - part of the issue here the limitations in how people perceived freedom at that time? In other words, we’re talking about a period when certain things-certain things that are c-that are considered to be fundamental were laid down. But the-the challenge is that the later justices are required to use that as the basis, but in fact, there were limitations, at the time that these things were crafted, as to the full meaning of that, if you knew what it would—33:39 it was the provision that, uh, many of these things only applied to white, male landowners, at one point. So isn’t that where this kind of back and forth—it originates?
Louis Finger: I don’t-I don’t recall. I-I mean, it was—34:01 help would be limited to a black-white, male, landowners.
Oloye Adeyemon: I thought in the beginning, only they could vote, for example. At one point, in-in the initial—uh, that women could not vote, blacks could not vote, but—
Louis Finger: That’s right.
Oloye Adeyemon: - also—
Louis Finger: But the s-court didn’t—was not—did not figure in that—those changes.
Oloye Adeyemon: No, but I was trying to say that the same people that were writing the Constitution also were—had a certain mindset at that time, and isn’t part of the challenge for those who were supposed to stick to that document, that, in some cases, the document was a reflection of times and attitudes at the time?
Louis Finger: Well, the document is-is phrased in general language, which would, uh—can be interpreted in accordance with the times, and the court to do the interpretation. But, uh, as far as women voting is concerned, took a constitutional amendment—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - to right that. 35:04 Uh, uh, and then there were other-other things that took constitutional amendment.
Oloye Adeyemon: Mm-hmm. But in their strain from how—say, Plessy versus Ferguson, for example. And strain from that—or-or in the case of Roe versus Wade—isn’t part of that struggle the letter of the law? And then the-the evolving consciousness, and freedom, and witnessing with that 35:37 In other words, is-is-isn’t on the one hand, there—aren’t there those that feel that the process should not be tampered with that much, and there are others that feel that it’s an evolving process?
Louis Finger: Well, that-that underlies the whole thing. Uh, where I went to law school, they were quite, um, uh—the-they, uh-they were quite in favor of liberal constructionism—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - in-in-in-in the-in the law, to accomplish certain philosophical purposes than the literal reading, or literal reading of precedence. [Unintelligible 36:22]
Oloye Adeyemon: Mm-hmm. Yeah.
Louis Finger: And, uh, when they pointed out that a lot of the—we studied a lot of the-the rationalizations and the-and the explanations of their decisions—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - were not really gonna jump into decisions. You know, it-we, uh-we’re not affected, 36:42 but the court does and did make changes. The Miranda case was—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - was—but it was, uh-it was in-in-in a—it was in accordance with the-the, uh, the philosophical ideals there. Maybe went a little further than that [unintelligible 37:00]
Oloye Adeyemon: Hmm.
Louis Finger: - but it’s still—if your court is making that change, you didn’t have to go pass a constitutional amendment—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and make that change. I remember the-a per-pro-property course professor was pointing out that the-there were restrictive covenants, uh, uh, that could—restricting—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - property ownership of certain properties in certain areas, that, uh, uh, be to-to white people—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - uh, for example, and, uh, they—this has been such a restrictive community 37:41
Oloye Adeyemon: Mm-hmm.
Louis Finger: And it’s really getting nowhere 37:44 but, um, the fact is not man—in many places, you couldn’t buy.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Uh, we couldn’t buy because we were Jewish and-and then everything-these things have changed a lot now. But this-this professor—he was making a point. He said-he said-he said, “Is that-that—” uh, uh, and the argument was, this is private action. And the Constitution doesn’t [unintelligible 38:12] private action, and his argument was that restricted covenant can only be made effective if a court will enforce it—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and if a court will enforce it, is that government action?
Oloye Adeyemon: Mm-hmm.
Louis Finger: Well, his conservative view was it wasn’t—he was pushing that—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and, uh, eventually his view, uh, that they—he was not the only one hoping—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - they’d agree with that view—was accepted or why it is now—it’s now-it’s now accepted.
Oloye Adeyemon: Right.
Louis Finger: Those covenants are not enforceable.
Oloye Adeyemon: Mm-hmm.
Louis Finger: People won’t make a covenant. That’s why [unintelligible 38:48] but when he says, “I don’t wanna do it anymore—”
Oloye Adeyemon: Mm-hmm.
Louis Finger: - the-the court may not enforce it because that’s-that’s what it boils down to. 38:55
Oloye Adeyemon: In closing, there are two questions that I have, and then I also wanna make sure that, um, you know, whatever you feel is significant that you can share has been shared. One thing I-I earlier feeling was 39:13 asking questions based on what I’ve heard and read, but do you feel that, um, the, uh, Supreme Court case, as the court case, not in terms of the social impact it has, but as a court case, was it, uh, one of the more significant decisions that’s ever been made by the Supreme Court? A-as far as the law is concerned, not the social impact.
Louis Finger: You mean from [unintelligible 39:47] legal philosophy?
Oloye Adeyemon: In terms of-of the-of the case itself, and the decisions that were made.
Louis Finger: Well, I have felt that way. I can’t remember all the details—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - of that—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - decision now, but you’ll remember that that court—the Chief Justice of that Court, when this case started, was Vinson—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - a southerner and, uh, we didn’t know which way he was gonna fly. 40:13 And you had-you had the factions. You had the Jackson-Frankfurt faction on one side, and the Black-Douglas faction on the other side. And that—
Oloye Adeyemon: One being conservatives, that latter being—
Louis Finger: Yeah.
Oloye Adeyemon: - you know. 40:27
Louis Finger: The-the-the-the one sticking more to the letter of the law—
Oloye Adeyemon: Mm-hmm. Mm-hmm.
Louis Finger: - than the spirit of the court.
Oloye Adeyemon: Mm-hmm. Mm-hmm.
Louis Finger: And, uh-and-and in between the first and the second-s-second part, Vinson died. And Eisenhower named Earl Warren, uh, as, uh-as-to be the Chief Justice.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And, uh, there was quite a bit of hullaballoo about that, but eventually—
Oloye Adeyemon: In what way?
Louis Finger: Of paperwork [unintelligible 41:06] either he was too liberal or he was not—he was a republican.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Eisenhower was a republican president.
Oloye Adeyemon: Mm-hmm.
Louis Finger: And he appointed, [unintelligible 41:16] and Warren, who managed to unify the court. Not only on that case, but on a number of other cases, involved with— 41:27
Oloye Adeyemon: Mm-hmm.
Louis Finger: - civil rights.
Oloye Adeyemon: Mm-hmm. Mm-hmm.
Louis Finger: Like Miranda, uh—I think it was Warren. 41:31
Oloye Adeyemon: Mm-hmm.
Louis Finger: [Laughter] The-the rights of the-the persons arrested.
Oloye Adeyemon: Do you feel that his success in doing that was—one, that the cases were cases where a m-there was a majority, and that he was able to convince justices that would’ve dissented, that it was for the good of the country, and even perhaps the countries, in all? 42:02
Louis Finger: Might be. All that is, is that, yes—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - we’re not predating that that took place, behind the-behind the silicon curtain. 42:07
Oloye Adeyemon: Mm-hmm. S-so you-you were saying that you do feel it was, uh, a si-very significant case. You had mentioned, uh, Vinson dying, Warren taking over. What was it that Warren did that made this decision so significant, other than unifying the court? What was it in the-in the decision or in the arguments that made it different?
Louis Finger: Well, it was a straightforward decision. Uh, it thrust aside, uh, the history and the, uh [unintelligible 43:00] the, uh, legalities of-of it, and-and it just said what was, was, in the civil—during the Civil War and afterwards. In the words of a person I knew here, what was he?
Oloye Adeyemon: Mm-hmm.
Louis Finger: And [unintelligible 43:25] and, uh, uh, and-and his—the-the-the-the-the point was made, simply that what the Congress thought at the time and so forth, is entirely different, ‘cause it’s in the context of then and we don’t have any context now. 43:42
Oloye Adeyemon: Mm-hmm.
Louis Finger: And that was—that-that would have basically made a decision. He said they-they—these things, we push aside.
Oloye Adeyemon: Mm-hmm.
Louis Finger: It’s very—they’re not long opinion 43:54 It’s therapy.
Oloye Adeyemon: Mm-hmm. Mm-hmm. Uh, how did the, uh, defense or the appellees, uh, eh, I guess in your case, how’s that—how did you interpret “deliberate speed?” ‘Cause I’ve heard people say that, you know, that was very difficult to read, other than just that it was a way to not rush, as is usually the case when the Court makes a decision. There’s a quick resolution that deliberate speed m-how did-how did-how did, you know, the defen—well, it was those that had the defense. What—How did—What did they feel? Did they feel this was, uh, going to allow a way out? I mean, that def—that-that, “deliberate speed”—even for me not being a lawyer, it seems to be ambiguous.
Louis Finger: Well, the deliberate speed decision, I think, was simply the fact that, uh, there was gonna be considerable resistance—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - for this in a population. 45:06 And slide will result in blindness 45:10
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and it has to be handled—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - in a delicate—in a manner. And so they wanted to [unintelligible 45:20] make the transition gradually. People got u-get used to it, and I think that’s about the size of it.
Oloye Adeyemon: And my final question is, what do you think the most important impact of the case was?
Louis Finger: The most important?
Oloye Adeyemon: The most important impact [unintelligible 45:38] of this case, of-of this entire procedures that led up to the Supreme Court. What was its most important, most, uh, lasting impact?
[Pause 45:47 - 46:03]
Louis Finger: I think the most important thing was that it was breaking down the—-started breaking down barriers between blacks and whites—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - and other-and other races.
Oloye Adeyemon: And other races, as well. Do you feel that it had more impact h-in, um, American life, in general, uh, than it might have initially been thought to have, and less in the area of education? In terms of, you know, actually integrating the schools. It seemed to be, uh, the point at which, uh, the ball started rolling, uh, more quickly toward integration. But while so many areas of segregation, some of the aspects of segregated life, uh, were removed, uh, even today, the vestiges of school segregation remain because it seems to be an area that people are less prepared to deal with, in terms of all its ramifications. So, you know, was its impact, uh, in—as it—w-was its impact, in fact, something, uh, unexpected, at the time? Especially for those who defended—47:28
Louis Finger: Was this decision unexpected or—
Oloye Adeyemon: No. Was—
Louis Finger: [Crosstalk 47:30]
Oloye Adeyemon: - the outcome? The ultimate outcome of it?
Louis Finger: Of the-of the, uh, ultimal—what do you mean by the ultimate—
Oloye Adeyemon: The Supreme—
Louis Finger: - outcome?
Oloye Adeyemon: - Court case was specifically dealing with schools, and I’ve heard it said that it had an impact on almost every aspect of American life, in terms of integration and the area that has remained most difficult to resolve is, in fact, true, uh, integration of the schools. So I’m wondering how you would interpret the impact of the case. Was it what they had expected? Or did it turn out to be, uh, different—had a different impact than what was expected? 48:12
Louis Finger: Who is the “they?” What “they” expect?
Oloye Adeyemon: Those of you that were closest to it. Those of you that were following it and were reading, and—I mean, at the time, was the impact that it was going to have, in terms of, uh, racial integration, clear? Y-you know, ‘cause I’ve heard people said about some of those [unintelligible 48:42] that they knew that they could will away. But I think they had hoped that it would make a bigger—have a bigger impact, that today in 2001, we would see much different type of, uh, education integration. 49:01
Louis Finger: Well, I think, uh-I think it speeded things up. I-I think whittling away, we woulda gotten not very far.
Oloye Adeyemon: Mm-hmm.
Louis Finger: Even with the speed up, they-there’s still a long way to go.
Oloye Adeyemon: Mm-hmm. And what is it that you feel is the area that has to be, uh, given more attention, for it to reach its-its full conclusion? In other words, is it more legislation or is it—Where-where is it that the-the challenge really, uh, remains? 49:33 What is it that has to be done in order for the things that were potentially, uh, able to be accomplished than the actual accomplish? 49:49
Louis Finger: Well—
[Pause 49:52 - 49:57]
- that’s a really large subject.
Oloye Adeyemon: Yes.
Louis Finger: First place, you have-you have large areas of poverty, you know, which—where the residents are largely black. You have, uh, in effect, two school systems in the country, where, uh—one where the level of education is-is-is-is fairly decent, and where you have a certain number of blacks was [unintelligible 50:38] who were white and they’re-they’re related to the size of the popular-the relative sizes of the population. [Unintelligible 50:46] you have the residue of-of this-of the residents. You have poverty. Uh, and it, uh, was like, some pe-some people said that they had never 51:00 [unintelligible 51:01]
They’ve only been out of slavery, uh, uh, 150 years, or 100 years, or whatever it is, and, uh, they’re still feeling the effect of it because they’re-they’re not being [unintelligible 51:15] They-they never—well, I think that that’s another 51:22 excuse, uh, than anything else. But the-the-the fact is that, from a legal standpoint, it’s open, and there’s still a lot to be done. And, uh, uh-and-and talking about a great disparity in schools, great disparity in places where they live. I know 51:51 it’s not complete now.
We had a, uh-we had a fellow that lived near us with the women in his family 51:57 and, uh-and, uh-and the-the house was—we drove by [unintelligible 52:07] couple of white kids washing their windows. And we knew that the family—that they were a black family. And my wife remarked, “Well, there’s sort of a turn-around.” They—
Oloye Adeyemon: [Laughter]
Louis Finger: Now that-that-that-that white kids are-are-are-are cleaning the windows for-for a black family. It was sort of amusing, and we told the story to, uh, the, uh, son—one of the sons of the window washers, [unintelligible 52:36] He says, “That was me and my brother [laughter] out there. Uh, we had the equipment, and we want to make some money,” so, uh, there it was. But the-the fact that you thinks it’s remarkable that white people would wash your windows, it, like, shows that-that the-what the situation is in the country.
Uh, ideally, you wouldn’t give it a second thought. And, uh, and there are. They’re in the—I’ve been on the music school board and, uh-and other boards. They make an effort to get black members of the board, because that’s the kind of thing they should be involved in. But it’s still—it’s a small slice and it-it should be, uh, larger in that area, uh, so that it’s comparable—
Oloye Adeyemon: Mm-hmm.
Louis Finger: - to the-the integration of the way they live 53:43 and for them to be living in these poor places and they’re going to lousy schools, where the kids come here. I know-I know there are-are-are-are now more coached 53:50 by parents or other people, uh, then they are—then they’re never gonna be-be, uh, uh—I say never, but it’s gonna be a very long time before gradually come to the point where-where the—all people aren’t going to ever be equal.
Oloye Adeyemon: Hmm.
Louis Finger: But there’s no reason why, uh, one bird should be held-held down, you would think. 54:17
Oloye Adeyemon: Do you feel that this, um, decision was good for everyone, not just for the blacks?
Louis Finger: Yeah. I don’t see there was harm from it. 54:30 Other than these busing—being switched 54:35 where I think is something of a disaster.
Oloye Adeyemon: Mm-hmm. Well, thank you.
Louis Finger: Not other, 54:41 which I won’t say very much, since we were so [laughing] [unintelligible 54:45]
[Laughter]
- in promoting.
Oloye Adeyemon: Mm-hmm.
Louis Finger: But, uh, uh, the-they were-they-they-they were [unintelligible 54:51]
Oloye Adeyemon: Mm-hmm.
Louis Finger: The-they-they were just—they weren’t helping blacks, and they were hurting—they were herding them. 54:56 Shipping—
Oloye Adeyemon: Hmm.
Louis Finger: - people, all the buses running all over the place. They live here, and their school’s way out there, and somebody else from way out there came to your school. That—it didn’t work and do what it was supposed to. 55:13
Oloye Adeyemon: Mm-hmm. Well, I really appreciate you taking all this time. It was a lot more than, I guess, either one of us had planned for, but, uh, there are so many things that, uh, I think would be of great significance. Um, again, we do have the record to look at. We will be footnoting a lot of what we discussed. But, uh, I think you’ve added, uh, a human, uh, aspect to it and firsthand, uh, insight. And, uh, I really appreciate it.
Louis Finger: Well, that was a seminal decision. A lot of things would’ve happened since then. 55:54
Oloye Adeyemon: Mm-hmm.
Louis Finger: [Unintelligible 55:58] which won’t never happen 55:58 [unintelligible 56:00] by themselves [unintelligible 56:01] beautiful thing. 56:04
Oloye Adeyemon: Okay.
Louis Finger: Yeah.
Oloye Adeyemon: Thank you.
Louis Finger: Okay.
[End of Audio]
Description
Finger details his experience as an attorney for the state of Delaware working on the side of segregation and the thought processes that went into developing the argument defending the practice. He also describes a detailed history of Delaware in relation to the 13th, 14th, and 15th amendments to the U.S. Constitution. Readers can gain insight to the challenges the NAACP faced in attacking the practices of segregation but also a few professional courtesies they received from the opposition.
Date Created
01/11/2024
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