Contents

Reviews

How to Share This Book

Dedication

Introduction

Maps

ONE:Brown v. Board of Education (Part 1)

TWO: Brown v. Board of Education (Part 2)

THREE: Massive Resistance

FOUR: Civil Disobedience Versus the Old Guard

FIVE: A Strange Trio: Thurgood Marshall, James Eastland,and Robert Kennedy

SIX: Solicitor General, a Position of Power

SEVEN: The Supreme Court Nomination

EIGHT: A Liberal on a Liberal Court

NINE: A House Becomes a Home

TEN: Marshall and the Burger Court

ELEVEN: Compassion in Time of Crisis

TWELVE: The RehnquistCourt: A Sharp Right Turn

THIRTEEN: Marshall’s Legacy

EPILOGUE: Fanfare for the Common Man

Index of Principal Cases Cited

Acknowledgements

Select Bibliography

Index

About the Authors

Reviews

Thurgood Marshall:
Warrior at the Bar, Rebel on the Bench
by Michael D. Davis & Hunter R. Clark, originally published in 1992.

The 1992 print edition has been republished in two parts as two ebooks. The first ebook Thurgood Marshall: From His Early Years to Brown covered Thurgood Marshall’s youth, education, and the cases he argued leading up to the Brown v. Board of Education decision.

In the second part, Thurgood Marshall: His Triumph in Brown, His Years on the Supreme Court, the writers describe how Marshall and his team won the Brown case, the massive resistance which followed Brown, and Marshall’s long career on the Supreme Court as he joined fellow justices in majority or minority votes on the Vietnam War, the Pentagon Papers, abortion, the death penalty and other issues in the late 20th century.

The reviews below are from the print edition.

“Michael D. Davis and Hunter R. Clark offer a masterfully written tale of
an American legend.” — Gannett News Service

“Filled with the same fire, passion and humor that drove Marshall’s life,

 Thurgood Marshall is a revealing portrait of a pioneering lawyer.” —National Black Review

“Well-written, informative and lively.” —People

“This important work, ably chronicled by Davis and Clark, is impressive.
Highly recommended.” —Library Journal

“As a guide to the legal struggles of this American leader, this book is written clearly and with obvious affection and admiration for Marshall, and the law for which he fought.” —Booklist

“Michael Davis and Hunter Clark have crafted a thoughtful, carefully researched and focused biography.” —USA Today

“I highly recommend Thurgood Marshall by Mike Davis and Hunter Clark. This impressive book captures the sweeping drama and courageous struggles that have filled Thurgood Marshall’s life and career. The story of Justice Marshall is that of one of the greatest Americans in the twentieth century. Davis and Clark provide a compelling portrait of Marshall’s immense humanity and integrity in this fine biography.” —Congressman John Lewis of Atlanta.

“Thurgood Marshall is a giant of a man at a time when giants are scarce and desperately needed. This wonderful biography takes his measure.” —(Rev.) Theodore M. Hesburgh, C.S.C., President Emeritus, University of Notre Dame

“Davis and Clark have given us an engagingly written and conscientiously researched biography of a twentieth-century icon. It should be widely read and much discussed by all who care about the large, principled issues Justice Marshalls’ life embodies.” —David Levering Lewis, author of W. E. B. Dubois: Biography of a Race

“Michael B. Davis and Hunter R. Clark have written an interesting and informative biography of Supreme Court Justice Thurgood Marshall directed toward a general audience. The current work, with its fluid, readable style, reflects the authors’ backgrounds in the popular press, where both have published extensively.”--Mississippi Quarterly

Copyright

 Copyright © 1992 byHunter R. Clark and Michael D. Davis 
All rights reserved

Kindle Edition Published by

Ebooks for Students, Ltd.

 ISBN: 978-0-9850345-0-4

Washington, D.C. (202) 464-9126

Comments and corrections to info@ebooksforstudents.org 

Thurgood Marshall

His Triumph in Brown,
His Years on the Supreme Court

Hunter R. Clark & Michael D. Davis

Published by Ebooks for Students, Ltd.

Dedication

This book is dedicated to the memory of Michael Demond Davis (1939-2003), my friend and co-author of Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (1992, 1994), upon which this epublication is based. Scripture admonishes us, “From those to whom much is given, much is expected.” (Luke 12:48) Mike Davis sure lived up to that one in the pursuit of justice and human rights.

Introduction

The Lawyer as Hero: Thurgood Marshall’s Legacy

I met Justice Thurgood Marshall (1908-1993) in the early 1970s when I was a teenager working as a page in the U.S. Supreme Court. My parents were his contemporaries, and, like millions of Americans, they knew him as “Mr. Civil Rights.” As a lawyer, Marshall had won Brown v. Board of Education in 1954, effectively outlawing racial segregation. He became the first African American Supreme Court justice in 1967. But the 1960s had radicalized my generation, and Marshall’s commitment to “working within the system” was unacceptable to me. I was “Black and Proud!” I wanted freedom now! Little did I know that Marshall, an icon to my parents but an Uncle Tom to me, was one of the most visionary and courageous leaders in our nation’s history.

His vision was a hard sell to the black leaders of his day who had grown frustrated with the lack of progress toward racial equality. To some, the American system was irredeemable, and so they embraced Soviet communism. Others called for an alliance of the fledging civil rights and labor movements, but unions refused to let blacks in. Some saw the need for a mass political movement that would rally millions into the streets, but there was fear of provoking a violent white backlash. It would be decades before the advent of the mass media, and the coercive threat of national exposure, would make Rev. Martin Luther King’s direct action campaign a viable option. With access to the political process barred—African Americans were routinely denied the right to vote—Marshall’s challenge was to convince his colleagues that a litigation strategy was the solution, even though the Supreme Court’s “separate but equal” decree in Plessy v. Ferguson in 1896 had permitted racial segregation.

Marshall’s courage and skill as a lawyer carried the day. He had attended Howard University Law School where he met his friend and mentor Charles Hamilton Houston, Howard’s law dean. Houston, an African American graduate of Harvard Law School, had turned Howard into a “laboratory” for civil rights litigation, calling his students “social engineers” whose mission was to overturn Plessy. Marshall finished at the top of his law class in 1933 and soon he took to the road, often with Houston— hero lawyers travelling through the South and elsewhere, investigating lynchings and filing anti-discrimination lawsuits. Decades later, Justice Marshall regaled colleagues and law clerks with harrowing tales of close call escapes from the Ku Klux Klan and others who threatened to kill him. Undeterred, he went on to establish the chain of legal precedents that laid the groundwork for Brown.

As a Supreme Court justice, he championed the view that government has an affirmative obligation to remedy economic, race, and gender inequalities. His conservative opponents accused him of judicial activism. As the Court moved to the right, he often found himself in dissent. Frustrated, he urged rights activists to avoid the courts and seek redress through the political process. That political process has since produced our first black president, Barack Obama.

Meanwhile, militants faulted him for not acknowledging the extent to which their radicalism made Marshall’s moderate views more palatable. No matter. By the end of his life—he died in 1991—Marshall had put it all in perspective. “I don’t know what legacy I left,” he told an interviewer. “It’s up to the people. I guess you could say, ‘He did what he could with what he had.’ I have given fifty years to it, and if that is not enough, God bless them.”

Hunter R. Clark

July 17, 2014

Des Moines, Iowa

Maps

Educational Segregation Prior to Brown

Source: https://resourcesforhistoryteachers.wikispaces.com/USII.25

One:

Brown v. Board of Education (Part 1)

If you show your black ass in Clarendon
County again, you’ll be dead.
—An attorney for the State of South Carolina

Clarendon County sprawls across the middle of South Carolina at the foot of the Blue Ridge Mountains. It is predominantly black, agricultural, and poor. After the Civil War, blacks were pushed inland off the magnificent coastal plantations where they had lived as slaves and onto Clarendon’s unfertile lowlands. Some corn, soybeans, and tobacco can be grown there, and a few textile mills dot the landscape. Driving past pine, peach, and pecan trees, past gnarled oaks draped with Spanish moss, one realizes that this is the old South, where going to church is more important than going to school. Even today, as in Thurgood Marshall’s time, there are probably four Baptist churches for every school building in Clarendon, mostly frame structures set up on bricks or stones.

On Sunday afternoon dusty black children play in the dirt in front of their ramshackle, tin-roofed houses while their grandmothers sit fanning themselves on rickety front porches in bonnets and colorful cotton print dresses, their Sunday best. Many of the children’s feet bear bruises and cuts from running over the jagged edges of tin roofs that have blown off. No one could have known in 1950 that this lazy South Carolina backwater was about to serve as the focal point of the legal proceedings that would forever in the popular mind be associated with Topeka, Kansas, in the case that became known as Brown v. Board of Education of Topeka.

In May 1950, Harry Briggs Sr. and his wife, Liza, brought an equalization suit on behalf of one of their five children, Harry Jr., in U.S. district court. They demanded that the black schools in segregated Clarendon County be brought up to the standards of those for whites. Briggs, thirty-four, was a navy veteran who had served in the South Pacific during World War II. He pumped gas and fixed cars for a living in his hometown of Summerton. Liza was a chambermaid at a local motel.

The Briggses were joined in their legal action by the parents of other elementary-school-age African-American children in Clarendon. But the suit was named for them because their names came first in the alphabetical order of plaintiffs. As the result of their legal action, they became the targets of harassment by whites. Both were fired from their jobs when they refused to drop out of the lawsuit. Briggs was philosophical in retrospect about the risks he took. He said, “We figured anything to better the children’s condition was worthwhile.” When the local NAACP chapter brought the situation in Clarendon to the attention of the national headquarters in New York, Marshall decided to take on the matter. The Briggses seemed to him to be courageous people. He would do whatever he could to help.

Linda Brown Smith, Ethel Louise Belton Brown, Harry Briggs, Jr., and Spottswood Bolling, Jr. during press conference at Hotel Americana June, 1964. New York Telegram and Sun photo by Al Ravenna.

On the face of it, they had a strong case. Over half the public school funds in Clarendon went to white schools, although the school system enrolled three times as many blacks as whites. In addition, Clarendon’s annual per capita outlay for white students was almost a hundred times more than for blacks. Teachers’ salaries were disparate, too, although the Briggses had won an earlier ruling that black teachers’ pay be brought up to that of the white teachers in Clarendon.

Marshall seized on the favorable fact situation presented by the case. It was uncontestable that the black and white schools in Clarendon were unequal. He urged the Briggses to include in their suit a claim that segregation in public education was in and of itself unconstitutional. They agreed.

Marshall was also heartened when the judge to whom the case was assigned turned out to be J. Waties Waring, a white native South Carolinian who was a supporter of blacks’ rights. Appointed to the bench by Franklin Roosevelt in 1942, Waring had ruled in favor of Briggs in the suit to require equalization of black and white teachers’ pay. Before that, in 1945, Waring had struck down the state Democratic party’s attempt to bar blacks from voting in Democratic primary elections.

Although he was not sympathetic to blacks originally, Waring’s beliefs were influenced heavily by his second wife, a native New Yorker who encouraged him to read Myrdal’s An American Dilemma and to arrive at a new understanding of the white southerners’ mentality as portrayed in such works as The Mind of the South by W. J. Cash. The judge’s wife even went so far as to express publicly her view that “we don’t have a Negro problem in the South; we have a white problem.”

At the November 17, 1950, pretrial conference, Waring told Marshall that his brief should be revised so that his argument would become a frontal attack on segregation. Years later Waring recalled, “I pointed out to him, right there from the bench, that in my opinion the pleadings didn’t raise the issue.”

Waring told Marshall, “You’ve partially raised the issue, but of course the court can and may do what has been done so very, very often heretofore: decide a case on equal facilities— It’s very easy to decide this case on that issue.” Waring suggested, however, that the case be dismissed without prejudice and a new suit brought attacking segregation more directly. He told Marshall, “That’ll raise the issue for all time as to whether a state can segregate by race in its schools.”

Given the demographics of Clarendon County, Marshall was reluctant to take the approach suggested by Waring. The county was 70 percent black. Desegregation would not only mean allowing blacks to attend predominantly white schools; it would also mean forcing whites to attend schools that were predominantly black. In Marshall’s view this made Briggs a bad test case, because desegregation would be even less palatable politically and socially under these circumstances. Nevertheless, he gambled and followed Waring’s recommendation.

Meanwhile, South Carolina governor James F. Byrnes prepared to defend the state’s segregated school system. A former two-term U.S. senator, Byrnes had also served in the House of Representatives for a decade. He even sat on the U.S. Supreme Court briefly in 1941 before returning to the political life he loved. As a former justice, Byrnes knew the Supreme Court, and he knew that the Court’s recent rulings spoke for themselves on the question of a state’s obligation to provide equal educational facilities for its black residents.

The governor readily conceded that the black schools in South Carolina had endured “a hundred years of neglect.” Aiming to head off a U.S. Supreme Court confrontation that he feared his state could not win, Byrnes pushed through the state legislature a $75 million bond issuance to upgrade the state’s black educational facilities. “We must have a state school building program,” he declared, adding, “One cannot speak frankly on this subject without mentioning the race problem. It is our duty to provide for the races substantial equality in school facilities. We should do it because it is right. For me that is sufficient reason.”

At the same time, Byrnes sought authorization from the legislature to lease or sell public schools—in other words, to close or contract out public education—in the event desegregation was ordered. The Supreme Court could order public schools to desegregate, but he hoped that by privatizing education he would put the schools beyond the Court’s reach in the same way that private clubs cannot have their memberships dictated by the courts. The schools would then be free to exclude blacks.

He also retained John W. Davis, the most distinguished appellate advocate of his era, to take on Thurgood Marshall and the NAACP Legal Defense Fund in the event the legal challenge went beyond the familiar home-field confines of the South Carolina courts.

Few men in American history have been more successful in the fields of law, politics, and diplomacy than John W. Davis. Born in Clarksburg, West Virginia, in 1873, Davis attended law school at Virginia’s Washington and Lee University and rose quickly in the legal profession, as well in the national Democratic party. From 1913 to 1918, he served as U.S. solicitor general, representing the United States in cases that came before the Supreme Court. Later he served as U.S. ambassador to Great Britain. In 1924 he became the Democratic nominee for president, selected on the 103rd ballot at a deadlocked convention.

But he waged a somewhat listless campaign against Calvin Coolidge, refusing to drop many of his wealthy “robber baron” clients, including J. P. Morgan, who were anathema to the William Jennings Bryan wing of the party. One critic predicted that, if elected, Davis would change the national anthem to “The Star-Spangled Banker.” Coolidge prevailed; Davis captured only 29 percent of the popular vote. Afterward, he returned to private practice as senior partner in the law firm originally founded by him and his father, Davis, Polk, Wardwell, Sunderland & Kiendl. In addition to the House of Morgan, his clients included Standard Oil Co., AT&T, and Guaranty Trust Company of New York.

Davis, the appellate advocate Marshall admired most, had argued approximately 140 cases before the Supreme Court. Only two lawyers in history had appeared before the justices more: Walter Jones, who argued 317 cases between 1801 and 1850, and Daniel Webster of Massachusetts, who made nearly 200 appearances.

“Davis was the greatest solicitor general we ever had,” Marshall, who was to hold the same post a half century later, once said. “You and I will never see a better one. He was a great advocate, the greatest.” In his youth Marshall cut classes at Howard Law School to see the great John W. Davis at work before the Supreme Court. “Every time John Davis argued,” Marshall recalled, “I’d ask myself, ‘Will I ever, ever? No, never.’”

With Davis enlisted and in reserve, Byrnes placed the fate of South Carolina at the trial-court level in the hands of Charleston lawyer Robert McCormick Figg Jr., the state’s most prominent corporate attorney, and Emory Rogers, an outspoken white supremacist. In late May 1951, the two sides presented their opening arguments to a three-judge U.S. district court in Clarendon County. Figg and Rogers did not deny that the black and white schools in South Carolina were unequal. Instead, they asked the court for “a reasonable time” to correct the inequalities. They defended segregation as a “valid exercise of legislative power” and closed on an ominous note, warning that a desegregation order would trigger “dangerous tensions and unrest” throughout the state.

Marshall, for his part, urged the court to strike down South Carolina’s segregation statute as unconstitutional per se. Also, Marshall relied on recent Supreme Court rulings won by him and the Fund to support his contention that the state’s promise to remedy inequalities at some future point in time was insufficient to overcome the present, existing wrongs. As Time magazine observed some years later, “Marshall generally has a running start on opposing lawyers. The law he made yesterday is today’s precedent.”

He lost. A month later, in an opinion written by Judge John J. Parker with the concurrence of Judge George Bell Timmerman, segregation in South Carolina was upheld as a valid exercise of legislative authority. The sociological data offered by the Fund lawyers was dismissed; instead, weight was given to the judicial doctrine of stare decisis, or precedent.

In this case, the court found, Plessy v. Ferguson’s separate-but-equal doctrine was the precedent that controlled the outcome; the recent Supreme Court ruling in Sweatt and McLaurin had not explicitly overruled Plessy. Parker concluded that it was “late in the day” to argue the validity of segregation. The court did, however, order the state to bring black schools up to par with those for whites “promptly.”

Waring dissented bitterly, declaring that “segregation in education can never produce equality and...is an evil that must be eradicated.” He went on, “This case presents the matter clearly for adjudication, and I am of the opinion that all of the legal guideposts, expert testimony, common sense, and reason point unerringly to the conclusion that the system of segregation in education adopted and practiced in the State of South Carolina must go and must go now.” He concluded, “Segregation is per se inequality.”

Marshall appealed the ruling immediately to the Supreme Court. Meanwhile, South Carolina generally, and Clarendon County in particular, embarked on a crash program to upgrade the black schools, and equalize black and white teachers’ pay, across the state. For a time, appropriations for the construction of black schools totaled more than double the amount for white.

In January 1952 the Supreme Court disappointed Marshall by remanding Briggs v. Elliott to the South Carolina district court with instructions that it ascertain the degree of progress toward equalization of the black and white schools. Justices Black and Douglas vehemently opposed the remand, insisting that the constitutional issues raised in the case were ready for the Court’s consideration. Nevertheless, by the spring of 1952 the case was back in Judge Parker’s South Carolina court. Waring had retired and been replaced on the three-judge panel.

Writing for a unanimous court, Parker found that Clarendon County had “proceeded promptly and in good faith” toward equalization. By his estimation, full equalization would be achieved by the opening of the coming school year, soon enough to satisfy the Constitution and the U.S. Supreme Court.

One of the attorneys for South Carolina looked at Marshall, seated across the counsel table. In a voice loud enough for everyone in the courtroom to hear, he told him, “If you show your black ass in Clarendon County again you’ll be dead.”

Marshall went back to the Supreme Court and appealed Parker’s ruling in the summer of that year. Briggs was consolidated with four other desegregation suits brought by the Fund from other states around the country. Together the cases presented just about every conceivable form and variation of segregated schooling.

From the Eastern District of Virginia came Davis et al. v. County School Board of Prince Edward County, Virginia, a case similar to Briggs. The parents of black high school students in Prince Edward County challenged Virginia’s segregation law and also complained that the black schools were not equal to those for whites. As in South Carolina, a three-judge U.S. district court ruled against the blacks on the question of segregation itself, holding it to be within the state’s power to order the separation of the races. The court agreed with the blacks, however, that the separate black and white schools should be made equal, and it ordered the black schools upgraded promptly.

From New Castle County, Delaware, came Gebhart v. Belton, brought on behalf of elementary- and high-school-age African-American children. Again, the blacks challenged the state’s segregation law and in addition claimed that black schools and facilities were not equal to those for whites. This time they won. The Delaware Court of Chancery ordered blacks admitted to formerly white schools on the ground that the black schools were inferior. The Delaware Supreme Court upheld the chancellor’s ruling but implied in its opinion that the schools could be resegregated once the black and white schools were equalized. The county appealed to the U.S. Supreme Court, arguing that the Delaware Supreme Court was wrong in ordering immediate desegregation.

From Kansas came the case by which the five consolidated cases became known, Brown v. Board of Education. In it, suit was brought on behalf of elementary-school-age children residing in Topeka, Kansas, challenging a Kansas law that permitted, but did not require, cities of more than fifteen thousand people to segregate their schools. Topeka segregated its elementary schools, although schools above the primary level were integrated. A three-judge district court took the extraordinary step of ruling that segregation had a detrimental effect on black children. Nonetheless, the court refused to order Topeka’s elementary schools desegregated, since it found the black and white schools’ facilities, curricula, and teachers’ pay to be equal.

Last, out of Washington, D.C., came Bolling v. Sharpe, challenging segregated schooling in the nation’s capital. Since Congress, under the U.S. Constitution, runs the District of Columbia, the question presented by this case was whether the Constitution prohibits the federal government from denying citizens equal protection. The legal issue presented by the case was quirky and somewhat technical. The Fourteenth Amendment to the Constitution contains the equal-protection clause, but the amendment applies specifically only to the states; it is the Fifth Amendment that applies to the federal government, and while the Fifth Amendment guarantees citizens due process, it does not contain an equal-protection clause.

The Court docketed oral arguments in the five cases for December 7, 1952. Marshall and the Fund lawyers spent the summer preparing and submitting their briefs. Meanwhile, John W. Davis devoted himself and the resources of his enormous Wall Street law firm to the defense of segregation and the “Southern way of life.”

Marshall took a decidedly sociological tack in his brief, as he had done in Sweatt and McLaurin. Relying heavily on the South Carolina testimony of Dr. Kenneth Clark and the published works of Clark and his wife, Mamie, Marshall tried to demonstrate the inherent evils of segregated education. Clark, who was black, was a protégé of Columbia University psychologist Otto Klineberg, one of his era’s preeminent thinkers on race. Clark had done his undergraduate work at Howard University, where his views on social issues were influenced heavily by such instructors as Ralph Bunche and philosopher Alain Leroy Locke. He went on to earn his doctorate in psychology at Columbia.

Clark was noted for his doll tests, a technique that he and his wife, who also held a Columbia doctorate in psychology, had developed to gauge the attitudes of black children consigned to segregated schools compared with those of black children who received integrated educations. Black children of elementary school age were given dolls, some brown and others white. The children were asked, “Which doll looks most like you?”

Clark found that the children seemed to identify with the brown dolls, demonstrating an awareness of their own color or racial background. When asked which doll they liked more, or which doll was “good” and which “bad,” the children demonstrated a marked preference for the white dolls, indicating unhappiness about being black, a lack of self-esteem. In other words, the children evidenced through their preferences a sense that it is better to be white than black, that white people are better than black people.

“We were really disturbed by our findings,” Clark observed. “What was surprising was the degree to which children suffered from self-rejection, with its truncating effect on their personalities and the earliness of the corrosive awareness of color.” He continued, “I don’t think we had quite realized the extent of the cruelty of racism and how hard it hit.”

Clark summarized many of his and his wife’s conclusions in academic treatises, including a report for the White House Conference on Youth in 1950 entitled Prejudice and Your Child.

Davis would have none of it. In fact, he was ecstatic to read Marshall’s brief and learn the extent to which it relied on what Davis referred to as sociological “fluff.” He wrote in a letter to Figg, who had represented South Carolina at the lower court level, “I think I have never read a drearier lot of testimony than that furnished by the so-called educational and psychological experts.” In Davis’s mind, Marshall’s psychological and sociological data did nothing more than demonstrate that even as early as the age of five, white children realized they were white, and black children realized they were black. “Presumably,” he commented derisively, “they should have been found to ignore the evidence of their senses.”

In his own brief, Davis pointed out contradictions between Kenneth Clark’s South Carolina testimony and conclusions published by the Clarks in a 1947 article entitled “Racial Identification and Preference in Negro Children.” Based on research that compared the attitudes of segregated southern black children with their northern counterparts from integrated backgrounds, the Clarks concluded, “The southern children... in spite of their equal favorableness toward the white doll, are significantly less likely to reject the brown doll (evaluate it negatively) as compared to the strong tendency for the majority of northern children to do so.”

Davis used the Clarks’ published conclusions against them to his advantage. He asserted, “While these experiments would seem to indicate that Negro children in the South are healthier psychologically speaking than those in the North, Dr. Clark appears to disagree. In any case, the results obtained in the broader sample of experiments completely explode any inference that the ‘conflicts’ from which Professor Clark’s Clarendon County subjects were found to suffer are the result of their education in segregated schools.”

When he read Davis’s brief, Governor Byrnes was moved to write to his attorney, “I liked your having Clark & Clark answer Witness Clark.” Byrnes concluded, “I want you to know that this client is proud of his lawyer.”

Marshall persisted on his course. In September, as the deadline for the submission of briefs grew near, he turned to Clark. What he wanted from Clark was a statement of his observations and conclusions arrived at over years of study and research regarding the harmful effects of segregation on children. Clark obliged. He wrote of the negative effects of segregation on blacks. Segregation, he concluded, produced negative, “self-destructive” tendencies, hostility, and aggression. It created feelings of inferiority that in time gave way to self-hatred. From that flowed anger, violence, and other forms of behavior that only served to reinforce existing, negative stereotypes.

Clark wrote of the harmful effects of segregation on whites as well. For white children, he determined, segregation produced “a distorted sense of social reality.” It created “moral cynicism.” Here, after all, was a country committed by its creed to all men being equal. Clark admitted that examining the total effect—morally, socially, and economically—of this kind of duality, hypocrisy, of double-think, double-speak, tested the bounds of scientific knowledge of the human psyche.

Marshall asked other noted psychologists, sociologists, and social scientists to endorse Clark’s statement. They did. He appended to his brief in Briggs a concurrence in Clark’s analysis signed by thirty-five of the most eminent social thinkers of their time: Jerome Bruner, Gordon Allport, and Samuel Stouffer of Harvard; Otto Klineberg, Robert Merton, and Paul Lazarsfeld of Columbia; Hadley Cantril of Princeton; M. Brewster Smith of Vassar; Arnold Rose of Minnesota; and Alfred McClung Lee of Brooklyn College, to name but a few.

The day scheduled for oral argument drew near. Marshall drove his people, an integrated staff of brilliant young men and women: Robert L. Carter Jr., his top assistant, Spottswood W. Robinson III, Louis L. Redding, Jack Greenberg, Robert Ming Jr., Constance Baker Motley, James M. Nabrit Jr., Frank D. Reeves, and others. Carter would open, arguing Brown. Marshall would follow with Briggs. Robinson would argue the Prince Edward County case, which came from his home state. Marshall would also handle the Delaware case, along with Greenberg. And so on.

He reminded everyone that Charles Houston, his mentor, had taught him there was no such thing as too much hard work, study, or preparation. He told them to assume that they were preparing for Justice Frankfurter, known to be brilliant if pedantic and persnickety. He was probably on the blacks’ side, but he would ask the toughest questions. If they were ready for Frankfurter, they were ready for anybody.

Meanwhile, Davis was confident, if not arrogant. The law was on his side because of stare decisis, precedent. He set to work on his brief with zeal and relish, writing much of it himself instead of assigning it to any number of brilliant young attorneys in his law firm. “There is nothing in the Fourteenth Amendment,” he insisted, “which removes from the states...control of the educational process—so long as equal facilities are accorded the children of all races... The Supreme Court has decided the question...directly in three cases and by implication in several others.”

Davis genuinely believed that segregation was better for both races, especially for blacks. He refused to believe that the majority of black parents wanted to expose their children to the insults and degradation that would be heaped on them in hostile, predominantly white schools. He believed that most blacks, like most whites, would prefer to be left alone with their own kind. He could not fathom that the Court would upset such a long-standing and ingrained social convention as segregation.

His attitude surprised many people who thought they knew him. As a presidential candidate in 1924, Davis spoke out against the Klan and its vigilantism. Prior to that, as solicitor general in 1915, he won a case that overturned Oklahoma’s exclusion of black voters from primary elections. In 1929 Davis was even approached by Walter White, then director of the NAACP, about the possibility of Davis’s joining its board of directors or legal arm. Davis demurred. In truth, he was a white supremacist who believed in the natural inferiority of blacks. He wrote to Byrnes as he prepared for his appeal in Brown:

I do not believe that the only distinction between the races of mankind is to be found in the color of their skins. There are anatomical differences... I have been told, and I think it is true, that a cross-section of the hair of Mongolian races indicates that the hair is cylindrical. A similar cross-section of the hair of the Caucasian races indicates that the hair is elliptical, while a cross-section of the hair of the Negro race shows that it is flatter and more ribbon-like, hence kinky. Is it not conceivable that in addition to anatomical differences there are also differences in the intellectual processes, in tastes and in aptitudes?

Davis was beneficent enough to concede, however, that blacks should be allowed to achieve their “just level.” And he thought that graduate education should be offered on a desegregated basis. He explained his views in a letter to Walter White: “I think there is a genuine distinction to be drawn in policy between the immature children in the primary schools and the more mature individuals who attend graduate schools.... Meantime we should both feel satisfaction in the genuine efforts...being made to bring about equality in the schools.”

Marshall’s reasoning ran in the opposite direction. In his brief he not only challenged segregation based on the practice’s harmful effects, he questioned the whole idea of using race as a rational basis for any type of legislative decision making.

As Tuesday, December 9, 1952, approached, both sides made final preparations for their confrontation. Davis, joined much of the time by the attorneys from South Carolina as well as from Virginia, Kansas, and Delaware, moved with his personal staff into the Sheraton Hotel, near the White House in downtown Washington.

In preparation for the Brown court case the three lead lawyers gathered to discuss their final strategy. Pictured (left to right) are Harold P. Boulware, (Briggs case), Thurgood Marshall, (Briggs case), and Spottswood W. Robinson III (Davis case). The lawyers said that the Brown case hoped to end the “separate but equal” doctrine of the earlier Plessy decision and make it illegal to continue segregation in public schools. Courtesy, Library of Congress,

World-Telegram & Sun Collection.

Marshall and his staff took up residence across the street in the Statler, which was integrated. It was uncharacteristic of Marshall not to stay in the home of friends or NAACP allies instead of paying for accommodations while on the road; the NAACP’s money for his expenses was severely limited. But he decided on this occasion to rely on the Statler’s amenities in order to get some much-needed rest so that he could put forth his best effort in this crucial appeal.

Marshall’s friend and confidant William Hastie observed, “He drove himself to and beyond the limits of the human anatomy. He was at the point of exhaustion in trying to dispel the sense of defeatism that had inflicted itself on so much of black America.”

His wife recognized what was happening to him. “He’s aged so in the past five years,” she noted. “His disposition’s changed—he’s nervous now where he used to be calm. The work is taking its toll of him. You know, it’s a discouraging job he’s set himself.” She did not add to his burden by telling him that she was dying of cancer.

Outside the U.S. Supreme Court’s bronze doors, beneath the marble inscription “Equal Justice Under Law,” a line began to form shortly before dawn on the day of the oral argument. Those who wanted to observe the history that was about to be made knew that the Court chamber would accommodate only about three hundred spectators. The number of would-be observers, black and white, bundled against the late-autumn chill, grew longer as the morning wore on. What began as a trickle, a few men, a few women, became a torrent of the curious and excited—one long, expectant, but well-behaved queue that by midmorning stretched down the marble front steps and spilled across the plaza onto the sidewalk.

Robert L. Carter Jr. opened the proceedings by presenting his side of the Kansas case, Brown. His discussion of the issues proceeded well enough until he encountered a barrage of tough questioning from Frankfurter. Basically Frankfurter tried to pry from Carter an open admission that the Court was being asked to outlaw segregation because the basis for it was nothing more than what Frankfurter referred to as “man’s inhumanity to man.” Yet was it not true, Frankfurter asked, that segregation had been upheld in past decisions of the Court and that Carter was therefore asking the Court to unsettle existing precedents and social customs and practices embodied in hundreds of state laws as well as in those Supreme Court precedents?

In point of fact, this was the NAACP’s purpose. But after all the years of working around a direct challenge to Plessy, it was hard for Carter to come right out and ask directly that Plessy be overturned.

Marshall had no such hesitancy. After Kansas’s rebuttal of Carter, he rose to argue Briggs. Clearly, firmly, and straightforwardly, he declared that segregation was humiliating and degrading. He characterized distinctions based on race as “odious and invidious.” The Court had outlawed segregation in transportation, he contended; there was no reason not to outlaw it in education as well.

Frankfurter asked how Marshall could escape racism as a sociological fact. What about states or school systems in which blacks constituted a majority? Should the Court order whites to attend predominantly black schools, with black teachers? Then, presaging the busing controversy that the Court would be called upon to address almost twenty years later, he asked Marshall what was supposed to happen if whites simply resegregated themselves by moving or by gerrymandering school districts? Would the courts not have to order that the desired school desegregation be brought about? Marshall’s response implied that he was prepared to accept de facto segregation if it resulted naturally from geographic circumstances.

Justice Jackson then asked Marshall to compare blacks with American Indians. Suppose the Court struck down all classifications based on race? How would such a ruling affect the treatment, rights, and privileges of Native Americans traditionally distinguished by race?

Marshall deflected the inquiry with humor. “The biggest trouble with the Indians,” he explained, “is that they just have not had the judgment or the wherewithal to bring lawsuits.”

Jackson good-naturedly suggested, “Maybe you should bring some up for them.”

Marshall demurred, “I have a full load now, Mr. Justice.”

When Marshall finished, Davis rose to open his side of the case. A stately white-haired man of seventy-eight, his voice resounded, commanding the attention of the chamber with his formalistic, almost Victorian syntax. Paul Wilson, Kansas’s young assistant attorney general, matched against Carter in Brown, reflected later on Davis’s performance. “One need not have heard Mr. Davis’s argument to know that a great lawyer was speaking… The esteem of the Court was reflected in the face of each of the justices.”

Davis reminded the Court that segregation had been upheld countless times and that state after state had enacted laws calling for the separation of the races. All of this had been done since the Fourteenth Amendment. He asserted that segregation was a “great national policy” and that to undermine it would subvert the deference to local self-government that was the heart of the federal system.

He asked rhetorically, “Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not of all the activities of the government the one which most nearly approaches the hearts and minds of people, the question of the education of their young? Is it not the height of wisdom that the manner in which they shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contract?”

Davis rejected Marshall’s sociological assertions out of hand, dismissing them as “fragmentary expertise based on an examined presupposition.” Stare decisis was what should count: “I respectfully submit to the Court, there is no reason assigned here why this Court or any other should reverse the findings of ninety years.” He warned that equal, if separate, education was in danger of being “thrown away on some fancied question of racial prestige.” It was a virtuoso performance.

Justice Harold Hitz Burton, Truman’s first appointment to the Court in 1945, was a former Republican senator from Ohio whose social views were considered moderate. He challenged Davis, “What is your answer, Mr. Davis, to the suggestion...that...the Constitution is a living document that must be interpreted in relation to the facts of the time in which it is interpreted? Did we not go through with that in connection with child labor cases, and so forth?”

Davis responded that the Court should be guided by the framers of the Fourteenth Amendment and its equal-protection clause: since the framers did not end segregation, the Court should not take it upon itself to do so.

Despite this assertion, Davis, like his listeners, was well aware that constitutional interpretations changed as time went on. It was neither possible nor necessarily desirable to uncover and adhere strictly to the intention of the men who wrote the Constitution, or a particular amendment to it, every time a modern-day problem demanded. For example, the commerce clause, giving the federal government the power to regulate interstate commerce, had been expanded greatly by the Court over the years as America grew into a modern industrialized nation.

Frankfurter took up this point. “Mr. Davis,” he asked, “do you think that ‘equal’ is a less fluid term than ‘commerce between the states?’”

Davis inquired, “That what is unequal today may be equal tomorrow, or vice versa?”

“Yes, that is it,” said Frankfurter.

Davis hedged. “I should not philosophize about it.” He stuck to his contention, however, that the framers of the Fourteenth Amendment did not intend to outlaw segregation.

“What you are saying,” Frankfurter concluded, “is that as a matter of history, history puts a gloss upon ‘equal’ which does not permit elimination or admixture of white and colored in this aspect.”

“Yes,” replied Davis. “I am saying that.”

Marshall realized right away that Davis had blundered fatally. His argument failed to address Marshall’s assertion that there was no rational basis for distinctions based on race. And without a rational basis the distinctions could not stand.

Davis was aware that Marshall’s brief took this tack. But he chose to work around the argument rather than meet it head-on, relying instead on “the weight of the precedents” and Figg’s earlier public-policy defense of segregation at the three-judge U.S. district court level. Davis had explained in a letter to Figg, “I have not cast [my argument] in the form of a defense of reasonableness, not wishing to adopt the battleground which the appellants evidently prefer.”

In his closing remarks, Marshall rushed headlong into the breach. “It seems to me,” he told the justices, “that the significant factor running through all these arguments up to this point is that for some reason, which is still unexplained, Negroes are taken out of the mainstream of American life in these states [that have segregated public education].” He continued, “There is nothing involved in this case other than race and color.”

He concluded, “It seems to me that in a case like this that the only way that South Carolina, under the test set forth in this case, can sustain that statute is to show that Negroes as Negroes—all Negroes—are different from everybody else.” This, Marshall insisted, had not and could not be done.

Justice Stanley Reed, who had made clear during the Court’s deliberations of Sweatt and McLaurin that he opposed overturning Plessy, asked Marshall what he thought of the idea that segregation was imposed by some state legislatures in the interest of maintaining law and order, in order to “avoid racial friction.”

Marshall conceded that at the end of the nineteenth century racial attitudes were such that too much race mixing might have produced a violent backlash by racist elements within the South. Nevertheless, he said, “even if the concession is made that it was necessary in 1895, it is not necessary now because people have grown up and understand each other. They are fighting together and living together. I know in the South, where I spent most of my time, you will see white and colored kids going down the road together to school. They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together.”

It went on for three days—the arguments, questions, answers, and rebuttals. When it was over, there was nothing to do but await the ultimate judgment of the Court. But at the Court’s routine Saturday morning conference that followed the close of oral argument, it became clear that the justices were divided over whether to strike down the segregation statutes. Five appeared initially to be in favor of ending segregation: Black, Douglas, Burton, Frankfurter, and Sherman Minton, a liberal former Indiana senator who had been appointed by Truman in 1949. Four others leaned toward upholding Plessy as a matter of law: Chief Justice Vinson, Robert H. Jackson, Reed, and Clark. Frankfurter later wrote that if the Court had decided Brown in December 1952, the result “would have been catastrophic.”

In an effort to arrive at unanimity, or at least a stronger majority, on a question with such far-reaching social implications, the Justices issued a per curiam order on June 8, 1953, docketing the parties to appear again for a second round of oral argument. At the reargument, and in the briefs they were to submit before then, the parties were to address themselves to five questions set forth in the order.

Essentially the questions focused on the Fourteenth Amendment: its history, the intent of the men who wrote it, and the basis of the Court’s power, if any, under the amendment to end segregation, should it choose to do so. Reargument was scheduled for Monday, October 12, 1953. Each side had four months to prepare.

TWO

Brown v. Board of Education (Part 2)

I insist upon one law for all men.
—Earl Warren

John W. Davis left the Supreme Court a happy and self-confident man after the end of the first round of oral arguments in Brown. On his way out of the building, he commented to T. Justin Moore, counsel for the State of Virginia, “I think we’ve got it won, five to four—or maybe six to three.”

A few days later he wrote, “Unless the Supreme Court wants to make the law over, they must rule with me.” A minority on the Court might try, as Davis put it, “to rewrite the law with some high-flying remarks on the iniquity of considering the irrelevant subject of race.” He was convinced, however, that no “thoroughgoing” jurist would do so.

In June 1953, his law partner Allen Wardwell was solicited for a contribution to help pay for the preparation of the NAACP brief in response to the five questions. Davis forwarded the solicitation to South Carolina’s governor Byrnes with a wry note advising that Wardwell “does not feel that he can contribute… I send it on the possibility that you might be willing to.” Byrnes was not amused. He reacted by asking Senator Harry Byrd of Virginia to investigate the NAACP’s tax-exempt status.

Davis refused to let the State of South Carolina pay him a fee, offering his work instead as a public service. He did, however, accept a silver tea service voted him by the South Carolina legislature as an eightieth birthday present.

Davis’s self-assurance was short-lived. The federal government, invited by the Court to participate in the reargument, produced a brief that took the NAACP’s side in response to the five questions. Although the Eisenhower administration was reluctant to join the case, the justices’ request was regarded more as an order than an invitation.

President Eisenhower himself had mixed feelings about segregation. After the Court finally ruled it unconstitutional in 1954, he told a group of southern governors, “I think personally the decision was wrong.” An aide to the president claimed later, however, that while Eisenhower in fact favored the immediate desegregation of secondary schools and universities, “he did not believe this ought to be the result of any summary court order applying to immediate termination of every vestige of segregation.” According to the aide, Eisenhower held the view that “in the primary schools a more gradual approach would diminish the probability that severe and very likely violent opposition would result in the event that little children were forcibly intermingled.”

Nevertheless, the president allowed the Justice Department to use its own discretion in preparing the government’s brief in Brown. Attorney General Herbert Brownell, a Nebraska native who went on to become a successful Wall Street lawyer and confidant of New York governor Thomas E. Dewey, assigned the brief to Philip Elman. Elman, a Democrat, was a Truman administration holdover who worked in the solicitor general’s office.

This photograph shows interested members of the public waiting in line outside the Supreme Court for a chance to obtain one of the 50 seats allotted to hear the second round of arguments in the landmark Brown v. Board of Education case. The case involved four states (Kansas, Virginia, Delaware and South Carolina) and the District of Columbia. Among an impressive array of legal representation for the plaintiffs was Thurgood Marshall serving as chief council for the NAACP. The opposing side was led by John W. Davis, one time Democratic presidential candidate and expert on constitutional law. Courtesy, World-Telegram & Sun Collection, Library of Congress.

The first thing Elman did was move to have the reargument rescheduled to give the government more time to prepare. The Court obliged, extending the date three months, to December 1953. Elman made good use of the time. Working with a staff of eight, he produced a six-hundred-page examination of the Fourteenth Amendment. The thrust of his analysis was that the amendment’s history was too clouded to be used as a guide by the Court. He wrote:

“In 1868 public schools had been hardly begun in many states and were still in their infancy. School attendance was, as a general matter, not compulsory.”

He went on to explain, “The Negroes had just been released from bondage and were generally illiterate, poor, and retarded socially and culturally. To educate them in the same classes and schools as white children may have been regarded as entirely impracticable.”

He continued, “It is possible that state legislatures—while recognizing in the Fourteenth Amendment a clear mandate of equality—may have considered separate schools for colored children as a temporary practical expedient permitted by the Amendment. Many proponents of Negro education regarded separate schools as a more effective means of extending the benefits of the public school system to the colored people.”

But, he concluded, even if nothing in its history indicated conclusively that the amendment was intended to abolish segregation in public education, it nonetheless “established the broad constitutional principle of full and complete equality of all persons under the law, and... forbade all legal distinctions based on race or color.”

Meanwhile, the Supreme Court conducted its own research into the five questions, which was spearheaded by Alexander Bickel, a Harvard Law School graduate who clerked for Felix Frankfurter. Bickel spent the better part of a year working almost exclusively on this project. John W. Davis did not know it, nor did Thurgood Marshall or the government, but Bickel advised the justices that while the Fourteenth Amendment’s legislative history did not specifically indicate that the framers intended to outlaw school segregation, the amendment did not prohibit Congress or the courts from outlawing the practice at some future time.

Davis read the government’s brief with alarm. He and the other lawyers for the states agreed that “the Attorney General of the United States should not be consulted about this matter, as the present administration seems to be committed to do everything it can to abolish segregation in every form and we could not expect any help from that source.” And Marshall’s brief enraged Davis; he regarded it as a complete distortion of history.

Together with his colleagues, Davis hammered out his responses. The crux of his argument was that the framers of the Fourteenth Amendment “so clearly understood” that the amendment would not prohibit segregated schools that it was “not properly within the judicial power...to construe the Amendment so as to abolish segregation.” Davis’s side insisted that in a segregated school system there was no discrimination against blacks if equal facilities were provided.

But neither the government’s nor Marshall’s brief triggered as deep a concern on Davis’s part as did the sudden and unexpected heart attack that killed Chief Justice Fred Vinson in September; Davis always counted Vinson among the votes to uphold segregation. His trepidation was compounded by Eisenhower’s choice of a replacement. In the fall of 1953, a popular California politician, Earl Warren, was sworn in as the nation’s fourteenth chief justice.

Warren was elected to the first of three terms as governor of California in 1942. Four years later he became the first candidate to win both the Democratic and Republican nominations for that office. A bid for the Republican presidential nomination fell short in 1948, and Warren settled for the number-two slot on the Dewey ticket. He was defeated in a second try for the Republican presidential nomination by Eisenhower in 1952.

Davis’s initial reaction to Warren’s nomination was “The President could go further and do better.” A burly, white-haired, grandfatherly man, Warren was regarded as an honest and forthright politician, in keeping with his devoutly held Baptist beliefs. But some observers questioned his intellectual depth. John Gunther’s Inside U.S.A. described Warren in 1947 as “a man who has probably never bothered with abstract thought twice in his life.” Gunther concluded, “He will never set the world on fire, or even make it smoke.”

In reality, Warren had already stirred a national debate when he demanded the internment of some 110,000 West Coast Japanese Americans during World War II. He had been a member of an anti-Asian organization, the Native Sons of the Golden West. He told a national governors’ convention in 1943, “We don’t want to have a second Pearl Harbor in California.” President Roosevelt had acquiesced in the detentions.

Warren came to regret the decision. He said later, “Now that society in general is so much more aware of civil rights, interning them seems like a terribly cruel thing to do, and it was a cruel thing, especially uprooting the children from their schools, their communities and friends, and having whole families transferred out to a strange environment and a less desirable environment.”

Nonetheless, blacks welcomed Warren’s nomination. In a 1952 interview with the Pittsburgh Courier the widest-circulating national Negro newspaper, Warren declared, “I am for a sweeping civil rights program, beginning with a fair employment practices act. I insist upon one law for all men.”

During the 1948 presidential campaign, Warren called repeatedly for the enactment of voting rights and antilynching legislation. A remark made by Frankfurter suddenly took on an eerie prescience. Frankfurter called Vinson’s death before the reargument of Brown “the first indication I have ever had that there is a God.”

But Davis remained optimistic. On the eve of the reargument, he wrote to Justin Moore, “In the language of a famous general, we have got them and they will never get home.”

On December 7, 1953, before a packed Supreme Court chamber, the Court began hearing three days of reargument in Brown.

Pictured in this photograph are nine members of the Supreme Court that decided Brown v. Board of Education. Seated in the front row (from left) Felix Frankfurter, Hugo Black, Earl Warren, Stanley Reed, and William O. Douglas. In the back row are Tom Clark, Robert H. Jackson, Harold Burton, Sherman Minton. The photograph was taken late in 1953, after President Dwight D. Eisenhower had nominated Warren to the Court, but before the U.S. Senate had confirmed him as Chief Justice. Courtesy, the Library of Congress, World-Sun & Telegram Collection.

Marshall stood by his research on the Fourteenth Amendment. He asserted that the amendment was clearly intended to “strike down all types of class and caste legislation.” Segregation had to be struck down, he insisted, unless it could be shown that the framers had specifically intended to exclude segregation in public education from the class- or caste-based legislation that the amendment was enacted to prohibit.

He reiterated his contention that there is, in effect, no such thing as race and therefore no rational basis for distinguishing between individuals based on race. “Red things may be associated by reason of their redness, with disregard of all other resemblances or of distinctions. Such classification would be logically appropriate,” he told the Court. But, he cautioned, “apply it further: make a rule of conduct depend upon it, and distinguish in legislation between red-haired men and black-haired men, and the classification would immediately be seen to be wrong; it would have only arbitrary relation to the purpose and province of legislation.”

From this he concluded that the segregationists “would have to show—and we have shown to the contrary—they would have to show, one, that there are differences in race; and, two, that differences in race have a recognizable relationship to the subject matter being legislated, namely, public education.” He asserted, “That is a rule that has been uniformly applied by this Court in all other challenges that a classification is unreasonable.”

In his closing argument, he drove the point deeper. “The only way that this Court can decide this case in opposition to our position,” he told the justices, “is that there must be some reason which gives the state the right to make a classification...in regard to Negroes, and we submit the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings.”

He continued, “In order to arrive at the decision that [the segregationists] want us to arrive at, there would have to be some recognition of a reason why of all the multitudinous groups of people in this country you have to single out Negroes and give them this separate treatment.”

He asserted, “It can’t be because of slavery in the past, because there are very few groups in this country that haven’t had slavery some place back in the history of their groups.”

He went on, “It can’t be color, because there are Negroes as white as the drifted snow, with blue eyes, and they are just as segregated as the colored man.”

He concluded, “The only thing it can be is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible, and now is the time, we submit, that this Court should make it clear that that is not what our Constitution stands for.”

Davis rose for what was to be his final appearance before the Supreme Court. Now eighty, he had aged visibly in the year since the first round of oral arguments. His memory had failed somewhat, and he referred to notes throughout his presentation. In addition, his voice no longer carried as once it had. He told the Court, “The horn doesn’t blow as loud as it used to.”

He was compelling nonetheless. Alexander Bickel later recalled, “No one hearing [Davis] emphasize how pervasive and how solidly founded the present order was could fail to be sensible to the difficulties encountered in uprooting it.”

As he had in the first round of oral arguments, Davis stressed that the justices should be guided by established precedents and that segregation was a time-honored practice, sanctioned by past decisions of the Court. He insisted, “Somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.” It was, in Davis’s view, “late indeed in the day” to uproot segregation on any “theoretical or sociological basis.”

He urged the Court to consider the practical consequences of a desegregation order. After all, it would not only mean that blacks would attend schools where whites were in the majority; it would also mean that some whites would be forced to attend schools that were predominantly black. Referring specifically to Clarendon County, where black public school children constituted the majority, he asserted, “If it is done on the mathematical basis, with 30 children as a maximum...you would have 27 Negro children and 3 whites in one school room.” He asked rhetorically, “Would that make the children any happier? Would they learn any more quickly? Would their lives be more serene?”

He refuted Marshall’s claim that race was not a reasonable basis for making legislative distinctions. “No man,” he declared, quoting the renowned British prime minister Benjamin Disraeli, “will treat with indifference the fact of race. It is the key of history.”

In his conclusion Davis assured the Court of South Carolina’s intention to create equality of educational opportunity for all its residents, black and white, and implied that a desegregation order would jeopardize progress toward that end. He compared Marshall’s position to that of the dog in one of Aesop’s fables: “The dog, with a fine piece of meat in its mouth, crossed a bridge and saw the shadow in the stream and plunged for it and lost both substance and shadow.”

He went on, echoing what he had told the Court in December 1952, “Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?”

Years later, recalling Davis’s performance that day, Justice Stanley Reed observed, “His argument was outstanding beyond its usual excellence.” But it was Marshall, his position supported by the Justice Department,who carried the day.

At the December 12, 1953, Saturday conference that followed the reargument of Brown, Warren spoke first, making his feelings known unequivocally. In his view segregation was intolerable in a modern, democratic society.

“I don’t see how in this day and age we can set any group apart from the rest and say that they are not entitled to exactly the same treatment as all others,” he declared. The post-Civil War amendments were, as he interpreted them, “intended to make the slaves equal with all others.” Addressing Brown specifically, he said, “Personally, I can’t see how today we can justify segregation based solely on race.”

He went on to assert that the separate-but-equal doctrine was based on “the concept of the inherent inferiority of the colored race.” He challenged any fellow justice who believed blacks were inferior to say so openly. If no one was willing to do so, he called for a unanimous opinion to lend weight to the Court’s ruling.

At first, it was not at all clear whether the new chief justice would be able to achieve the desired unanimity. Black, Douglas, Minton, and Murphy sided with him. Clark now leaned toward the NAACP position but, along with Warren and Murphy, wanted to fashion an order that would take into account conditions in different geographic areas, because a desegregation order would surely be met with strong resistance in the South.

Reed appeared still to favor segregation. Frankfurter was not allowing himself to be pinned down. He seemed to have his own ideas about how the decision should be framed, but he was keeping them to himself.

Justice Robert H. Jackson, like Frankfurter, was inscrutable. A New York aristocrat, he had served as Franklin Roosevelt’s attorney general, been appointed to the Court by Roosevelt in 1941, and served as chief prosecutor at the Nuremburg trials. Initially a civil libertarian who aligned himself with Black and Douglas, he was by 1953 considered a judicial conservative.

Somehow Jackson wanted to express his view that in striking down the separate-but-equal doctrine, the Court was making a fundamentally political, rather than judicial, decision. He wrestled with the issue, drafting memorandums that indicated he might be preparing his own separate concurrence.

One of Jackson’s law clerks during the early 1950s was William H. Rehnquist, an outspoken young conservative who had finished at the top of his class at Stanford University’s law school. Rehnquist went on to become an associate justice, and later chief justice, of the Supreme Court. In December 1952 Jackson had asked Rehnquist to prepare a memo setting forth his views on Brown on the eve of the case’s first oral argument.

Rehnquist’s memo, entitled “A Few Expressed Prejudices on the Segregation Cases,” argued that the Court should uphold Plessy v. Ferguson and the separate-but-equal doctrine. “To the argument made by Thurgood, not John, Marshall,” Rehnquist wrote, distinguishing between the director-counsel of the Fund and America’s first chief justice, “that a majority may not deprive a minority of its constitutional right, the answer must be that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”

Rehnquist continued, “I realize that [this] is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.” He concluded, “If the Fourteenth Amendment did not enact Spencer’s Social Statistics, it just as surely did not enact Myrdal’s American Dilemma.”

When the memorandum surfaced in December 1971 during Senate consideration of Rehnquist’s nomination to the Court, Rehnquist felt compelled to explain his position. In a letter to Senate Judiciary Committee chairman James Eastland, dated December 8, 1971, Rehnquist insisted, “The memorandum was prepared by me at Justice Jackson’s request; it was intended as a rough draft of a statement of his views at the conference of Justices rather than as a statement of my views.”

Whatever Rehnquist’s role or motives, Jackson himself flirted with a concurrence that would have been, if anything, stronger than the position ultimately taken by the Court. In one internal memorandum, he wrote:

“Since the close of the Civil War the United States has been ‘hesitating between two worlds—one dead, the other powerless to be born.’ War brought an old order to an end but as usual force proved unequal to founding a new one. Neither North nor South has been willing really to adapt its racial practices to its professions. The race problem would be quickly solved if some way could be found to make us all live up to our hypocrisies.”

Jackson went on to explain racism this way:

“The white South retains in historical memory a deep resentment of the forces which, after conquest, imposed a fierce program of reconstruction and the deep humiliation of carpet-bag government. The Negro is the visible and reachable beneficiary and symbol of this unhappy experience, on whom many visit their natural desire for retaliation.”

In conclusion Jackson wrote, “That Negro segregation in the schools has outlived whatever original justification it may have had and is no longer wise or fair public policy is a conclusion congenial to my background and social and political views.”

In the end, however, Warren succeeded in marshaling all nine justices behind his draft of a unanimous opinion, which he intended to be “short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory.” This is exactly what it was. Warren read it from the bench on Monday, May 17, 1954, to an unsuspecting public and press corps.

Three lawyers, Thurgood Marshall (center), chief counsel for the NAACP's Legal Defense Fund and lead attorney on the Briggs case, with George E. C. Hayes (left) and James M. Nabrit (right), attorneys for Bolling case, standing on the steps of the Supreme Court congratulating each other after the court ruling that segregation was unconstitutional. Courtesy, Library of Congress, World-Telegram & Sun Collection.

It was the practice of the Court to deliver opinions on Mondays, with the author either reading aloud or summarizing the decision from the bench. There were few indications that this particular Monday would be the day for the delivery of Brown. Consequently, reporters were caught flat-footed at around one o’clock in the afternoon when Warren announced “the judgment and opinion of the Court in No. 1—Oliver Brown et al. v. Board of Education of Topeka.” The wire services flashed the news to pressrooms around the country, and hundreds of anxious editors stopped the presses of their editions to await the details of the decision.

Warren read the decision aloud. Much of the text was devoted to a meticulous explanation of the cases’ legal and historical background as well as a discussion of the value of public education in a modern society, so no one could be sure which way the Court had decided until he was two-thirds of the way through the fourteen-page opinion. As to the importance of education, he explained:

“Today education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

The opinion went on to ask rhetorically, “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?

“We believe that it does,” the Court declared. “To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The decision quoted from the earlier decision of the Kansas court, which, despite its own findings of fact, ruled against the black plaintiffs:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.”

Embracing the sociological perspective argued by Marshall, the Court declared, “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson [the Kansas court’s] finding is amply supported by modern authority.”

In a footnote that was to divide generations of legal scholars over the question of how much weight should be accorded authorities that are not, strictly speaking, legalistic, the Court cited as support for its proposition a number of sociological sources, including Kenneth Clark’s work and Gunnar Myrdal’s An American Dilemma.

In conclusion the justices declared, “In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

With this much said and done, the Court announced that it would hear reargument of the case in order to determine the appropriate remedy. On May 31, 1955, this would result in a decree that states must abolish segregation in their public education systems “with all deliberate speed.”

After the decision Marshall said, “I was so happy I was numb.” Not so for John W. Davis. He congratulated Marshall on the afternoon of his victory, although Davis’s personal opinion was that the decision was “unworthy of the Supreme Court of the United States.” Within a year of the Court’s final ruling, Davis was dead. One of his law partners said that the Court’s decision in Brown killed him.

THREE

Massive Resistance

John Marshall has made his
decision, now let him enforce it.
—President Andrew Jackson

A black reporter described Monday, May 17, 1954, the day the Court delivered the unanimous opinion in Brown, as “the day we won; the day we took the white man’s law and won our case before an all-white Supreme Court with a Negro lawyer. And we were proud.”

Felix Frankfurter, in a personal note to Chief Justice Warren, said it was “a day that will live in glory.” He added, “It is also a great day in the history of the Court.” Justice Harold Burton, also in a note to Warren, called it “a great day for America and the Court.” The justices’ law clerks remembered it as a day on which they felt “good—and clean. It was so good.”

Marshall himself saw the day as a turning point. The Brown decision, he said, “probably did more than anything else to awaken the Negro from his apathy to demanding his right to equality.” He expressed a fervent optimism that integration would proceed in compliance with the Court’s ruling.

“I think that, even in the most prejudiced communities, the majority of the people has some respect for truth and some sense of justice, no matter how deeply it is hidden at times,” he told Courier magazine in August 1954. “If we keep up the educational process, as well as the legal suits, I have no doubt of our eventual victory. We now have the tools with which to destroy all govern-mentally imposed racial segregation. To hear some people talk, one would get the impression that the majority of Americans are lawless people who will not follow the law as interpreted by the Supreme Court. This simply is not true.”

He believed the NAACP’s ultimate goal was “to go out of business with a realization that race is no longer a problem.” But he made clear the goal could be achieved without forcing unwanted integration on private clubs or associations. Solving the race problem, he maintained, “doesn’t mean a man is not to determine who comes into his home, or his country club. There are lots of people I don’t want around my house.”

In his interview with Courier, Marshall reiterated his abiding faith in the American legal system. “Lawsuits bring home to many people the fact that Negroes have rights as Americans which must be respected.” At the same time, he cautioned, “We have made tremendous inroads in the South, but this does not mean that the battle is won.”

“Some states will take longer than others,” he told U.S. News & World Report. “The length of time, I wouldn’t predict. Mississippi, Alabama, South Carolina and Georgia will take quite a while. I don’t think Virginia will take long.”

Unfortunately, the triumph was soon dimmed by Buster’s death. She died on Friday, February 11, 1955, her forty-fourth birthday, in the Marshall’s apartment at 409 Edgecombe Avenue in New York City.

Marshall had learned of Buster’s terminal cancer in late 1954. Theirs was a loving and devoted marriage of twenty-five years, and was devastated by his wife’s prognosis. Upon being told of her imminent death, he almost collapsed. For the next month and a half, he curtailed his NAACP activities and locked himself in their Harlem apartment, fixing meals and changing bedpans. He declined to see even his closest friends. “She would have done the same thing for me,” he explained.

When she died, he said, “I thought the world had come to an end.” Nevertheless, he remarried eleven months later, in December. Cecilia Suyat, “Cissy” to friends, was a diminutive woman of Filipino ancestry. Born on the Hawaiian island of Maui, she grew up in Honolulu. She moved to New York City in 1947 and, through the state employment agency, got a job as a secretary at the NAACP headquarters.

Shortly after Cecilia and Thurgood met, she wrote home to inform her family of her desire to remain in New York. Her father replied, “By all means [stay], as long as you are self-supporting.” She completed a secretarial course at Columbia University, and her ambition was to become a court reporter. She recalled, “I wanted to learn how to use a stenotype. I would enjoy working.” But when Thurgood asked her to forgo her career for the life of a housewife and mother, she agreed. Cissy found satisfaction in providing what she called “a restful, peaceful, comfortable home.” The marriage produced two children: Thurgood Jr. and John, named after his grandfather Juan Suyat.

Cissy was called upon to share her kitchen with her husband, who still loved to cook. “I don’t mind it at all,” she once said. “He finds it relaxing. Heaven knows what goes in the pot, but it comes out delicious!” He soon taught her his culinary specialties. For “Turkish Delight,” which he also referred to as “creoled macaroni,” he simmered peppers and onions with bacon or salt pork, then added tomatoes, stuffed olives, and cheese, served with macaroni. In turn, he began to enjoy her favorite recreational activity, bowling.

Because the marriage took place so soon after his first wife’s death, around the Harlem cocktail circuit there was gossip that Cissy and Thurgood had started their romance while he was married to Buster. But Ersa Poston, who was married to Ted Poston, recalled, “Cissy was a beautiful woman, and they married soon after Vivian’s death because the ‘death etiquette’ at that time set six months as a reasonable time for remarriage. Thurgood was one of those men who needed to be married, and Cissy was very much like Vivian. She knew Thurgood was engrossed with the NAACP, and he had to make the Legal Defense Fund work.”

Ersa Poston continued, “He was a very handsome man, and women flocked around him. Women always wanted to get to know the leader and say they slept with him, but Thurgood passed all that by. It was human nature on the part of the women, like the women who follow today’s rock stars. Thurgood had a way of warming up to people. He never let anyone feel they were a stranger. He told jokes that everyone laughed at.

“Without being disparaging, some men are meant to be married. Some men need women to take care of things, to organize their personal life, take care of the laundry and dry cleaning and when you come home the food is there and all you have to do is sit down and eat. Thurgood was so involved with his work that he was that kind of guy.

“Cissy, like Buster, provided the support Thurgood needed, and her cultural background made that possible. She didn’t need to be in the limelight,” Poston explained. “She brought an order to his life. When a partner dies you don’t just lay down and die. In our social circle we saw no indication of an affair before Buster’s death. But Cissy did fill a void in his life after the death of his first wife.”

His victory in Brown secured, his period of mourning behind him, and his new life’s companion at his side, in September 1955 Marshall left for a few days of rest and relaxation in Florida and Cuba. “I’m going to Havana,” he told Time in an interview for the magazine’s September 19 cover story. “Never been there; hear they treat a man fine.” It was his first vacation in eight years.

Upon his return the NAACP embarked on one of the most massive litigation programs ever undertaken, designed to force compliance with the Brown decree. Marshall called the strategy “gradualism,” which he defined as “working out integration problem by problem until it is finally achieved,” without resorting to violence or illegal acts.

Chief counsel for the NAACP Thurgood Marshall spoke to the press in New York City on May 31, 1955 after the Supreme Court decreed an end to public school segregation as soon as feasible. At the news conference in New York City, Marshall told reporters “. . .the law had been made crystal clear” and added, “Southerners are just as law abiding as anyone else, once the law is made clear.” He was speaking after Brown II, the court's second opinion in the Brown case, which ordered the implementation of the original ruling in a “prompt and reasonable” start towards desegregation. Courtesy, Library of Congress, World-Telegram & Sun Collection.

On March 12, 1956, nineteen southern Senators and sixty three Southern Congressmen signed a manifesto declaring their opposition to the Brown decision, described as “an unwarranted exercise of power by the Court, contrary to the Constitution.” The justices were accused of having “substituted their personal political and social ideas for the established law of the land.” The document concluded with a pledge by its signers “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”

On May 13, 1956, Marshall addressed an NAACP fund-raising rally at the Memorial Auditorium in Raleigh, North Carolina, declaring, “We are still willing to negotiate [with local officials] as to when and how desegregation will take place.” But he added, “We shall not negotiate as to whether it will take place.”

Acknowledging the resistance to the Court’s desegregation order, he warned his twenty-five hundred listeners, “There can no longer be any reason to hope for compliance [with the Brown decision] without going to the courts.” Drawing an enthusiastic response, he continued, “We shall resort to the courts and ballot when there is no other way to work out integration. And we shall do this peacefully, lawfully, and in the true American tradition.”

In a September 1956 interview with Newsweek magazine, he described the NAACP’s litigation strategy. “If the local [NAACP] offices run up against a brick wall, they take the problem to the state conference of the NAACP. If the conference agrees with the local’s judgment, the case is referred to me. If I think it advisable, we go into the courts.” He continued, “In some places...the local office will have a friend on the school board. This friend will say to them: ‘I don’t have a majority now, and if you people come in, I’ll never get one. Lay off for a while and I think I can work it out.’ So the local office lays off.”

He explained, “In some situations legal action is called for, in others it would serve no useful purpose. The NAACP has brought no legal actions in public schools in Mississippi or Alabama, and few in Georgia or South Carolina. It has a number in Virginia, Tennessee, and others.”

He tempered his conciliatory tone with a warning: “I’m the original gradualist. But let’s make sure what we’re talking about. If by gradualism you mean a policy of doing nothing, letting things drift and hoping for the best, I’m dead-set against it.”

Meanwhile, desegregation proceeded in fits and starts. There was unexpectedly smooth progress in some areas, a disappointing lack of progress in others. In Missouri, where Marshall and Houston had won the historic Gaines ruling almost twenty years earlier, requiring the first admission of an African American to the University of Missouri’s law school, integration of the public schools occurred virtually without incident. In West Virginia, John W. Davis’s home state, integration had begun in most counties even before the Court issued its “with all deliberate speed” implementing decree in May 1955. Marshall’s native Baltimore proceeded with desegregation plans, as did Washington, D.C.

The Old Confederacy, however, took up arms against the Court, its most prominent political figures vowing to fight the Court’s order county by county, school district by school district. In a November 1955 interview with U.S. News & World Report, Senator Sam J. Ervin of North Carolina called the Brown decision contrary to the laws of nature. “Every day they thunder at us that racial segregation is merely the product of racial prejudice,” he complained “I do not believe this. In my opinion, men segregate themselves in society according to race in obedience to a basic natural law, which decrees that like shall seek like. Wherever and whenever people are free to choose their own associates, they choose members of their own race.”

In a companion interview, Senator John C. Stennis of Mississippi declared, “The overwhelming majority of the people in most areas of the South do not want to integrate our schools. They will oppose to the utmost any effort to do so.”

According to Stennis, the southern opposition was rooted in the fear that school desegregation would eventually lead to interracial marriage, which some southern states legally prohibited by laws that the 1967 Supreme Court ruling in Loving v. Virginia would finally overturn. Stennis insisted, “One of the most compelling reasons [for the opposition to desegregation] is the deep realization that placing the children side by side over the years in primary, grammar and high-school grades is certain to destroy each race. I don’t know how many generations that would take. And we all believe that the bloodstream—the racial integrity of each group—is worth saving.” He defiantly predicted a “generation of lawsuits.”

Marshall found the argument ludicrous. “I think there is no foundation for it at all,” he said. “I don’t see any connection between that [interracial marriage] and schooling.”

“On the other hand,” he continued, “I don’t think there should be laws against intermarriage. It’s a purely personal problem, and the state has nothing to do with it. After all, the white person can say no.”

He went on, “This intermarriage thing has been raised in everything we’ve tried to do.” Southerners even used it as an excuse for barring blacks from voting in primary elections, claiming that blacks and whites standing in line together at polling places would form acquaintances that would lead to interracial sex. “There aren’t any figures to back it up,” Marshall explained. “Even where intermarriage is permitted by law, the number is insignificant.”

“But,” he conceded, “in the South, it’s deep in their minds.”

The Deep South’s official policy of opposing school integration became known as “massive resistance” or “interposition.” The latter term, taken from the period following the ratification of the U.S. Constitution, referred to the view that a state government had the right to interpose itself between the federal government and the state’s citizens whenever Washington pursued a policy deemed by the state government to be unconstitutional. In Arkansas, for example, a state constitutional amendment was passed in 1956 calling upon the legislature to oppose “in every constitutional manner the unconstitutional desegregation decisions of...the United States Supreme Court.” Not since the Civil War had the federal system come under such attack.

Moreover, by 1956 citizens had begun to take the law into their own hands. Rural areas saw a resurgence of the Ku Klux Klan, which traditionally drew its membership and support from uneducated, lower-class whites. And white business leaders across the South drew together to form what became known as White Citizens Councils, a sort of white-collar Klan, for the specific purpose of making it “difficult, if not impossible, for any Negro who advocates desegregation to find and hold a job, get credit, or renew a mortgage.”

The NAACP itself came under attack. A number of states passed laws aimed at forcing the organization to make public its membership and contributors’ lists, information that could be used to target NAACP supporters for retaliation.

This threat in fact hampered the NAACP’s desegregation drive. In 1957 NAACP membership stood at around 350,000. The organization’s income from dues and contributions totaled approximately $1,284,189. Of this amount, $682,906 was earmarked for the parent organization, $250,000 for the local branches, and $351,283 for the Fund. The totals represented a decline in both membership and contributions from the previous year. And the declines came at a time when the organization was matched against opponents whose litigation expenses were paid from state coffers.

There were beatings and lynchings. One of the most notorious incidents occurred in Mississippi in August 1955. Chicago teenager Emmett Till was dragged from the home of relatives he had been visiting, brutally beaten, and murdered because he had supposedly flirted with a white woman. The ghastly sight of the boy’s mutilated corpse, displayed in an open casket at his Chicago funeral, shocked the nation. His accused murderers were acquitted by an all-white jury. One of the defendants, J. W. Milam, the woman’s brother, explained, “I’m no bully. I never hurt a nigger in my life. I like niggers in their place. I know how to work ‘em. But I just decided it was time a few people got put on notice.”

The schools themselves became flash points for white rage. The riot in Sturgis, Kentucky, was typical. When nine black high schoolers attempted to enter previously all-white Sturgis High on opening day in September 1956, they were met by a mob of five hundred whites shouting, “Nigger, stay home!” Governor A. B. “Happy” Chandler dispatched national guardsmen to the scene. The next day, the guardsmen, bayonets drawn, escorted the blacks through the jeering rabble. But the following day the blacks did not show up for school.

Similar incidents were reported in locales as diverse as Clay, Kentucky; Oliver Springs and Knoxville, Tennessee; and Matoaka, West Virginia. But nowhere else did the situation escalate to the level that was reached at Central High School in Little Rock, Arkansas.

Ironically, the racial climate in Little Rock was more open than in a great many southern cities. Blacks served on the police force, public facilities and transportation were integrated, and in a number of residential areas blacks and whites lived comfortably side by side. Influential businessmen, such as Winthrop Rockefeller, head of the Arkansas Industrial Development Commission, worked hard to avoid racial strife in order to foster a climate conducive to northern investment. But Governor Orval Faubus saw the race issue as a boon to his 1956 drive for a third two-year term. He exploited its vote-getting potential.

A little man with black, slicked-back hair and a wide grin, Faubus was a matchstick-chewing hick. In his youth he survived as best he could as a sharecropper and logger. To his credit, he possessed wily gumption, and though he lacked formal education, he could write. During World War II, he served in the infantry and was awarded the Bronze Star for bravery. He earned the nickname “Ernie Pyle of the Ozarks” for the war stories he sent home from the front for publication in local newspapers.

Faubus gravitated toward politics, and sometime after the war his editorial writing inspired Arkansas governor Sid McMath to hire him as his administrative assistant. Referring to Faubus’s penchant for controversy, McMath once commented, “I brought Orval down out of the hills, and every night I ask forgiveness.”

At the outset of his career, Faubus did not behave like a racist. In fact, he was thought to be rather fond of Negroes. He integrated the state transportation system early in his tenure as governor, and he increased the number of black employees in the state government. He appointed the first blacks to serve on the Democratic state committee and tried to have the whites-only primary abolished. By 1955, however, Faubus no longer found tolerance expedient.

Little Rock school officials responded to the 1954 Brown decision with, if not enthusiasm, then at least begrudging acceptance. In fact, the local school board adopted a desegregation plan in May 1955, before the Court handed down its implementation decree. Under the scheme, which became known as the “Blossom Plan,” after Little Rock school superintendent Virgil T. Blossom, Central High School in Little Rock was to be desegregated immediately, meaning in the fall of 1955. Other schools would be desegregated on a delayed basis, beginning in September 1957.

The local NAACP, headed by attorney Wiley Branton, objected to any delay in implementing the Court’s desegregation order. But the board insisted on proceeding with caution. “Since our school system has been segregated from its beginning until the present time,” school officials explained, “the time required in the processes as outlined should not be construed as unnecessary delay but that which is justly needed with respect to the size and complexity of the job at hand.” The board wanted to integrate first at the high school level, with the oldest and therefore most mature students, then use that experience as a guide for implementing desegregation at the lower levels. By so doing, it would have “the opportunity to benefit from our own experience as we move through each phase of this plan, thus avoiding as many mistakes as possible.”

Branton filed suit in U.S. district court to force the total and immediate desegregation of Little Rock’s schools. Branton recalled, “It became rather obvious to the NAACP that the Little Rock board really was not going to move forward unless they were forced to. I filed that suit on behalf of Negro children and their parents, running through elementary, junior, and senior high school.”

The suit was dismissed by U.S. district court judge John E. Miller, who found that the Blossom Plan represented an “utmost good faith” effort to integrate. Branton then enlisted Thurgood Marshall’s help in appealing Miller’s ruling to the U.S. Court of Appeals for the Eighth Circuit. The appeals court held that the Blossom Plan satisfied the Supreme Court’s “deliberate speed” requirement. At the same time, the court made clear that it would countenance no further delays by school officials.

Marshall and Branton decided against an appeal to the U.S. Supreme Court. “We thought the [Blossom Plan] was...pretty sloppy,” Branton said, “and we didn’t want to run the risk of having the court adopt that one as a model for the nation.”

Whatever good intentions the school board might have had were undermined by Faubus’s intervention. Threatened by the growing popularity of gubernatorial candidate James Johnson, sponsor of the amendment to the state constitution that mandated opposition to court-ordered desegregation, Faubus made his move. He persuaded a private citizen’s group, the newly formed Mothers’ League of Little Rock Central High, to sue in state court in Pulaski County to enjoin implementation of the school board’s integration plan.

Faubus himself took the stand to testify that Arkansans were now solidly opposed to integration and that violence would likely result if blacks entered Central High. He warned ominously that a number of guns and knives had already been confiscated from students, black and white, who anticipated racial clashes.

Out of deference to Faubus, state trial judge Murray O. Reed ruled in favor of the Mothers’ League. “In view of the testimony and the show of the threat of violence, riots, and bloodshed, and particularly the opinion of Governor Faubus,” he declared, “I feel I can only rule to grant the injunction.”

Federal courts supersede state courts on constitutional questions, such as the right to an equal education, and Marshall and Branton persuaded Judge Davies of the U.S. district court to nullify the state-court injunction. It looked, therefore, as if Central High’s desegregation would proceed as planned.

Not so. In a startling act of defiance, Faubus appeared on statewide television on the evening of September 2, 1957, the day before school was scheduled to open and, citing “evidence of disorder and threats of disorder,” announced the dispatch of 250 national guardsmen to Central High. It became clear almost immediately that those troops were not sent to protect the nine black students who would attempt to enter Central High the following morning from the anticipated mob of angry whites. Instead, the troops were in place to turn the blacks away and thereby prevent them from exercising their constitutional right to an equal education. Faubus vowed that if the blacks attempted to enter, “blood will run in the streets.”

In an interview with Time magazine in September 1955, Marshall spoke of his admiration for his clients. “There isn’t a threat known to man that they do not receive. They’re never out from under pressure. I don’t think I could take it for a week. The possibility of violent death for them and their families is something they’ve learned to live with like a man learns to sleep with a sore arm.”

In Little Rock the brunt of the threats and pressure was borne by a woman named Daisy Bates, president of the Arkansas NAACP, by nine black teenagers, and by their parents hoping for successful integration of Central High.

Daisy Bates and Little Rock SNine
Little Rock Nine and Daisy Bates posed in living room. Undated. Courtesy, the Library of Congress.

At the beginning of the school controversy, Bates was optimistic. She called Little Rock “a liberal southern city.” Her opinion changed a year later when a brick was thrown through her living-room window with a note attached: “Stone this time. Dynamite next.” But her resolve remained unshaken. On the evening of September 3, 1957, she spoke with parents of eight of the nine youngsters and arranged to escort the children to Central High, accompanied by two Little Rock police cars.

The ninth child, Elizabeth Eckford, whose parents Bates had failed to reach by phone the night before, traveled to school by bus, unescorted. Arriving before the others, she was set upon by a jeering mob. She heard someone yell, “No nigger bitch is going to get in our school. Get out of here!”

“I tried to see a friendly face somewhere in the mob,” she recalled. “I looked into the face of an old woman, and it seemed a kind face, but when I looked at her again, she spat on me.” She turned to the guardsmen for protection. Instead, one of them let white students pass through the ranks into the school but blocked her entrance. “I walked up to the guard who had let them [the whites] in. When I tried to squeeze past him, he raised his bayonet, and then the other guards moved in and raised their bayonets.”

Federal troops escorting Black Students from Little Rock High School. Courtesy, Library of Congress.

Crowd of students, the public, and 101st Airborne and  National Guard troops waiting outside Central High School, Little Rock, Arkansas. September 5, 1957. Courtesy, Prints and Photographs Division, Library of Congress.

She heard cries of “Lynch her! Lynch her!” When she ran back to the bus stop, she heard someone shout, “Drag her over to the tree.” Just then two whites intervened to avert what might have turned into a lynching. Benjamin Fine, covering events for the New York Times, and a local woman escorted Eckford away from the mob and to safety.

Meanwhile, Bates and the others heard over the radio that a black student had been attacked. They proceeded to the school, anyway, but were turned away by national guardsmen when they attempted to enter.

The unrest forced President Eisenhower’s hand. Until Little Rock, Ike had skirted the school desegregation issue in a manner that was wholly characteristic of his approach to other crises, pretending that everything was normal and going about business as usual. His instinct was to distance himself from trouble and let things work themselves out.

Besides, he was ambivalent about civil rights. On the one hand, he gave free rein to the Justice Department to take the NAACP’s side after the first round of oral arguments in Brown. In addition, he held the right to vote sacred and would find it “bitterly disappointing” when, in August 1957, the Senate passed an emasculated version of his civil rights bill, which was originally intended to make it easier for the Justice Department to prosecute voting-rights denials. He termed the Senate action “one of the most serious political defeats of the past four years, primarily because it was such a denial of a basic principle of the United States.”

At the same time, he refused to assert the moral authority of his office to urge peaceful desegregation of the schools. For this reason, Supreme Court Justice William O. Douglas blamed Ike for much of the violent resistance to the Court’s desegregation orders. “There was tragedy in [Eisenhower’s] attitude,” Douglas wrote in his autobiography, “for if he had gone to the nation on television and radio telling the people to obey the law and fall into line, the cause of desegregation would have been accelerated. Ike was a hero, and he was worshiped,” Douglas explained. “Some of his political capital spent on the racial cause would have brought the nation closer to the constitutional standards. Ike’s ominous silence on our 1954 decision gave courage to the racists who decided to resist the decision ward by ward, precinct by precinct, town by town, and county by county.”

Eisenhower may indeed have emboldened Faubus and others, wittingly or not, when he told a press conference in July 1956, “I can’t imagine any set of circumstances that would ever induce me to send federal troops into any area to enforce the orders of a federal court.” He qualified the remark by adding, “I believe that [the] common sense of America will never require it.” But then he undercut the qualification: “I would never believe that it [sending in Federal troops] would be a wise thing to do in this country.”

A reporter asked Marshall whether Faubus’s actions represented a direct challenge to the authority of the federal government. He replied, “I don’t think there’s any question about that.” Despite his reservations, Eisenhower certainly saw it that way and was compelled to act.

In 1832, when President Andrew Jackson disagreed with a Supreme Court ruling that protected Cherokee Indian lands from encroachment by the state of Georgia, he commented sarcastically, “John Marshall has made his decision; now let him enforce it.” John W. Davis reiterated the sentiment in one of his darker moments after his defeat in Brown. But Eisenhower was not so cynical about his role as chief executive, charged with enforcing the laws of the land. He wrote to a friend, “There must be respect for the Constitution—which means the Supreme Court’s interpretation of the Constitution—or we shall have chaos.” He vowed, “This I believe with all my heart—and shall always act accordingly.”

The president began by summoning Faubus to Newport, Rhode Island, where he was vacationing with his wife, Mamie, at a U.S. naval base. After lengthy discussions in which several other southern governors also participated, Faubus went before reporters on September 14, with Eisenhower looking on. He was supposed to issue a statement that had been agreed upon, and he did: “I have never expressed any personal opinion regarding the Supreme Court decision of 1954 which ordered integration. That is not relevant. That decision is the law of the land and must be obeyed. I now declare that I will assume full responsibility for the maintenance of law and order and that the orders of the Federal court will not be obstructed...”

But then Faubus tacked on two little words that were not part of the deal: “...by me.” The words left room for all kinds of unofficial maneuvering that Faubus could instigate or inspire but personally disavow. Eisenhower felt betrayed.

Marshall and Branton went back into federal court on Friday, September 20, and asked Judge Davies to order Faubus to relent. Davies ordered Faubus to withdraw the national guard. The governor complained but in a speech broadcast across the state, announced that he would comply. He demanded, however, that blacks not attempt to enter Central High until the situation calmed down.

But Daisy Bates and the nine high schoolers were not deterred. On Monday, September 23, they gathered at Bates’s house to ride to school together. An angry mob waited to greet them at Central High. When a carload of black newspapermen arrived ahead of the children, they were attacked and beaten by the whites as local police looked on. While the crowd’s rancor was focused on the reporters, the black students were hustled into the school through a side door. When the mob realized what had happened, it vented its rage on white journalists and photographers assigned to cover the events, assaulting them and smashing their cameras. Eventually, the blacks were removed from the school under police escort because authorities concluded they could no longer ensure the students’ safety.

The next morning, when an unruly crowd of about two thousand gathered at the school, Little Rock mayor Woodrow Mann sent a desperate telegram to the president, formally requesting his help: “The immediate need for Federal troops is urgent.... Situation is out of control and police cannot disperse the mob.”

Convinced that he had run out of options, Eisenhower reluctantly issued the order. By nightfall a thousand paratroopers from the U.S. Army’s elite 101st Airborne Division, under the command of Major General Edwin A. Walker, had flown into Little Rock from their base in Fort Campbell, Kentucky. That night the president addressed the nation by television from the Oval Office. He conveyed his “sadness” over having to dispatch the troops. But he declared the firmness of his intentions.

In [Little Rock], under the leadership of demagogic extremists, disorderly mobs have deliberately prevented the carrying out of proper orders from a federal court....Whenever normal agencies prove inadequate to the task...the president’s responsibility is inescapable....Our personal opinions about the decision have no bearing on the matter of enforcement...Mob rule cannot be allowed to override the decisions of our courts....The foundation of the American way of life is our national respect for law.

In the morning a detachment from the 101st escorted the nine black students from Daisy Bates’s house to school. When the whites moved forward against the blacks, they were dispersed by paratroopers, who advanced with drawn bayonets.

Over the coming weeks, the black students endured taunts, threats, and insults, but the desegregation of Central High School proceeded without violence. In November 1957 the last federal forces were withdrawn.

Racial tension persisted, prompting the Little Rock school board to sue in federal court in February 1958 to delay desegregation for two and a half years. This time, a U.S. district court judge granted the school board’s request for an injunction, finding the situation “untolerable” (sic). As the basis for his ruling, the judge cited “tension and unrest among the school administrators, the classroom teachers, the pupils, and the latter’s parents, which inevitably had an adverse effect upon the educational program.”

Marshall and Branton appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit, demanding that school integration proceed as planned. The appeals court held in their favor but stayed its own order so that the matter could be appealed directly to the U.S. Supreme Court by the Little Rock school board. The justices agreed to cut short their summer recess in order to hear the case, Cooper v. Aaron, in special session on September 11, 1958.

Marshall urged the justices to hold that public hostility to the Court’s desegregation orders could not be used as an excuse by public officials to avoid integration. His brief stated, “This Court and other courts have consistently held that the preservation of the public peace may not be accomplished by interference with rights created by the federal constitution.”

He gave no credence to Arkansas officials’ contention that state authorities were incapable of maintaining law and order in the face of white resistance. Nor was he put off by threats to close the schools. “Even if it be claimed that tension will result which will disturb the educational process,” he asserted, “this is preferable to the complete breakdown of education which will result from teaching that courts of law will bow to violence.”

He concluded, “This case affords this Court the opportunity to restate in unmistakable terms both the urgency of proceeding with desegregation and the supremacy of all constitutional rights over bigots—big and small.”

The justices met in conference immediately following the close of oral argument. To emphasize their impatience with any further delay in implementing Brown, they issued a per curiam order, meaning a simple directive that includes no discussion of legal issues, the following day. The per curiam affirmed the Eighth Circuit appeals court; the Little Rock school board was at fault for delaying desegregation.

A complete opinion followed on September 29. In an unprecedented move designed to lend it weight and credibility, the decision was signed by all nine justices. The message was clear: Since arriving at the unanimous ruling in Brown four years earlier, none of the justices had wavered in their determination that the nation’s schools be desegregated.

The opinion was written by Justice William Brennan and contained an impassioned defense of the federal system of government established under the U.S. Constitution. Under that system the federal courts, not the states, have preeminent power to interpret the Constitution.

Brennan used language suggested by Justice Black to state that by delaying desegregation Arkansas officials were not only depriving blacks of their right to an equal education; they were also posing a direct challenge to our constitutional form of government. He wrote, “As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It squarely presents a claim that there is no duty on state officials to obey federal court orders resting on this Court’s deliberate and considered interpretation of the United States Constitution.”

He continued, “Specifically, it involves actions by the Governor, Legislature, and other agencies of Arkansas... that they are not bound by our holding in Brown...that the Fourteenth Amendment forbids states to use their governmental powers to bar children from attending schools which are helped to run by public management, funds or other public property.”

Brennan went on, “We are urged to permit continued suspension of the Little Rock School Board’s plan to do away with segregated public schools until state laws and efforts to upset [the ruling in Brown] have been further challenged and tested in the courts.”

He declared, “We have concluded that these contentions call for clear answers here and now.”

The answers could not have been clearer. Referring to the oath of office public officials are required to take, Brennan declared,

“No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

Brennan considered the Little Rock school board’s claim that hostile white resistance made it impossible to move forward with desegregation. He rejected it out of hand, stating, “The constitutional rights of [black] respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and the Legislature....Law and order are not to be preserved by depriving the Negro children of their constitutional rights.”

He blamed the hostility and resistance on the government of Arkansas: “The record before us clearly establishes that the growth of the Board’s difficulties to a magnitude beyond its unaided power to control is the product of state action.” This being the case, he went on, “the controlling legal principles are plain. The command of the Fourteenth Amendment is that no ‘state’ shall deny to any person within its jurisdiction the equal protection of the laws.”

He concluded, “The Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’”

Marshall had won. But even this forceful ruling failed to put matters to rest. A little more than a year after the Court issued its decision in Aaron v. Cooper, Arkansas’s handling of racial matters was back before the justices, framed this time as Aaron v. Faubus.

Within days of the Court’s ruling in Cooper, Faubus persuaded the Arkansas legislature to cut off funding for integrated schools. In addition, integrated schools were ordered closed for the remainder of the 1958-59 school year. When these actions were struck down at the U.S. district court level, the state appealed. Yet again Marshall and Branton found themselves before the Supreme Court, in October 1958, urging the justices to hold the line against Faubus.

They did, issuing another per curiam order upholding the district court and requiring the schools’ reopening. The desegregation of Little Rock’s schools finally proceeded peacefully as planned.

From London, the Economist prophesied that “like the Roman general [Fabian] whose name so closely resembles his own, Mr. Faubus may one day be commemorated by a reference in a military lexicon: Faubian tactics, or the techniques of fighting a losing battle in such a way as to cause the greatest loss to all concerned.”

By the end of the decade, Marshall had argued seven major cases before the Supreme Court that resulted from resistance to, or unwillingness to enforce, Brown. He won all of them. In addition the Court used the Brown ruling as the basis for requiring the desegregation of public parks and recreational facilities, local transportation, and professional athletics.

Marshall’s gradualism successfully eliminated government-sanctioned segregation from most aspects of American life. But as the 1950s drew to a close, the primary focus of the civil rights struggle shifted from the courtrooms to the streets. The well-reasoned legal brief contended for center stage with the strategies of direct action and civil disobedience. Marshall would play a key role in those activities as well.

Four

Civil Disobedience Versus the Old Guard

I think Thurgood Marshall had this abiding concern that we didn’t need to continue to put ourselves in harm’s way. I think that, more than anything else, was his idea. He wasn’t saying be “patient” and “wait,” he was just saying that this is the way that he would do it, through the courts, and that we didn’t need to have people spitting on us, pulling us off lunch-counter stools, and putting lighted cigarettes out in our hair.

—Congressman John Lewis

On the U.S. Supreme Court Building’s east pediment, a marble carving depicts Aesop’s fable of the plodding, persistent tortoise who defeats the faster, more erratic hare in a race. Perhaps it is there to remind us that the Court moves more slowly, but more surely, than Congress. But the carving is also an appropriate analogy of events that took place in the late 1950s and early 1960s, as emerging civil rights organizations, such as the Southern Christian Leadership Conference, the Student Nonviolent Coordinating Committee, and the Congress of Racial Equality, grew impatient with the NAACP’s use of legal gradualism as a tool of deliverance.

The catalyst for the conflict began on December 1, 1955, in Montgomery, Alabama when Rosa Parks, a forty-two-year-old black seamstress, took a seat on the Cleveland Avenue bus. Driver J. B. Blake ordered Parks and three other black riders to relinquish their seats to standing white passengers.

“Y’all better make it light on yourself and let me have those seats,” he threatened. The other black passengers moved to the rear of the bus, but Rosa Parks refused to give up her seat to a white man.

“When he saw me still sitting,” Parks said, “he asked if I was going to stand up, and I said, ‘No, = not.’”

Parks, a secretary at the local branch of the NAACP, was taken to jail. When NAACP branch secretary E. D. Nixon called to inquire about Parks, the police would not answer his questions. “They wouldn’t even confirm that she had been arrested,” Nixon said. Clifford Durr, a white NAACP attorney, telephoned the jail and was told Parks had been charged with violating Montgomery’s bus segregation laws.

Some white local officials assumed Rosa Parks’s defiance of Montgomery’s laws and customs mandating that black riders sit in the back of the bus was instigated by the local branch of the NAACP. Others claimed she was the unwitting instrument of Communists seeking to parade the country’s racial strife as a failed example of American democracy. Neither supposition was true. Rosa Parks simply personified black America’s growing discontent and despair with segregation and discrimination.

Outraged, Jo Ann Robinson, a civic leader, and other black Montgomery women called their ministers the evening of Parks’s arrest, a Thursday. They demanded some kind of public protest. A mass meeting was called for Friday night by Rev. L. Roy Bennett, an NAACP official, and a plan was made to begin a boycott of the buses Monday morning. Most of the city’s bus riders were black. The ministers agreed to tell their parishioners about the proposed boycott from their pulpits Sunday morning. Montgomery did not have a black-owned radio station, so the task of spreading the word quickly to the city’s fifty thousand black citizens proved a formidable one.

The twenty-seven-year-old pastor of Montgomery’s Dexter Avenue Baptist Church agreed to use his church’s facilities to mimeograph tracts and spread them throughout the city that weekend. His name was Martin Luther King Jr. King had preached his first sermon at the church only eighteen months earlier, on May 17, 1954. He had come to Montgomery from Atlanta after deciding— much to the displeasure of his father, Martin Luther King Sr.—not to become associate pastor at the senior King’s Ebenezer Baptist Church. King’s wife, Coretta, was also unhappy with her husband’s decision to move to deeply segregated Montgomery. In Boston, while her husband earned a graduate degree at Boston University’s School of Theology, Coretta King, a graduate of Antioch College, had been a soloist in performances at the New England Conservatory. She sang in the choir of a white Presbyterian church there and had many white friends. In Atlanta she had participated in many social and cultural events at the Atlanta University Center and taken part in musical programs at her father-in-law’s church. Atlanta, though not as culturally attractive for her as Boston, was still better than Montgomery. She knew life would be much different for her in segregated Montgomery. But King convinced Coretta to move to Montgomery with him after promising her they would only be there about two years.

Three weeks before Parks’s arrest, King had rejected the presidency of the Montgomery NAACP branch because he felt he had not been in the city long enough to become a community leader. In his failed effort to convince his son to remain in Atlanta, King’s father had warned that Montgomery’s black religious leadership would not take kindly to a young minister from Atlanta with a theological degree from a white northern college.

Thirty-five thousand fliers were distributed over the weekend. “Don’t ride the buses to work, to town, to school, or anywhere,” they urged. A fleet of private automobiles was organized Sunday night to carry the boycotters to work Monday morning. The ministers formed the Montgomery Improvement Association (MIA) that week to conduct the boycott, and King agreed to direct it. The MIA’s initial objective was not to end segregation on city buses, and this approach conflicted with the NAACP’s standard policy of attacking segregation without qualifying reservations. The MIA’s demands were simple. It wanted black riders treated with respect by white bus drivers. It wanted riders seated on a first-come basis, with black passengers seated from the back toward the front and white riders seated from the front toward the back. It asked for the employment of black drivers on routes serving predominantly black neighborhoods. On instructions from its national headquarters, the Montgomery branch of the NAACP refused to take a formal role in the boycott because the MIA was not calling for an end to segregated seating. But the city’s NAACP members decided to join the boycott as individuals.

In a church basement meeting, five days after the boycott began, King told black citizens, “In spite of the mistreatment we have [met with], we must not be bitter and end up hating our white brothers.” He added, “If we protest courageously, and yet with dignity and...love, when the history books are written in the future, somebody will have to say, ‘There lived a race of people, of black people...who had the courage to stand up for their rights.’”

From New York, Marshall watched the boycott closely. He knew the NAACP could not continue to ignore this mass action by fifty thousand black Alabamans that was a daily story on the front pages of the nation’s newspapers and the lead story each evening on network television. The NAACP’s reluctance to embrace the boycott caused problems for NAACP executive director Roy Wilkins and Marshall when the association held its forty-seventh annual convention that year, in January 1956, in San Francisco.

King left Montgomery shortly after the boycott began to address the convention and received an enthusiastic welcome from the delegates, including NAACP field secretary Medgar Evers of Mississippi. While Thurgood Marshall and Roy Wilkins were taking the tortoise’s cautious approach toward events unfolding in Montgomery, King’s presence at the convention inspired a group of insurgent delegates, led by Evers, to call for the NAACP’s immediate and unequivocal support of the bus boycott and Reverend King.

The delegates met in Evers’s hotel room on the first night of the convention and drafted a three-page resolution supporting Montgomery’s nonviolent bus boycott and Martin Luther King Jr. as its leader. Marshall and Wilkins were angered when they learned the delegates intended to bring their Montgomery resolution to the convention floor the following morning. They went to King’s hotel room later that night to discuss the boycott and question King about his leadership.

Marshall bluntly told King the NAACP had marched, boycotted, and picketed since 1917, but none of its protests involved deliberately breaking laws or staging mass sit-ins that resulted in the arrests of hundreds of its members. He reminded King that the NAACP had just months earlier won a landmark U.S. Supreme Court decision, Brown v. Board of Education. Marshall asked King if he believed his tactics of civil disobedience and nonviolence could win some of the major battles the NAACP had painstakingly fought in the courts since King was a child. King quietly told Marshall he did not know.

Threatened with a runaway convention, Wilkins asked Marshall’s advice. Marshall and Fund deputy legal counsel Robert L. Carter told Wilkins the Fund should agree to assume responsibility for the legal battles that would undoubtedly come from the Montgomery boycott. That, they hoped, would quiet rebellious delegates trying to force the NAACP to endorse the boycott and King.

Wilkins, the grandson of Mississippi slaves, graduated from the University of Minnesota and served as editor of the Kansas City Call, a black newspaper. Wilkins presented an aristocratic bearing and was prominent in Kansas City’s black social world. Walter White hired him in 1932 to edit the NAACP’s monthly magazine, the Crisis, and to direct the association’s publicity campaigns and press relations. Wilkins moved to New York City and took an apartment at 409 Edgecomb Avenue, the “finest address in Harlem,” where Thurgood Marshall and his wife were to live several years later. As Walter White had done earlier, Wilkins exercised an ironclad control over the NAACP. This created friction between him and NAACP branch secretaries who believed the rights organization should be governed by a more democratic process.

Marshall told Wilkins privately later that night that the NAACP would have to become involved in the Montgomery protest. Wilkins relented, but not completely. He announced on the convention floor the next morning that the NAACP would give “careful consideration” to the MIA and the Montgomery bus boycott as an example of a new civil rights tactic and that the Fund would cover the legal expenses. The delegates cheered. But he was not ready to allow the venerable civil rights organization to fully embrace Martin Luther King Jr.

After the convention the NAACP began a vigorous nationwide campaign to raise money to cover the boycott’s legal fees. This campaign angered King. In a confidential letter to Wilkins, King accused the NAACP of raising money “in the name of our movement.” Wilkins told King all funds raised to support the MIA should be channeled through the NAACP because Thurgood Marshall had committed the Fund to pay the boycott’s legal expenses and provide bail money for protesters who were arrested. He argued that the venerable NAACP was more organized than the embryonic MIA and already had in place a national fund-raising apparatus. The NAACP was receiving thousands of dollars in small donations in the hundreds of letters pouring into its office each day from people interested in supporting the Montgomery boycott.

Wilkins warned King to keep their dispute over the money secret. “I certainly do not need to stress at this time that it would be fatal for there to develop any hint of disagreement as to the raising and allocation of funds,” he wrote in a confidential letter. In a conciliatory response King said, “We are quite conscious of our dependence on the NAACP.” He also mentioned that his Dexter Avenue Baptist Church had purchased a thousand-dollar institutional lifetime NAACP membership.

Though Roy Wilkins was the NAACP’s executive director, in the minds of most black Americans Thurgood Marshall was the NAACP. It was his name that appeared foremost in newspaper stories about NAACP activities, and it was his picture that accompanied those articles. Wilkins directed the association from the security of its Fifth Avenue headquarters, while Marshall traveled as its front-line warrior through hostile southern towns, often at great personal risk.

After the Brown victory Marshall believed the NAACP was nearing the end of its twenty-year battle to end school segregation and integrate public accommodations. Black America now looked forward to the full implementation of the 1954 Supreme Court decision desegregating schools. Wilkins confidentially told close friends he believed the NAACP should wait until the Montgomery boycott was over before it made a public assessment of the usefulness of King’s methods of nonviolence and civil disobedience.

NAACP attorney Wiley Branton said Wilkins was concerned the NAACP’s involvement in the boycott would severely tax the organization’s resources at a time when it needed all its strength to ensure compliance with the Supreme Court’s recent Brown decision. “The association had just won its biggest legal battle and was now marshaling its forces and resources for the inevitable battles of implementation that were coming,” Branton said. “Roy just couldn’t see how the NAACP could take on a new and different kind of struggle at such a critical time.”

White gangs began attacking black protesters. King and other MIA officials were arrested on charges of “disturbing the peace” and “failure to move on.” Thurgood Marshall was one of the first lawyers to rush to King’s defense, despite the disagreement between King and Wilkins over fund-raising. After his release King issued a statement supporting the NAACP and recognizing the work it had done.

“We must continue our struggles in the courts, and above all, we must continue to support the NAACP,” King said. “Our major victories have come through the work of this organization. One thing the gradualists don’t seem to understand: We are not trying to make people love us when we go to court, we are trying to keep them from killing us.”

The MIA increased its demands and asked for an end to segregated seating. King felt the boycott was effective and now believed a total victory was possible, not just a still-segregated but more equitable seating policy that the MIA initially sought. Marshall agreed to take the issue of segregated buses to court.

Marshall and Carter went to Montgomery, and Carter argued the boycott case on May 11, 1956, in federal district court from a brief written by Marshall. On June 4, six months after Rosa Parks refused to relinquish her seat, the panel of three white judges ruled against segregated bus seating. The city appealed the decision to the U.S. Supreme Court. It was a strange turn of events. For the first time, southern blacks were asking the Supreme Court to uphold a decision made by white southern judges.

Four months later, in October, the Supreme Court upheld the lower court’s decision. Without a hearing, the court affirmed that Alabama’s laws segregating bus passengers were unconstitutional because they denied equal accommodations to all riders. Montgomery’s black citizens continued to boycott until the Supreme Court order was legally executed. On December 20, federal marshals formally notified city officials that they must comply with the decision. The next day, Montgomery’s citizens sat wherever they wanted to on the city’s buses. A new era in civil rights was born.

“We have discovered a new and powerful weapon—nonviolent resistance,” King told a victory meeting at the Holt Street Baptist Church.

The Montgomery victory spread King’s reputation as a rising civil rights leader far beyond Montgomery. Jet magazine published his picture on its cover and called him “Alabama’s Modern Moses.” A New York Times profile described King as a speaker whose oratory “overwhelms the listener with the depth of his convictions.” After a fund-raiser in New York City, a tabloid reported King received “the kind of welcome [the city] usually reserves for the Brooklyn Dodgers after more than ten thousand New Yorkers came to Concord Baptist Church to hear him speak about the Montgomery boycott.”

The Montgomery victory and King’s public recognition of the NAACP’s historic civil rights role should have brought Martin Luther King Jr. and the National Association for the Advancement of Colored People together as allies, united against a common enemy. Instead, it drove them apart. On June 1, 1956, Alabama attorney general John Patterson won a state court order putting the NAACP out of business in Alabama. Patterson argued the NAACP was “organizing, supporting and financing an illegal boycott by Negro residents of Montgomery.” The court agreed. It ordered the NAACP to stop all activities in Alabama, including fund-raising, collection of dues, and membership drives. When the NAACP resisted a corollary court order to surrender its membership lists and contribution records to Patterson, it was fined $100,000 and held in contempt.

The Alabama NAACP disbanded. Wilkins privately blamed King and the MIA. The ban had come at a critical time in the NAACP’s fight to fully implement school desegregation. The association needed its state branches to develop cases to test the implementation of the Brown decision. It took eight years for the NAACP to win a Supreme Court order voiding the Alabama ban.

In Birmingham, Rev. Fred Shuttlesworth, an itinerant Baptist preacher who had been convicted in 1941 of producing moonshine whiskey in a backwoods still, had an idea he thought might help the NAACP continue its Alabama activities. He formed the Alabama Christian Movement for Human Rights. The NAACP now had a surrogate organization through which it could continue its activities in the state. Many former NAACP members joined. Alabama’s white press charged that the creation of the new civil rights group was an obvious attempt to circumvent the court order.

The MIA’s Montgomery success inspired similar assaults against segregated buses in two other southern cities. King and his volunteer workers took their nonviolent campaign to Tallahassee, Florida, and Birmingham, Alabama. Direct action and nonviolence were winning major victories quickly and thrusting King into the civil rights spotlight. But the Montgomery victory, won with the legal help of Thurgood Marshall and the Fund, did little to heal the rift between the NAACP and the SCLC.

King returned to Atlanta in 1957 to become associate pastor of his father’s Ebenezer Baptist Church and to begin plans for organizing the Southern Christian Leadership Conference, which in 1968 emerged from the MIA. King’s growing national recognition as a new kind of civil rights leader disturbed the city’s entrenched black leaders.

“Atlanta’s older black leadership did not want King to return to the city,” John Lewis noted, who now represents Georgia in the U.S. House and who was a former chairman of the Student Non-Violent Coordinating Committee.

Atlanta had been a sleepy southern town where the white power structure catered paternally to the city’s older, more moderate black leaders. The black leadership had quietly negotiated a few minor racial concessions from Atlanta’s white establishment in closed-door meetings that received little public attention or fanfare.

Former Atlanta Daily World managing editor George Coleman said, “It [the older leadership] was proud it had been able to keep the lid on for so long, and they didn’t want Martin to bring his Montgomery tactics to Atlanta and rock their safe little boat.”

The few concessions the old guard had been given did little to change life for most black Atlantans. True, they convinced police chief Herbert Jenkins to hire the city’s first black police officers. However, instead of working out of the Atlanta police department’s headquarters on Decatur Street with the rest of the force, the sixteen recruits held roll call and maintained lockers in the basement of the black YMCA at 22 Butler Street. Black officers were assigned to the 6:00 P.M. to 2:00 A.M. shift—the “Black Watch”—and only patrolled Atlanta’s black business districts, such as Hunter Street, Auburn Avenue, and Northside Drive. Black police officers could not arrest white suspects, even for murder; they could only detain a suspect until a white patrolman arrived to make the formal arrest.

At Grady Memorial Hospital there was a waiting room for white patients and one for blacks. The city’s ambulances were segregated. There were segregated waiting rooms at the train and bus stations, and water fountains and restrooms were plainly marked “White” and “colored.” Black students could not attend the University of Georgia at Athens or Georgia Tech in Atlanta or play on the city’s whites-only tennis courts and golf courses.

Just up the street from King’s church stood Wheat Street Baptist Church, an imposing concrete building that its pastor, Rev. William Holmes Borders, called “God’s mighty fortress on Auburn Avenue where the doors swing open on welcome hinges.” Borders was a tall, affable preacher who wore homburg hats and chesterfield overcoats on Saturday nights when he strolled down “Sweet Auburn Avenue,” taking the church’s “tithe” from street-corner crap games. He had been educated at northern white colleges, but on Sunday mornings he displayed no trace of his elite educational background as he delivered electrifying call-and-response sermons in the finest tradition of the southern black Baptist preacher.

Though he was a member of the city’s established black leadership, unlike most of his colleagues he was as comfortable with citizens on street corners in Vine City, Atlanta’s black ghetto, as he was in the office of Mayor William B. Hartsfield. Borders was one of the first members of the old guard to support Martin Luther King Jr. and his nonviolent mass movement, and he frequently walked picket lines with college students.

Borders was a lifelong Republican, as were many of Atlanta’s other most prominent black leaders, such as real estate broker Q. V. Williamson, insurance executive T. M. Alexander Sr., Atlanta Daily World publisher C. A. Scott, and Martin Luther King Sr.

Most of them lived on Atlanta’s comfortable West Side, along Hunter Street and out on Mosely Drive, in large brick houses that sat on spacious, well-kept lawns. They bought their obligatory personal five-hundred-dollar lifetime NAACP memberships, and those who owned businesses bought thousand-dollar institutional memberships. They believed Atlanta was on a safe, if slow, path toward racial harmony and progress.

As in Montgomery, in Atlanta many conservative black leaders did not want King’s massive demonstrations to promote racial progress. Atlanta called itself “the city too busy to hate,” even though the Ku Klux Klan held frequent marches on Peachtree Street and burned crosses at rallies atop nearby Stone Mountain. Scott used his newspaper’s editorial pages—and its news columns, too, much to the displeasure of his managing editor, George Coleman—to criticize the fast-paced civil rights movement King was bringing to the city. Scott had a standing order in his newsroom that King’s picture was not to appear on the World’s front page.

The city’s white Republican politicians, such as Alderman Rodney C. Cook, were always welcomed at Scott’s office on Auburn Avenue, and World editorials clearly reflected Scott’s embrace of the slow and cautious attitudes of the white power structure. The paper carried full-page advertisements from grocery stores that sought black patronage but would not hire black clerks and from the city’s two major department stores, Rich’s and Davidson’s, where black women could buy two-hundred-dollar dresses but could not sit and drink a ten-cent cup of coffee in the cafeteria. “C.A.’s racial politics were tied directly to the World’s advertising revenues,” managing editor Coleman said.

The publisher sat each Sunday morning in the Scott family pew at Ebenezer Baptist Church peering up through his horn-rimmed glasses as Rev. Martin Luther King Sr. preached fiery sermons from a high mahogany pulpit that looked like a ship’s prow. In 1960, Scott approached the pastor one Sunday after church and asked him to persuade his son to confine his civil rights efforts to national issues and leave local Atlanta race relations to the older leadership. But in a few months hundreds of Atlanta’s college students were launching sit-ins, and Martin Luther King Jr.’s civil rights activities continued to increase. The senior King’s joining the Democratic party was the last straw. Scott left Ebenezer and joined a Methodist church on the other side of town.

Atlanta was the home of Morehouse, Clark, Spelman, and Morris Brown colleges, Atlanta University—where W. E. B. Du Bois had taught—two theological seminaries, and a school of mortuary science. Their students came from all over the United States. Martin Luther King Jr. graduated from Morehouse College in 1948. Most of the schools’ northern students had not experienced overt segregation firsthand until they arrived in Atlanta. Many were from affluent families that sheltered them from even the subtle vestiges of segregation and discrimination. These students, though insulated in the sprawling, protective academic community on the Westside, which had been built with Rockefeller family money, became quickly aware of racial and political conditions in the city and the state. “Getting off the train in Atlanta for the first time and finding myself in the ‘colored waiting room’ was like finding myself in another world,” said divinity student Cecil L. Franklin—the brother of singer Aretha Franklin—who came to Morehouse College from Detroit as a freshman in 1957. Many of the male students worked as waiters serving the white southern aristocracy at Atlanta’s Piedmont Driving Club, as Thurgood Marshall had done years earlier at Maryland’s Gibson Island Club. And, like Marshall, they had been subjected to racial slurs and degradation.

On a dark night in Anniston, Alabama, the Morehouse College swimming team, traveling in the college’s Ford station wagon to a meet, was refused service at a gas station. And on a trip to the Spring Hill Debate Tournament in 1960, the college’s debating team was ordered to ride in the “colored” car on the Peach Queen train from Atlanta to Mobile.

At Morehouse, Harvard-educated Dr. Arthur H. Brisbane was giving his students—among them Julian Bond, who would later be refused a seat in the Georgia legislature because he opposed the Vietnam War—their first exposure to constitutional law, explaining the importance and significance of Supreme Court decisions like Plessy v. Ferguson and the Dred Scott decision. Brisbane explained the protections afforded black citizens under the Constitution.

On February 1, 1960, America saw its first “sit-in” demonstration. Four black students from North Carolina Agricultural and Technical College, in Greensboro, took seats at a Woolworth lunch counter. The tactic spread across southern cities.

The Richmond 34 was a group of Virginia Union University students who participated in a nonviolent sit in at the lunch counter of Thalhimers department store in downtown Richmond, Virginia, February 22, 1960. Courtesy, Wikimedia Commons.

Two months later, Atlanta’s black college students were eager to participate in the “Movement,” despite warnings from city officials and the entrenched black leaders that a sit-in would disrupt the city’s race relations. But the students were not long inclined to march to the slow beat of Atlanta’s old guard’s drum. “We refused to be known as the ‘students who slept’ while the world changed around them,” said Morehouse college student Harvey Miller.

At NAACP headquarters in New York, the rapidly developing sit-in movement concerned Thurgood Marshall and his colleagues. Marshall knew the legal expenses of what promised to be “thousands of jailed students” across the South would be much more than the NAACP could bear alone, in both money and legal talent. He called two of his old friends, Atlanta lawyers A. T. Walden and Donald Hollowell. Walden was a long-practicing attorney known as the “dean” of Atlanta’s black attorneys. Hollowell was a much younger man with offices near Atlanta University and many friends among the students and faculties of the black colleges.

Walden and Hollowell told Marshall that A. D. King, Martin’s brother, was holding meetings with several student-body presidents at Frazier’s Restaurant on Hunter Street. They told Marshall the students had not sought advice or help officially from the local NAACP branch but were holding their own counsel with Martin Luther King Jr.—and members of his Southern Christian Leadership Conference. The lawyers said they believed it was only logical to assume that before long Atlanta would have its own sit-in demonstration.

In April 1960 a group of students met with the presidents of Atlanta’s black colleges in the office of Atlanta University president Dr. Rufus Clements. The group included Marion Wright (now Marion Edleman) and Roslyn Pope, Danny Mitchell, Lonnie King, Michael D. Davis, Don Clark, James Felder, and Julian Bond. The students told the college presidents they had organized a sit-in strike and were going to launch it in two days.

Morehouse College president Dr. Benjamin Elijah Mays was not surprised by the news. He had been a fierce fighter for human rights for more than half a century and encouraged racial pride from Morehouse students in mandatory chapel sessions held each weekday morning in Sales Hall. Mays constantly reminded Morehouse students that they “must be interested in something bigger than a hamburger.” Mays had been involved with the NAACP since his days as a professor of religion at Howard University in the 1930s and had known Thurgood Marshall there.

The college presidents urged caution. They were burdened with the surrogate parental responsibility for their students’ welfare and safety, and they knew any sit-in demonstration could result in violence. They offered a compromise. The college presidents told the students they would raise several thousand dollars for the publication of full-page advertisements in the city’s newspapers so the students could publicly express their dissatisfaction with Atlanta’s segregated public accommodations. They said this would be more effective than a sit-in demonstration. The students agreed.

They went to the reading room of Treavor-Arnett Library, on the Atlanta University campus, and drafted the document “An Appeal for Human Rights,” modeled on the Bill of Rights. Two days later, it appeared in the Atlanta Constitution, the Atlanta Journal, and even the Atlanta Daily World. The following day nearly fifteen hundred students launched the Atlanta sit-in, and three hundred were arrested. A white woman who watched the students march through downtown Atlanta told the Associated Press, “I didn’t know there were that many niggers in college.”

Again, Benjamin Mays was not surprised. Nor did he feel betrayed by the students. In fact, Mays had anticipated the students’ actions; shortly after the meeting with the students adjourned, he had called his friend Thurgood Marshall to seek his legal help. Mays knew the students were impatient with what they saw as the futility of waiting for the courts to move and the slow and only partial implementation that often followed court decisions. Mays later said the college presidents knew “in our collective wisdom that, advertisement or no advertisement, the students were going to sit-in.”

Mays also called members of Atlanta’s old guard the day of the student meeting. He told them he believed a sit-in was imminent and asked them to support the student demonstrations. The old guard called its white friends in city government—Mayor William B. Hartsfield and police chief Herbert Jenkins—to make sure the students would be peacefully arrested and not attacked with police dogs, billy clubs, and water hoses, as had been done in other southern cities. Marshall called Walden and Hollowell—the NAACP’s “Atlanta attorneys”—and they arranged to bail the students out of jail and plead their defense.

Walden, Hollowell, and a third attorney, Horace Ward, now a federal district court judge in Atlanta, arrived at the Atlanta City Jail with Morehouse College dean Brailsford R. Brazeal as the first bus load of arrested students drove up. Surprisingly, three members of Atlanta’s old guard came, too. T. M. Alexander Sr., Q. V. Williamson, and Rev. William Holmes Borders brought money and the deeds to their property to pledge as collateral for the students’ release. Atlanta had weathered its first mass demonstration.

On April 15, 1960, the Student Nonviolent Coordinating Committee (SNCC) was organized at Shaw University in Raleigh, North Carolina. As civil rights demonstrations and white resistance to them increased that year, the Congress of Racial Equality (CORE) and SNCC began “Freedom Rides” to test the enforcement of federal laws banning segregation in interstate bus terminals, restaurants, and waiting rooms. For years black riders had traveled on buses throughout the South carrying jugs of water and bags of fried chicken because they could not eat in terminal restaurants. Southern interstate bus routes were called “the chicken bone express” by black travelers.

The first Freedom Ride left Washington, D.C., on April 28, 1961, when seven black and six white passengers began a trip through Virginia, the Carolinas, Alabama, Georgia, and Mississippi on the way to a CORE conference in New Orleans. When the Greyhound bus arrived at the terminal in Anniston, Alabama, an angry mob pounded on the doors with pipes and chains and slashed the tires. The mob was angry because the riders had attempted to use the facilities in the Anniston terminal. Most terminals remained segregated despite the law. City police officers escorted the bus out of town, where it was chased along Highway 78 by fifty cars carrying about two hundred white men. The driver pulled the bus off the highway when the tires began to go flat. He leaped from the bus and fled into a nearby field.

Freedom Rider Mae Frances Moultrie
Howard stands by a
burning Greyhound bus
in Anniston, Ala.on May 14, 1961.
Courtesy, Federal Bureau of Investigation.

The mob descended on the crippled bus, breaking the windows with axes and trying to force open the doors. A firebomb was tossed through the broken back window. Flames raced through the bus. The passengers tried to force open a door, but it was barricaded by the mob.

Alabama state investigator E. L. Cowling, who had followed the bus, quickly realized what was about to happen. He drew his pistol and held the mob at gunpoint while the riders escaped the burning bus. But as they ran, coughing from the acrid smoke, they were struck with clubs and chains. A few minutes later, the Alabama State Police arrived, and the mob dispersed after the troopers fired a volley of warning shots into the air. Injured riders were taken to the Anniston hospital and treated for their injuries and smoke inhalation.

Undaunted by violence in Alabama, more than a thousand Freedom Riders continued the protests across the South. In Montgomery six hundred federal marshals were called to protect Freedom Riders. In Mississippi three hundred Freedom Riders, including fifteen Catholic priests, were jailed. The rides resulted in the desegregation of 120 interstate bus terminals when, five months after the rides began, the Interstate Commerce Commission enforced its order to end segregated buses and the use of segregated terminal facilities.

Wilkins remained concerned about the tactics of the newer civil rights organizations despite the fact that Marshall and the Fund were now handling most of the Movement’s legal matters. Wilkins was offended by some student leaders who were calling the NAACP “ineffective” and “conservative.” He often said that CORE and the SCLC “get people in jail, and we have to get them out.”

Thurgood Marshall was critical of King, though King’s growing national prominence was not as threatening to Marshall as it was to Wilkins, who held the nation’s premier civil rights position. Marshall said school desegregation was “men’s work” and that King and his followers were using “the bodies of children” to achieve their civil rights objectives. Marshall characterized King as “a boy on a man’s errand.” When one of King’s aides, Ella Baker, took two student leaders to visit Marshall, he told the students that he disapproved of the tactic “jail without bail” and that the Fund’s job was to “get people out of jail, not get them in.” In remarks to his legal colleagues, Marshall referred to King as an “opportunist,” a “first-rate rabble-rouser,” and a “coward.” Those were strong words of disapproval from a man who nearly thirty years earlier had sat with other black students in the whites-only section of a Pennsylvania movie theater, who had been chased from rural southern towns by angry whites, and who had masqueraded as an Alabama sharecropper while investigating a lynching. King received a letter from NAACP board member Jackie Robinson asking him not to criticize the NAACP in public. Robinson urged him to control statements by “individuals who are knocking the NAACP and promoting the SCLC.” King felt it was the NAACP that was “knocking” the SCLC, and in his response he made it clear he was aware of Thurgood Marshall’s verbal attacks on him:

I have no Messiah complex, and I know that we need many leaders to do the job. I have refused to fight back or even answer some of the unkind statements that I have been informed that NAACP officials said about me and the Southern Christian Leadership Conference. Frankly, I hear these statements every day, and I have seen efforts on the part of NAACP officials to sabotage our humble efforts I am sure that if criticisms were weighed it would turn out that persons associated with the NAACP have made much more damaging statements about SCLC than persons associated with SCLC have made concerning the NAACP....The job ahead is too great to be bickering in the darkness of jealousy, deadening competitions and internal ego struggles.

Morehouse College president Benjamin Mays also attempted to resolve the differences between the NAACP and the SCLC. He privately asked King and Wilkins to “discourage anyone in your organization from taking a crack at either the NAACP or the SCLC.”

Robinson’s letter asking King to help end the conflict between the SCLC and the NAACP did not reveal the former baseball player’s deeper concern for the future of the NAACP and his realization that it needed to change with the times. That came later, in an interview with writer Louis Lomax:

The NAACP must adopt mass action as a matter of policy or accept the consequences. There are no two ways about it. The students and many of the adults want mass action. Either we employ it or suffer. We are not meeting the needs of the masses. We don’t know the people; the people don’t know us. I have been asked by many people to form a new civil rights organization that would be closer to the masses. I am all for a new organization if we can do it without interfering with what the NAACP is doing. We must do something. We can’t go on as we are today.

Dr. John Morsell, executive assistant to Roy Wilkins, disagreed with Robinson: “We [the NAACP] can hardly advocate or condone a policy of mass civil disobedience except under extreme conditions because that would require the complete abandonment of the philosophy of operations which has sustained us for fifty years.”

But Marshall’s criticisms of King and mass demonstrations were tempered by his willingness to defend members of the Movement and Martin Luther King Jr. himself. It was clear Marshall and the NAACP would soon have to fully support the Movement, and Marshall was the force from within that changed the NAACP’s position.

“The NAACP was not just the ‘old guard,’” said attorney Juanita Jackson Mitchell, whose mother, Lillie Mae Jackson, had been president of the NAACP’s Baltimore branch in the 1930s and 1940s and whose husband, Clarence Mitchell II, was the NAACP’s Capitol Hill lobbyist in the 1950s and 1960s. “It was the ‘old folks guard,’ and if it was to survive it had to attract younger members, the students walking the picket lines, sitting-in and going to jail, people who were joining and working in the more progressive rights groups, and Thurgood Marshall and Jackie Robinson knew this long before Roy did.”

Thirty-two years later, Congressman John Lewis, offered his perspective on the evolution of Marshall’s position:

I think it was difficult for some of the old guard leaders to understand the nature of a mass movement. They didn’t understand the power, the philosophy of nonviolence. They had reservations about Montgomery and the leadership of Dr. King, but even there I think they tried to be supportive. I think some of them felt threatened on the local level as well as on the national level. This was something new, this was something different, they didn’t know how to deal with it. White southerners didn’t know how to deal with it and the black leadership, the old guard, didn’t know how to deal with it because we had been programmed or taught that we should use the court to seek to redress our concerns, our grievances.

Lewis said that in the summer of 1961 Marshall told students on the campus of Fisk University in Nashville, Tennessee, that the Freedom Rides should be discontinued and a test case challenging segregated buses taken to court. “I don’t think some of the NAACP leaders and Thurgood Marshall understood at that time the importance of creating a mass movement,” Lewis said. “In a mass movement you can involve more than just the plaintiffs, more than the lawyers, the sort of just professional civil rights workers, but you can involve the masses to help increase the tempo of change.” However, Lewis continued, “I think later Thurgood Marshall came to appreciate the power of mass movement.”

Lewis said he attended meetings where Marshall, Wilkins, and Whitney Young of the Urban League debated civil rights tactics.

“The NAACP was not there in the beginning, but later, when we needed help, needed someone to go into federal court, we had the NAACP Legal Defense Fund,” Lewis said. “So on many occasions when we got arrested, when we went to jail, the NAACP responded with lawyers like Donald Hollowell, A. T. Walden, and James Nabritt. The NAACP had lawyers all across the South, so when we would go to jail, even though Thurgood Marshall disagreed with our techniques, he would make available the legal expertise and the legal resources of the Inc. Fund, Jim Nabrit, Constance Baker Motley, Robert Carter, and a battery of just very bright and very smart people.”

Lewis attributed Thurgood Marshall’s verbal attacks on Martin Luther King Jr. to Marshall’s fear that King’s tactics “invited violence. I think Thurgood was concerned more than anything else about the young people’s well-being. He did not want to see us get hurt, he didn’t want to see us get killed, and he knew that jail was not a pleasant place. He didn’t want to see young people, young college students and these pretty young women from Fisk University and Spelman College, stay in jail. Thurgood was a very warm, humane, and humorous person.

“There was a young lady named Diane Nash, a student from Howard University who transferred to Fisk. She was from Chicago, a very beautiful, a very charming woman, who was a coordinator of the Freedom Rides, and even today when I see Thurgood he asks me, ‘John, what happened to Diane Nash, what happened to that beautiful woman?’ He saw these young people and was concerned about them. He thought the South was so crazy, so backward, that something could happen to a group of young people in the jails of Mississippi, Alabama, and Georgia. And he was right. People did get shot. People did get killed.”

Lewis concluded, “I think Thurgood Marshall had this abiding concern that we didn’t need to continue to put ourselves in harm’s way. I think that, more than anything else, was his idea. He wasn’t saying be ‘patient’ and ‘wait,’ he was just saying that this is the way that he would do it, through the courts, and that we didn’t need to have people spitting on us, pulling us off lunch-counter stools, and putting lighted cigarettes out in our hair. I think that was his overriding concern, because Thurgood Marshall was one of those and still is one of these imposing figures. To hear him and see him during my days in Nashville come to a little church or to the Fisk University gym was an inspiration. I grew up hearing about Thurgood Marshall, and the first time I met him was like meeting a legal savior.”

At NAACP conventions the question continued to be asked: Should the NAACP use direct action as official policy to make further progress against discrimination and segregation? The delegates had seen it work in Montgomery and other cities, but the NAACP’s legal gradualism was still getting results in the courtroom without the violence often generated by mass demonstrations.

The NAACP was slow to change because its bureaucracy made change difficult. Convention delegates could offer resolutions but could not make policy. Rank-and-file members had no role in setting the association’s civil rights agenda because the executive board was reluctant to relinquish its absolute control over policy. It refused to directly address the issue of mass actions.

In March 1960, Marshall called sixty-two lawyers, representing more than one thousand mass-demonstration defendants in the South, to a conference in New York City. Marshall told the New York Times on March 20, “The state use of disturbing the peace laws to convict demonstrators...would be challenged as a violation of the 14th Amendment.” On April 7 Marshall said “the whole force of NAACP” would be committed to the students.

Marshall’s promise signaled a dramatic change in the NAACP’s position on mass demonstrations. Marshall’s prior support of the Movement had come through his work as the director of the Fund—legally a separate organization—but now he was speaking for the NAACP.

The change signaled by Marshall’s words of commitment were soon followed by the NAACP’s actions. The NAACP sent Herbert Wright, its national youth secretary, south to conduct legal training classes for young people participating in sit-ins.

In March 1961 Roy Wilkins publicly supported the newer rights organizations and their activities for the first time. He said that school desegregation was still the most important tool in the long struggle for equality but that there was room in the struggle for other tactics. In an address to Atlanta’s black students at Sisters chapel on the Spelman College campus he praised the nonviolent protests but held fast to the NAACP’s contention that school desegregation was the “cornerstone” of civil rights progress. “Everything, of course, is tied to the school desegregation suit, not only here, but throughout those southern areas still resisting the inevitable.”

On December 4, 1961, Gloster Current, national director of branches, sent a memorandum to NAACP offices in major cities telling them to press for jobs for blacks in national retail stores such as Sears and Montgomery Ward. Current’s directive told NAACP members the association would support picket lines. It was further evidence the NAACP was recognizing the power of direct action.

Earlier that year Marshall and the Fund took the legality of sit-ins to the Supreme Court in Garner v. Louisiana. Garner and fifteen other students were arrested in Baton Rouge after they refused to leave a Kress department store, a drugstore, and a bus terminal. The charge alleged their actions “would foreseeably disturb or alarm the public.” The students were found guilty and given thirty-day jail terms and hundred-dollar fines. The convictions were upheld by Louisiana’s supreme court. NAACP lawyers Marshall, Jack Greenberg, A. P. Tureaud, and Johnnie A. Jones appeared before the Supreme Court on December 31, 1962. Marshall headed the team and wrote the brief, and Greenberg argued the case.

Marshall’s brief contended the state court’s decision affirming the convictions was not based on evidence of guilt and therefore conflicted with recent Supreme Court decisions. He said the students were neatly dressed and quiet, that no one was “disturbed or alarmed,” and that there was no disorder. Furthermore, he contended, the students were convicted under a state law that was “vague and indefinite.” In conclusion Marshall argued that “disturbing the peace” statutes could not be used to enforce racial segregation in public facilities: “The lower court’s decision, if allowed to stand, would be completely subversive of the numerous decisions throughout the federal judiciary outlawing state-enforced racial distinctions. Indeed, the segregation here is perhaps more insidious than that accomplished by other means, for it is not only based upon a vague statute which is enforced by the police according to their personal notions of what constitutes a violation and then sanctioned by state courts, but it suppresses freedom of expression as well.”

The Supreme Court reversed the convictions of all defendants. Chief Justice Earl Warren, writing for the majority, said, “The undisputed evidence shows that the police...were left with nothing to support their actions except their own opinions that it was a breach of the peace for the petitioners to sit peacefully in a place where custom decreed they should not sit. Such activity...is not evidence of any crime and cannot so be considered either by the police or the courts.”

The NAACP quickly took credit for winning the sit-in case, but those inside the civil rights movement knew it was Thurgood Marshall who had welded legal gradualism to the mass movement. Juanita Jackson Mitchell said, “It was Thurgood Marshall, more than anyone else, who changed the NAACP’s position on Martin Luther King Jr., the sit-in movement, and direct protest action.

Even during his time in Baltimore, when we boycotted stores and walked picket lines on Pennsylvania Avenue, Thurgood was always two or three steps ahead of the established leaders.”

Marshall’s performances before the Supreme Court had won him respect, even from enemies of the civil rights movement; Senator Richard B. Russell, a Georgia Democrat, said Marshall exercised “an almost occult power” over the Supreme Court justices.

The NAACP had concentrated most of its civil rights efforts in the South because discrimination in the North was less extreme and less insidious. In the South the association focused on schools, voting, and public accommodations. In the North voting and public accommodations were not such pervasive problems, so the emphasis was on employment opportunities, housing, and the elimination of de facto segregation in schools caused by racial housing patterns.

The nation’s first census, in 1790, reported that blacks constituted 20 percent of the population and that 90 percent of them lived in the South. At the beginning of World War I, 80 percent of the nation’s blacks lived in the eleven states of the Old Confederacy, but the nation’s racial geography was rapidly changing. Lured by employment opportunities in labor-short defense plants and shipyards, blacks broke the shackles that had bound them to southern sharecropping fields for generations. By 1960 nine million, or 48 percent, of the nation’s black population lived in the North or the West. There were half a million blacks in Philadelphia; blacks comprised 23 percent of Chicago’s population, 14 percent of New York’s, and 51 percent of Washington, D.C.’s; and five hundred thousand blacks lived in the Los Angeles metropolitan area.

Racial segregation and discrimination in the middle of a free society was still a paradox in the 1960s, and the Montgomery bus boycott provided an opportunity to display the power of direct protest and ultimately brought divergent civil rights organizations together. A proliferation of protest organizations had emerged where in the past one or two had carried the burden. New leaders and different strategies gained prominence. Protest was now a symbol of social conflict and a medium through which blacks could let white America know how deeply they resented segregation and discrimination.

On August 28, 1963, 250,000 black and white Americans converged on Washington, D.C., to participate in a day of protest before the Lincoln Memorial. They came from all parts of the country to protest unemployment, police brutality, and discrimination in housing and employment and to support President John F. Kennedy’s civil rights bill, then in Congress. It was the largest protest demonstration in the history of the United States. The march was the idea of A. Phillip Randolph, militant head of the Brotherhood of Sleeping Car Porters and Maids, and was organized by Bayard Rustin, former field secretary of CORE. Every black civil rights organization was represented, along with integrated organizations representing labor, churches, and civic associations.

SCLC’s Martin Luther King Jr., CORE’s James Farmer, the NAACP’s Roy Wilkins, Randolph, and SNCC’s John Lewis were the principal speakers. The march offered evidence there was support in America for an open, desegregated society. It culminated with King’s historic “I Have a Dream” speech, which ended, “And when this happens...we will be able to speed up that day when all God’s children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing the words of the old Negro spiritual, ‘Free at last! Free at last! thank God Almighty, we are free at last!’”

The March on Washington brought most of the nation’s civil rights organizations together. It forged a united front that was ready to abandon the jealous rivalries and disputes over techniques and tactics that had threatened to dissipate their collective energies. A breed of new leaders took their place on the civil rights battlefield with the older warriors.

FIVE

A Strange Trio: Thurgood
Marshall, James Eastland,
and Robert Kennedy

Tell your brother...I will give him the nigger.
—Senator James O. Eastland

In 1961, Thurgood Marshall wanted Attorney General Robert F. Kennedy to recommend that the president appoint him to the U.S. Court of Appeals for the Second Circuit. Years later, he related the story of his confrontation with the attorney general to a Columbia University interviewer, speaking matter-of-factly, without any trace of the bitterness he had felt at the time:

Kennedy told him, “Well, you can’t go on the Court of Appeals.”

Marshall responded, “There is an opening.”

Kennedy said, “But that’s already filled.”

Marshall replied, “So.”

Instead, Kennedy offered to recommend Marshall for a U.S. district court judgeship. “You don’t seem to understand,” Kennedy said. “It’s this or nothing.”

Marshall answered, “I do understand. The trouble is that you are different from me. You don’t know what it means, but all I’ve had in my life is nothing. It’s not new to me. So good-bye.” With that, Marshall walked out.

Marshall wanted nothing less than a seat on the appeals court, which he regarded as an important position.

At the time, the federal court system was comprised of eleven judicial circuits. The Second Circuit encompassed New York, Connecticut, and Vermont.

The appeals court for each circuit took appeals from the circuit’s district, or trial, courts. There were nine appeals court judges for the Second Circuit. They usually sat in panels of three to hear the cases brought before them. Appeals from circuit court decisions could be taken directly to the U.S. Supreme Court, the apex of the pyramid that is the federal judiciary.

The job Kennedy offered Marshall was a step below the appeals court level. At the time of Marshall’s conversation with Kennedy, there were forty-three district court judgeships in the Second Circuit alone. Appeals court judgeships were, of course, much rarer, and by 1961 only a single black, William H. Hastie, had ever been appointed to one.

Hastie had become the first black to serve in the federal judiciary when President Roosevelt named him to a district judgeship in the Virgin Islands in 1937. President Truman’s appointment of Hastie to the Third Circuit, in Philadelphia, in 1949 made him the first black circuit court judge.

U.S. Supreme Court justices are commonly, but by no means exclusively, appointed from among the ranks of federal appeals court judges. When Associate Justice Charles E. Whittaker resigned in the spring of 1962, the president met in the Oval Office with his top advisers to discuss a possible replacement, and Hastie was mentioned. Kennedy had won the black vote in the 1960 election; in return for this black voter support, civil rights groups expected him to appoint African Americans to influential positions.

Presidential confidant Clark Clifford opposed naming Hastie to the High Court. He argued that while Hastie’s performance on the bench was distinguished, it fell short of greatness, and he did not feel that the president should name a black just for the sake of naming a black.

After some discussion of other possible candidates, including Harvard law professor Paul Freund, Secretary of Labor Arthur Goldberg, and Texas lawyer Leon Jaworski, Kennedy decided to nominate from within his own White House circle a young assistant attorney general, Byron R. White. A former Rhodes scholar from the University of Colorado and Yale Law School, White had been a star running back for the National Football League’s Pittsburgh Steelers and Detroit Lions. He seemed to personify the president’s New Frontier ideal of the well-rounded, liberal scholar-athlete.

Meanwhile, despite whatever he might have said to Marshall in person, Robert Kennedy lobbied furiously to win Marshall’s Second Circuit appointment. As Burke Marshall (no relation), assistant attorney general for civil rights during the Kennedy administration, noted, “Marshall was a very distinguished lawyer...and his appointment [to the federal bench] was, accordingly, meaningful in terms of the desirability of appointing the best qualified judges.” Moreover, Kennedy wanted to reward Marshall for his gradualist approach to civil rights.

For Marshall, the implication of an appeals court appointment was obvious: He would be but a step away from a seat on the U.S. Supreme Court.

Ordinarily, a man of Marshall’s reputation and stature would have been a welcome addition to any court. Yet it took an unsavory but necessary compromise on the part of President Kennedy and his attorney general to win the U.S. Senate’s confirmation of Thurgood Marshall’s first appointment to the federal bench, which in fact turned out to be the seat on the U.S. Second Circuit Court of Appeals that he wanted.

In the summer of 1962, blacks remained frustrated by the slow pace of progress toward equality. Martin Luther King Jr.’s SCLC, SNCC, and other groups, with their strategy of direct action involving boycotts, civil disobedience, nonviolent sit-ins, and mass demonstrations, had succeeded in dramatizing American racial injustice in the South and in focusing the attention of the nation and the world on it. This caused considerable embarrassment for the Kennedy administration at a time when America sought to compete effectively worldwide with Soviet communism and other repressive ideologies. At the United Nations and in other international forums, Soviet leader Nikita Khrushchev, Cuban ruler Fidel Castro, and other Communist spokesmen pointed to the racial turmoil in America as evidence of American hypocrisy in human rights.

In the mind of the president, direct action, with its cycle of escalating black demands followed by increasingly violent white backlash, threatened to rend America’s tenuous social fabric. Black and white Freedom Riders were attacked and brutally beaten, their buses sometimes burned, by angry white mobs wielding ax handles, bicycle chains, and baseball bats. Local law enforcement authorities, sympathetic to the rabble, frequently stood by idly as the violence transpired or even conspired to bring it about.

Meanwhile, resistance to court-ordered desegregation gathered momentum. In Mississippi, Governor Ross Barnett resisted the efforts of a black man named James Meredith to enroll in the all-white University of Mississippi. Rioting by segregationist whites ensued. Again federal marshals were called to the scene of what was but one of dozens if not thousands of efforts to evade or defy civil rights decrees. After fewer than two years on the job, the president found himself confronted with the prospect of fighting the Civil War all over again.

Throughout the 1960 presidential campaign, John Kennedy had dramatized the plight of blacks. In Wisconsin, for example, Kennedy admonished his supporters, “The Negro baby has one-half, regardless of his talents, statistically has one-half as much chance of finishing high school as the white baby, one-third as much chance of finishing college, one-fourth as much chance of being a professional man or woman, four times as much chance of being out of work.” He promised that if elected he would use the power and the prestige of the presidency to help.

At the Democrats’ national convention in Los Angeles, he issued an appeal to black delegates. “My friends,” he told them, “if you are sober-minded enough to believe, then—to the extent that these tasks require the support, guidance, and leadership of the president of the United States—I am bold enough to try.” The black delegates responded with their support, backing Kennedy over liberal Minnesota senator Hubert Humphrey, an outspoken, longtime civil rights advocate.

On the eve of the election, Kennedy again demonstrated his commitment to black Americans. In doing so, he may have saved Martin Luther King Jr.’s life.

In October, King and thirty-six other demonstrators were arrested and charged with trespassing during a sit-in at Rich’s department store in Atlanta, where when they had demanded to be served at the whites-only lunch counter. The incident occurred at a time when the city was beset with racial unrest. In fact, Mayor William B. Hartsfield had proposed a two-month period of calm, during which time he promised to review the demands of the protesters for the desegregation of Atlanta’s public accommodations.

After his arrest at Rich’s, King was charged by DeKalb County officials with violating the conditions of a probationary sentence he had received for a minor traffic violation the previous May. He was detained at the Fulton County Jail.

King’s attorney, Donald L. Hollowell, worked feverishly to secure King’s release. Hollowell was shocked when King was unexpectedly brought before DeKalb County judge Oscar Mitchell on October 25 in handcuffs and leg irons. Judge Mitchell declared that King’s “trespassing” at Rich’s was a violation of his probation on the traffic charge. He sentenced King to four months at hard labor and remanded him immediately to Georgia’s Reidsville State Prison.

Hollowell returned to his Hunter Street office and worked through the night preparing a brief designed to prevent King from being transported to Reidsville the next morning. But when he took it to the DeKalb County courthouse shortly before 8:00 A.M., he was told that King had already been taken to Reidsville during the night. For King, it was a harrowing journey along obscure and isolated Georgia back roads where cross burnings and lynchings were not uncommon.

Hollowell, King’s aides, and the King family feared that King would be murdered on the way to the prison. Hollowell was confident that he could get Judge Mitchell’s ruling overturned, but he feared for King’s immediate safety. Prisons in the Deep South were notoriously dangerous, and Reidsville, in rural Tatnall County, had earned a reputation for being one of the worst. King’s supporters feared a lynching or some scenario in which King would be shot while allegedly trying to escape. Even without the authorities’ complicity, the Baptist minister might find himself at the mercy of violent, racist inmates.

News of King’s predicament spread. The White House was flooded with requests for federal intervention. Northern senators, congressmen, and governors called on President Eisenhower to order a federal investigation. In a show of unity, all the major civil rights organizations called for King’s immediate release. The national elections were just a few days away.

Eisenhower drafted a statement affirming King’s right to protest segregated facilities and remarking that the sentence for the traffic violation appeared unusually severe. But for some reason, the statement was never released. Meanwhile, the Republican presidential nominee, Vice President Richard M. Nixon, remained silent, fearing the loss of the southern white vote. The Democratic nominee, John Kennedy, decided to act.

One of Kennedy’s Atlanta advisers, attorney Morris Abrams, suggested that Kennedy issue a statement supporting King, an idea endorsed by Kennedy’s adviser on minority affairs, Harris Wofford. Then Kennedy called Coretta Scott King in Atlanta to try to allay her fears; he told her that he understood that she was worried about her husband’s safety and that he shared that concern and wanted to help. Next, Robert F. Kennedy, who was his brother’s campaign manager, called Judge Mitchell. The following day, October 27, Mitchell agreed to King’s release.

News of Kennedy’s phone call to Coretta Scott King spread quickly across the nation. CBS and NBC chartered small planes and flew correspondents and camera personnel to Reidsville to cover King’s release. At a press conference held in front of the prison, the voice of a black inmate rang out from inside the walls: “Long live the King!”

Later that day Hollowell received a telephone call from Thurgood Marshall. Marshall kidded him, “Say, Hollowell, they tell me that everybody got King out of jail but the lawyers.” He told Hollowell that the NAACP would pay the legal expenses arising from the Rich’s sit-in and King’s alleged probation violation.

King expressed his gratitude for Kennedy’s efforts: “I am deeply indebted to Senator Kennedy, who served as a great force in making my release possible. It took a lot of courage for Senator Kennedy to do this, especially in Georgia...He did it because of his great concern and humanitarian bent.” King’s father was grateful as well. A lifelong Republican because a Republican president freed the slaves, he promised to deliver Kennedy a “basketful of votes.”

On election night black voters demonstrated their appreciation and affection at the polls, thereby guaranteeing Kennedy’s election. Black support helped put Illinois, Michigan, Texas, South Carolina, and arguably Louisiana into Kennedy’s electoral vote column. Without some combination of these states, Kennedy would not have won what turned out to be the closest presidential race in U.S. history, with the two candidates separated by a slim 112,881 popular-vote margin. John F. Kennedy owed African Americans a political debt.

The day he was inaugurated was one of the happiest days in the history of black America. It was also one of the most bitterly cold January days in memory. But the sky was clear, and sunlight bathed the east front of the capitol. The nation’s leaders— senators, congressmen, the nine justices of the Supreme court, the ranking members of the military and civilian departments of government—were assembled in top hats and tails to observe an occasion fraught with symbolism. The oldest man ever to serve as president was departing; the youngest man ever elected to the office was about to assume it. In his inaugural address, Kennedy stated: “The torch has been passed to a new generation of Americans—born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed, and to which we are committed today at home and around the world.”

The energy, the vitality, the devotion, with which this new generation would set about the task of defending freedom would “light our country and all who serve it,” he vowed. And, he promised, “The light from that fire can truly light the world.”

For blacks Kennedy’s message offered hope that America would break with the discriminatory practices of the past and adhere to the nation’s ideals: justice, freedom, equality for all, life, liberty, property, and the pursuit of happiness. Almost a century had elapsed since the post-Civil War amendments to the Constitution bestowed full citizenship upon the eighteen million Americans of African descent whose forebears were emancipated by Lincoln. But on the frigid January day on which John Kennedy became the thirty-fifth president, there were few blacks among the assembled dignitaries: no black senators, no black cabinet officers, no black Supreme Court Justices. African Americans were not even conspicuous by their absence from the ranks of the powerful.

It was a fact of life: Racial inequality permeated American society at every level, from the rural South to the teeming ghettos of the great northern cities. Thurgood Marshall had indeed won Brown v. Board of Education. Segregation violated the law of the land. In custom and in practice, however, segregation was the rule—in housing, in the workplace, and in education. In the South blacks were routinely denied the right to vote, as well as access to public facilities and accommodations. Violence and coercion against blacks were common, and commonly unpunished.

A lot was expected and demanded. In an article for the Nation that appeared soon after the president’s inaugural, Martin Luther King, Jr., called for “really far-reaching” progress in civil rights, including the passage of a major civil rights bill. As a practical matter, however, Kennedy regarded this as an impossibility. Like every American president since Reconstruction, Kennedy was forced to confront the power and influence of southerners in the Congress, where the actual work was done in powerful committees whose chairmen, chosen on the basis of seniority, in effect set Congress’s legislative priorities. Because they controlled key committees, southern senators and congressmen hostile to civil rights had the power not only to block specific civil rights legislation but also to undermine the president’s entire legislative agenda.

Kennedy was frank with King about political realities. He warned that efforts to get a civil rights bill through Congress might prove counterproductive: “If we go into a long fight in Congress, it will bottleneck everything else, and still get no [civil rights] bill.” By “everything else” Kennedy meant legislative items, such as the increased minimum wage and federal aid to education, that were not directly related to civil rights but considered of great importance to blacks.

For much the same reason, Kennedy balked at King’s demand that the president fulfill his campaign pledge to “give segregation its death blow through the stroke of a pen” by issuing executive orders banning discrimination in the award of federal contracts, in federally financed housing, in hiring on federally supported hospital and highway construction, and more.

Nevertheless, Kennedy was aware of the political debt he owed the nation’s blacks. He also knew that the civil rights movement represented an awakening of the minds and spirits of African Americans that could not be ignored or reversed. Besides, both he and his attorney general were men who operated on the basis of moral imperatives, not just political expedients. They believed deeply that, at a minimum, every American is entitled to expect that his or her rights will be protected and enforced. As attorney general, the nation’s top law enforcement officer in charge of the federal government’s law enforcement apparatus, including the FBI, Robert Kennedy was the administration’s point man on civil rights. Even in the enforcement and execution of those laws already in effect, he would find his power wanting.

On the surface there was little indication that Robert Kennedy had much familiarity with, or concern for, civil rights or the black American predicament. He confided as much to his biographer Arthur M. Schlesinger Jr., admitting, “I won’t say I stayed awake nights worrying about civil rights before I became attorney general.” During the early 1950s, Kennedy focused his energy on rooting Communist influences out of the government, serving as special counsel to Senator Joseph McCarthy’s Senate Investigative Committee on Un-American Activities. Later in the decade, he turned his attention to organized crime, earning a reputation for ruthlessness as the crime-busting chief counsel to the Senate rackets committee. He played a major role in exposing Mafia influence in the organized labor movement, especially within the United Brotherhood of Teamsters; its president, Jimmy Hoffa, became one of his most celebrated antagonists.

Besides, Robert Kennedy was skeptical about the feasibility of creating brotherhood by government fiat, demanding racial tolerance at the point of a gun. He told Schlesinger, “People have grown up with totally different backgrounds and mores, which we can’t change overnight.” In time, he believed, blacks would simply be absorbed into the melting pot like other ethnic groups, including his own Irish. Whatever might have been his initial instincts or predilections, however, he expressed to Schlesinger soon after his appointment his “fundamental belief that all people are created equal.” From that he said, “it follows that integration should take place today everywhere.” The challenge was how to bring integration about.

First, Kennedy realized that he would have to overcome obstacles that existed within the very Department of Justice that he headed. The department was, quite simply, not geared up to go to war for civil rights. Zealous litigation on behalf of blacks denied the right to vote, or against school systems that continued to discriminate, would be essential. So would leading by example. Yet out of almost one thousand Justice Department lawyers based in Washington, only ten were African Americans.

Moreover, FBI director J. Edgar Hoover was outright hostile to civil rights. This partially explained why there were no black FBI agents by 1961. Recruiting black agents was crucial to investigating civil rights violations in the South. Southern blacks feared local white law enforcement officials because many of them were sympathetic to the Klan. For the same reason, blacks were reluctant to share information with white FBI agents, especially since they knew that those agents cooperated frequently with local officials.

Getting Hoover to agree to make changes presented its own peculiar set of problems. Hoover disliked the Kennedy brothers as much as he disliked their civil rights policies. He undercut the attorney general’s credibility by questioning his qualifications. He once remarked sarcastically that Kennedy was well equipped to be the nation’s top lawyer: He had never practiced law or tried a case in court. When Bobby Kennedy sought Hoover’s advice about whether to accept the appointment, Hoover remarked dryly that being attorney general was a good job and, since it was offered, he should take it. Later it became standard practice for tour guides at the FBI Building in Washington to inform visitors that J. Edgar Hoover’s tenure as FBI director began in 1924, a year before the attorney general, Hoover’s ostensible superior, was even born.

At the same time, however, firing Hoover was out of the question. Members of the Kennedy family, including the new president, had been subjects of FBI surveillance. As a result, Hoover possessed incriminating information that, if made public, would cause considerable embarrassment for the nation and the Kennedy family. It was insinuated that John Kennedy, before he became president, had had affairs with actress Marilyn Monroe and Judith Campbell, whose other lovers included entertainer Frank Sinatra and Sam “Mo Mo” Giancana, a Chicago mobster.

Besides, civil rights was not the only item on Robert Kennedy’s personal agenda. He realized that he would need Hoover’s experience, credibility, and connections in order to achieve his declared, immediate, and overriding national law enforcement objective: the infiltration and subversion of the Mafia in America.

Second, the extent to which federal marshals could be used to protect civil rights activists from vigilante violence in the South was limited. Marshals were often little more than deputized citizens, ill equipped and untrained for the sheer numbers and violence of the southern mobs. The president could federalize the national guard, but beyond a point the loyalty of local guardsmen could not be guaranteed. At the extreme was the option of calling out the U.S. Army and imposing martial law. But that would be tantamount to fighting the Civil War all over again, and one could argue that by the end of Reconstruction the outcome of the first Civil War had at best yielded mixed results.

It was clear that the entire federal law enforcement apparatus needed to be reformed. What was called for in the face of massive southern resistance was in effect a national police force, which did not exist and would, even if it did, be suspect from a constitutional standpoint. Even legal scholars as committed to civil rights as Thurgood Marshall conceded this point. “The law is quite clear that the federal government is not the policing authority,” Marshall admitted. “That...some of us can understand, but the average layman cannot understand it.”

Eventually the attorney general and his advisers concluded that the best solution to the civil rights problem in the South was to guarantee the voting rights of African-American citizens. Through the vote blacks could exercise a considerable degree of power over their own destinies by electing officials who would use the power of the state to expand and enforce, rather than limit or altogether deny, their freedom. The Justice Department during the Kennedy years in fact undertook an unprecedented amount of litigation to ensure voting rights enforcement.

Until change could be secured through the ballot box, the president would have to take whatever measures he could to improve the lives of blacks. Foremost among these, the attorney general recommended, should be the appointment of judges sympathetic to the need to protect the rights and physical safety of all American citizens.

Certainly the courts had made a positive difference for blacks. While the Congress had failed to enact sweeping civil rights legislation and while presidents had been personally hostile to civil rights or restricted in their options, the courts had responded. As the efforts and successes of Thurgood Marshall and other advocates demonstrated over the years, the courts could serve as an effective force for social change in America.

For these reasons, Robert Kennedy recommended Thurgood Marshall’s appointment to the Second Circuit Court of Appeals. What could send a better message to the president’s black supporters than the appointment of such a fine civil rights lawyer to the federal bench? In addition, there were few, if any, stronger messages that the president could send to those who opposed his commitment to civil rights. As Burke Marshall later put it, the nomination was indeed “symbolic in a very important and useful way.”

Nevertheless, the appointment of a single black judge, even if he were to become only the second black ever named to a U.S. court of appeals, seemed like a token gesture. Privately some of Marshall’s supporters wondered whether he would be able to advance the cause of black equality from the bench as effectively as he had as a lawyer.

Marshall himself had mixed feelings about the move. “I had to fight it out with myself,” he admitted. “But then I knew I had built up a staff—a damned good staff—an excellent board, and the backing that would let them go ahead. And when one has the opportunity to serve his government, he should think twice before passing it up.” He went on, “I’ve always felt the assault troops never occupy the town. I figured after the school decisions, the assault was over for me. It was time to let newer minds take over.”

What stood between the president and Marshall’s appointment was a Mississippi senator, James O. Eastland.

Eastland was a senior Democrat who since 1956 had chaired the Senate’s Judiciary Committee, to which all judicial appointments, as well as all civil rights legislation, were referred. Through his use of that position, Eastland came to personify the southern political establishment’s irrevocable hostility to black advancement. “What are the two southernmost points in the United States?” pundits asked rhetorically. “Key West, Florida, and James O. Eastland.”

A wealthy landowner, Eastland was from the Mississippi Delta’s Sunflower County, which boasted the registration of less than 3 percent of its eligible black voters. The county had become the focus of the nation’s attention a few years earlier as the result of Emmett Tills being lynched there.

Eastland himself indulged in the most rudimentary race baiting. He charged that the NAACP was Communist oriented and backed by organizations “of all shades of red, the blood red of the Communist party.” During a reelection campaign, he bragged that as chairman of the Senate Judiciary Committee’s Subcommittee on Civil Rights he had bottled up 127 pieces of civil rights legislation. “Not one [of those bills] ever emerged” to go before the full committee and Senate, he told his supporters. Time magazine called Eastland the “nation’s most dangerous demagogue.” Clarence Mitchell, an NAACP leader, branded him a “mad dog loose in the streets of justice.”

The young attorney general was surprised to find the Mississippian in a conciliatory mood on the subject of Marshall’s appointment when he discussed it with him early in the Kennedy administration. Eastland signaled that he might be amenable to a deal. If the president appointed Eastland’s college roommate Harold Cox to a recently vacated district judgeship in the South, in the Fifth Circuit, where most of the civil rights “agitation” was occurring, Eastland would allow the Marshall nomination to go to a full committee vote. Later, when Eastland met with Robert Kennedy, he told him, “Tell your brother that if he will give me Harold Cox, I will give him the nigger.”

Kennedy agreed. Harold Cox of Mississippi became the president’s first nominee to the federal bench. Shortly thereafter, on September 23, 1961, the president forwarded Marshall’s nomination to the U.S. Senate. Despite his promise, Eastland maneuvered to keep the Marshall nomination from coming to a committee vote for almost a year. In the interim the president gave Marshall a recess appointment.

The hearings conducted by the Judiciary Committee’s Subcommittee on Nominations dragged on over the course of six days, scattered throughout May, July, and August in the spring and sweltering summer of 1962. Marshall found himself subjected to a grilling by southern senators and committee counsel L. P. B. Lipscomb. The legitimacy of the Fund’s tax-exempt status was called into question. Marshall himself was charged with violating the American Bar Association’s Code of Professional Responsibility by soliciting clients for desegregation cases. He also came under attack for his alleged involvement with the Lawyer’s Guild, which was backed by the Communist party, and for alleged Communist influence within the NAACP.

The dramatic high point of the hearings came when Lipscomb challenged Marshall’s handling of the five questions posed by the Supreme Court at the end of the first round of oral arguments in Brown in 1953. Lipscomb based his accusations on a paper delivered by Professor Alfred H. Kelly of Wayne State University at the annual meeting of the American Historical Association in Washington, D.C., in December 1961.

In his paper, “An Inside View of Brown versus Board” Kelly set out his account of the summer he and scores of other noted historians and academicians worked with Marshall and other Fund lawyers helping to frame the NAACP’s answer to the five questions, which related to the intention of the framers of the Fourteenth Amendment. Kelly wrote:

“I was trying to be both historian and advocate...and the combination, as I found out, was not a very good one. I tried to draw conclusions which were at odds with the thing which most impressed me at the time—the damning modifications of the civil rights bill in the House and its apparent identity in purpose with the Fourteenth Amendment. I was facing for the first time in my own career the deadly opposition between my professional integrity as a historian and my wishes and hopes with respect to a contemporary question of values, of ideals, of policy, of partisanship, and of political objectives. I suppose if a man is without scruple this matter will not bother him, but I am frank to say that it bothered me terribly.”

Lipscomb’s goal was clearly to cast doubt on the integrity of the work that was the basis for the NAACP’s brief. He also tried to use Kelly’s paper to raise doubts about Marshall’s character and his personally held views of whites. He implied that Marshall was a racist. He directed the subcommittee’s attention to a section of Kelly’s paper that described Marshall’s personality:

“The sudden shifts of mood he displayed on occasion were nothing short of astonishing. One morning in his office, he related to John Hope Franklin of Yale and myself, with tears in his eyes and a voice dulled with the cumulative grief of three hundred years, the experiment of a leading sociologist with a group of little colored girls, who were given their choice of playing with two sets of dolls, one white or Caucasian, one black or Negro. Even at three years of age, he said, the little colored girls preferred the white dolls, describing the black dolls as ‘bad’ and ‘not nice’ and the white dolls as ‘pretty’ and ‘good.’”

“As Marshall told the story, he seemed bowed down under an unbearable burden of tragedy.

“Sometimes Marshall could reveal a mood of sudden savagery and bitterness. Customarily he referred to the Mason and Dixon line as ‘the Smith and Wesson line.’

“On one occasion he read with savage delight from an Iowa frontier paper which portrayed a local Negro community as a mass of illiterate apes. For him, he made clear, this epitomized the white man’s attitude toward his people.

“On still another occasion at an evening session at which I found myself playing devil’s advocate with a bit too much enthusiasm and lack of tact, Marshall stopped suddenly and speaking into the growing silence around the table said:

“’Alfred, you are one of us here and I like you. But’—and this in a voice of terrible intensity—’I want you to understand that when us colored folks take over, every time a white man draws a breath, he’ll have to pay a fine.’”

When Lipscomb finished reading the passage he paused a beat, then looked across at Marshall and asked, “Is it still your conviction that when the colored folks take over that every time a white man draws a breath he will have to pay a fine?”

Marshall responded, “That has never been my conviction, is not now and never will be.”

When asked whether Kelly had misquoted him, Marshall replied, “I am certain he has on that point.”

Subcommittee chairman Olin D. Johnston of South Carolina, who was opposed to the nomination, requested that Kelly be called to testify in person. The hearings were then adjourned until Kelly could be located and brought to Washington.

It had been almost a decade since Kelly and Marshall had met. During that time, the historian had lost none of his admiration for the man he helped win Brown. Kelly opened his testimony before the subcommittee with a ten-minute statement that immediately dashed any hopes the segregationists might have had of finding in him a willing and supportive ally.

“First,” he began, “let me emphasize very strongly my firm belief in the integrity, honor, and decency of Judge Thurgood Marshall.” He went on, “It is my opinion that he is a man of the highest professional standards and ideals and that he is a credit to the American bar and to the federal judiciary.”

Next, Kelly defended the NAACP’s interpretation of the Fourteenth Amendment’s legislative history. He stated, “The argument in the brief was not history; it was advocacy. It was, in short, a lawyer’s brief...This does not mean that the brief falsified facts, that it lied, or even that it necessarily reached false conclusions. Within a large sense, most Reconstruction historians believe it did not... The important thing here is that within the ethics of the legal profession, Thurgood Marshall’s professional obligations required him to handle his available evidence in this fashion... Again, he was functioning as an advocate, not as a historian.”

Kelly added, “It may be worthwhile to observe, by the way, that the brief prepared by the late John W. Davis for the respondents in Brown v. Board is, from a technical historical point of view, every bit as far from a balanced constitutional history of Reconstruction as is the NAACP brief. Again, Mr. Davis’s brief was not history; it was advocacy. Yet no one has indicted him for having argued his case adequately for his clients. No doubt he would have been open to a charge of professional dereliction and malpractice had he done otherwise.”

Kelly dispelled the notion that Marshall harbored racist sentiments. He testified that he did indeed recall Marshall saying that “when we colored folks take over, every time a white man draws a breath he’ll have to pay a fine.” But he insisted the remark was “mordant humor, given exclamation by a man possessed of a powerful sense of humor, and who expresses something of the excitement of verbal exchange in humorous hyperbole of this kind.” He assured the subcommittee, “To lift the remark put of context and treat it as a threat or even a philosophical observation is absurd, even grotesque, in its bizarre distortion of reality.”

Asked about Marshall’s feelings about communism, Kelly said, “I have...heard Marshall express personally his powerful conviction that communism and Marxism are fatal pitfalls for the

American Negro which must be avoided like the plague.

On more than one occasion Marshall in my presence bespoke his intense conviction that the destiny of the American Negro is to be

fulfilled in terms of the American constitutional system. What he wanted for the Negro, he made clear, was first-class citizenship. I have heard him say, ‘We want no more; we will not take less.’”

In conclusion Kelly stated, “It is my conviction that Thurgood Marshall’s victory in Brown v. Board, consistent as it was with the highest ethics of the legal profession, has already earned him a permanent position of honor in American history. And as a constitutional historian, I believe strongly that in his new capacity as a federal judge, he will prove to be an outstanding and preeminent judicial figure.”

The Judiciary Committee passed Marshall’s nomination on to the full Senate without recommendation. On September 11, 1962, he was confirmed for the Second Circuit seat by a vote of fifty-four to sixteen. The deal was complete. Eastland got Cox; Kennedy got Marshall.

Cox proved to be one of President Kennedy’s most embarrassing judicial appointments. The man was a racist, and an injudicious one at that. He complained bitterly when the Justice Department brought suit to defend blacks’ voting rights. From the bench on one occasion, he called black litigants in a voting rights matter “a bunch of niggers...acting like a bunch of chimpanzees.” Cox turned out to be what Roy Wilkins predicted at the time of his nomination: “Another strand in the barbed-wire fence of Negro Mississippians, another cross over their weary shoulders, and another rock in the road up which their young people must struggle.” No judge was ever overruled more on appeal of civil rights cases than Harold Cox of Mississippi.

By contrast, Thurgood Marshall found himself in the judicial mainstream on the U.S. Second Circuit Court of Appeals in New York City. During his four-year tenure, he wrote ninety-eight majority opinions, none of which was reversed by the U.S. Supreme Court, and contributed eight concurrences. He wrote only twelve dissents.

In one case, United States v. Wilkins, he broke new ground regarding double jeopardy, protecting criminal defendants from being tried more than once for essentially the same crime. Marshall’s opinion held that the Fifth Amendment protection against repeated prosecutions at the federal level also applied to the states by virtue of the Fourteenth Amendment’s guarantee of due process.

In United States v. Denno, Marshall concurred in the trial court’s ruling that an lawyer for the accused should have been present in the hospital room where the defendant was taken to be identified by a crime victim. Subsequently, in Stovall v. Denno, the Supreme Court adopted the position taken by Marshall.

Several other cases indicate Marshall’s emerging liberal perspective. In Keyishian v. Board of Regents of the University of the State of New York, he wrote for the majority that New York laws requiring members of the state university’s faculty to sign loyalty oaths raised significant questions under the U.S. Constitution. The Supreme Court agreed and struck the laws down, ruling that they violated the First Amendment by unnecessarily restricting free speech and vital thought.

In People of the State of New York v. Galamison, Second Circuit judges found themselves confronted with the kind of case that cut close to Marshall’s heart. Galamison and about fifty others were arrested and prosecuted under a number of laws for disrupting road and subway access to the New York World’s Fair. Their objective, according to their attorney William Kuntsler, was to protest “the denial of equal protection of the laws to Negroes in the City, State and Nation with reference to housing, education, employment, police action and other areas of local and national life too numerous to mention.” A majority of the court upheld the protesters’ convictions.

Marshall wrote a lengthy dissent arguing that since the protesters were challenging the denial of rights provided by law, they were in effect acting under the color of the law’s authority. He was careful to draw a distinction between peaceful protest and criminal conduct:

“For example, if the petitioners arrested and prosecuted for violating the truancy law had merely sought to induce parents not to send their children to a segregated school which denies the ‘equality of law’ guaranteed by the Constitution, this in my opinion could be [protected activity] while, on the other hand, a charge of third degree assault might very well not be covered.”

He also insisted that each demonstrator should have been given a separate hearing to determine the demonstrator’s motivations.

This would have imposed a substantial burden on the court system and thereby discouraged prosecution.

But it cannot be said that he unwaveringly followed a liberal line. A common generalization about liberal jurists is that they are sensitive to the rights of the minority when those rights conflict with the majority’s will. Naturally, Marshall was sensitive to civil rights issues, yet he did not always side with minorities against the government.

For example, in Seneca Nation of Indians v. United States, he upheld the government’s power to condemn land on an Indian reservation for the Allegheny Reservoir Project. At issue was the secretary of the army’s decision to widen a road through Seneca territory. Writing for the court’s majority, Marshall stated simply, “It is hard to see how a four-lane road will interfere with communication among the Senecas so much more than a two-lane road.” In dissent, Judge Moore pointed out that the land was given to the Senecas by treaty and declared, quoting Justice Hugo Black, “Great nations, like great men, should keep their word.”

Another common characterization of liberals is that they are quick to uphold criminal defendants’ rights. This was true of Marshall, who knew firsthand that in the South “uppity” blacks were routinely harassed or scapegoated by law enforcement authorities. In United States v. Fay, he argued in dissent that the Supreme Court ruling prohibiting the use of illegally seized evidence in criminal prosecutions should be applied retroactively. This would have made anyone convicted with illegally seized evidence eligible for a new trial. The Supreme Court ultimately rejected Marshall’s view, concluding that opening up past convictions to challenge would “tax the administration of justice to the utmost.”

Marshall’s concern about the government using its power to violate the rights or privacy of individuals did not necessarily extend beyond the criminal justice arena, however. In United States v. Rickenbacker, he upheld the conviction of a man who refused to provide census data, dismissing the appellant’s claim that a 1960 census questionnaire constituted “an unnecessary invasion of my privacy.” Instead, Marshall concluded, “The authority to gather reliable statistical data reasonably related to governmental purposes and functions is a necessity if modern government is to legislate intelligently and effectively.”

Overall, his Second Circuit performance managed to silence, for the most part, critics who claimed that, because his expertise as a lawyer was in civil rights litigation, he lacked sufficient familiarity with other fields of law to function effectively as a judge. Writing for the New York Times Magazine, columnist Sidney Zion noted, “In some of the early tax cases Thurgood’s lack of knowledge was embarrassing. I recall one case where a question he asked indicated that he didn’t even understand the concept of a corporation. It was not a nice moment for anyone in the courtroom.”

Newsweek praised him, however, for broadening his academic scope “to fill in the blanks from tax law to admiralty law.” In Mertens v. Flying Tiger Line, Inc., for example, his majority opinion maneuvered deftly through the intricacies of international law, allowing survivors of an international airplane crash to collect more damages than they would otherwise have been allowed under the Warsaw Convention. Summing up his Second Circuit tenure, Newsweek concluded that Marshall “acquitted himself well enough.”

Well enough for what? The answer came on a humid afternoon in July 1965 when a lunch with friends was interrupted by a phone call from President Lyndon Baines Johnson.

SIX

Solicitor General, a Position of Power

If Martin Luther King wants to catch up with me, he has to get up early and march fast.
—President Lyndon Johnson

On the evening of Friday, July 2, 1965, President Lyndon Baines Johnson’s wife, Lady Bird, made an entry in her personal diary. “Lyndon admires Thurgood Marshall and spoke [today] of the possibility of asking him to be solicitor general, and if he proved himself outstanding, perhaps when a vacancy on the Supreme Court opened up he might nominate him as a justice—the first of his race.”

Ten days later, on Monday, July 12, Marshall’s law clerk anxiously interrupted him during lunch with friends in a New York City restaurant to tell him the president had called.

“The president of what?” Marshall barked, annoyed.

The clerk said President Johnson had phoned a few minutes earlier and wanted Marshall to return his call. Marshall leisurely finished his lunch, returned to his chambers in the U.S. appeals court, and called the White House. The president told Marshall he wanted him to become the thirty-third solicitor general of the United States. He would replace Archibald Cox, who had resigned to join the Harvard Law School faculty.

The decision Thurgood Marshall faced created a profound personal dilemma. If Marshall gave up his U.S. appeals court judgeship to become the nation’s top-ranking courtroom advocate, it would mean a reduction of his annual salary from $33,000 to $28,500. Perhaps more important, as the fifty-seven-year-old father of two sons not yet teenagers, he would have to relinquish the comfortable security of a lifetime federal judgeship to serve at the pleasure of a president who might not seek a second term.

“I told Cissy that it would call for some belt tightening, that it might mean she couldn’t get a new dress for a year, and all she said was ‘So?’” Marshall confided to his friend, Ted Poston. “I told the boys they would have to cut back, too, but all they asked was if they would get to see me in court with my cutaway.”

Marshall’s decision would also affect every other black American. Marshall’s acceptance of President Johnson’s offer would again put their own advocate on the front lines of the civil rights battle, this time in a powerful position to ensure compliance with emerging civil rights legislation. There would be an important collateral benefit, too: direct access on their behalf to the president of the United States.

The solicitor general is the nation’s only public official, including Supreme Court justices and the attorney general, required by statute to be “learned in the law.” Congress created the Justice Department on June 22, 1870, and provided that “there shall be...an officer learned in the law, to assist the attorney general in the performance of his duties, to be called the solicitor general.” The legislation was introduced by Republican congressman Thomas Jenckes of Rhode Island, who wrote, “We propose to have a man sufficient of learning, ability and experience that he can be sent to New Orleans, or to New York, or into any court wherever the government has any interest in litigation, and there present the case of the United States as it should be presented.”

The solicitor general has offices in the Department of Justice but also maintains a chamber in the Supreme Court. He or she argues the government’s cases before the Court and also executes an influential behind-the -scenes role in helping the Court decide what cases it will hear and how those issues will be framed for discussion. The Court relies heavily on the solicitor general for the accurate presentation of facts and legal issues. This dual responsibility prompted Justice Lewis Powell to tell author Lewis Kaplan in 1987 that he considered the solicitor general to be the Court’s “tenth justice.”

The Twenty-fourth Amendment, ratified in 1964, prohibited poll taxes in national elections, but some southern states and their municipalities still found guileful ways to circumvent the anti-poll tax laws. This was particularly evident in Alabama, Mississippi, and Virginia. Since 1957, Congress had taken a more active role in guaranteeing the political and civil rights of black people and other minorities. Thurgood Marshall’s civil rights career had been a testimony to those changing legislative attitudes and the restructuring of crucial local political power bases that put those guarantees in place. The Civil Rights Acts of 1957, 1960, and especially 1964 were important legal instruments in the continuing struggle for equality, but they were only as strong as the government’s will to enforce them. The responsibility for enforcement rested with the Justice Department and its five thousand lawyers under Attorney General Nicholas B. Katzenbach, including the department’s Civil Rights Division, headed by Assistant Attorney General Burke Marshall.

The previous July, President Johnson had signed the nation’s most comprehensive civil rights bill, the Civil Rights Act of 1964. It prohibited job discrimination by employers and labor unions with more than twenty-five workers or members on the basis of race, sex, or religion. It gave the Justice Department authority to bring school desegregation suits and to eliminate racial segregation and discrimination in all programs receiving federal funds. The act’s most controversial section, Title II, banned racial discrimination in public accommodations engaged in interstate commerce: hotels, motels, restaurants, service stations, bus and train terminals, and places of entertainment.

Civil rights activists put Title II to the test and in most instances found a moderate amount of compliance. But on Forsyth Street in the heart of Atlanta, Georgia’s soon-to-be-governor Lester Maddox stood with a pistol in his hand in the doorway of his Pickwick restaurant chasing away students from the city’s black colleges. Maddox sold autographed ax handles attached to small Confederate flags to white patrons and encouraged their use if blacks attempted to enter his restaurant. Ironically, on Saturday nights white patrons flocked to the black-owned Pascals’ restaurant and its adjoining Carousel jazz nightclub on West Hunter Street. They came to eat a more succulent version of southern fried chicken than the “skillet chicken” Maddox served at his Pickwick. They would sit at the Carousel’s round bar and listen to jazz saxophonist Lou Donaldson play “Funky Momma.” Or they might hear Roland Kirk, Billy Taylor, Lloyd McNeil, or a new young singer from Atlanta’s Westside, Gladys Knight.

Title II met some resistance, and in two major cases Katzenbach responded successfully on behalf of the Johnson administration. In Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung, the Supreme Court said businesses that offer public accommodations and are engaged in interstate commerce must end their discriminatory practices.

It was clear the Johnson administration intended to enforce civil rights legislation rigorously, which Thurgood Marshall understood and appreciated.

Cissy Marshall packed Thurgood’s overnight bag, and on Tuesday morning, July 13, 1965, he left his wife and two sons in their seventeenth-floor cooperative apartment in Morningside Gardens on Harlem’s West 123rd Street. He was on his way to the White House, where he told President Johnson that he had discussed the nomination with his “chief adviser,” Cissy, and that they had agreed he was ready to become the nation’s first African-American solicitor general.

Thurgood Marshall Meets LBJ to Discuss Solicitor General Job, July, 1965. Courtesy, LBJ Library.

When a reporter asked why he was leaving the security of a federal judgeship, Marshall answered, “Because the president asked me to.” Then he added, “I believe that in this time especially, we do what our government requests of us. Negroes have made great advancements in government, and I think it is time they started making some sacrifices.” Marshall gave old friends Sterling Brown, Wiley Branton, and John P. Davis a different version of his decision to accept the nomination: “I was reluctant at first, but when the president was through with me I was ashamed I hadn’t volunteered.”

When reporters asked President Johnson his reason for nominating Marshall, he said, “I want the world to know that when the United States government speaks it does so through the voice of a Negro.” Johnson, like Marshall, had his private version of Thurgood’s nomination. He told close associates, “I want folks at the Justice Department to walk down the hall and see a nigger sitting there.”

There was public conjecture that President Johnson had already decided to appoint Marshall to the next Supreme Court vacancy and had named him solicitor general to increase his national visibility, smoothing the path for that step. Johnson never admitted, and Marshall has always denied, such an agreement. “We made no promises, we didn’t even discuss that,” Marshall insisted. “And I can tell you, it just isn’t in the cards.” Lady Bird Johnson’s July 2 diary entry, however, shows that the idea had at least already crossed her husband’s mind.

When Marshall was asked if he had an interest in eventually sitting on the Supreme Court, he brusquely told the Associated Press, “Please, one job at a time.” In a subdued aside he added, “There’s not a lawyer in the country who wouldn’t snap at the chance.”

To most black Americans, Lyndon Johnson had become a president whose positive actions spoke louder than his sometimes unfortunate words. He said “nigger,” and he could be patronizing, as when he commented during a 1964 campaign trip to his native Texas: “When I get out of that car you can just see them light up and feel the warmth coming up at you...Those Negroes go off the ground. They cling to my hands like I was Jesus Christ walking in their midst.”

The hope African Americans held for a place on the New Frontier died in Dallas in 1963 with the assassination of John F. Kennedy. Now black Americans looked to President Johnson, if not for Christian salvation, at least for a pew of dignity, respect, and equality in his promised Great Society. In a May 1964 speech, Johnson described his vision for the country: “The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice, to which we are totally committed in our time.”

African-American novelist Ralph Ellison said of Johnson’s civil rights record: “When all the returns are in, perhaps President Johnson will have to settle for being recognized as the greatest American president for the poor and for the Negro, but that, as I see it, is a very great honor indeed.”

Lyndon Johnson was proud of his efforts to create equality for black Americans. On the July day Lady Bird Johnson recorded his remarks about Marshall in her diary, she also noted this reflection of her husband’s view of his contribution to the nation’s racial progress: “Lyndon said, ‘If Martin Luther King wants to catch up with me, he has to get up early and march fast.’”

Thurgood Marshall Sworn in as Solictor General

Sworn in as Solicitor General, August 1965.
Courtesy, LBJ Library.

Marshall’s appointment as solicitor general came at a time when black America’s moderate old guard, including the National Urban League and the NAACP, had been challenged by an emerging younger and more aggressive group of black leaders and organizations. Dr. Martin Luther King Jr. and his SCLC had moved the fight for civil rights from the subdued world of the courtroom to the mean streets of white America. Their tactics of nonviolence and civil disobedience were met with beatings, bombings, and murders. Voter registration drives, lunch-counter sit-ins, and other protest demonstrations unleashed a virulent white backlash not only in southern cities but in western and northern ones as well.

The “black power” voices of even more militant leaders, such as H. Rap Brown and Stokely Carmichael of SNCC and CORE’s Floyd McKissick, were rising, urging even swifter redress for racial injustices.

And black nationalists, with their perspective of separateness, were urging African Americans to halt their efforts to integrate the country. Thurgood Marshall had learned several years earlier to take their desire for separateness in stride. During an ugly confrontation in the early 1960s, Black Muslims called him a “half white son of a bitch” because he was a staunch advocate of integration. Marshall said that he met Black Muslim leader Malcolm X one rainy night on the corner of New York’s 125th Street and Amsterdam Avenue. Some months later “we spent the whole time calling each other a bunch of sons of bitches.”

After Marshall was threatened by several Black Muslims on a Harlem street corner in 1960, New York City police commissioner Stephen P. Kennedy came to Marshall’s apartment and offered him a snub-nosed .38 caliber Smith and Wesson revolver. “I turned it down,” Marshall said. In 1991 Marshall still held no brief for the late Muslim leader. “I still see no reason to say he [Malcolm X] is a ‘great person, a great Negro,’ and I ask a simple question. What did he ever do? Name me one concrete thing he ever did.”

The legal ramifications of the racial violence that spread across the nation the year Thurgood Marshall became solicitor general consumed much of his time. On March 7, 1965, more than two hundred Alabama state troopers with nightsticks, whips, tear gas, and dogs assaulted demonstrators, led by Dr. Martin Luther King Jr., marching from Selma to the state capital in Montgomery. For a month the black citizens of Selma had tried to exercise their basic constitutional right to vote. They were turned away by registrars, and more than two thousand prospective voters were arrested in demonstrations and registration lines.

President Johnson met with Alabama governor George Wallace, but Wallace would not agree to Johnson’s request to let the marchers continue their protest peacefully under police protection. They went ahead along the red-dust roads to Montgomery anyway, now joined by several movie stars, singer Harry Belafonte, and UN undersecretary Ralph Bunche. Wallace accused the federal judge who approved the march of “prostituting our law in favor of mob rule while hypocritically wearing robes.” The marchers were not concerned with the black robes of judges but with the white robes of the Ku Klux Klan along the road to Montgomery.

Wallace told the president that he would not provide state police protection for the marchers and that Alabama did not have the money to employ its national guard. Johnson sent three thousand army troops armed with bayoneted M-l rifles to protect the twenty thousand marchers on their five-day trip to the “cradle of the Confederacy.” On the final day of the march, Mrs. Viola Liuzzo, a white woman driving a black civil rights worker in her car, was shot to death by four members of the Ku Klux Klan on the outskirts of Montgomery.

A year after the march, Thurgood Marshall addressed a group of college students in Atlanta. A black youth accused him of not being “militant enough” and asked him why he did not march with other civil rights leaders in Selma. He told the student, “I was there before you were born, and your father didn’t have guts enough to walk across the street,” Marshall said angrily. “Why, you see, you people forget things like that. That’s why I like to mention them, to find out how far we came...We’ve come a long ways.”

Selma was not the only confrontation between black and white on the eve of Thurgood Marshall’s elevation to solicitor general. Between June 11 and 15, police in Chicago arrested 526 anti-segregation demonstrators protesting the rehiring of the city’s school superintendent, who had been accused of failing to integrate Chicago’s schools. More than twenty thousand protesters, led at times by Dr. King, marched for forty-two days. In the ensuing months racial violence would break out in other major cities.

President Johnson wanted Marshall confirmed without delay, and Senate Judiciary Committee hearings were scheduled for July 29, 1965, just two weeks after the nomination. Marshall again left Cissy and his sons, nine-year-old Thurgood Jr. and seven-year-old John William, in New York City. He moved into a small, temporary apartment in southwest Washington. He was prepared to encounter what he thought would be the hostile examination of the sixteen-member committee packed with southern senators, as he had three years earlier, when his U.S. appeals court nomination stalled in the committee for several months.

President Johnson was not going to have his nominee subjected to that kind of senatorial abuse. Johnson was a consummate politician who knew how to get what he wanted from an often hostile and cantankerous Congress. He had won approval of his controversial bills on voting rights, federal aid to education, Medicare for senior citizens, and wilderness parklands protection. Thurgood Marshall was the man he wanted for his solicitor general, and he made this clear to his fellow southerners.

According to Virginia senator Charles S. Robb, who was to become the president’s son-in-law, Johnson used his powers of political persuasion to ensure Marshall would not “again be denigrated” by the committee. He privately threatened to close military bases and reduce federal projects that employed thousands of local workers in the districts of Senators up for reelection. They quickly got the point.

Democratic congressional leader Mike Mansfield and Republican senator Everett M. Dirksen told Johnson they saw no reason why Thurgood Marshall should not be confirmed. But aging senator Spessard L. Holland called the nomination “unwise.” The Florida Democrat, who had served as his state’s governor from 1941 until 1945, said, “To make him [Marshall] the special pleader for the whole government opens the matter up to controversy.”

Questions on Marshall’s personal life did come from another quarter, the inquiring and amused media. Reporters were eager to know about his reputation as a drinker who “polished off three cocktails at lunch,” something Marshall freely admitted and joked about often. “Well, not when I am working, just one, but maybe two more before dinner.”

Others inquired about the legendary all-night poker and pinochle games and about his fondness for baseball, western movies, and chain-smoking. “Now isn’t that something else?” he asked a reporter. “My newspaper friends keep saying all those things, and I wish to hell it was up to date. Once in a while I’ll catch a western on television, and I am still waiting to see one where the Indians win, and poker, ha, I haven’t pushed a chip in ten years. You know what cards I’m down to now? I play War with my two boys. Now that’s hot action for you, isn’t it?”

There were also more serious questions for the man who had truculently prodded the white establishment and was now about to become one of its most powerful members. Washington Star editor Sidney Epstein told reporter Mary McGrory to ask Marshall about his judicial philosophy. “I’m certainly not a conservative,” he told her.

On the afternoon of July 29, 1965, it took the Senate Judiciary Committee just twenty-nine minutes to approve Marshall’s nomination by a vote of eleven to five. The next day, he was confirmed by the Senate by a vote of sixty-nine to eleven.

Marshall’s swearing-in ceremony was scheduled for August 11, but Johnson put him right to work. Shortly after his confirmation, he boarded an Air Force 707 jet at Andrews Air Force Base in suburban Maryland and flew to Stockholm as head of the U.S. delegation to the UN Congress on the Prevention of Crime and Treatment of Offenders. White House press secretary Bill Moyers said Marshall’s assignment to lead the delegation “underscores the president’s deep interest in the problems of crime and of the need for a massive attack on its roots in this country.”

Johnson named several other black men to the UN delegation. They included Marshall’s former NAACP colleague Robert L. Carter, now NAACP general counsel; UN ambassador Franklin H. Williams; New York City youth commissioner Lawrence R. Pierce; and federal judge Wade McCree. High over the Atlantic Ocean, en route to Stockholm, they told Marshall he should have had their plane designated “Turkey One” in honor of his nickname.

On August 11, Marshall arrived at the White House to take the oath of office administered by Associate Justice Hugo Black. “He has good policy judgment and the power of self-control,” Black said later. “I know he will do a fine job.”

President Johnson stood at his nominee’s right. Next came Cissy, Thurgood Jr., and John. Cissy wore a demure pink dress with a short jacket, white gloves, a single strand of pearls, and double pearl earrings. The four-foot-one-inch Cissy Marshall was dwarfed by the two six-footers, Johnson and Thurgood. The Marshall boys wore fresh summer cord suits, which they probably appreciated because of the swamplike mugginess of Washington summers. Thurgood wore a dark blue three-button suit that pinched his spreading paunch. The Marshall boys would have to wait to see their father in his cutaway.

That day came on the first Monday in October when Marshall, accompanied by his family and Attorney General Nicholas Katzenbach, received an official welcome from the Supreme Court.

Notorious for keeping things plain and simple, Thurgood Marshall nevertheless admitted owning the traditional formal dress of the solicitor before his appointment. “Now isn’t this the silliest getup in the world?” he asked.

When asked if he considered wearing a business suit to the court, he said, “No, no. I’m too old to worry about changing all that now. If I had to go out and buy a new one, maybe I’d think about changing the tradition. I am already ahead of them. I’ve already got the outfit. I bought it when I attended the inauguration of President Tubman in Liberia around 1960. I told the tailor that I was going to Africa, but he lined the vest, anyway—and in that climate.”

As solicitor general, Marshall had a comfortable office in the Justice Department and a staff of twenty-three lawyers. One October afternoon he sat at his desk fiddling in vain with the dials of a large brown speaker. He was trying to get the 1965 World Series game between Los Angeles and Minnesota, but the only thing he heard was a congressional budget hearing.

“How the hell do you work that noise box in my office? I can’t get the World Series anywhere,” he yelled. A secretary patiently explained that the speaker was not a radio but a monitor connected to hearing rooms at the Capitol. The next morning he found a radio on his desk.

Marshall brought a ceremonial leopard-skin cape, which he had received when he was made an honorary Kibiyu tribal chief, to his office and draped it over a chair. Five years earlier, in January and February 1960, he had been a consultant to the Constitutional Conference on Kenya in London and Nairobi as Kenya prepared to gain its independence from Britain. It had been a crown colony and protectorate since 1920.

Newsman Eric Sevareid recalled Marshall’s performance at the conference. “What stayed with me, what was to me impressive and humbling, was that in everything the man said...in his every expression and gesture, one was made conscious of the presence of an American, period.”

Marshall had been careful to write protections for the white minority into Kenya’s constitution, and he made sure it contained a due process clause. But he had difficulty explaining that legal concept to Masai tribesmen, who feared whites would take over the rich plateau known as the White Highlands and regarded by Kenya’s Kibiyu people as their land. After hours of futile explanation, a tribesman said to him, “If they come, we kill them.”

“Now you’ve got it!” Marshall roared.

When the former British colony became independent, on December 12, 1963, Marshall represented the United States at the celebrations. In August 1978, when his friend Jomo Kenyatta, Kenya’s first president, died, Marshall headed the U.S. funeral delegation.

The ceremonial cape was a reminder of his African heritage. His great-grandfather had been an African tribal chief. But there was also a bust on his desk of Maryland native Frederick Douglass, the former Maryland slave, orator, author, ambassador, and journalist who had urged Abraham Lincoln to proclaim emancipation for slaves.

On November 9, 1965, Thurgood Marshall put on the cutaway and argued his first major case before the Supreme Court, United States v. Price. He was trying to convince the nine justices that acts of racial terrorism should be made federal crimes. Marshall felt at home in the high-ceilinged chamber with its red velvet draperies, wrought-iron grilles, and marble pillars; he had been there many times before.

At the end of the day a friend asked if he had been nervous during his first appearance as solicitor general. Marshall replied, “Hell, I ain’t had the jitters in the Supreme Court since de day I was admitted to practice nearly thirty years ago. But dat day, oh boy! You coulda heard mah knees knockin’ way out in de hall.”

But when Thurgood stepped on the Court’s polished wooden podium to begin his argument, it was his baritone voice, not his “knees knockin’,” that was heard throughout the courtroom and “way out in de hall.” He was barrel-chested and weighed about 210 pounds. His mustache was neatly trimmed, and his hair was graying at the temples. His voice carried through the chamber as he opened his argument on racial terrorism.

“People don’t conspire to do good,” he quipped. To make his point, Marshall imitated a white-supremacist accent and attitude. “Look,” he said, conjuring up a Ku Klux Klan or White Citizens’ Council meeting, “we are going to plan all this for the purpose we are just sick and tired of what’s going on.”

Marshall was telling the justices about the murders of three civil rights workers who were killed in June 1964 while attempting to register black voters in Philadelphia, Mississippi. James E. Chaney, a twenty-one-year-old black Mississippian, and two white New York residents, Andrew Goodman, twenty, and Michael H. Schwerner, twenty-four, had been shot to death and dumped in an earthen dam.

Three officers of the Neshoba County sheriff’s office and fifteen members of the Ku Klux Klan were charged with having conspired on June 21, 1964, to commit the murders. The U.S. Grand Jury for the Southern District of Mississippi returned indictments against the men, but the state’s district court dismissed charges against all the defendants except the three law enforcement officers. Marshall took the case directly to the Supreme Court and argued that the lower court’s decision to dismiss the indictments should be reversed and charges reintroduced against all defendants.

Washington Star reporter Mary McGrory was impressed with his performance. “Thurgood Marshall was, predictably, in excellent form as he argued his first major case before the Supreme Court. He was at ease, quick with the law, and able to command the acceptable joke.”

The opposing counsel representing the state of Mississippi, H. C. Watkins, was a young lawyer from Meridian, with a crewcut. He argued in a barely audible voice that the Court should not interfere with Mississippi law. He said murder was a state, not a federal, crime.

“Marshall dominated the long and often dry proceedings, principally because he could, unlike the other participants, always be heard,” McGrory said. “Thurgood told the Court federal laws were being circumvented ‘by shooting Negroes, by killing, by pressuring them by burning crosses in public at night.”’

Across Capitol Plaza in the Congressional Caucus Room, the House Committee on Un-American Activities was scheduled to begin its own investigation of the Ku Klux Klan at the same hour Marshall stood up before the Supreme Court.

The Justice Department was conducting a separate investigation of the Klan’s involvement in the death of Lt. Col. Lemuel E. Penn, a black National Guardsman who was director of adult and vocational education for the District of Columbia’s public school system. Penn was killed by shotgun blasts as he drove along an interstate highway on the outskirts of Athens, Georgia, on July 11, 1964. Six people were indicted for his murder by the U.S. Grand Jury in the Middle District of Georgia for criminal conspiracy in violation of Penn’s rights, but the Georgia court dismissed the charges.

Solicitor General Thurgood Marshall was anxious to find a way to ensure justice would be served and the killers of Penn and the three civil rights workers not go unpunished. He cited the Enforcement Act of 1870 to force the courts to bring the murder suspects to trial. The pertinent provisions of the 1870 act, which had been refined since its inception and were now known as Sections 241 and 242 of Title XVIII of the U.S. Code, prohibited interference with the rights of citizens under the privileges-and-immunities clause of the Fourteenth Amendment.

Mississippi’s attorney, Watkins, argued that the state court was correct in dismissing charges against the fifteen civilians because the defendants, unlike the officers, were not government employees acting under the authority of the state.

The Supreme Court disagreed with Watkins. It unanimously reversed the Mississippi court’s decision and remanded the case to the state’s district court. The defendants were tried, and the three officers, along with four of the civilians, were convicted and sentenced to ten-year jail terms. The other defendants were found not guilty. The case became the subject of a 1990 motion picture, Mississippi Burning.

In a companion case the same day, United States v. Guest, Marshall persuaded the court to reinstate charges against the six Georgia men accused of killing Lieutenant Colonel Penn. Several months later they were tried. Two of the defendants were convicted and sentenced to ten-year prison terms. The four other defendants were found not guilty.

Between 1965 and 1967, Thurgood Marshall won fourteen of the nineteen cases he argued for the government as solicitor general. Most of those cases dealt with civil rights and privacy. His legal approach was in sharp contrast to that of his predecessor, Archibald Cox, an urbane and scholarly Harvard Law School graduate who spoke in a low voice and used subtle wit. Cox addressed the Court as if it were a law school seminar. By contrast, Marshall was a forceful speaker whose humor often brought the staid justices to the verge of laughter. By comparison, former solicitor general Cox was concerned with small academic points of law. Marshall’s approach took a broader view of the law and addressed problems of human dignity.

In 1965, Marshall tackled Fair Housing by pleading the government’s position in a California case, Reitman v. Mulkey, asking the Court to declare California’s Proposition 14, a 1964 anti-fair housing amendment to the state’s constitution, invalid. A black couple, the Mulkeys, had sued a white couple, the Reitmans, under California’s Civil Code for refusing to rent them an apartment because they were black. Marshall said popular initiatives were unconstitutional if they in effect promoted racial discrimination. “Everybody knows minority groups do not have the strength to win a popular statewide vote,” he said. Marshall argued Proposition 14 made California a partner in a discriminatory act because it excused the state from compliance with statutes enacted to end housing discrimination. The U.S. Supreme Court unanimously agreed with him.

In 1966 Marshall argued Evans v. Newton, asking the Court to integrate a public park in Macon, Georgia. The 1911 will of Senator Francis A. O. Bacon deeded a tract of land to the city of Macon to be used as a public park. Bacon’s will stipulated the park would be governed by a white board of managers and black citizens would be barred. After passage of the Civil Rights Act of 1964, Macon officials did not enforce the terms of Senator Bacon’s will, and for two years white and black citizens used the park in harmony.

Then Bacon’s heirs and the park’s board of managers forced the city to resign as trustee and enforced the will’s racial restriction. When black citizens sued to once again integrate the park, the Supreme Court of Georgia upheld the ban. Macon’s police officers chased little black children from the playground’s swings and slides. The appeal reached the U.S. Supreme Court, and Marshall argued that though the park was “technically private,” it performed a “public function” and therefore could not remain segregated under the equal-protection clause of the Fourteenth Amendment.

In its seven-to-two decision, the Court agreed. Associate Justice William O. Douglas said in the majority opinion: “Under the circumstances of this case we cannot but conclude that the public character of this park requires that it be treated as a public institution...regardless of who now has title under state law.”

President Johnson’s Voting Rights Act of 1965 authorized the Justice Department to register voters and to ensure their ballots were properly counted. It banned literacy tests in states where voting discrimination was evident. The Justice Department presented evidence in 1966 that the states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee were not in compliance with the act.

South Carolina v. Katzenbach challenged the voting rights law and took it to the Supreme Court. Attorney General Nicholas B. Katzenbach decided to personally argue the government’s case, and Thurgood Marshall wrote the government’s brief. He asked for the dismissal of South Carolina’s complaint, contending the Voting Rights Act was a proper implementation of the Fifteenth Amendment. He said neither the Seventeenth Amendment nor the Constitution empowered a state to grant or withhold voting rights on any conditions it wished to put in place and that the Constitution expressly prohibited imposing such conditions on the basis of color or race.

Again, the Court agreed with the government in a unanimous decision. Chief Justice Earl Warren rejected South Carolina’s claim that its powers over the electoral procedure had been “usurped”:

“Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting. After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with the authority in the Attorney General to employ them effectively... Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live.”

Later that year, another section of the Voting Rights Act was contested by voters in New York State. The act prohibited states from denying voting rights to qualified Puerto Rican New York residents who had successfully completed the sixth grade of an accredited school and were literate in Spanish but could not read and write English. An “accredited school” included accredited schools in the fifty states and U.S. territory and American schools in the Commonwealth of Puerto Rico “in which the predominant classroom language was other than English.” This section voided a provision of New York State’s constitution extending voting rights only to persons able to, “except for physical disability,” read and write English.

A suit to stop Puerto Ricans from voting was brought by Kings County, New York, residents John P. and Christine Morgan. Their complaint, filed in the U.S. District Court for the District of Columbia, sought to enjoin the Justice Department and the New York City board of elections from enforcing the Voting Rights Act. The Morgans contended that nearly 50 percent of the seven hundred thousand Puerto Ricans in New York could read and write only Spanish and that their unfamiliarity with English made them ignorant of political issues.

In November the New York’s local courts declared a portion of the act unconstitutional and issued an order restraining the Justice Department and New York City’s board of elections from enforcing it. Katzenbach appealed the decision to the Supreme Court.

Thurgood Marshall argued the government’s case in Katzenbach and the United States v. Morgan. His brief illustrated the historical relationship between the United States and Puerto Rico, explaining that from the time of Puerto Rico’s acquisition by the Treaty of Paris in 1898 until 1952, Congress had the power to determine the political and civil rights of Puerto Rico’s citizens and was responsible for the island’s governance. Marshall wrote that Congress conferred citizenship on Puerto Ricans when it passed the Jones Act of 1917, thereby easing the migration of Puerto Ricans to the U.S. mainland.

He noted there were nearly one million Puerto Ricans in the country and about 70 percent of them lived in New York City. He said the literacy rate in Spanish was high in Puerto Rico, nearly 85 percent, but two-thirds of the people could neither speak, read, nor write English. Marshall said the act was valid because it represented Congress’s lawful discharge of its duty to Puerto Ricans who came to the U.S. mainland because Congress had made them citizens despite their “language handicap.” He cited other states with multilingual minorities—Hawaii, Louisiana, and New Mexico—that were complying with the act.

In its seven-to-two decision, the Supreme Court struck down the lower court’s judgment and upheld the validity and enforcement of the act, saying it was a proper use of congressional power under the Fourteenth Amendment. Associate Justice William Brennan wrote: “It is enough that we perceive a basis upon which Congress might predict a judgment that the application of New York’s English literacy requirement...constituted an invidious discrimination in violation of the Equal Protection Clause.”

A group of black Virginians argued in 1966, in Harper v. Virginia Board of Elections, that the state’s poll tax violated their “equal protection” under the Fourteenth Amendment and that the Twenty-fourth Amendment, approved in January 1964, had specifically made poll taxes illegal. A local court had dismissed their complaint on the ground that the right to vote in local elections was given by the state, not the federal government, and that Virginia had sole authority to set reasonable requirements for Virginia voters.

Thurgood Marshall took the case before the Supreme Court. He said Virginia could not impose poll taxes on citizens who wanted to vote. The Court’s six-to-three decision invalidated the poll tax.

The right of privacy was another issue Marshall strongly defended during his career. Olmstead v. United States, in 1928, and subsequent Supreme Court decisions had strengthened the Fourth Amendment’s protection against unreasonable search and seizure and extended those protections to speech as well as material goods. Several decisions suggested that utilization of listening devices constituted a “physical intrusion or trespass” and that recorded evidence obtained by “bugging” was inadmissible in federal courts. Wiretaps were also prohibited under the Federal Communications Act of 1934.

Marshall had often wondered if his own telephones had been subject to government eavesdropping. “All they would have heard was me cussing and my wife gossiping,” he said.

Marshall believed all electronic eavesdropping was illegal because it constituted “an illegal trespass.” While preparing for Black v. United States in 1966, Marshall learned that the government had acquired evidence in the tax case by listening surreptitiously to telephone conversations between the defendant and his attorney. At Marshall’s request the Court set the judgment aside and returned the case to the district court for review.

In the same year, Marshall spoke to the Association of Federal Investigators and told them all electronic eavesdropping must stop if they expected to win convictions in federal courts. He noted that the Supreme Court’s trend appeared to be to reverse convictions obtained by wiretaps. He said, “The evil is in the eavesdropping and not the device being used. It is unfair to U.S. prosecutors and the government for investigators to make illegal moves which may crop up years later in court and prevent what otherwise would be a solid conviction.”

In February 1967 Ramsey Clark was appointed attorney general. His father, Associate Justice Tom C. Clark, announced his resignation from the Supreme Court to prevent any appearance of conflict of interest now that his son was the nation’s chief legal officer. President Johnson had a vacancy to fill.

SEVEN

The Supreme Court Nomination

As I see it, I’ve moved the Negro from D+ to C-. He’s still nowhere. He knows it. And that’s why he’s out in the streets. Hell, I’d be there too.
—President Lyndon Johnson

It was not at all unusual for President Lyndon Baines Johnson to meet with advisers or reporters during his morning toilet. So it came as no surprise to Joseph Califano and several other top domestic-policy advisers when they were instructed to join the First Couple in the president’s White House bedroom suite one morning in March 1967. As Johnson emerged dripping from his high-pressure shower, he reached for a towel and asked Califano whom he should appoint to the Supreme Court to replace retiring Associate Justice Clark.

Califano was mindful of Johnson’s commitment to appointing blacks to high office. Johnson had already made Robert C. Weaver the first black cabinet officer by naming him secretary of the Department of Housing and Urban Development. He also appointed U.S. army major Hugh Robinson the first black military aide to a president. Therefore, Califano was not surprised when LBJ rattled off the names of several blacks as potential Supreme Court nominees.

What did catch Califano off guard, however, was Johnson’s sudden musings about appointing the first woman instead. Lady Bird pricked up her ears; she was intrigued by the idea. After all, she interjected, “Lyndon has done so much” already for black people. A California judge, Shirley Hufstedler, was mentioned as a possible choice. But sometime during the course of brushing his teeth and combing his hair, LBJ decided to nominate Thurgood Marshall.

During the following weeks, Johnson tested the reaction to his choice. Among those whose opinions he valued, Marshall was well thought of and the idea of nominating him well received. Acting attorney general Ramsey Clark gave Marshall a strong recommendation, stating, “I have no doubt that his future contributions will add even more prominence to his already well established place in American history.”

Earl Warren, whose tenure as chief justice had begun in 1953, the year the Court heard Marshall reargue Brown, told the president that he was “very happy” with Marshall’s nomination. Warren said, “He has had a tremendous amount of experience of the kind that will be very helpful to the Court.”

Associate Justice Tom C. Clark, the man Marshall would replace, thought highly of him. When President Truman elevated Clark, a Texas Democrat, to the Court from the attorney general’s post in the early 1950s, Clark was perceived as a conservative on racial issues. He had been impressed with the quality and thrust of Marshall’s advocacy in Brown and other desegregation suits.

In June 1966 Solicitor General Marshall was awarded the Distinguished Service Award of the Conference of Prince Hall Grand Masters of America, a black Masonic organization. The organization commended him for acumen “far beyond the average American lawyer in his presentations to the courts of the nation.”

Clark spoke at the testimonial dinner in Marshall’s honor. He told the audience, which included Justices Hugo Black and William J. Brennan Jr., “No man has given himself to the brotherhood of man more than Thurgood Marshall. We salute him as Mr. Civil Rights.”

Marshall used the award ceremony to explain his own thinking on civil rights, emphasizing the development of positive attitudes within the black community. He declared that while civil rights gains had been made, “we still have a terrific job to do, and that job is making sure that our community is ready, by raising the sights of our young people...We have got to show them—even where they are segregated and pushed around—that there is a future.” Rather than use the occasion merely to honor him, he urged his audience, “Let this night be a beginning of what has to be done; as President Johnson has said, ‘We’re too close to the end to give up now!”’

Cissy Marshall was at home on June 13, 1967, a weekday like any other. She got up and made eggs and bacon for her husband and their two sons, now eleven and eight. Then she drove her husband to the Justice Department and headed uptown with the boys to the Georgetown Day School, an exclusive private school on MacArthur Boulevard in upper northwest Washington. She returned home to the rented town house in the city’s southwest quadrant and was engaged in housekeeping chores when, at around 11:00 A.M., the phone rang. It was her husband, calling from the Oval Office of the White House.

“Take a deep breath and sit down slowly,” Thurgood told her. “Now, wait just a minute.” The next voice on the line was that of President Johnson, telling her that he had asked her husband to join the Supreme Court.

“Mr. President, I am simply speechless,” said the wife of the justice designate. She was glad she had sat down and taken a deep breath. “Thank you for having so much faith in my husband.”

Later, when the joy and excitement subsided, she was able to contemplate developments from a more mundane perspective. She commented wryly, “I drive Thurgood to work and then take the boys on to school. I enjoy it. I doubt that our lives will change very much because of this appointment.”

Her younger son, inspired by his father’s success, told his mother, “Mom, I want to be a judge, too, when I grow up.” He added, “But can’t I let my hair grow long right now like the Monkees?”

Georgetown Day School enjoyed a liberal reputation. The children of Washington’s socially liberal white power elite studied there. The school was noted for the wide latitude it gave students in terms of their personal appearance. Many showed up for school wearing jeans or T-shirts and with long hair. If Cissy Marshall had let her mixed-race children’s hair grow long, it would have grown straight, like mops sported by the popular rock band John William referred to, not into the kinky Afro hairstyle, the “bush,” that black militants of the era regarded as a statement of pride in their African heritage.

But she was not lax when it came to her boys’ grooming. Her husband was African American, and she knew that despite his station in life, blacks, if they wished to succeed ultimately in the white man’s world, were not accorded the same social latitude as whites. She was outnumbered by her sons, but in family matters her lone dissent overrode any majority vote. She told John William he would have to wait until he was twenty-one to go without a haircut.

Both boys were clean-cut and wore scratchy, uncomfortable suits and freshly shined shoes for the ceremony in the White House Rose Garden the following week. The president, beaming, introduced his nominee to the press. Gesturing toward Marshall, who stood behind him in the brilliant sunlight, LBJ declared, “I believe he earned that appointment, he deserves the appointment. He is best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right man and the right place.”

Warned by Johnson to keep his remarks short in order to avoid controversy pending Senate hearings on his nomination, Marshall appeared laid back, almost laconic, when he stepped forward to address reporters. Asked to grade his performance as solicitor general, he replied, “I guess it’s been about as good as anybody else’s, maybe better than some.” When he was bombarded with a barrage of other inquiries on a wide range of subjects, the nominee demurred, saying simply, “The president speaks for me.”

Dozens of men have served on the U.S. Supreme Court. The historical significance of Marshall’s nomination was that he was the first African American to do so. Yet there, in the Rose Garden, no reference was made to Marshall’s race. Later, Senate minority leader Everett Dirksen predicted Marshall’s speedy confirmation by the Senate, telling reporters, “He’s a good lawyer. The fact of his color should make no difference.”

Yet whether they cared to admit it or not, his color made all the difference, both to his supporters and detractors. For his part, Johnson saw Marshall’s nomination as a way to revive his flagging social agenda for the Great Society, a booming, vibrant America unfettered by poverty and racial discrimination. Lady Bird was right: Her husband had done a lot for blacks.

Shortly after his landslide victory over Barry Goldwater, Johnson signed the Civil Rights Act of 1964, the most sweeping civil rights legislation of the modern era. He then pushed through Congress the Voting Rights Act of 1965. At the bill’s nationally televised signing ceremony in the Capitol Rotunda, Johnson addressed the nation’s black citizens directly.

“To every Negro in this country” he said, “You must vote. Your future, and your children’s future, depend upon it. If you do this, then you will find, as others have found before you, that the vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”

There was more. The president sent to Congress a fair housing bill that would outlaw racial discrimination in the sale and rental of residential property. He threw the full weight of the Justice Department behind efforts to break down the massive resistance to school desegregation that had persisted since Marshall’s victory in Brown the decade before; during Johnson’s elected term of office, the number of blacks attending desegregated schools across the South tripled. Beyond all this, he formulated ambitious plans to rebuild America’s blighted urban areas. Johnson called it his “model cities” program.

By 1967, however, the president’s social policies no longer enjoyed an enthusiastic mandate. Rioting in the nation’s urban centers had fueled a white backlash that threatened racial progress.

The predominantly black Watts area of Los Angeles exploded first. Rioting there began on the evening of August 11, 1965, when a California highway patrolman arrested an unemployed twenty-one-year-old black man for drunk driving. The man’s mother rushed from her house into the street, screaming at the policeman. A crowd gathered. More police arrived. The crowd grew into the hundreds. Bottles and rocks flew toward the police. By the time it was over four days later, approximately twenty people were dead, six hundred injured, and fourteen hundred arrested. It took fifteen thousand police and National Guardsmen to reclaim the streets from five thousand black rioters, snipers, and looters.

In Newark, New Jersey, on the evening of July 12, 1967, police arrested a black cab driver for a traffic violation. Rumors spread that the driver had been beaten and died in police custody. Looters, snipers, and arsonists took to the streets. The National Guard was ordered into the city. Before order was restored on July 19, fifteen people were dead, and over a thousand had been arrested.

The most serious rioting took place in Detroit less than two weeks later. On July 23, 1967, police raided an after-hours club on the city’s West Side. It was rumored that an unarmed man and woman were brutally beaten by police during the raid. Rioters, looters, and arsonists again went into action. Police and firemen came under sniper attack. President Johnson ordered federal troopers into the city, but five days passed before calm was restored. In all, forty people died, two thousand were injured, five thousand were arrested, and another five thousand were left homeless.

Newsweek magazine interviewed Dr. Kenneth Clark for an August 21, 1967, special report “The Hard Core Ghetto Mood.” Clark, whose doll tests had been used by Thurgood Marshall in the Brown case to show that segregated schools made black children feel inferior, was asked to explain the psychology of the urban rioters. “The chronic riot of their day-to-day lives is, as far as they’re concerned, no better than the acute riots,” Clark explained. “They don’t have anything to lose, including their lives. It’s not just desperation—it’s what-the-hell.”

The fatalism of a jobless nineteen-year-old Chicagoan seemed to confirm Clark’s observations. He told his Newsweek interviewer,

“I don’t mind gettin’ killed. When I’m dead, they’ll tell my kid, ‘He died for a good cause.’”

A high school dropout living in Harlem expressed similar sentiments. Ed Bowen, twenty-six, told Newsweek, “People have been begging for years for a decent place to live, a job, some food, but they ain’t got nothing, so they burn things down and maybe they’ll get it.”

Another Harlem resident, a young woman of eighteen, added, “I hope you don’t expect me to rap Rap [black power advocate H. Rap Brown]. He’s kinda crazy—but it’s a feel-good crazy.”

Dr. Alvin Poussaint, a black Harvard-trained psychiatrist, summarized his perceptions. The rioters, he concluded, ranged “from the plain damn angry to those with fantasies of taking over, to those who want a TV set, to those angry at their father and mother, to those caught up in hysteria, to those who will act only when they see the cops shoot someone.”

President Johnson blamed the white backlash on urban rioting, black militancy, and black power advocates such as H. Rap Brown and Stokely Carmichael. He compared the behavior of rioting blacks to that of the black senators and congressmen elected just after the Civil War who “ran into the chamber with bare feet and white women,” in Johnson’s words, squandering the chance to make real and lasting progress during Reconstruction. “Negroes will end up pissing in the aisles of the Senate,” he complained. “The Negroes will once again take unwise actions out of frustration, impatience, and anger.”

In the wake of the riots in Watts, Detroit, Newark, and other cities, Johnson was shocked to find among the moderate black leadership—including Martin Luther King Jr., the Urban League’s Whitney Young, and Roy Wilkins, head of the NAACP—an utter sense of powerlessness to control or even influence young blacks in the ghettos. Johnson saw a critical need to bolster the stature of moderate black leaders and to show that, frustrating though the pace of progress might be, gradualism was in fact producing concrete results. Johnson counted on translating these results into black votes in his 1968 reelection effort.

At the same time, however, the president understood why hope was losing out to despair among poor blacks. “I moved the Negro from D + to C -,” he told his biographer Doris Kearns Goodwin. “He’s still nowhere. He knows it. And that’s why he’s out in the streets. Hell, I’d be there too.”

Johnson believed that racial prejudice was not based on skin color but on fear. He told Goodwin, “Anyone who’s afraid of losing his job to another man will soon turn to hate that other man.” He concluded that economic growth, the creation of enough jobs and wealth to go around, was the antidote for racial turmoil.

Conditions in the nation’s ghettos were beyond the short-term reach of LBJ’s policies. His own Department of Labor conducted a survey of ghettos in ten cities and reported, “No conceivable increase in the gross national product would stir these backwaters. Unemployment in these areas is primarily a story of inferior education, no skills, police and garnishment records, discrimination, fatherless children, dope addiction, hopelessness.”

In addition, Congress was reluctant to “reward” rioters. Lawmakers began to refuse funding for Johnson’s antipoverty initiatives. A month after Marshall’s nomination, in July 1967, the President’s Rat Extermination Act was defeated in the House of Representatives. The bill, which passed committee easily enough, would have provided federal assistance to cities for rodent extermination in ghetto areas. But after the riots in Newark and Detroit left dozens of people dead and caused millions of dollars in property damage, the mood on Capitol Hill changed. The legislation was derided as a “civil rats bill,” a cynical derision of LBJ’s Texas twang.

What the House did consider, however, was legislation that would have made it a federal crime to cross state lines to instigate civil disturbance. This antiriot law was clearly aimed at agitators who, like Brown and Carmichael, traveled the country urging violent resistance to racial discrimination. Ironically, Brown used vermin infestation to arouse the people he sought to incite. On one occasion, he told a crowd in Cambridge, Maryland, a small blue-collar community on the eastern shore of the Chesapeake Bay, “Burn this place down! You won’t be killin’ nothin’ but a bunch of rats! Every night they truck more rats down here from Washington. They back trucks up to the FBI building and load them up with rats, then they bring them down here and turn them loose in the black community. Burn this fuckin’ place down! Burn it down!”

Johnson realized that rats in fact posed a serious threat to ghetto dwellers, especially children. He urged Congress to reconsider his rat bill. “Thousands of children—many of them babies—are bitten by rats in their homes and tenements,” he stated. “Some are killed. Many are disfigured for life...We are spending federal funds to protect our livestock from rodents and predatory animals. The least we can do is give our children the same protection we give our livestock.” But by the middle of 1967, lawmakers were more concerned with black power than black powerlessness.

“When I appointed Thurgood Marshall to the Supreme Court,” Johnson told Goodwin, “I figured he’d be a great example to younger kids. There was probably not a Negro in America who didn’t know about Thurgood’s appointment. All over America that day Negro parents looked at their children a little differently, thousands of mothers looked across the breakfast table and said: ‘Now maybe this will happen to my child someday.’ I bet from one coast to the other there was a rash of new mothers naming their newborn sons Thurgood.”

Goodwin’s research showed otherwise. In her book Lyndon Johnson and the American Dream, she noted that birth certificates on file in New York City and Boston “revealed seven Martins, ten Luthers, eleven George Washingtons, and fifteen Franklin Delanos, but not a single Thurgood.”

Blacks were, in fact, divided over the nomination, to the extent that they even knew or cared about it. Some militants were elated. Floyd McKissick, director of CORE, declared, “This has stirred pride in the breast of every black American.”

But others dismissed Marshall’s appointment as a cynical act. One man’s role model is another man’s token. The week the nomination was announced, deadly racial disturbances rocked Tampa, Florida, and Cincinnati and Dayton, Ohio. In Dayton, H. Rap Brown continued his call for young ghetto blacks to arm. “The honky [white man] is your enemy,” he told them. “How can you be nonviolent in America, the most violent country in the world? You better shoot the white man to death.”

Meanwhile, the Supreme Court that Marshall was about to join dealt the proponents of nonviolent protest a setback. By a five-to-four vote, the Court ruled that Martin Luther King Jr. would have to spend time in an Alabama jail for defying a state court’s order not to conduct a civil rights march in Birmingham back in 1963. Justice Potter Stewart, an Ohio Republican appointed by Eisenhower, stopped just short of referring to King by name when he wrote for the majority, “No man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics or religion.”

Justice Brennan, joined by the chief justice and Justices William O. Douglas and Abe Fortas, wrote a bitter dissent, stating, “We cannot permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans like black power to divert our attention from what is here at stake—arming the state courts with the power to punish as a ‘contempt’ what they otherwise could not punish at all.”

Privately, President Johnson began to wonder whether he could get his nominee confirmed by the Senate.

The southerners on the Senate Judiciary Committee plotted their anti-Marshall strategy. They would not use Marshall’s color—at least not explicitly—as the basis for their opposition to him. Instead, they would try to paint him as a liberal who was soft on crime. In August 1965, while awaiting Senate confirmation to become solicitor general, Marshall served as head of the U.S. delegation to the Third UN Congress on Crime Prevention.

Marshall made his views on crime clear in a speech to the delegates. He defined the “great dilemma” confronting law enforcement as how to provide a “fair balance between the freedom of the individual and the fair interest of society.” He went on to attribute criminal activity to social factors such as poverty and discrimination. He opposed harsh prison sentences, warning, “There is substantial danger that imprisonment, deprivation of self-respect, and alienation from the community will produce new recruits to criminal culture.”

Marshall’s emphasis on the sociological aspects of crime had become unpopular. At a time when the nation, its cities aflame, cried out for law and order, Marshall sounded like a man as predisposed to the perpetrator as to the victim. A recent report by a conference of state supreme court chief justices had criticized the Warren Court for not exercising “judicial self-restraint.” Specifically, the report attacked Warren Court rulings that freed a convicted murderer because his lawyer was not present at his voluntary confession, required states to provide free trial transcripts to convicted felons in order that they could appeal their convictions, and struck down municipal ordinances designed to supervise ex-convicts.

The confirmation hearings wore on for five days, July 13, 14, 18, 19, and 24, 1967. The questioning ranged from the penetrating to the absurd, from the philosophical to the kind of esoterica found in a law school exam. At one point Marshall was asked, “Do you know who drafted the Thirteenth Amendment to the U.S. Constitution?” He could not remember. At another point he was asked to explain, “Of what significance do you believe it is that in deciding the constitutional basis of the Civil Rights Act of 1866, Congress copied the enforcement provisions of this legislation from the Fugitive Slave Law of 1850?”

Marshall maintained his composure, punctuating his testimony with acerbic wit. He insisted that recent Supreme Court decisions were not responsible for any rise in the nation’s crime rate. “I don’t believe that any court decisions, by the decisions themselves, have increased crime,” he declared.

Beyond that, he refused to discuss any matter that he might have to rule on as a member of the Court. He asked rhetorically, “Any statement I make...would oblige me to disqualify myself in those cases, would it not?”

The southerners were incensed. Senator Sam J. Ervin of North Carolina demanded to know, “How can this committee, or how can the Senate, perform its duty and ascertain what your constitutional or judicial philosophy is without ascertaining what you think about the Constitution?”

Marshall told him, “Well, one way, you can look at my opinions.”

Ervin pressed on, anyway, with questions about the Court’s ruling in Miranda v. Arizona. He wanted Marshall to say that the Court had overstepped its authority, in effect amending the Fifth Amendment, which only the Congress and the state legislatures can properly do. In Miranda the Court ruled that police must inform criminal suspects that they have the right to remain silent, that anything said can be used against them, and that they have the right to have an attorney present before questioning, appointed by the state if they cannot afford one themselves.

Ervin, who referred to himself as “a plain old country lawyer,” was in fact a graduate of Harvard Law School. He demanded of the nominee, “Can you point out a single syllable in the provision of the Fifth Amendment, which says that no person shall be compelled in any criminal case to be a witness against himself, that embraces the requirements announced and the system of warnings laid down by the majority opinion in the Miranda case for the first time on June 13, 1966?”

Marshall replied, “I have to repeat, sir, I do not want to comment upon that decision.”

Senator John L. McClellan of Arkansas attacked Marshall’s stand on wiretapping. “Wiretapping or electronic surveillance has become a matter of national concern; but I think it is something that is vital,” McClellan stated. “I think under proper regulations and court direction that it is absolutely indispensable to an effective war on organized crime and on some of the more heinous crimes that are committed.”

Marshall conceded that it might be possible to write a law to permit electronic eavesdropping that would pass constitutional muster. But he said he would have to see it to believe it.

On the final day of the hearings, McClellan exploded. “Look at the riots everywhere. A sentiment has been built up over the country to the point where some people feel that if you don’t like the law, violate it. And the Supreme Court takes the position that...they can change the law. They don’t feel very strongly bound to enforce it, to observe it and to follow it...No wonder the fellow out in the street thinks, that if the Supreme Court has no regard for precedent in law and can change it when it wants to, why can’t I do as I please?” The complaint about the Court’s lack of regard for precedent was an allusion to the Court’s ruling in Brown.

McClellan concluded, “You may lecture me if you want to. I have told you what I think.”

Marshall responded, “Far be it from me to lecture you, sir.”

When the hearings were finally over, the committee majority commented in its report, “There probably has never been any nominee for any judicial position who has received more minute and searching examination.” By an eleven-to-five vote, the committee recommended full Senate confirmation. The majority report concluded, “The Senate will do itself honor, the Court will be graced, and the nation benefited by our confirmation of this nominee to the Supreme Court.”

Ervin wrote a report for the minority that was concurred in by McClellan, Eastland, and Strom Thurmond of South Carolina. (Senator George A. Smathers of Florida voted against confirmation but did not sign the minority report.) Labeling Marshall a “constitutional iconoclast,” the report warned that his confirmation would add to the Court’s “judicial activist” majority of Warren, Black, Douglas, Brennan, and Abe Fortas.

On August 30, 1967, the Senate confirmed Marshall’s appointment by the overwhelming margin of sixty-nine to eleven. Senate majority leader Mike Mansfield of Montana called the action “a confirmation of the vitality of the democratic system.” He added, “Thurgood Marshall’s rise to the Supreme Court reaffirms the American ideal that what counts is what you are and not who you are, or whom your antecedents may have been.”

Thurgood Marshall with his wife after being sworn in as Associate Justice

Associate Justice Thurgood Marshall and his wife
when he first took his seat on the Supreme Court.
Courtesy, Supreme Court of the U.S.

Republican senator Thomas H. Kuchel of California made a rare direct reference to Marshall’s race. He called Marshall’s confirmation “part of a larger process in which not only Negro Americans but Americans from all minority racial and religious backgrounds have begun to participate in the affairs of the nation.”

From his office at the Justice Department, Marshall issued a statement saying he was “greatly honored by the appointment and its confirmation.” He went on, “Let me take this opportunity to reaffirm my deep faith in this nation and its people and to pledge that I shall be ever mindful of my obligation to the Constitution and to the goal of equal justice under law.”

Ironically, while Marshall was expressing his faith and gratitude, another black American, Stokely Carmichael, was on the other side of the world communicating contradictory sentiments. On the same day that the Senate approved Marshall’s appointment to the Supreme Court, Carmichael met in Hanoi with leaders of the North Vietnamese National Assembly. He told them that U.S. blacks and the Vietnamese people were engaged in a struggle against a common enemy: U.S. imperialism. He pledged to the leaders American blacks’ support.

After issuing his formal statement to the press, Marshall telephoned the president to thank him personally for the appointment. He was disappointed and somewhat perplexed to discover that Johnson did not share his unbridled enthusiasm. Johnson told him, “Well, congratulations, but the hell you caused me. Goddammit, I never went through so much hell.”

Years later, in January 1973, Johnson spoke with Marshall by phone from his Texas ranch. The men had developed a friendship, combining their similar political views with their passions for bourbon and cigarettes. The former president told Marshall that he believed appointing the first black to the Supreme Court caused his political demise. “He thought that moving me here [to the Court] was what killed him off,” Marshall recalls. “He felt they used the Vietnam War as the excuse. He told me that as late as about a week before he died.”

“I loved that man,” Marshall said of LBJ.

Meanwhile, Cissy Marshall began to peruse interior design magazines and started window-shopping for ideas. It would fall to her to decorate her husband’s new chambers at the Supreme Court. What did Thurgood know about chairs, rugs, and draperies? The royal blue decor chosen by Marshall’s predecessor Tom Clark would have to go. She decided instead on deep red with black leather. But for the time being, all of that would have to wait. She and the boys would have to prepare for the swearing-in ceremony.

Eight

A Liberal on a Liberal Court

Move, but move within the Constitution, and find new ways of moving nonviolently within the Constitution, bearing in mind that there are many of us in this country who are not going to let it go down the drain. We are not going to continue to stand for anarchy, which is anarchy which is anarchy
—Thurgood Marshall

Thurgood Marshall Jr. was asked to describe his father’s mood on the morning of Monday, October 1, 1967. The eleven-year-old replied, “He acted generally normal, kinda jumpy.”

“Is he normally jumpy?” a reporter asked.

“No,” said the boy, “he isn’t normally jumpy.”

Cissy Marshall was asked to describe how she felt. “I’m still up in the air,” she admitted. “This is something you hope for but think will never happen.”

But it did happen. In the same ornate chamber where as a lawyer for the NAACP he had won cases that shaped the future of America’s multiracial democracy, Thurgood Marshall was about to be sworn in as the first Afro-American Supreme Court justice.

The mood was ethereal. The setting lends itself to that. The courtroom is magnificent, the most majestic chamber in the land. It is surrounded by marble columns that support a ceiling so high there seems to be no ceiling at all, only the pensive gaze of the gods above. At the same time, the room is heavy, solemn. It pulses with the history and the high drama played out there. At the front of the room is the long, elevated bench behind which the nine justices sit. Their judgments are delivered from on high, a reminder that no one is above the law.

The Supreme Court begins its term on the first Monday in October. Attorneys docketed for oral argument, their families, friends, interested parties, the press, and the general public gather inside the courtroom by 10:00 A.M. On this particular day, the spectators seated in the family section, the second row of the red-cushioned mahogany pews, included Marshall’s wife and children; his brother, Aubrey; a sister-in-law, Mrs. Phillip Acoba of Honolulu; and his aunt Mrs. Cyrus W. Marshall. Seated with the family were Arthur Spingarn, a founder of the NAACP and former president of its board of directors, and Tom C. Clark, the man Marshall replaced.

At precisely 10:01 A.M., another spectator arrived and sat in the middle of the front row: President Lyndon Baines Johnson.

The Court’s enigmatic rituals and traditions inspire an awed bewilderment in some onlookers, a bemused curiosity in others. After the president was seated, the marshal of the Court, T. Perry Lippett, rose from his chair at the far end of the bench and gaveled the chamber to its feet. “Oyez, oyez, oyez!” he announced. “Persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting.” He closed his eyes and bowed his head. “God save the United States and this Honorable Court.”

From behind three sets of massive red velvet draperies, one at each end of the bench and the other in the middle, the black-robed justices emerged in groups of three and took their seats, except for Marshall, who sat at the end of the dais in a chair next to Lippett. Chief Justice Warren opened the session with the announcement of Marshall’s appointment, followed by words of praise for his predecessor, Clark. Alluding to Clark’s sons’s ascension to the attorney generalship, Warren said, “While we still feel the loss of his [Justice Clark’s] wisdom and companionship, the felicitous reason for his retirement compels us to forgo the regret which we would otherwise have.”

John F. Davis, clerk of the Court, stood and read Marshall’s commission. Marshall rose, dressed in the robe he wore on the Second Circuit court of appeals. Lippett stood with him and administered the ceremonial oath of office. He swore to “administer justice without respect to persons and do equal right to the poor and to the rich.”

It was Marshall’s second swearing in. The first, and official one, occurred on September 1 in a private ceremony in senior justice Hugo Black’s chambers. At that time, Marshall was sworn in by Black and took an oath to “support and defend the Constitution,” his brown hand resting resolutely on a weathered Bible that belonged to the former Ku Klux Klansman.

Lippett escorted the new justice to his seat at the end of the bench. The seating of the justices is based on seniority. The chief justice sits in the middle. The longest-serving member sits to his immediate right; the second-longest-serving member to the chief’s left; then right again to the third most senior justice; left for the fourth; and so on. Marshall, the most junior member, found himself at the far left end of the bench, next to Justice White.

The brief ceremony over, the president left without comment. It was 10:06 A.M.

The U.S. Supreme Court on October 23, 1967: (front row, left to right) John Marshall Harlan, Hugo Black, Earl Warren, William O. Douglas, and William J. Brennan Jr.; (back row, left to right) Abe Fortas, Potter Stewart, Byron R. White, and Thurgood Marshall. © Bettmann/CORBIS

The Warren Court was lambasted by its critics for its judicial activism. It greatly expanded the power of the federal courts over matters traditionally left to the states, and it stressed the rights of individuals, including those suspected of criminal activity, against the power of state and federal government. The breadth of the changes in American society brought about by Warren Court rulings was indeed monumental. Among the most notable decisions were Brown v. Board of Education (1954) and its progeny, outlawing segregation; Mapp v. Ohio (1961), excluding illegally seized evidence from criminal prosecutions; Baker v. Carr (1962) and Reynolds v. Simms (1964), mandating “one person, one vote” in local and congressional elections, respectively; Gideon v. Wainwright (1963), entitling indigent criminal defendants to legal representation paid for by the State; New York Times v. Sullivan (1964), restricting the right of public officials to sue the press for libel; Griswold v. Connecticut (1965), expanding the right of privacy to protect married couples’ use of contraceptive devices; Miranda v. Arizona (1966), establishing guidelines for the arrest and interrogation of criminal suspects; and Loving v. Virginia (1967), striking down state laws against interracial marriage.

Because Supreme Court justices are appointed for life unless impeached, they are beholden to no one politically. Therefore, it is difficult if not impossible to predict how a justice will vote once elevated to the Court. Even past records can be deceptive. Eisenhower, for example, appointed Warren because of Warren’s Republican “middle of the road philosophy.” Warren’s middle proved to be Eisenhower’s left lane, and Ike later lamented the appointment as “the biggest damned-fool mistake I ever made.”

But Marshall surprised no one. His critics complained that he would add to the Court’s liberal majority, and in fact he did. From 1967 until the end of the Warren era in 1969, he contributed a number of views and opinions that meshed with those of the liberal bloc consisting of Warren, Black, Douglas, Brennan, and Fortas. White was considered a swing vote, somewhat unpredictable. Justices Stewart and John Marshall Harlan, an Eisenhower appointee whose grandfather and namesake wrote the famed lone dissent in Plessy v. Ferguson, were the Court’s most conservative members.

For example, in his first major majority opinion, Interstate Circuit, Inc. v. City of Dallas (1968), Marshall demonstrated a solicitous attitude toward First Amendment freedoms. In Interstate the Court considered the constitutionality of a Dallas city ordinance that set up a board of censors to review motion pictures to determine whether they were “suitable” for viewing by persons under sixteen years of age. At issue was an erotic film, Viva Maria, banned by local officials.

For some years the Court had grappled with the regulation of pornography and struggled to arrive at a workable definition of obscenity. Pornography restrictions posed a threat to the First Amendment guarantee of free speech, which had to be balanced with the desire to uphold community values.

Marshall enjoyed the debate in his own inimical way. Always a gregarious man, he indulged his ribald humor even within the stodgy confines of the Court. Each week the justices gathered with their law clerks in a basement room next to the pages’ room to watch the adult movies they were called upon to review. This irreverently became known as “Dirty Movie Day.” Marshall always took a front-row seat and wisecracked loudly throughout the viewings, especially if he had had a few drinks at lunch, which was not unusual. If the action on-screen got especially heated, he would commend the performance and even ask for a copy of the film so he could have it to show his kids when they reached college age.

Black and Douglas never attended the showings. They believed that the First Amendment, which provides that “Congress shall make no law...abridging the freedom of speech,” was absolute. To them “no law” meant no law. Black ridiculed the attempt at formulating pornography restrictions. He derided his brethren, as the justices refer to themselves, as the “Supreme Board of Censors.” He wondered what men the brethren’s age could presume to know about sexuality, anyway, and he said that if they wanted to watch dirty movies they should go to the theater and pay the cost of admission just like everybody else.

Marshall’s opinion in Interstate focused on free expression, striking down the Dallas ordinance as unconstitutionally vague. He contended that such terms as “sexual promiscuity” lacked specificity and could be interpreted entirely too broadly. “It may be unlikely that what Dallas does in respect to the licensing of motion pictures would have a significant effect upon filmmakers in Hollywood or Europe,” he wrote. “But what Dallas may constitutionally do, so may other cities and states.”

In another First Amendment case, the Court expanded free speech protections to privately owned shopping malls. Suburban malls were fast replacing the old-fashioned downtown business districts like the one Marshall grew up knowing in his native Baltimore. In privately owned shopping malls, there are no public streets or sidewalks on which to stand or demonstrate in order to effectively protest a particular store’s hiring or employment practices. Writing for a six-to-three majority in Amalgamated Food Employees Union v. Logan Valley Plaza (1968), Marshall upheld a labor union’s right to picket peacefully in front of a store in a privately owned mall, stating that such protests may not be banned on private property that is devoted to public use.

In criminal justice matters, he followed the majority’s emphasis on protecting the rights of the accused. In Barber v. Page he wrote for a unanimous Court in support of the right of a suspect to be confronted by his accuser at a preliminary hearing. The case originated in Oklahoma, where a man was convicted of armed robbery based on the transcript of a statement made against him by his accomplice. Marshall concluded that, even for the preliminary hearing, the accomplice should have been taken to Oklahoma from his federal prison cell in Texas to testify in person. He wrote, “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.”

He broke with the majority on the question of forced confessions, however. His first dissent came in April 1968. Robert L. Johnson was a bank robber condemned to death for the murder of a Boston policeman. He was never informed of his right to counsel, and his confession was obtained after continuous interrogation by thirty-two police officers left him with a bleeding head wound and in need of brain surgery. The Court dismissed Johnson’s claim, citing a 1964 ruling that the “totality of the circumstances” could be taken into consideration when deciding whether a confession obtained under duress should be admitted into evidence. In a dissent joined by Warren and Fortas, Marshall wrote, “I had thought that more recent decisions of this Court would have made it abundantly clear that a confession obtained under the circumstances present here would be involuntary and constitutionally inadmissible.”

By 1968 former vice president Richard M. Nixon was again running for president. His “law and order” campaign theme struck a sensitive and responsive nerve among voters nationwide. He appealed directly to white southerners, who traditionally voted Democratic, with his promise that he would appoint to the Supreme Court “strict constructionist” southern jurists who would interpret the Constitution more narrowly, limiting the rights of criminal suspects and reversing the Court’s judicial activist trend.

To the right of Nixon was former Alabama governor George C. Wallace. Wallace launched a formidable third-party presidential effort that attracted disillusioned whites in both the North and the South by directly attacking integration and the emphasis on equal opportunity and affirmative action policies that he claimed threatened whites’ jobs.

LBJ responded to the rising concern over crime by proposing the Safe Streets and Crime Control Act in 1967. As submitted by Johnson, the bill would have provided federal grants to local law enforcement authorities to upgrade equipment and facilities, including police academies and correctional centers. The president also asked Congress to pass comprehensive gun control legislation.

He was forced to compromise in order to finally get the safe streets bill passed in 1968, agreeing to an antiriot provision insisted upon by Congress. The bill was also stripped of a provision that would have prohibited wiretapping and electronic surveillance except where the national security was deemed to be at risk. Meanwhile, he watched his gun control initiatives die in the House of Representatives.

But while Johnson moved to quiet those calling for stricter law enforcement, he pressed ahead with efforts to further liberalize the Supreme Court. In the spring of 1968, Warren, approaching eighty and suffering from a heart condition, informed the president of his intention to resign in mid-June, giving the president the opportunity to appoint a liberal replacement before the presidential election.

Johnson nominated Abe Fortas to take Warren’s place. He picked a fellow Texan, Homer Thornberry of the U.S. Court of Appeals for the Fifth Circuit, to fill the seat made vacant by Fortas’s elevation.

Fortas was appointed to the Court by Johnson in 1965. A former Yale Law School professor and a founder of the prestigious law firm of Arnold and Porter in Washington, D.C., he was regarded by LBJ as “the best lawyer I know.” He had represented Johnson in the challenge to LBJ’s victory in the 1948 Texas Democratic primary election for the U.S. Senate. Fortas won the case when it went to the Supreme Court. From then on, he was one of LBJ’s closest advisers and confidants.

Thornberry had succeeded Johnson in the U.S. House of Representatives when Johnson won the Senate seat. During his fifteen years in the House, he earned a reputation as a liberal legislator. On the bench, first as a federal district court judge and later on the court of appeals, he became known as an ardent enforcer of civil rights.

Both nominations were doomed virtually from the start. Throughout his tenure on the Court, Fortas had continued to advise Johnson on matters ranging from economic policy to the conduct of the Vietnam War as well as on matters pending or likely to come before the Court. When this came to light, he was accused of ethical indiscretions that called his fitness into question.

One such indiscretion involved Marshall, albeit indirectly. In 1966 Marshall, as solicitor general, drafted a brief for a Supreme Court case challenging the merger of the Pennsylvania and New York Central railroads (Penn-Central), opposed by the Justice Department on antitrust grounds. The consolidation was popular in New York among wealthy Democratic party campaign contributors, however, and Johnson wanted the deal to go through. He called Fortas at the Court and asked him what to do.

Fortas advised the president that the agencies in charge of regulating interstate transportation should set the government’s policy regarding the merger. In other words, Secretary of Transportation designate Alan Boyd, known to favor the deal, should have final say as to the government’s position, not Solicitor General Marshall. LBJ instructed Boyd to tell Marshall to rewrite his brief.

At first Marshall balked. He complained, “It is inconceivable that the solicitor general could fail to take a position before the Supreme Court.” But in the end he did what he was told, dropping his opposition to the merger. He rewrote the brief to say, “We emphasize that...we do not quarrel with the merits of the Penn-Central merger proposal itself. Indeed, the agencies of the Executive Branch that have substantive responsibilities for the formulation of economic and transportation policy believe that the merger is in the public interest and that its consummation should be promptly effected.”

The Court remanded the case for further consideration by the Interstate Commerce Commission over the vigorous dissent of Fortas, who was joined by Harlan, Stewart, and White. The case eventually came back to the Court and was decided in January 1968. Marshall recused himself because of his earlier involvement as solicitor general. Fortas had the temerity to write the majority opinion approving the merger.

When Johnson failed to muster the two-thirds vote needed to cut off the Senate filibuster that blocked Fortas’s appointment, Fortas asked that his nomination as chief justice be withdrawn. For the time being, he remained on the Court as an associate justice. Warren stayed on as chief pending the qualification of a successor.

Meanwhile, Johnson had decided not to seek a second term. His support within his own party had been eroded by challenges from Minnesota’s Senator Eugene McCarthy and New York’s Senator Robert F. Kennedy, and the country was divided over both his civil rights policies and the Vietnam War. He told the nation on March 31, 1968, “I shall not seek—and will not accept—the nomination of my party for another term as your president.” Richard M. Nixon went on to defeat Vice President Hubert H. Humphrey in one of the closest presidential elections in history.

The spring of 1969 found Marshall despondent. As he saw it, his life’s work, everything he stood for, was threatened by Nixon’s ascendancy. He could easily imagine nightmare scenarios that would deliver Nixon three, maybe even four, conservative appointments to the Court during his first year or two in office.

Warren’s resignation was already on Nixon’s desk. In addition, Black and Douglas were in failing health. Black was in his early eighties and had suffered a stroke that left his short-term memory impaired. His gait was now a mere shuffle, and he broke wind uncontrollably on the bench and in conference. Douglas, seventy, had recently married his fourth wife, Cathy, a twenty-five-year-old law student at American University. The couple met one evening when she waited on his table in a Washington restaurant. But while Douglas was still alert and of a youthful mind, he was known to suffer from a heart condition that would eventually require the implantation of an electronic pacemaker.

Moreover, the Nixon Justice Department was targeting the members of the Court’s liberal bloc, probing for evidence of misconduct to use for impeachment or to force resignations. Questions had been raised about Douglas’s relationship with Albert Parvin, a Las Vegas casino owner. Douglas served as director of the Albert Parvin Foundation. Fortas was under scrutiny as well, and ugly rumors were surfacing about his financial dealings both on and off the bench. It looked as if Nixon would succeed in forcing him off the Court. Even Brennan was threatened. Investigators were looking into a fifteen-thousand-dollar real estate investment he had made with Fortas and several lower court judges.

Beyond all this, the country was experiencing an inexorable shift to the right. Marshall was convinced that black militancy and the riots that followed Martin Luther King Jr.’s assassination in April 1968 had altered the political climate for the worse. Then, of course, there was the Vietnam War and the disillusioned young people who so stridently opposed it. The hippies, the Yippies, the drug culture, those who preached “Never trust anyone over thirty”—all posed challenges to the established social order, which, in his mind, resulted in retrenchment by the white middle class, the great “silent majority” that had brought Nixon to power.

Far from being a radical, Marshall could relate to middle-class fear and frustration. At the very least, he understood the need to be sensitive to middle-class concerns. He had, after all, come from the middle class, from people who worked hard all their lives for what they had and did not want to lose it. What was wrong with that? As Paul Gewitz, a former law clerk for Marshall and now a professor of law at Yale, said, “He had a strong distaste for flag burners and others who attacked our country.”

Shortly after he was elevated to the Court, Marshall defended the young people who criticized “the Establishment,” defiantly growing their hair long and launching the 1960s countercultural revolution. At a Women’s National Press Club reception given in honor of him and his wife at the International Club in Washington on December 6, 1967, he reminded his audience that the young have always been restless for change.

“These young people with their hair down to here—we worry about these youngsters,” he said, “but it is nothing new.” He offered a humorous reminiscence: “I was in college four years and participated in four strikes. I led three of the strikes and was into a fifth strike, only to find we were trying it too early in the season. The dean called us in and told us our timing was wrong. He said he had enough additional applicants to fill our places. He suggested we wait until at least Thanksgiving.”

He went on to speak of his life as an advocate devoted to changing many of the fundamental assumptions and social practices in America, such as segregation. He called his Supreme Court appointment “a real challenge that gives me the opportunity to put up or shut up.”

By the spring of 1969, his attitude was less sanguine. He decided to speak out against the destructive trend of the protest movement. In his mind, it was one thing to criticize or dissent, quite another just to tear things down. He had credibility, and his credentials in the struggle for change were unimpeachable. It was time for someone like him to take a stand against the stridency and militancy that were fueling the white middle-class backlash. Otherwise, there was no telling to what extent the drive to turn the clock back on social progress would succeed.

He contemplated an appropriate forum. Because of its relative obscurity, he chose what seemed an unlikely venue: Dillard University, a small, traditionally black, predominantly female Methodist school located in a residential section of New Orleans. The occasion for which he was invited to speak was the institution’s centennial celebration on May 4, 1969.

Speaking extemporaneously, referring occasionally to a few handwritten notes, he attacked black separatism and those who would seek to bring about revolution or social reform through violence.

“Every country in the world is seething with young people on the move. What I want to talk to you about this afternoon,” he told his undergraduate audience, “is not to stop it, not to stop this energy, but to channel it toward a decent end.” He went on, “I remember a congressman, a Negro congressman, who said, ‘The trouble is that you don’t follow the right theory. Don’t get mad— get smart!’”

Saying that there had been “a whole lot of progress” in race relations over the previous decade, he defended America despite her faults. “I’ve never had to defend my country by lying about it,” he declared. “I can tell the truth about it and still be proud. I’m not going to be completely satisfied. I’ll be dead before I’ll be satisfied.”

He assailed the movements for a separate homeland in the United States just for blacks and for curricula based exclusively on black studies. “I don’t believe that everything that’s black is right and everything else is wrong. I think that we Negro Americans have just as many beautiful in mind and body, as well as skin, as any other group. And I am sure we have just as many stinkers as there are in every other group.”

He reaffirmed his belief in the American dream. “Our country is based on equality—that all men are created equal—or the Fourteenth Amendment, which is actually a conjugation of the Judeo-Christian ethnic of the equality of man—his individual equality. And I say you can’t destroy that by setting up one group as superior to everybody else.”

He then turned his assault on those who perpetrated riots and civil disorder, attributing their motives to social irresponsibility and cowardice. “I don’t believe you can use color for an excuse for not doing what you know should be done,” he declared. “I don’t think race should be an excuse not to take care of your children and bring them up properly, even if they are still in segregated schools. I think that race is not an excuse for not keeping your house up properly.”

He went on, “As you look around the world today, you’ll find that anarchy is what’s wrecking country after country, pulling down, tearing down, building not. And in this country we don’t approach it yet. But the seeds of it remain. Nothing will be settled with a gun. Nothing will be settled with a fire bomb. And nothing will be settled with a rock, because the country cannot survive if it permits it to go unpunished. It’s that simple. It takes no courage to throw a rock. Rather, it takes courage to stand up on your own two feet and look anyone straight in the eye and say, ‘I will not be beaten.’”

Alluding to the riots precipitated by King’s death, he pondered aloud, “I wonder how many people who burned whole areas of towns like Washington and Chicago ever even thought of voting or going to church or doing any of the things that our country was founded upon.”

He concluded by offering encouragement, tempered with a warning: “Move, but move within the Constitution, and find new ways of moving nonviolently within the Constitution, bearing in mind that there are many of us in this country who are not going to let it go down the drain. We are not going to continue to stand for anarchy, which is anarchy which is anarchy.”

Voltaire once said, “I may not agree with what you say, but I will defend to the death your right to say it.” Marshall was that kind of man, committed to free speech under the First Amendment, notwithstanding his personal beliefs and sentiments. During the Court’s 1968-69 term, he joined in a per curiam order overturning an Ohio law making it a crime to advocate violent acts. He also voted to uphold the right of a white supremacist organization to espouse its views at a public rally despite the likelihood that violence would result.

The investigations of Douglas and Brennan yielded nothing of substance. But by mid-May government investigators had uncovered incontrovertible evidence of a financial arrangement between Fortas and Leonard Wolfson, a wealthy industrialist. Fortas was to receive twenty thousand dollars a year for life from a foundation that Wolfson funded. Fortas’s widow was to continue receiving payments after his death. Fortas had apparently promised to use his influence to derail a Securities and Exchange Commission investigation of Wolfson that eventually resulted in Wolfson’s indictment and conviction. Forced by Attorney General John N. Mitchell to choose between resigning from the Court or facing impeachment and possible criminal prosecution, Fortas resigned on May 14, 1969.

Meanwhile, Nixon had settled on a replacement for Warren. In late June the Senate confirmed his nomination of Warren E. Burger, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to be the nation’s next chief justice. Next, Nixon turned his attention to candidates for the seat vacated by Fortas. In office less than a year, Nixon was already in a position to reshape the Court with his two appointments.

Four years later, on July 9, 1973, Earl Warren died of cardiac arrest at Georgetown University Hospital. Marshall was deeply saddened by the passing of the man he referred to as the “Super Chief,” who, in his opinion, had done more to bring about racial equality than anyone else in the twentieth century. He said, “When history is written, he’ll go down as one of the great chief justices the country has ever been blessed with. I think he is irreplaceable.”

In the meantime, he found himself in the unenviable position of trying to carry on the Warren Court’s legacy with the ranks of his liberal compatriots on the Court ailing and dwindling.

NINE

A House Becomes a Home

It’s a private matter where I make my home.
—Thurgood Marshall

In November 1968 Thurgood and Cissy Marshall were looking for a new house. They had decided to move from their predominantly black neighborhood on Fourth Street in southwest Washington, D.C., to the Virginia suburbs. When President Johnson had appointed Marshall to the post of solicitor general, in 1965, Cissy had been reluctant to move her family to Washington. Thurgood Jr., almost nine, and John, seven, were attending the Dalton School, a private school on Eighty-ninth Street in New York City.

“I don’t feel that now is the time to pull up roots here in New York as far as the boys are concerned,” she said. “I feel we ought to take our time and find a good school in Washington for the boys before making any move.” But she finally agreed, and the family came to Washington that year.

Now, three years later, Cecilia Marshall asked Attorney General Ramsey Clark and his wife to help them find a house in the Clarks’ neighborhood, an all-white subdivision in Falls Church, Virginia. The Marshalls had been guests at the Clarks’ home and believed the area would be a pleasant place to live and raise their two sons, now twelve and ten.

Mrs. Vincent Augliere, a saleswoman for Regent Realty, had helped the Clark’s find their own house several years earlier. She soon discovered a contemporary ranch-style home with five bedrooms and three baths on curving Lakeside Drive, overlooking the 114-acre Lake Barcroft, priced at $52,000. She thought the Marshalls might like it. Mrs. Augliere had no reservations about showing the house to the Marshalls. She had been one of only a few northern Virginia real estate agents to speak out openly in favor of Fairfax County’s open housing ordinance. The owner of the house told his neighbors the Marshalls’ had decided to purchase his property; he said only one objected.

That neighbor told the Washington Star: “I’m not happy about it at all, because this might be encouragement for more of the same.”

Thurgood and Cissy liked the house, and soon they moved in with their sons and became the first black family on the block. Marshall refused to discuss the purchase and his integration of the neighborhood with reporters from the Washington Post and the Washington Star. “It’s a private matter where I make my home,” he said.

But most of the Marshalls’ new neighbors were not distressed by their arrival. Ramsey Clark’s wife said, “I think most people around here were just delighted. The only thing I was afraid of was that the Marshalls would be overwhelmed with hospitality.”

In the summer of 1969 it was the Marshalls’ own hospitality and the pungent, rising smoke from Thurgood’s backyard barbecue pit that “overwhelmed” Lakeside Drive homeowners as Thurgood and Cissy welcomed their new neighbors, including the Clarks and Barefoot Sanders, legislative assistant to President Lyndon B. Johnson, to hearty feasts of chicken, spare ribs, and steaks.

Cissy turned the house into a comfortable home, using one of its five bedrooms for Thurgood’s den. She filled bookcases with copies of the U.S. Code and plastered the walls with Thurgood’s large collection of photographs, pictures, plaques, and awards, among them the NAACP’s Spingarn Medal.

The Marshalls’ new house was a short drive from Washington’s Maine Avenue waterfront, where on summer Saturdays Thurgood purchased bushels of Maryland blue crabs, one of his favorite delicacies. He had learned the secret of cooking them—a little steaming water, half a cup of apple cider vinegar, and the famous Old Bay Seasoning, manufactured in his native city, with a dash of black pepper—in his maternal grandmother’s kitchen. He knew how to eat them, too—separating the back fin’s lump of meat from the delicate cellophane membrane—because he acquired that indigenous Maryland skill as a teenager.

Marshall planned and presided over elegant dinner parties for old friends, among them singers Harry Belafonte and Lena Horne. “Thurgood cooks the best pigs’ feet in the world,” Lena Home said. Belafonte’s former wife, Marguerite Mazique, remembers that at the Marshall home “you ate better than if you had gone to one of Washington’s best restaurants.”

His closest friend on the Supreme Court, Associate Justice William Brennan, was also a frequent guest at the Marshall dinner table. But, following tradition, Marshall limited his social contacts with friends in the legal profession. He said his formerly large circle of friends became smaller when he joined the Supreme Court because most of them were civil rights lawyers “and would probably have business before the Court.”

The sixty-year-old Marshall was seen frequently in his backyard tossing a softball or playing touch football with his two young sons. He often joked that was all the exercise he did. The neighborhood children were friendly to the Marshall boys, who had inherited their father’s light skin and straight hair and their mother’s soft Asian features.

Thurgood also pursued another lifelong interest, the racetrack. At nearby Maryland tracks, such as Laurel, Bowie, and Pimlico, he would often meet another rail bird, former Lincoln University classmate Cab Calloway. Calloway, who still goes to Laurel, said Marshall had a special interest in following Maryland-bred horses. “He was never a heavy bettor,” Calloway remembered. “And he was a pretty good handicapper.”

Thurgood and Cissy made frequent trips to Atlantic City after casino gambling was legalized there. Thurgood played blackjack and roulette at Bally’s and other resorts for small stakes and reluctantly admitted he lost six hundred dollars one weekend; he never discussed his winnings.

Marshall spent many evenings in his paneled family room watching reruns of his favorite western movies. And he enjoyed watching baseball games, especially when the Baltimore Orioles were playing. Like most people in the Washington metropolitan area, the Marshalls were avid Washington Redskins fans, often joining the crowd on Sunday afternoons at Robert F. Kennedy Stadium to wave burgundy-and-gold pennants and root for the capital’s football team.

Thurgood’s interest in music ranged from jazz to symphonies. “I don’t know all the titles and composers,” he confessed. “I just like it.” His fondness for jazz began in the 1930s, when he lived in Harlem and counted among his friends bandleader Duke Ellington, a native of Washington, D.C., and singer Lena Horne.

Supreme Court security guard Lloyd D. Roberts, who is now retired, frequently drove Marshall to and from the Court. Roberts, who is black and now pastor of Ebenezer Baptist Church in Alexandria, Virginia, recalled the twenty-five minute trips across the Fourteenth Street Bridge, spanning the Potomac River.

“Unlike some of the other justices, he treated me as an equal. He would sit in the back of the car, and if he wasn’t reading a case, we would talk about the importance of his position as the only minority on the Court, and he often told me his presence on the Court made a difference, even as he became a member of the Court’s minority. Sometimes, when we arrived at his home late at night from a social function or a late court session, he would invite me in, and Mrs. Marshall would serve us coffee and cake. She, like the judge, is a very congenial person.”

According to Roberts, Marshall knew how to drive and owned a gray Cadillac, but stopped driving at the age of seventy-one, “about 1979, when he had increasing medical problems and cataracts.” Justices Powell and Blackmun were the only other justices who spoke to Roberts as equals when he drove for them, he said. “Blackmun and Powell didn’t treat me like just a chauffeur, and when Justice Powell, a real Virginia gentleman, heard I was graduating from Howard University’s divinity school, he sent me a hundred-dollar graduation present.”

Roberts said the conversations he had while driving Justices White, Rehnquist, and Burger were much different. “They would only talk to me about the weather or sports, like baseball, football, or boxing, because they thought that was all I was interested in or was able to understand, but Thurgood Marshall was never demeaning or condescending.”

The Marshall family’s 1968 transition to the “Better Homes and Gardens” life actually started twenty-four years earlier, when Marshall won a Supreme Court decision striking down restrictive covenants that legally sanctioned all-white neighborhoods.

At an NAACP meeting in 1944, Marshall sharply criticized the Federal Housing Administration for the racial restrictions it placed on rentals in a new government housing project in Detroit. Its eight hundred units designated for white occupants stood vacant while thousands of black citizens lived in substandard housing. In Detroit’s suburbs black families could not buy or rent homes from white owners. The situation was not much different in the rest of the nation.

Even in Marshall’s native Baltimore, where shortly after the turn of the century black and white families had lived side by side, black families could not purchase or rent property in some of the city’s better neighborhoods, such as Park Heights, and on Liberty Road across the Baltimore County line.

The racial exclusivity of white neighborhoods was protected by restricted covenants: written agreements, enforceable by state laws, between white buyers and sellers that they would never sell or rent their property to someone of a different race or, sometimes, a different religion. In some states entire towns signed restrictive covenants. The bans had been challenged many times in the courts, and their legality was always upheld. As early as 1926, in Chicago v. Buckley the Supreme Court said that restrictive covenants were actions between private parties neither governed nor sanctioned by the state and that, though they were discriminatory, they were not illegal. The Court said that the Constitution did not “prohibit private individuals from entering into contracts respecting...their own property.”

In 1947 Thurgood Marshall combined three restrictive-covenant suits that had been lost in the lower courts. Marshall asked the Supreme Court to consider the complaint of Orsel McGee and his wife, who bought a house in a racially restricted Detroit neighborhood from a white owner who ignored the covenant. When a white homeowner named Sipes learned of the sale, he rushed to obtain a court order prohibiting the McGees from moving into their new home. The order was upheld in Michigan’s highest court.

The Supreme Court heard the combined restrictive-covenants cases as Shelley v. Kraemer in 1948. Attorney General Tom Clark, on instructions from President Truman, filed an amicus curiae brief on behalf of the United States, asking the Court to strike down restrictive covenants.

Marshall argued, “This case is not a matter of enforcing an isolated private agreement. It is a test as to whether we will have a united nation or a nation divided into areas and ghettos solely on racial and religious lines.” Ruling restrictive covenants illegal, he argued, would “allow a flexible way of life to develop in which each individual will be able to live, work, and raise his family as a free American.”

In May 1948 all six sitting judges agreed that restrictive covenants were unconstitutional. Reed, Jackson, and Rutledge recused themselves from the case without giving a reason. It was believed, however, that they declined to hear the case because each of them owned property covered by restrictive covenants.

“These are not cases, as has been suggested, in which the states have merely abstained from action, leaving private individuals free to impose discriminations as they see fit,” wrote Chief Justice Fred M. Vinson. “Rather, these are cases in which the states have made available to such individuals the full coercive power of government to deny petitioners, on the grounds of race or color, the enjoyment of property rights in premises which the petitioners are willing and able to acquire and which the grantors are willing to sell.” Vinson continued, “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”

Though black Americans still faced formidable obstacles in purchasing decent housing, there was noticeable progress. Two years after Marshall won the case that struck down restrictive covenants, the 1950 census disclosed that nonwhites were living in 459 more of the 3,887 residential blocks in Washington, D.C., than in 1940. Chicago’s Commission on Human Relations reported four years after the covenant case that twenty-one thousand black families had purchased or rented property in neighborhoods from which they were formerly excluded. It was this decision and its implementation that eventually made it possible for the Marshalls to buy their Lake Barcroft home.

Thurgood’s marriage to Cissy was considered an interracial marriage by the U.S. Census Bureau and the Commonwealth of Virginia. If the Marshalls had bought their home in 1967 instead of 1968, they would have been in violation of Virginia’s 210-year-old anti-miscegenation law that made it a crime for mixed-race couples to live in the state.

Cissy, who was Hawaiian-born and of Filipino ancestry, turned down Thurgood’s initial proposal of marriage. “They called me a foreigner, and with his position I didn’t want to bring any controversy into it.” Their marriage was noted by a Mississippi newspaper that wrote that Thurgood Marshall had “admitted his racial prejudice by marrying a white woman.”

“And I wrote back to them,” Marshall recalled, “and I said, ‘Not that I object to it, but I just think you ought to be accurate. And I don’t know which wife you are talking about, but I have had two wives and both of ‘em were colored.’”

The editor scrawled a two-word reply on the back of the letter. “So what?”

In 1958, ten years before the Marshalls moved to Virginia, Richard Loving, a white man, and his seventeen-year-old black bride, Mildred, moved to Virginia’s rural Caroline County. They had been married in the District of Columbia. In the middle of a July night, the Caroline County sheriff rousted the Lovings from their bed and took them to the courthouse in Bowling Green. They were charged with violating Virginia’s antimiscegenation laws. Judge Leon A. Bazile found the Lovings guilty and sentenced them to a year in jail. Bazile said he had to uphold Virginia’s “racial integrity.”

He agreed to suspend the sentence if the Lovings left Virginia and did not return for twenty-five years. The Lovings moved to Washington and retained Bernard S. Cohen, an attorney for the American Civil Liberties Union, to challenge the law. They began a lengthy court battle that did not end until 1967, when the U.S. Supreme Court, in Loving v. Virginia, ruled the miscegenation laws of Virginia and fifteen other states unconstitutional.

Black men had been lynched for making complimentary remarks to white women. Love across the color line was one of racism’s strongest taboos. A 1991 Gallup Poll disclosed that 44 percent of white Americans approved of interracial marriages and 45 percent disapproved.

The Loving case was to have another implication for the Marshall family. The two Marshall boys married white women. When questioned about the marriages, Thurgood Marshall Sr. responds with a defiant “So what!” and refuses to discuss it further.

The Marshall’s sons chose law enforcement careers initially. They both say their father did not influence their decisions. John W. Marshall, Thurgood and Cissy’s younger son, is a state trooper. Marshall was disappointed when his boy quit college to become a Virginia State Police officer. “He didn’t downgrade me or talk down to me,” declared Sgt. John W. Marshall, who teaches the use of firearms and survival tactics at the Virginia State Police Academy. “I know him well enough, I could tell when he is disappointed. I felt pretty bad about it. I told myself I was going to go back to school.”

John returned to Georgetown University in Washington, D.C., part-time and in 1989 received his degree in government and sociology. He kept his school attendance a secret from his parents. They did not know about it until they received an invitation to his graduation. “My dad yelled for joy,” John said.

John Marshall is considering attending law school. “Of course, I’d want to be a prosecutor, I’d want to be on the prosecuting side,” he said. “My dad, he’d shake his head again, I guess.”

Thurgood Marshall Jr. received his undergraduate and law degrees from the University of Virginia and worked for a while as a federal prosecutor in the U.S. Attorney’s office in Washington, D.C., before becoming judiciary counsel on the staff of Massachusetts senator Edward M. Kennedy. His wife, Colleen, is an attorney with the Securities and Exchange Commission.

Marshall, who spent most of his professional life fighting for equal treatment of blacks by the white law enforcement establishment, does not think it ironic that he has a son who served as a prosecutor and another son who is a police officer.

“I didn’t give advice to either one of my boys,” he said. “I had a deal with them: I would answer any question, but I wouldn’t volunteer advice. And it ends up that one of them gave up a job paying $100,000 with the biggest law firm here to go to work for Ted Kennedy.

“I said, ‘With all the money I spent on your education, why did you take that?’”

“You know what he said? ‘I know somebody else who didn’t give a damn about money, too.’”

His son’s remark was probably accurate. In 1989 financial disclosures statements that made public the assets of Supreme Court justices, Marshall listed his holdings as between $50,000 and $100,000. He reported owning a $2,500 Steuben glass piece he received as a gift from the Judicial Friends of New York City. By contrast, Justice Sandra Day O’Conner listed her assets as between $1.3 and $2.6 million. Justices Harry Blackmun, Anthony Kennedy, William Rehnquist, William Brennan, John Paul Stevens, Antonin Scalia, and Byron White said their assets were close to $500,000. Financial reporting procedures do not require justices to list the value of real estate they use as a personal residence.

“And my other son is a state trooper, a state policeman, and he had the same kind of education, he graduated from Georgetown,” Marshall continued. “And you know what he said? ‘I want to work for the people.’”

Marshall does not seem concerned that his sons are not worried about earning large salaries. “So that’s their way, not based on money,” Marshall explained. “I mentioned it to Lewis Powell on our Court, and Lewis said, ‘Yeah, I understand you, but I just remembered that a friend of mine who was the president of the biggest bank in Richmond was a former state trooper.’”

“So I said, ‘I have something to look forward to.’”

ten

Marshall and the Burger Court

Somewhere in our history—though not intentionally—we slowly moved from a government of the people to a government of a chosen few...who, either by birth, family tradition or social standing—a minority possessing all the wealth and power—now...control the destiny of mankind.
—An American GI in Vietnam

Warren E. Burger had a regal bearing. He was six feet one, broad-shouldered, and husky, a handsome Minnesotan with an erect, measured gait, a deep voice, and thick white hair. He was an adept debater and a politically astute, skillful behind-the-scenes maneuverer who never shied away from a confrontation with those who posed a threat to his conservative, midwestern mores and vision for America.

He began his career as a trial lawyer in St. Paul, Minnesota, where he became active in politics. In 1952 he managed St. Paul attorney Roger Kennedy’s unsuccessful campaign to unseat Democratic congressman Eugene J. “Gene” McCarthy. In 1968 McCarthy, by then a U.S. senator, forced the split within the Democratic party that contributed to Lyndon Johnson’s downfall by running for president as a peace candidate opposed to the Vietnam War.

During the 1952 campaign, Burger was accused of bolstering Kennedy’s bid by employing the scare tactics of a fellow Minnesotan, Senator Joseph McCarthy. Appearing as a last-minute substitute for Kennedy at a debate at St. Paul’s Hamline University, Burger questioned Gene McCarthy’s patriotism because the congressman opposed the expulsion of Communists from university faculties, action he saw as a threat to academic freedom. In her memoir Public Faces/Private Places, McCarthy’s ex-wife Abigail recalled, “Burger, whose legal approach used every trick of courtroom debate, so confused the audience that Gene was never able to make his position clear.” The tone of the campaign turned nasty. Fliers attacking McCarthy’s loyalty appeared all over the city. They asked rhetorically: “Is YOUR CONGRESSMAN A TRAITOR?”

Burger supported Dwight D. Eisenhower’s effort to win the Republican presidential nomination in 1952, although he had originally gone to the national convention in Los Angeles as a delegate for perennial presidential hopeful Harold Stassen, then Minnesota’s governor. Eisenhower brought him to Washington as an assistant U.S. attorney general, then in 1956 appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, which for the most part hears appeals of suits brought against the federal government.

Nixon met Burger at the 1948 Republican national convention. When he began his search for Earl Warren’s replacement, Burger’s name came to mind. During his tenure on the appeals court, Burger was an outspoken critic of what he saw as the court’s liberal activism. He called instead for “judicial avoidance,” meaning deference to the legislative and executive branches of government in matters of social and economic policy. Also, in speeches and interviews, Burger advocated administrative reform of the judicial system, which he felt was burdened with unnecessary safeguards and delays that made prosecutions and sentencings of criminal defendants unduly cumbersome.

Nixon liked him. So did the Senate. By a vote of seventy-four to three, he was confirmed in June 1969 as the nation’s fifteenth chief justice.

At the Court it did not take him long to earn the nickname “Imperial Burger.” He insisted on being introduced as the “chief justice of the United States” rather than “chief justice of the Supreme Court.” He also began the practice of delivering a “State of the Judiciary” address to the American Bar Association each year, a counterpart to the president’s annual State of the Union message to Congress.

At the Court he consulted with architects and interior designers about upgrading the Court’s environs to project a loftier aesthetic, a more pronounced and dignified sense of history, prestige, and purpose. The building did, in fact, resemble a mausoleum suffering the neglect of an absentee caretaker. Its stark white-marble corridors were cavernous and bare. For the edification of tourists and visitors, he ordered portraits hung, busts of former justices displayed, and Court memorabilia exhibited under glass.

The courtroom itself needed at least a minor renovation. It was poorly lit and had a shadowy eerieness about it. Burger installed better lights and upgraded the sound system.

In addition, the bench behind which the justices sat was straight. Burger wanted it to curve so that the justices could see each other during oral argument. The justices went along with the redesign, although Marshall quipped privately that in his opinion they saw each other enough and, frankly, there were some brethren he would prefer to see less of.

Other reforms were supercilious. Burger thought the chief justice’s chambers were too small, so he appropriated the adjacent conference room, where the nine met each week to discuss and vote on cases, for his own use when entertaining dignitaries or luncheon guests. There was grumbling that the move was “undignified” and “inappropriate.”

Also, he ordered two of the Court’s four pages—formerly on call in the basement page room when Court was not in session to perform messenger, clerical, and housekeeping duties for any of the nine justices’ offices—stationed in the chief’s chambers throughout the day for his exclusive use. Among other duties, the pages were to serve him and his three secretaries Earl Grey tea punctually at 4:00 P.M. from silver trays, in china that bore the seal of the chief justice. There were gripes that this, too, was “selfish” and “inappropriate.”

But it was not until he tried to change the justices’ chairs that he provoked open dissension. By tradition, each justice sat in his own chair behind the bench. Some preferred high-backed swivel rockers. Other chairs had lower backs or were big, upright, and square. Burger thought the chairs should all be the same, projecting an aesthetic uniformity. But the justices flatly refused to give up their chairs.

For the most part, Burger’s imperiousness was tolerated with a certain pained amusement, or it was ignored. Douglas, for example, was a rugged outdoorsman whose passions included hiking and mountain climbing even into his later years. His own chambers were cramped with books and souvenirs, including Indian headdresses and big overstuffed pillows on which were embroidered such phrases as “Here come de judge,” all set against a bright green and yellow decor. He paid the chief no mind at all.

Neither did Brennan, whose long-haired law clerks plastered the walls of his chambers with the kind of posters usually associated with college dormitories, some emblazoned with antiwar or black power slogans.

Always a gregarious man, Marshall did not allow the Imperial Burger’s decorousness to inhibit his raucous demeanor and ribald wit. The pages, for example, were high schoolers required to maintain straight-A averages at the Capitol Page School, located across the street from the Court in the Library of Congress. When he encountered them passing through his chambers or in the hall, he would corner them and complain loudly about his own sons’ grades if one of them had recently brought home a report card that displeased him.

“A C minus! Damn! A C minus, not even a C, a C minus. You can’t get much lower than that, can you?” he would ask. “They haven’t changed what grades stand for since I was in school, have they?”

Or he could be found in the hallways, sharing his favorite jokes with guards and messengers at the Court. One that he particularly liked was about the golfers who go back to the clubhouse to change after playing eighteen holes. When one puts on a woman’s girdle, his pal asks, “When did you start wearing that?’ The other golfer responds, “Ever since my wife found it in my glove compartment.”

Nixon had difficulty filling the seat vacated by Fortas. His nomination of Clement F. Haynesworth Jr., chief judge on the U.S. Court of Appeals for the Fourth Circuit, in the South, failed to win Senate confirmation in April 1970. Nixon was indebted to the southern white voters who, abandoning their traditional allegiance to the Democratic party, delivered him the South in the 1968 election. But Haynesworth was undermined by the Senate’s Democratic majority, which challenged his civil rights record and also questioned his ethics for participating in a case that involved a company in which he owned stock.

Nixon’s second choice, G. Harold Carswell, a judge on the Fifth Circuit court of appeals, covering northern Florida, was rejected by the Senate the following month. He was accused of harboring segregationist views. In a speech to an American Legion group in 1948, Carswell had stated, “Segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and shall always so act.”

In addition, when Carswell drafted the charter for Florida State University’s boosters’ club in 1953, he included in the document a “for whites only” clause. In 1956 he assisted in converting a municipal golf course to private ownership in order to avoid desegregation of the facility. Civil rights lawyers complained that Carswell was openly antagonistic toward them from the bench during civil rights cases throughout his tenure as a judge.

Charging that the Senate’s regional prejudice against southern jurists was insurmountable, Nixon again looked north and nominated another Minnesotan in May 1970. His name was Harry Andrew Blackmun, and he had been serving on the U.S. Court of Appeals for the Eighth Circuit since 1959.

Blackmun was born in a small town in southern Illinois but grew up in St. Paul, Minnesota, where he and Burger were boyhood friends. A graduate of Harvard College and Harvard Law School, he mused fondly that if he had his life to live over again, he would become a doctor instead of a lawyer. He was gratified when, in 1950, he was named general counsel to the prestigious Mayo Clinic in St. Paul, a position for which he abandoned a lucrative private practice specializing in tax, wills, and trusts and estates. Blackmun’s time at Mayo would prove significant. Because of his expertise in forensic law, in 1973 he was assigned to write the Court’s landmark ruling in Roe v. Wade, establishing a woman’s constitutional right to an abortion.

During the confirmation hearings that followed his nomination to the Supreme Court, Blackmun came across as an honest, amicable man, a nonideologue. He promised to do his best for the “little people.” He once said, “What comes through most clearly is the utter respect which the little person has for the Supreme Court of the United States. The little person feels this is a real bastion for the protection of his rights.” He was confirmed by the Senate unanimously in May 1970.

Suddenly the Court looked very different. What was to have been the Fortas Court, consisting of a solid six-member liberal majority comprised of Fortas, Black, Douglas, Brennan, Marshall, and Thornberry, was now the Burger Court, on which conservatives appeared to hold sway. The liberals, Black, Douglas, Brennan, and Marshall, were now aligned against a conservative majority composed of Burger, Stewart, Harlan, White, and Blackmun.

But while the personnel had changed, many of the issues remained the same. For example, during its 1968-69 term, the Court was again confronted with a pornography case, Stanley v. Georgia, which pitted First Amendment protections against community values.

In Georgia, the home of a man named Stanley was searched for evidence of illegal bookmaking activities. During the search, police came across and confiscated several rolls of pornographic film in Stanley’s bedroom. Stanley was subsequently arrested and charged with violating Georgia’s antiobscenity law.

Black and Douglas held to their absolutist view that the First Amendment protected Stanley from prosecution. But theirs seemed an extremist stance that a majority of the Court would not accept. Marshall stepped in and won unanimous support for overturning the conviction. He conceded that obscenity was not protected by the First Amendment, but he emphasized that broader liberties were jeopardized by the violation of Stanley’s right of privacy. This enabled him to use the case as a forum for an impassioned defense of First Amendment freedoms.

Writing for the Court, he declared that the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley, he went on, “is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library.”

He concluded, “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

During the 1969-70 term, the Court was yet again confronted with persistent resistance to the implementation of its ruling in Brown, even though fifteen years had passed since the justices had ordered separate, or dual, school systems for blacks and whites abolished “with all deliberate speed.” In Alexander v. Holmes County Board of Education, suit was brought on behalf of fourteen black Mississippi schoolchildren whose NAACP lawyers argued that Mississippi was taking too long to effect desegregation in thirty-three school districts.

Shortly after his elevation to the court, Marshall learned that the “all deliberate speed” language had been included in the 1955 Brown implementing decree at Frankfurter’s insistence. Justice Black had long since come to regret the use of the phrase, which, he lamented, “has turned out to be only a soft euphemism for delay.”

“In my opinion,” Black once stated, “there can be no more disastrous educational consequence than the continuance for one more day of an unconstitutional dual school system such as those in this case.”

The other eight justices agreed. On October 29,1969, the Court issued a unanimous per curiam order mandating integration of the Mississippi school districts “at once.” Writing for the Court, Justice Brennan stated that the “continued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”

But while the Court maintained its unanimous commitment to school desegregation as a matter of law, the justices began to break ranks over the methods that could properly be employed to achieve integration. On October 12, 1970, the Court heard oral arguments in Swann v. Charlotte-Mecklenburg Board of Education, an appeal from a ruling by U.S. District Court judge James B. McMillan, who had approved busing as a means to achieve racial balance in North Carolina’s Charlotte-Mecklenberg school district, which encompassed the city of Charlotte and surrounding Mecklenberg County.

During the 1968 presidential election, Richard Nixon ran on a platform opposed to busing. He called instead for “freedom of choice”; allowing parents to send their children to neighborhood schools, regardless of the racial imbalance that resulted from residential housing patterns, otherwise known as de facto segregation. After he became president, Nixon issued a defiant statement regarding federal court-ordered busing. “Unless affirmed by the Supreme Court,” Nixon declared, “I will not consider [busing orders] as precedents to guide administrative policy.”

At first, Nixon’s new chief justice appeared to share the president’s view. He told his law clerks that desegregation and integration had different meanings, though the terms were frequently used synonymously. Desegregation prohibited the denial of rights or opportunities because of race; integration implied race mixing and achieving numerical racial balances or quotas, which busing promoted. Burger doubted whether it was within the power of the federal courts to order busing as a remedy for dual school systems.

Douglas disagreed. In his opinion, integration was the only way to eliminate “the stigma—the stamp of inferiority.” During the 1968-69 school year, Charlotte had roughly eighty-four thousand students attending 107 schools. Of this total, approximately twenty-four thousand pupils, or 29 percent, were black. Fourteen thousand of these blacks were enrolled in twenty-one all-black schools.

Douglas’s longtime ally Black shared his skepticism. On March 25, 1971, Black circulated a memorandum to the other justices in which he stated that he “gravely doubt[ed] this Court’s Constitutional power...to compel a state and its taxpayers to buy millions of dollars worth of buses to haul students miles away from their neighborhood schools and their homes.” For the Court to issue a busing order would be, as Black put it, “bizarre.” Brennan joked privately that Black, an absolutist who adhered strictly to the literal language of the Constitution whenever possible, opposed busing because the word bus does not appear in the Constitution.

Marshall had made his feelings unequivocally clear in a memorandum to the justices dated January 12, 1971: “The time has come for the era of dual school systems to be ended. And when school boards fail to meet their obligations it is up to the courts to find remedies that effectively secure the rights of Negro children.” He went on, “Innovation and unrefined techniques are necessary when the work of sixteen years has to be done in one.” He concluded, “The techniques used in the District Court’s order were certainly within the Court’s power to provide equitable relief.”

Brennan sided with Marshall and Douglas. White, Harlan, Stewart, and Blackmun, the newest justice, remained undecided. Over the course of the ensuing months, after much negotiation and discussion, Marshall managed to prevail, winning the Court’s unanimous support for upholding McMillan’s busing order.

Burger himself wrote the opinion, which was issued on April 20,1970. In it he declared that the “assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual school system.” He continued, “In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation.” He concluded, “Desegregation plans cannot be limited to the walk-in school.” Coming sixteen years after Brown, Swann was to be the Court’s last major, unanimous school desegregation ruling.

The Vietnam War divided the Court much as it did the nation as a whole. While the Court refused to rule directly on the war’s constitutionality, it nonetheless found itself embroiled in the swirl of conflicting passions that the war generated.

In April 1971 an antiwar group, Vietnam Veterans Against the War, encamped on the Mall in downtown Washington and vowed to shut down the city unless the government redressed their grievances. One of the group’s demands was that the justices consider whether the president could commit American military forces in Vietnam without a formal declaration of war by Congress.

Douglas had urged the Court since 1967 to rule squarely on the question. He felt that the American public had been lied to and misled about the nature and scope of the military’s Vietnam involvement, and consequently he saw the war as a direct contravention of the nation’s democratic principles. In his 1969 book Points of Rebellion, in which he offered a passionate defense of the younger generation’s protest movement against “the Establishment,” Douglas quoted a letter he received from a young American soldier serving in Vietnam.

“Somewhere in our history—though not intentionally—we slowly moved from a government of the people to a government of a chosen few...who, either by birth, family tradition or social standing—a minority possessing all the wealth and power—now...control the destiny of mankind,” the GI wrote. He explained, “You see, Mr. Douglas, the greatest cause of alienation is that my generation has no one to turn to.” He ended with a plea: “With all the hatred and violence that exist throughout the world it is time someone, regardless of personal risk, must stand up and represent the feelings, the hopes, the dreams, the visions and desires of the hundreds of thousands of Americans who died, are dying, and will die in the search of truth.”

In Douglas’s opinion the war was illegal, but in conference he consistently failed to muster the four votes needed for the Court to hear any of the cases challenging the American military involvement.

Burger, White, Blackmun, and Marshall, an appointee and admirer of the president’s, whose name became synonymous with the war, were considered hawks, supportive of America’s military effort. Black and Brennan opposed the war but were reluctant to involve the Court in what they regarded as fundamentally a political question. In Brennan’s view, Congress’s continued funding of the war amounted to tacit approval of the war’s conduct. The Court should not step in, he thought, unless the president defied or resisted congressional actions intended to bring the war to an end. Black shared Brennan’s view, though he considered the American involvement in Vietnam a mistake the country would ultimately regret. Surprisingly Stewart and Harlan, considered two of the Court’s most conservative members, sided with Douglas.

Marshall refused to provide Douglas with the fourth vote needed to bring the question of the war’s constitutionality before the Court. At the same time, he took umbrage at what he saw as an attempt to use the Court to silence and intimidate antiwar protesters.

On the morning of April 20, 1971, the Vietnam Veterans Against the War conducted one of the most emotional protests ever staged in the nation’s capital. Some four-to-five-hundred veterans broke camp on the Mall and proceeded to the Capitol. Out of concern that the protest would turn violent, the Capitol police had sealed off the Capitol grounds during the night, padlocking the iron gates at each entryway. In defiant rejection of the nation’s Vietnam policy, veterans who had been decorated for valor in combat, many of them amputees or in wheelchairs, tears streaming down their faces, hurled their medals over the padlocked gates.

The men then moved across the street to the Supreme Court, which was in session. The day before, at the Justice Department’s request, the chief justice had signed an order evicting the veterans from their camp on the Mall, and the full Court was scheduled to hear an appeal of that order. Several veterans managed to gain admission to the Court chamber before the start of the oral argument. A scuffle with Court police ensued when one of the men rose to his feet, his clenched fist thrust in the air, and shouted, “Remember the Vets!” He was forcibly ejected from the courtroom.

That evening the Court issued a short ruling that unanimously upheld the chief justice’s order. Douglas was forced to recuse himself in the matter because the lawyer for the veterans, former attorney general Ramsey Clark, also represented Douglas in impeachment proceedings, later dropped, that had been initiated by conservative Republican congressman Gerald Ford of Michigan.

The next morning, April 21, some 150 to 200 veterans returned to the Court, this time demanding that the justices take up the question of the war’s constitutionality. Fearing violence or disruption, Burger for the first time in the Court’s history ordered the building closed to the public. He told the Court police to remove the veterans from the premises, which they did with the help of the District of Columbia riot police, who moved in and arrested the demonstrators.

Marshall was deeply troubled. He had voted along with the others to uphold the chief’s eviction of the veterans from the Mall. But now things had gone too far, and his conscience bothered him. The veterans were being hauled off to jail for what amounted to no more than a peaceful protest against the war. They were being incarcerated not for what they had actually done but for suspicions about what they might do.

It seemed to Marshall that Burger had brought with him a Nixonian paranoia about protest and dissent. The chief traveled incognito, and it was common knowledge that his chauffeur carried a gun. Burger himself had recently answered a reporter’s knock on his door at home with a pistol drawn. He was, like Nixon, disdainful of the press generally and had promised to fire immediately any law clerk seen with a reporter.

What Marshall did not know was that the chief’s paranoia had spread throughout the building, supplanting the amiable if sterile gentility that characterized relationships among the staff at the Court. Earlier in April, for example, Burger’s newly appointed head of building security, Paul Taggert, had called one of the pages, Mark Albertson, into his office for questioning about a brown substance that had stained a tabletop in the page room. The pages had, over the years, acquired a reputation as pranksters and smart alecks around the Court. But now Taggert was accusing Albertson of something more serious: defecating on government property as some weird form of protest. When Albertson asked why he was a suspect, Taggart responded that secret dossiers were kept on all the pages and that the security people knew that Albertson’s father, a professor of history at the University of Massachusetts, had leftist, antiwar leanings. The substance on the table proved to be varnish remover, spilled by a maintenance crew.

Fearing that the Court was being manipulated by Nixon and the Justice Department to suppress antiwar activism, Marshall sat down on the evening of April 21 and composed a blistering memorandum to the other justices, castigating the chief without mentioning him by name. There was, he asserted, no legitimate basis for the veterans’ arrests. He claimed that the tactics employed against the demonstrators were unconstitutional and brought disgrace to the Court as an institution. He insinuated that the veterans had ample grounds for challenging the arrests in court and wondered how the Court would feel if called upon to rule on its own improper conduct.

Subsequently, charges against the veterans were dismissed in the U.S. District Court for the District of Columbia. “Inconvenience alone,” the district court judge held, “does not warrant a criminal prosecution.” The government did not appeal the ruling, so the Court was never called upon to sit in judgment of its own behavior.

Douglas’s contention that the government had lied to the American people about Vietnam was proved correct just two months later. In June 1971 the New York Times and the Washington Post began publishing excerpts from the Pentagon Papers, a forty-three-volume history of America’s Vietnam involvement commissioned by former secretary of defense Robert S. McNamara. The documents, which were classified top secret, were provided to the newspapers by Daniel Ellsberg, a former employee of the Rand Corporation, who had participated in the study.

Citing national security concerns, the Justice Department obtained court orders halting publication. On June 24, 1971, the Supreme Court heard the newspapers’ challenges to those injunctions. The case was framed as New York Times Co. v. United States. Just six days later, on June 30, the Court issued a per curiam order overturning the injunctions and affirming the newspapers’ right to print. The decision was six to three, with Burger, Harlan, and Blackmun dissenting.

Most memorable for its soaring eloquence was Black’s concurrence in the final result: “Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In revealing the workings of the government that led to the Vietnam War,” he continued, “the newspapers did precisely that which the Founders hoped and trusted they would do.”

Marshall also wrote a separate opinion, concurring in the result but taking a narrower tack. He argued that Congress had given the president power to criminally prosecute acts of espionage but not to stop newspapers from publishing the kind of information contained in the Pentagon Papers. He concluded, “When Congress specifically declines to make conduct unlawful it is not for this Court to redecide those issues—to overrule Congress.”

Two years later, the Court would find that it was not yet finished with the Vietnam controversy.

Meanwhile, Marshall had set to work formulating what would be his most significant contribution to constitutional jurisprudence, the idea that courts should strike down governmental actions that have a disproportionately detrimental impact on the poor.

During the 1960s the Court began to recognize certain rights as “fundamental” even though they were not specifically mentioned in the Constitution. For example, the Court ruled that there is a fundamental right to counsel, obliging the government to provide legal representation for indigents in criminal, as well as in some civil, proceedings. The government was also required to provide free trial transcripts to indigents for use in appeals and to waive filing fees for the poor in divorces.

Throughout the 1970s Marshall tried to broaden the number and nature of fundamental rights. He elaborated his views on the fundamental rights of poor people in a decision handed down on April 6, 1970, Dandridge v. Williams.

In Dandridge the Court was asked to decide whether the State of Maryland could put a ceiling on monthly benefits paid to welfare families under the Aid to Families with Dependent Children program, financed jointly by the states and the federal government. Maryland limited the total allowable benefit to $250, regardless of the size of the family or its actual need. Under the scheme, welfare families with fewer children would have proportionately more money for each child; larger families would have less money to go around.

Justice Stewart, writing for the majority, upheld the Maryland plan. The federal courts, he concluded, have “no power to impose upon the States their views of what constitutes wise economic or social policy.”

Marshall vehemently disagreed. He wrote in a dissent joined by Brennan: “This...process effected by the maximum grant regulation produces a basic denial of equal treatment. Persons who are concededly similarly situated (dependent children and their families) are not afforded equal, or even approximately equal, treatment under the maximum grant regulation.”

He went beyond theoretical policy considerations to the actual effect of the Maryland plan. “In theory, no payments are made with respect to needy dependent children in excess of four or five as the case may be,” he wrote in a footnote. “In practice, of course, the excess children share in the benefits that are paid with respect to the other members of the family.” But, he went on, “the result is that support for the entire family is reduced below minimum subsistence levels.”

In other words, some needy children were provided enough money to subsist; others were not. He asserted, “The only distinction between those children with respect to whom assistance is granted and those children who are denied such assistance is the size of the family into which the child permits himself to be born.” There being no rational basis for such a distinction, the Maryland plan violated the equal-protection clause, in Marshall’s view. He insisted, “The State may not, in the provision of important services or the distribution of governmental payments, supply benefits to some individuals while denying them to others who are similarly situated.”

In another footnote Marshall went so far as to imply that there is a constitutional right to subsistence under both the due-process and equal-protection clauses of the Fourteenth Amendment. That being the case, a rational basis, even if one existed, would not constitute sufficient grounds for upholding the Maryland plan.

Marshall maintained that the traditional rational-basis test was adequate for judging the legitimacy of distinctions made among businesses or business interests. But he argued that to determine whether a law unfairly discriminates against a class of individuals, the Court should apply a heightened scrutiny, something tougher to satisfy than the mere rational-basis test. He asserted, “If the classification [of a group of persons] affects a ‘fundamental right,’ then the state interest in perpetuating the classification must be ‘compelling’ in order to be sustained.” To apply this heightened scrutiny, he explained, “concentration must be placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.”

Applying this rationale in Dandridge, he concluded, “The basis of that discrimination—the classification of individuals into large and small families—is too arbitrary and...the impact on those discriminated against—the denial of even a subsistence existence—too great and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution.”

In a later case, Wyman v. James, decided on January 12,1971, he dissented from the Court’s six-to-three ruling that a state may cut off a welfare recipient’s benefits for refusing to allow home visitations by a welfare case worker without a search warrant. Joined by Brennan, he wrote, “This Court has occasionally pushed beyond established constitutional contours to protect the vulnerable and to further basic human values. I find no little irony in the fact that the burden of today’s departure from principled adjudication is placed upon the lowly poor.” He concluded, “Perhaps the majority has explained why a commercial warehouse deserves more protection than does this poor woman’s home. I am not convinced; and, therefore, I must respectfully dissent.”

In James v. Valtierra, decided on April 26,1971, the Court by a five-to-three majority upheld California’s requirement that community consent be obtained by referendum prior to the construction of low-income public housing. Marshall, joined by Brennan and Blackmun, filed a dissent. He complained, “Publicly assisted housing developments designed to accommodate the aged, veterans, state employees, persons of moderate income, or any class of citizens other than the poor, need not be approved by prior referenda.” He declared, “An explicit classification on the basis of property [is] a suspect classification... [and] demands exacting judicial scrutiny.”

Justice William Brennan wrote for the November 1991 edition of the Harvard Law Review that what made Thurgood Marshall unique as a justice was the “special voice he added to the Court’s deliberations and decisions.” Brennan explained, “His was a voice of authority: he spoke from firsthand knowledge of the law’s failure to fulfill its promised protections for so many Americans.” This unique quality was exhibited by Marshall’s graphic dissent in United States v. Kras, decided by the Court on January 10, 1973.

Kras, an indigent, sought to file for bankruptcy but could not afford the fifty dollars in filing fees. Citing an earlier ruling by the Court that relieved indigents of the obligation to pay filing fees in divorce proceedings, Kras sought to have the bankruptcy fees waived. But the Court, by a five-to-four vote, distinguished divorce, which related to marriage and therefore involved a fundamental right, from bankruptcy, reasoning that there is no constitutional right to a discharge of one’s debts. Justice Blackmun, joined by Burger, White, Powell, and Rehnquist, wrote for the majority that paying the fees in installments would cost Kras only $1.28 per week, which “should be within his able-bodied reach.”

Marshall was livid. “It may be easy for some people to think that weekly savings of less than $2 are no burden,” he wrote. “But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are.”

He went on, “A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future.”

He continued, “A pack of cigarettes may be, for them, a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have—like attempting to provide some comforts for a gravely ill child, as Kras must do.”

His conclusion was biting. “It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.”

If anything exceeded his sensitivity to the way poor people live, it was his concern over the way so many of them died. No legal issue was more important to Thurgood Marshall than capital punishment, which the Burger Court addressed directly during the 1971-72 term.

Eleven

Compassion in Time of Crisis

My wife Cissy is after me and thinks we should string ‘em all up.
—Thurgood Marshall

Throughout his twenty-four-year tenure on the Supreme Court, Thurgood Marshall remained adamantly opposed to capital punishment. The Eighth Amendment to the U.S. Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Marshall’s view, capital punishment was unconstitutional because it violated the Eighth Amendment’s strictures. He considered the death penalty excessive, cruel, and unusual.

He regarded the death sentence as “excessive” because it did not deter the crimes it was intended to punish. He cited the hanging of pickpockets in seventeenth-century England to support his point. He once observed, “While spectators were looking up at the hangings, they had their pockets picked.”

Besides, most murders resulted from family squabbles or were committed in the blind heat of passion without regard for, or consideration of, legal consequences. He told his law clerks, “Hell, if the death penalty was a deterrent, there never would have been a second execution after the first one.”

He thought capital punishment was “cruel” because if the death sentence did not deter criminal conduct, the motivation for its imposition had to be something else. And what other motive existed than the desire to wreak vengeance and retribution? He considered these impulses abhorrent, wanton, morally repugnant—in a word, cruel, and therefore disallowed under the Eighth Amendment.

The Constitution itself contemplates death as a criminal sanction. The Fifth Amendment extends to those accused of capital crimes a special modicum of procedural protection by providing, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” But in 1792, at the Eight Amendment’s inception, branding, butchering of ears, and flogging were also sanctioned. Marshall argued society’s values and mores had changed.

“A penalty that was permissible at one period in our nation’s history is not necessarily permissible today,” he maintained. He frequently cited former chief justice Earl Warren’s 1958 opinion in Trop v. Dulles that the Eighth Amendment was not “static” but changed with “evolving standards of decency that mark the progress of a maturing society.” He noted that since the end of World War II, Canada and the Western European democracies had carried out fewer and fewer executions.

Marshall found the death sentence “unusual” because, in the dictionary sense of the word, it was imposed haphazardly, arbitrarily, freakishly. A man convicted of rape in Nebraska might be sentenced to prison. A man convicted of the same crime, under similar circumstances, might be sentenced to death in Alabama.

He called capital punishment the “ultimate form of discrimination,” contending it was invoked disproportionately against minorities, the poor, and the uneducated. He had stood over the burned and mutilated bodies of black men lynched by angry mobs. He had seen black men convicted of capital offenses by all-white juries in trials that violated constitutional guarantees. And he also knew that in many instances black defendants had been given harsher sentences than white defendants for similar crimes.

In 1951, in Korea and Japan, he successfully defended black soldiers unjustly sentenced to death on false charges of dereliction of duty. He had those sentences reduced or reversed after bringing the facts of each case to the attention of military officials and President Harry S. Truman. Marshall’s firsthand knowledge that America’s criminal and military justice systems were prone to grievous errors and prejudice was alone evidence enough for him to personally oppose capital punishment.

His opposition to the death penalty was also based on an early personal experience. As a young attorney in private practice, he defended an acquaintance charged with robbery and murder. “The reason why I took the case was that it was a classmate of mine in high school,” Marshall explained. He lost, and his client went to the gallows. Marshall had every intention of going to the Maryland penitentiary on Baltimore’s cobblestoned East Eager Street to witness the hanging on Monday, August 8, 1936. He recalls, “When the time of execution came up, I felt so bad about it—that maybe I was responsible—that I decided I was going to go and see the execution.” But he changed his mind.

“A white reporter from the daily Morning Sun newspaper [the Baltimore Sun] was a good friend of mine. And when I told him he said, ‘Now wait a minute. You do whatever you want to do, but I am required to go,’ and he gave the number [of hangings] he had been to, something like a dozen or more.” At that time, state law required the presence of at least one newspaper reporter at executions. Marshall went on, “He told me, ‘I have been to blank number of executions, and I have puked at every one of them. Now, if you feel you want to go, go ahead,’ and I chickened out.” Asked years later if the execution of his classmate precipitated his lifelong opposition to capital punishment, Marshall said, “Well, I don’t know whether that...well, it did. It did because I lost the death penalty case in private practice.”

Furman v. Georgia, argued before the Court on January 17, 1972, presented Marshall the opportunity to convince the other justices that the death penalty was unconstitutional. William Furman had been sentenced to death for killing the father of five children when the victim discovered Furman in his home one morning. Two other cases consolidated into Furman involved the imposition of the death penalty for forcible rape. The common practice among states that had capital punishment was to delegate to juries unfettered discretion to impose the death sentence. The issue before the Court was not capital punishment per se, but whether what was done in the three cases presented in Furman violated the Eighth Amendment.

The composition of the Court changed during the months leading up to the Furman oral argument. On September 17, 1971, Hugo Lafayette Black resigned at the age of eighty-five because of ill health. He died a few days later, on September 25. John Marshall Harlan also stepped down, resigning on September 23, 1971, at the age of seventy-one. He had served sixteen terms on the Court. The oral argument in Furman, originally scheduled for that fall, was postponed until January 1972, pending the appointment of Black’s and Harlan’s replacements.

Nixon contemplated what would be his third and fourth appointments to the Court. As a replacement for Black, Burger recommended to Attorney General John N. Mitchell a sixty-four-year-old southerner, Lewis Powell of Richmond, Virginia, a former president of the American Bar Association. A Phi Beta Kappa graduate of Washington and Lee College, Powell had attended law school at Washington and Lee and done postgraduate work at Harvard. He was considered a political moderate.

To replace Harlan, Nixon chose William H. Rehnquist, then an assistant attorney general and a Goldwater Republican. At the relatively youthful age of forty-seven, Rehnquist could be counted on to influence the Court for years to come with his conservative views.

Powell was confirmed by the Senate on December 6, 1971, by a margin of eighty-nine to one. Rehnquist faced rougher going. His civil rights views were called into question after it was revealed that he had written a memorandum to Justice Robert Jackson recommending that Plessy be upheld while serving as Jackson’s law clerk during the 1951-52 term, when Brown was being considered by the Court. In that memorandum Rehnquist had stated, “I realize that [this] is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed.” As mentioned earlier, Rehnquist claimed later that the memorandum was written to reflect Jackson’s views, not his own.

He survived the ensuing controversy, however, and was confirmed by the Senate on December 10, 1971, by a vote of sixty-eight to twenty-six.

Powell suffered from a mild heart condition and had been advised by his physician to exercise regularly by taking walks. Marshall, overweight and disdainful of physical exertion, had been given the same advice by his doctor. Following Powell’s elevation to the bench, the two would frequently pass each other in the Court’s corridors during their daily constitutionals. As they approached each other from opposite directions, Marshall would sometimes quip, “I’m gainin’ on you.”

During one such meeting, Marshall inquired of the junior justice, “Lewis, do you have your Furman opinion written yet?” Referring to his own opinion, which he had written but not yet circulated to his colleagues, Marshall said, “My wife Cissy is after me and thinks we should string ‘em all up.”

Over the following weeks, Marshall lobbied hard to win Powell’s vote for overturning the death penalty. There was little chance of swaying Rehnquist, who solidly supported capital punishment. In the end, Marshall’s efforts to woo Powell on the issue proved fruitless.

Nevertheless, Marshall managed to muster the majority that he needed. By a five-to-four vote, the Court on June 29, 1972, issued a per curiam order declaring the sentencing procedures used in the Furman cases unconstitutional. Each justice wrote a separate opinion. Douglas, Brennan, Stewart, White, and Marshall concurred in the final judgment. The four Nixon appointees, Burger, Blackmun, Powell, and Rehnquist filed dissents.

The result of the widely varied opinions was a mishmash of conflicting rationales. Only Marshall and Brennan asserted that the death penalty was per se unconstitutional as “cruel and unusual punishment” under the Eighth Amendment. Burger, in dissent, empathized with Marshall’s and Brennan’s view as a matter of personal opinion, but not as a matter of law.

Burger wrote, “If I were possessed of legislative power, I would either join with Mr. Justice Brennan and Mr. Justice Marshall or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment.”

Overall, what emerged under the Court’s ruling was that the sentencing procedures under the existing laws resulted in arbitrary imposition of death sentences. Juries should have been informed clearly of available sentencing alternatives and instructed to take mitigating and aggravating circumstances into consideration in each case.

In dissent, the Nixon appointees argued that jurors in each case had in fact been provided sufficient information to make informed sentencing decisions. The opinions of the four, as expected, reflected Nixon’s staunch law-and-order advocacy at a time when many Americans felt threatened by rising violent crime.

The late constitutional scholar Alexander Bickel said the Court employed “passive virtues” in the Furman decision because it struck down the sentencing procedures while at the same time acknowledging the principle of capital punishment. Bickel referred to the ruling as the “ultimate of legitimization and invalidation.” Furmarn’s effect was to impose an immediate moratorium on the pending executions of nearly six hundred condemned prisoners.

Marshall’s sixty-page concurrence in the Furman result was a masterly product of exhaustive, painstaking research. He wrote most of it himself, trusting little of it to his clerks. Many court observers regard it as the finest opinion he produced during his years on the Court.

He emphasized the irrevocable nature of the death penalty, expressing his fear for the innocent person wrongly convicted. He wrote, “Just as Americans know little about who is executed and why, they are unaware of the potential dangers of executing an innocent man. Our ‘beyond a reasonable doubt’ burden of proof in criminal cases is intended to protect the innocent, but we know it is not foolproof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.”

“Death is irrevocable,” he reminded. “Death, of course, makes rehabilitation impossible; life imprisonment does not. In short, death had always been viewed as the ultimate sanction and it seems perfectly reasonable to continue to view it as such. It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is a deterrent, but whether it is a better deterrent than life imprisonment.”

He wrote, “Statistics show that the deterrent effect of capital punishment is no greater in those communities where executions take place than in other communities.”

He went on, “In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it. And, while police and law enforcement officers are the strongest advocates of capital punishment, the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it.”

Some criminals, he maintained, would prefer death to spending the rest of their lives in prison.

As for using the death penalty to exact retribution, he wrote, “At times a cry is heard that morality requires vengeance to evidence society’s abhorrence of [a criminal] act. But the Eighth Amendment is our insulation from our baser selves.”

He went on, “The ‘cruel and unusual’ language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.”

He presented an array of historical and sociological evidence to argue that punishments are deemed “cruel” if excessive and that when judged by modern-day standards, the death penalty is excessive.

Summing it up, he wrote, “There is no rational basis for concluding that capital punishment is not excessive.”

Marshall offered authoritative documentation to support his assertion that the death penalty was enforced more often against certain classes of people, especially minorities and the poor. He had kept a special notebook in his chambers with the number of death-row prisoners described by race, sex, and national origin, regularly updated by his law clerks.

“Regarding discrimination,” he wrote, “it has been said that ‘[i]t is usually the poor, the illiterate, the underprivileged, the member of the minority group—the man who, because he is without means, and is defended by a court-appointed attorney—who becomes society’s sacrificial lamb....’ Indeed, a look at the bare statistics regarding executions is enough to betray much of the discrimination. A total of 3,859 persons have been executed since 1930, of whom 1,751 were white and 2,066 were Negro. Of the executions 3,334 were for murder; 1,664 of the executed were white and 1,630 were Negro; 455 persons, including 48 whites and 405 Negroes, were executed for rape. It is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population.”

Moreover, he did not believe that race and economic or social standing were the only criteria for the inequitable imposition of the death penalty. Sex was also a factor. “There is also overwhelming evidence that the death penalty is employed against men and not women,” he wrote. “Only 32 women have been executed since 1930, while 3,827 men have met a similar fate. It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes.”

He pointed out in a footnote, “Men kill between four and five times more frequently than women....Hence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however.”

He agreed that “the criminal acts with which we are confronted are ugly, vicious, reprehensible acts. Their sheer brutality cannot and should not be minimized.”

Nevertheless, he went on, “at a time in our history when the streets of the nation’s cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. The measure of a country’s greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition or revering justice and fair treatment for all its citizens in time of turmoil, confusion and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.”

Associate Justice William Brennan Jr. summarized Marshall’s view of the death penalty for the November 1991 edition of the Harvard Law Review. “Thurgood and I, of course, were alone on the Court in believing that capital punishment was in all cases barred as “cruel and unusual punishment” under the Eighth Amendment. Justice Marshall canvassed a vast array of historical and social science materials to demonstrate that punishments are deemed ‘cruel’ if excessive and that when judged by any acceptable theory of punishment, the death penalty is excessive.”

Brennan continued, “Justice Marshall held to that view...He never became complacent in his opposition, rather...he challenged the majority view on its own terms by arguing that there were insufficient safeguards to ensure the ‘reliability’ of capital sentencing, safeguards that several other justices found constitutionally necessary.”

Death-penalty opponents had hoped the Furman decision would mean the end of capital punishment. Fourteen states and the District of Columbia abolished their death penalty laws. But thirty-five others revised their capital punishment statutes in an effort to satisfy the procedural guidelines laid down in Furman.

Marshall was disheartened by the new legislation. He conceded that the swift passage of revised laws put in doubt his long-held assumption that capital punishment was “morally unacceptable to the people of the United States at this time in their history,” though he maintained that “if they knew its history and application, they would oppose it.”

Far from laying the capital punishment question to rest, Furman rekindled the debate. The Court would be forced to reconsider the issue four years later.

Meanwhile, the Court was forced to revisit another matter: the Vietnam War.

On July 1, 1973, Congress cut off funding for the war in Southeast Asia by declaring that “on or after August 15, 1973, no funds...may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” New York congresswoman Elizabeth Holtzman, joined by several air force officers serving in Asia, immediately filed suit in U.S. district court in New York, seeking an injunction to halt further U.S. air operations over Cambodia at once, ahead of the August 15 deadline.

President Nixon had announced on April 30, 1970, that the Cambodia raids were being conducted “to clean out major enemy sanctuaries on the Cambodia-Vietnam border.” Subsequently evidence surfaced indicating that the raids had actually begun some time before the president’s announcement. In any event, American ground forces had been withdrawn from Cambodia in June 1970, as required by the so-called Fulbright Proviso, enacted by Congress.

The district court judge ordered the bombing halted but stayed, or delayed, implementation of the order until July 27, 1973, to give the U.S. Court of Appeals for the Second Circuit time to hear an appeal. The Second Circuit appeals court extended the delay of the bombing halt and scheduled a hearing on the matter for August 13, 1973—two days before the congressional action would take effect, stopping the bombing, anyway.

Under federal law, each justice of the Supreme Court is designated to sit as a circuit justice, hearing appeals of circuit court rulings when the Supreme Court is not in session. Marshall was assigned to hear appeals of Second Circuit rulings during the Court’s 1973 summer recess.

Holtzman and the air force officers appealed directly to Marshall to vacate, or void, the stay and allow the bombing halt to take effect immediately. They claimed that America’s Vietnam involvement was unconstitutional because it had been entered into without a formal declaration of war by Congress, required under Article I, section 8, of the Constitution.

On August 1, 1973, Marshall issued his opinion in the case, framed as Holtzman v. Schlesinger. He had never given Douglas the fourth vote needed in conference to bring the question of the war’s constitutionality before the Court, but over the years his views on the war had somewhat softened. He wrote in Holtzman, “When the final history of the Cambodian war is written, it is unlikely to make pleasant reading.”

Quoting Hugo Black’s eloquent concurrence in the Pentagon Papers case, he went on, “The decision to send American troops ‘to distant lands to die of foreign fevers and foreign shot and shell’...may ultimately be adjudged to have been not only unwise but also unlawful.”

Nevertheless, he refused to order an immediate bombing halt. “[I]f the decision were mine alone,” he explained, “I might well conclude on the merits that continued American military operations in Cambodia are unconstitutional, and its decisions reflect the views of a majority of the sitting Justices.”

He went on, “It follows that when I sit in my capacity as a Circuit Justice, I act not for myself alone but as a surrogate for the entire Court, from whence my ultimate authority in these matters derives. A Circuit Justice therefore bears a heavy responsibility to conscientiously reflect the views of his Brethren as best he perceives them...and this responsibility is particularly pressing when, as now, the Court is not in session.”

Ordinarily, when a motion is denied by a circuit justice, it can be appealed to the full conference when the justices are in town, or a special conference can be called. When a full conference cannot be called, an appeal can be taken to another circuit justice. On August 2, Holtzman and the air force officers appealed Marshall’s ruling to Douglas in his capacity as circuit justice for the Ninth Circuit.

Douglas, vacationing at his Goose Prairie, Washington, retreat, held a hearing on the matter in the federal courthouse at Yakima on August 3. Later that day, he reversed Marshall and ordered the bombing halted immediately.

Douglas applied a rationale designed to exploit Marshall’s sensitivity over the death penalty. “The classic capital case,” he wrote, “is whether Mr. Lew, Mr. Low, or Mr. Lucas should die. The present case involves whether Mr. X (an unknown person or persons) should die.”

He continued, “No one knows who they are. They may be Cambodian farmers whose only ‘sin’ is a desire for socialized medicine to alleviate the suffering of their families and neighbors. Or Mr. X may be the American pilot or navigator who drops a ton of bombs on a Cambodian village. The upshot is that we know that someone is about to die.”

He went on, “When a stay in a capital case is before us, we do not rule on guilt or innocence. If there is doubt whether due process had been followed in the procedures, the stay is granted because death is irrevocable.”

Under the Fifth Amendment to the U.S. Constitution, “life, liberty, or property” cannot be taken “without due process” of law. Douglas concluded that due process had not been followed because war had not been declared by Congress.

Douglas assumed his order would stop the bombing until the full conference of justices convened in October. But back in Washington, D.C., Marshall acted. He contacted the other justices by telephone. Then, on August 4, claiming that the other seven justices agreed with him, he issued an order delaying the bombing halt as if he had never seen or heard of Douglas’s Yakima order. The effect was that the bombing proceeded. Not a single scheduled mission was abandoned or delayed.

Douglas dictated a scathing dissent from Goose Prairie. “If we who impose law and order are ourselves to be bound by law and order, we can act as a Court only when at least six of us are present. Seriatim telephone calls,” he contended, “cannot, with all respect, be a lawful substitute.”

He complained, “Those of the Brethren out of Washington, D.C., on August 4, 1973, could not possibly have studied my opinion in this case. For, although I wrote it late on August 3, it was not released until 9:30 A.M. on August 4; and before 3:00 P.M., August 4, I was advised by telephone that eight Members of the Court disagreed with me.”

Declaring that Marshall’s was “not a lawful order,” he invoked divine providence, asserting, “Under the law as it is written, the order of Mr. Justice Marshall of August 4, 1973, will in time be reversed by that Higher Court which invariably sits in judgment on the decisions of this Court.”

Summarizing the episode in his autobiography, The Court Years (1939-1975), Douglas wrote that the action taken by Marshall was “lawless. I hesitate to say this,” he wrote, “but I believe that some Nixon men put the pressure on Marshall to cut corners. Sad to say, he did so and thus emulated the ‘law and order’ men during the Watergate period.”

Privately he began referring to Marshall, his liberal ally in so many other matters that came before the Court, as “spaghetti spine.” Marshall, for his part, found Douglas’s self-righteousness annoying. In Marshall’s eyes, Douglas was guilty of a cardinal sin: He took himself too seriously.

Marshall had his disagreements with fellow brethren, but generally speaking, he regarded the Court as exactly what he had called it in Holtzman, a “collegial institution.” In actuality, he was close to no one personally except Brennan, the jovial, diminutive, twinkle-eyed Irishman from New Jersey. Brennan, like Earl Warren, had disappointed Ike, the Republican president who appointed him, with his liberal social views. Marshall was friendly with Potter Stewart, too, and the two men chatted incessantly in chambers and in the halls on the way to or from conferences and oral arguments. He even liked Rehnquist, commenting once, “I don’t agree with him on much, but he’s a great guy.”

But Douglas insisted on being different, on holding himself away from and above the others socially, politically, and intellectually. Without question, he was a legend, a giant, and since Black’s death, the lone giant on the Court. He strode the halls like a brooding colossus, his gait stiff and erect from the polio he suffered as a child, absorbed in thought, projecting an impenetrable aura. One could stand next to Douglas at an elevator and feel as though Douglas were the only person standing there in the hall.

On the bench, he was a grab bag of ticks and quirks. Sometimes he flapped the back of his right ear with his hand like a cocker spaniel scratching fleas. Or, suddenly, he would rub the side of his face vigorously with his palm, as if his face were an appendage that had fallen asleep. He wrote almost thirty books during his career, on subjects ranging from political dissent to foreign policy, as well as memoirs, plays, and journals of travels across America, Russia, Asia, and the Himalayas. This total did not include the dime-store cowboy novels he penned under an assumed name to pay his way through law school at Columbia University.

He scribbled feverishly during oral arguments, tearing sheet after sheet off his long yellow legal pad and handing them behind him to the pages to take back to his office for typing by his secretaries. He kept the pages scurrying back and forth between the bench, his office, and the library, fetching him books, journals, atlases, everything. Yet somehow he managed never to lose track of the arguments being presented, interrupting with questions here and there, all the while popping cherry-red Luden’s cough drops.

Marshall watched him in fascination. One day he asked a page what flavor cough drops Douglas liked, and he requested that a box of the same kind be placed in his own drawer on days of oral argument.

He began to mimic another of Douglas’s habits. On Fridays, when the justices met in conference, Douglas had his messenger Harry Datcher bring him a glass of buttermilk for his ulcer at precisely 10:30 A.M. Datcher would arrive outside the conference-room door with the milk and a napkin on a silver tray. A page would knock on the door, and Douglas would emerge, stand just outside the door, and down the buttermilk in one go.

One day, Marshall’s messenger showed up at 10:30 along with Datcher, also with a glass of white liquid on a silver tray. Marshall emerged from the conference room behind Douglas, and the two men stood next to each other, downing their drinks, not saying a word, each imbibing as if the other were not there. The ritual was repeated for several weeks.

The pages knew that buttermilk was in Douglas’s glass— Datcher had told them. But their curiosity had grown about what was in Marshall’s. Noticing their perplexed looks, Marshall one day turned to them and, after Douglas had gone back into the conference room, pointed to his empty glass, then to his rear end, playing a charade. No one got it. Frustrated, he said, “It puts a firecracker up my ass.”

“Aha!” said one of the pages. “A laxative!”

Marshall and Douglas clashed again during the ensuing 1973-74 term, this time over the question of affirmative action. The case, DeFunis v. Odegaard, was brought by a white law school applicant—Marco DeFunis Jr.—his wife, and his parents after DeFunis was denied admission to the University of Washington Law School. His suit was based on the fact that, while he had been rejected, blacks with lower entrance examination scores had been admitted under the school’s affirmative action plan.

The two had feuded over the issue before DeFunis. The Court had considered a similar challenge to affirmative action during the 1971-72 term. In Johnson v. Committee on Examinations, a white law school graduate appealed the denial of his admission to the Arizona state bar. The white applicant had failed to reach the bar examination passing grade of 70 percent on three separate occasions, but blacks who had also received failing grades had been admitted to practice.

President Lyndon Johnson had laid the groundwork for affirmative action policies in a speech to Howard University’s graduating class in 1965. At the time, half of all black teenagers came from broken homes. Johnson asserted that this “breakdown of the Negro family structure,” for which, “most of all, white America must accept responsibility,” had left blacks socially and economically disadvantaged. He compared the situation to a race in which both runners are required to start at the same place, although one has been allowed to train while the other’s legs have been kept in chains.

Affirmative action triggered white resentment from its inception. Beneficence toward blacks was regarded as reverse discrimination by whites who watched jobs and university admissions denied them in favor of less qualified minority applicants.

In conference, Douglas had tried to persuade the justices to hear the Johnson appeal, but none was prepared to address the explosive issue. When Douglas asserted that discrimination against whites was as unconstitutional as discrimination against blacks, Marshall responded, “You guys have been practicing discrimination for years. Now it is our turn.”

The Court agreed to hear oral arguments in DeFunis and did so on February 26, 1974. On April 23, 1974, it handed down a decision that again skirted the issue. Because DeFunis had since been admitted to law school at the University of Washington and was about to complete his three-year course of study, the Court concluded the case was moot and declined to address the central questions raised by it. In dissent, Douglas argued strongly against race-based admissions policies.

Blacks have never had a stronger proponent on the Supreme Court than William Orville Douglas. Hugo Black once wrote of him, “I suspect that [Douglas] must have come into the world with a rush and that his first cry must have been a protest against something he saw at a glance was wrong or unjust.” Growing up in Yakima, Washington, Douglas encountered few blacks but was outraged by prejudice against the Yakima Indians. Throughout his extensive travels as an adult, he was drawn to the problems and concerns of the nonwhite peoples he came across.

In June 1953, before the reargument of Brown, John W. Davis tried to predict which justices could be counted on to uphold segregation. He was unsettled by the publication of a book by Douglas that called for Malaya to integrate its Chinese, Japanese, Australian, English, and Indian schools. In fact, Douglas had voted to overturn segregation when the Court first considered Brown in 1952.

During the 1960s, he became a vocal advocate of black rights both on and off the bench. He believed the riots that followed Martin Luther King Jr.’s death resulted from “a century of neglect, aided and abetted by the Court.”

He continued in The Court Years, “The fault was not that of the ‘uppity Negro’ but the ‘unreconstructed white’—and the latter did not live in the South alone.”

He made his case against the white Establishment on behalf of blacks plain in Points of Rebellion. “Negroes want parity as respects human dignity—parity as respects equal justice and parity in economic opportunities,” he wrote. Then he declared, “Police practices are anti-Negro. Employment practices are anti-Negro. Housing allocation is anti-Negro. Education is anti-Negro.”

But he simply did not believe in affirmative action. In The Court Years, Douglas expressed understanding of the reasoning behind affirmative action, which was that “black people were at such a disadvantage in the educational system in America that they needed some concessions in order to have black lawyers and judges, black dentists and doctors.” Yet he considered it “a wholly un-American practice, quite inconsistent with equal protection” because, in his view, it promoted aristocracy. He referred to it “not as an aristocracy of race, but an aristocracy of talent, the best talents being recognized in all minority groups and each entitled to take his or her place at the top.”

His point was that affirmative action should not be used to reserve places in the professional classes for certain people just because of their race—for example, the sons and daughters of minority members who through their own struggles had already gained access to the middle or upper class. Rather, it should be used to accommodate entry into the social and economic mainstream for individuals whose talents would otherwise go neglected or unnoticed because of their underprivileged backgrounds, irrespective of their color.

He explained his thinking in his DeFunis dissent. He wrote, “A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him.”

He continued, “Because of the weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career his achievements may far outstrip those of his classmates whose earlier records appeared superior by conventional criteria.”

He went on, “There is currently no test available to the Admissions Committee that can predict such possibilities with assurance, but the Committee may nevertheless seek to gauge it as best it can, and weigh this factor in its decisions. Such a policy would not be limited to blacks, or Chicanos or Filipinos, or American Indians, although undoubtedly groups such as these may in practice be the principal beneficiaries of it. But a poor Appalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the Committee.”

He concluded, “The difference between such a policy and the one presented by this case is that the Committee would be making decisions on the basis of individual attributes, rather than according a preference solely on the basis of race.”

In The Court Years, he expressed the view that racial preferences can work to the ultimate detriment of the minorities they are intended to benefit. He stated, “I feel that if blacks or any other minority are poorly prepared for the legal profession but are nevertheless admitted, the situation of the minorities will worsen.”

He used the following hypothetical to make his point: “Many law schools admit blacks even though their credentials are not up to par, and this leads to the following tragedy: the black student graduates, enters the job market and is hired, perhaps as a law clerk. It is soon apparent, in these instances, that he cannot research a problem, or prepare a relevant memo, or draft a contract or a will. Years pass and he goes from one law firm to another and finally ends up in the street—a wholly discredited professional person. This has a more deadly, killing impact than if he had been turned down at the entrance of the law school because he possessed inadequate credentials. Having reached the top and entered the market, he is told in no uncertain terms that the society that needs lawyers has no place for him.”

He asserted that Marshall was appointed to the Court “simply because he was black,” although he conceded that “in the 1960’s that was reason enough,” owing to the paucity of black lawyers and jurists.

He explained, “At that time, few black people studied law, and those who did seldom reached the top. Marshall attained the pinnacle for conspicuous service in civil rights—not civil rights generally, but civil rights in the field of race. The public needed a competent black on the Court for symbolic reasons; none was needed to put the Court right on racial problems. Where would a black judge stand on mergers, on Sherman Act cases, on ‘Communists’ in defense plants or schools, on public aid to parochial schools, on civilian control over the military, on the right of the police to search without a warrant, on whether being an ‘active Communist’ can be made a crime? No one knows the answer.”

His point was that the appointment of a black because of his color did not, of itself, guarantee that the interests of the poor, the suppressed, or the politically unpopular would be adequately expressed or represented. “Being a black was no clue,” he explained, “for blacks, like Jews, Germans, English and others, can be reactionary.”

Alluding to Marshall’s Vietnam stance, he added, “Moreover, a black reaching the top was likely to be anxious to prove to society that he was safe and conservative and reliable. That at least had been the history of most black appointees to judicial posts.”

And yet nothing exemplified the barriers to the entry of minorities and women into America’s upper echelons more than the Court itself. At the time the Court first began its consideration of affirmative action in the early 1970s, there were no black law clerks, and only one law clerk was female, a white woman from Georgetown Law School, hired by Marshall. The law clerks were selected from among the top students at the nation’s most prestigious law schools and usually worked as editors of their schools’ law reviews.

In fact, throughout the entire history of the Court up to that time, there had been only one black law clerk, William Coleman, who had clerked for Frankfurter after finishing Harvard Law School. As an associate of Marshall’s during the 1950s, he had participated in the Brown litigation. He went on to become secretary of transportation in the Nixon administration.

In addition, none of the justices had a black secretary, considered the prestige administrative/clerical position. Among the Court police, there were no blacks above the rank of sergeant. At the same time, all the justices’ messengers were black. The messengers were more or less personal valets who performed menial tasks, such as serving lunch or tea, driving justices to and from home, and running personal errands. Also, most of the Court’s maintenance personnel, the janitors, were black, but their supervisors were white.

While he was chief justice, Earl Warren had imposed at least one affirmative action policy at the Court. Of the four pages, he decreed, two were to be black. There was no lowering of the academic standards for eligibility, just a guideline, a quota, for selecting among those equally qualified.

The pages were chosen from schools located in Washington, D.C., which was about 90 percent black during the early 1970s. It was a prestigious appointment, carrying with it the imprimatur of the Court. Tenure as a Court page usually opened doors to the top technical or Ivy League universities, especially when a page’s application was backed up by a recommendation from a justice.

The justices themselves, to a man, held individual academic achievement in the highest esteem. In the fall of 1971, when Douglas learned that one of the black pages, Hunter R. Clark, was applying to Harvard College, he enthusiastically offered to write a recommendation. Chief Justice Burger authorized his secretary to write one as well. When news circulated in the spring of 1972 that Clark had been accepted to Harvard and awarded an academic scholarship, each justice at one time or another called him into his chambers and personally congratulated him.

Burger went further. He took all four pages to lunch at the Federal Bar Association on Pennsylvania Avenue. Afterward, he chatted with Clark privately, offering his advice as to how Clark might one day return to the Court as a law clerk, explaining how the system worked, and emphasizing the importance of getting published or making law review. He encouraged Clark to keep everyone at the Court informed of his progress.

Four years later, on Justice Marshall’s recommendation, Clark was accepted at Harvard Law School.

Douglas’s aversion to affirmative action policies did not alter his steadfast commitment to equal educational opportunity or his opposition to the way the death penalty was applied in this country. Marshall soon found himself allied once again with his old ally on these and other issues, including sex discrimination and abortion, when they came before the Court.

TWELVE

The Rehnquist Court: A Sharp Right Turn

My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man’s brow, I don’t think he had ever seen a black man.
—Antonin Scalia

Sex did not inhibit Thurgood Marshall. He enjoyed it. He laughed about it. And he joked about it. But he was angered by it when it was used as an excuse to deny women their constitutional rights.

Marshall’s African-American background gave him a unique perspective on feminine equality, much as it did about race. He grew up in the black middle class, which has a long tradition of working women. His mother was a schoolteacher, and his grandmother Annie, owner of a small Baltimore grocery store with his grandfather, was an independent entrepreneur.

Also, Marshall’s attitudes were shaped by the forceful black women whose contributions to the civil rights movement he had witnessed. Lillie Jackson, president of the Baltimore NAACP in the 1930s, helped organize an effective boycott of white-owned businesses that refused to hire black clerks. Daisy Bates, president of the Little Rock, Arkansas, chapter of the NAACP during the 1950s, risked her home and personal safety to achieve the successful desegregation of Central High School. Constance Baker Motley, who served on Marshall’s Fund staff, assisted in the preparation of Brown. These were but a few of the women who were prominent in Marshall’s professional life.

Motley, who went on to become senior U.S. district judge for the Southern District of New York, finished law school at Columbia University at a time when few law firms hired women attorneys. She found it difficult to crack the discriminatory job market until Marshall persuaded the NAACP board to hire a woman lawyer for the Fund staff in 1945. She wrote of the personal debt she owed Thurgood in the November 1991 edition of the Harvard Law Review, recalling that, at the time she was hired, “nobody had to tell [Marshall] that African-American males were on the bottom rung of the ladder in every conceivable professional endeavor and that African-American women were not even on the ladder.”

She worked for the Fund until 1965. When the Senate confirmed her nomination to the U.S. district court in 1966, she became the first black woman ever appointed to the federal bench. “If it had not been for Thurgood Marshall,” she wrote, “no one would ever have heard of Constance Baker Motley.”

Marshall had insisted that any classification of individuals by the government should be subjected to heightened, or strict, judicial scrutiny. The government, he felt, should be required to put forward a compelling reason for any classification that resulted in the denial of a right or benefit.

He was unable to persuade the majority that strict scrutiny should be applied to laws or government actions having a disproportionately detrimental impact on the poor—in other words, that poverty should be a suspect classification. Instead, the Court clung to the old rational-basis test for judging actions that affected the poor. But during the 1972-73 term, in Frontiero v. Richardson, he was joined by Douglas, Brennan, Stewart, and White in the view that classifications based on sex were inherently suspect.

Sharron Frontiero was a lieutenant in the U.S. Air Force. Her husband, Joseph Frontiero, was a full-time student at Huntington College in Montgomery, Alabama. Lieutenant Frontiero brought suit against the government when she was denied an increased housing allowance and medical and dental benefits for her husband as a dependent. Male air force officers were granted the benefits under similar circumstances.

In a strongly worded opinion written by Justice Brennan, the majority concluded that the air force was according “dissimilar treatment for men and women who are...similarly situated.” Brennan went on, “There can be no doubt that our nation has had a long and unfortunate history of sex discrimination.”

Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women “not on a pedestal, but in a cage.”

The minority, composed of Powell, Burger, and Blackmun, based its dissent on the fact that the Equal Rights Amendment (ERA) had been submitted to the states for ratification. The three dissenters asserted that the Court should not establish sex as a suspect classification unless or until the ERA’s acceptance.

Frontiero was a turning point, a landmark victory in the struggle for women’s rights. But by far the most controversial women’s rights issue to come before the Court was abortion.

“Jane Roe” claimed she was gang-raped on the way home from work one summer evening in 1969. She said she was pregnant as a result and sought an abortion, but abortions were illegal under the laws of her home state of Texas, except when the life of the mother was at risk.

Roe decided to challenge the Texas abortion law. When the U.S. Supreme Court heard oral arguments in the matter for the first time, on December 13, 1971, the case had become known as Roe v. Wade. The justices requested that the case be reargued during the 1972—73 term. The reargument was held on October 11, 1972.

At the time, no one knew, nor was it really relevant, that Jane Roe’s real name was Norma McCorvey and that no gang rape had taken place. McCorvey simply wanted to terminate an unwanted pregnancy. She had used an alias to protect her privacy. At issue was whether a woman has a constitutional right to abort an unwanted fetus.

At the heart of the abortion debate were two fundamental questions: Is a fetus a person and, if so, what are its rights? Under what circumstances, if any, should abortions be allowed?

Because Blackmun had acquired an expertise in forensic law, the relationship between law and medicine, during his years as general counsel to the Mayo Clinic, Burger assigned him to write the Court majority’s opinion.

Blackmun was a quiet, congenial man with a professorial manner. He wore sweaters instead of suit coats and did most of his work not in his chambers but in the Court’s second-floor library, which reminded him fondly of Langdell Law Library at Harvard, his alma mater. He liked to write with no. 2 pencils that had been shortened. The pages would break new pencils in half, then sharpen them, for his use.

He devoted the better part of a year to researching the subject. He had a keen sensitivity to the issue, since his own daughter had had an abortion, over which she had agonized as the most difficult decision of her life.

Blackmun’s research proved inconclusive as to the first question, “When does life begin?” It seemed that since the beginning of recorded history, from the Hittites in 1300 B.C., to Aristotle’s Greece, to St. Augustine in the fifth century A.D., civilizations had answered the question differently based on their own ethical, theological, medical, and legal considerations.

The Hittite Code, for example, imposed a sliding scale of fines for abortions that increased from the fifth to ninth month of pregnancy. Aristotle believed that abortion should be permitted until a fetus acquires “sense and life,” which he said occurred at the fortieth or ninetieth day of pregnancy for unborn males and females, respectively. St. Augustine regarded any abortion as damnable sin but only considered the abortion of “formed,” as opposed to “unformed,” fetuses murder. In his view, a fetus was formed after six and a half weeks.

At one end of the spectrum of the debate in Roe were those who maintained that life begins at conception. At the other end were those who argued that a fetus does not become a person and acquire legal rights until viable, capable of surviving outside the mother’s womb. Between the two poles were those who spoke of “quickening”—the point at which the fetus begins to move inside the womb—or those who, for whatever reason, designated some number of months after conception. Others defined the moment when life begins in more metaphysical terms, such as “ensoulment,” the acquisition, emergence, or manifestation of a soul.

The second question was equally difficult. Under what circumstances was abortion justified? From antiquity to the present, abortion was generally abjured. As late as the eighteenth century, abortion was punishable under the Napoleonic Code and English common law as murder. The more modern trend, however, was to permit abortions under certain circumstances. In this country at the time of Roe, all but one state, Louisiana, permitted abortions to save the life of the mother. Some states also allowed it in cases of rape or incest.

Interestingly, a poll taken in 1990 showed that 77 percent of all Americans favored abortion, and another poll taken in the same year indicated that an equal percentage of Americans regarded abortion as murder.

Unable to arrive at definitive answers, Blackmun aimed for an acceptable balancing of interests. As he saw it, what was at stake were the interests of the mother, the unborn child, and the state.

For purposes of establishing the legal rights of the interested parties, Blackmun divided pregnancy into three trimesters. In his scheme, during the first trimester, a woman’s right to an abortion, based on a constitutional right of privacy, was absolute. During the second trimester, the state could regulate abortion, but only to protect the woman’s health. By the end of the second trimester, the sixth month of pregnancy, the fetus was considered viable, and the state, in order to promote its interest in protecting unborn life, could proscribe abortion except when necessary to protect the life or health of the mother.

Marshall agreed with Blackmun’s approach and analysis. Along with Burger, Douglas, Brennan, Stewart, and Powell, he joined in the seven-to-two majority decision. White and Rehnquist filed dissenting opinions that would have upheld the Texas statute. The result was considered a watershed victory by women’s rights groups, but it served to fuel, rather than resolve, the abortion debate, which has divided the country.

Three years later, Marshall broke with the Court majority over the question of abortion funding. Roe established a woman’s constitutional right to choose to have an abortion; it said nothing about the government having to pay for it. The pro-life, antiabortion movement therefore focused its energy on limiting the exercise of the abortion right, of a woman’s right to choose, by blocking state and federal funding of abortions.

On January 11, 1977, the Court heard oral arguments in Beal v. Doe, challenging Pennsylvania’s decision to provide Medicaid funds only for therapeutic abortions, meaning abortions certified by a physician to be necessary to protect the life or health of the mother. Health benefits provided under the Medicaid program are paid for jointly by the states and federal government.

On June 20, 1977, the Court upheld the Pennsylvania restriction, six to three. Writing for the majority, Justice Powell concluded that the state’s interest in encouraging normal childbirth permitted the restriction. Marshall dissented. He was joined by Blackmun, Roe’s author. Brennan filed a separate dissenting opinion.

The tone of Marshall’s dissent reflected his deeply held view that the Court should strike down government regulations that had a disproportionate impact on the poor. Clearly, poor women, singled out as a group, were disadvantaged by the Court’s ruling. Women of means could afford to pay for their own abortions.

Also, Marshall looked beyond the impact on women to the effect the Beal decision would have on the children of the poor, born into the world unwanted by both their mothers and society at large. “The enactments challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives,” he wrote. “I am appalled at the ethical bankruptcy of those who preach a ‘right to life’ that means, under present social policies, a bare existence in utter misery for so many poor women and their children.”

He accused the majority of pulling “from thin air a distinction between laws that absolutely prevent exercise of the fundamental right to abortion and those that ‘merely’ make its exercise difficult for some people.” He pointed out that while an abortion performed during the first trimester was, at the time, a relatively inexpensive procedure, costing around $200, “even this modest sum is beyond the means of most Medicaid recipients. He added in a footnote, “If one does not have it and is unable to get it the fee might as well be one hundred times as great.”

In the wake of Beal, Congress adopted the “Hyde Amendment,” prohibiting the use of federal funds to pay for Medicaid abortions, in August 1977. In addition, thirty-seven states adopted laws similar to Pennsylvania’s, permitting state Medicaid funds to be used only for abortions needed to save the life of the mother or in the cases of incest, rape, or fetal deformity.

Meanwhile, as the Court moved to limit the exercise of the abortion right, it also set limits on the methods employed by federal judges to eradicate dual school systems. On February 27, 1974, the Court heard oral arguments in Milliken v. Bradley, in which the State of Michigan asked the justices to overturn a U.S. district court order requiring the busing of schoolchildren between Detroit and its surrounding suburbs to achieve racial balance.

The district court judge determined that, over the years, Detroit school officials had adopted policies designed to effectuate de jure racial segregation, meaning segregation brought about by law or official government action. There was no evidence that suburban school officials had done the same, but residential housing patterns had produced suburban schools that were virtually all white, while Detroit’s schools remained overwhelmingly black— in other words, de facto segregation. Seeing no alternative means of eliminating the dual school systems, the judge ordered cross-district busing between Detroit and fifty-three of eighty-five surrounding suburban school districts.

For the majority of the Court, the order went too far. It would have involved busing as many as 779,000 schoolchildren, 503,000 from the suburbs and 276,000 from Detroit.

In addition, the five-to-four majority opinion, written by Chief Justice Burger and delivered on July 25, 1974, held that the district court judge had read the Court’s ruling in the North Carolina case, Swann v. Charlotte-Mecklenberg, incorrectly. Swann, according to Burger, required desegregation, not a particular racial balance.

Furthermore, the majority rejected the idea of holding suburban school districts responsible for the actions of Detroit officials who had fashioned the city’s segregated school system. There was no evidence of wrongdoing by the suburbs, so they should not have been involved in a Detroit remedy.

Marshall, Douglas, Brennan, and White dissented. To Douglas, the distinction between de jure and de facto was a chimera. He saw it was a threat to desegregation in the North, where there was rarely a history of state-imposed segregation but where segregation nonetheless flourished as the result of economic circumstances and more insidious government actions, such as discriminatory zoning, restrictive racial covenants, and racial steering in residential housing sales. He preferred doing away with the distinction altogether.

“It is inconceivable that ghettos develop on their own without any hint of state action,” he wrote. “The issue is not whether there should be racial balance, but whether the state’s use of various devices that end up with black schools and white schools brought the Equal Protection Clause into effect.”

Marshall accused the Court of wavering in its overall commitment to integration in the face of unavoidable complexities and public opposition. “Desegregation is not and was never expected to be an easy task,” he chided. “Racial attitudes ingrained in our Nation’s childhood and adolescence are not quickly thrown aside in its middle years.”

He continued, “But just as the inconvenience of some cannot be allowed to stand in the way of the right of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case.”

He went on, “Today’s holding, I fear, is more a reflection of perceived public mood that we have gone far enough in enforcing the Constitution’s guarantee of equal justice than it is the product of neutral principles of law.”

He concluded, “In the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities—one white, the other black—but it is a course, I predict, our people will ultimately regret.”

To critics of the decision, Milliken represented the high-water mark of the Court’s school desegregation efforts. It sent an ominous signal that the Court, now controlled by a solid conservative majority, might even go so far as to retreat from Brown.

Both this concern and the trepidation that the Court’s decision in Beal raised within the women’s rights movement were deepened the following year by the resignation of William O. Douglas.

At around 7:30 P.M. on New Year’s Eve, 1974, Douglas suffered a massive stroke in his hotel room in Nassau, the Bahamas, where he was vacationing with his wife, Cathy. He was seventy-six years old. A few hours later, he was flown back to Washington, D.C., on a military aircraft graciously dispatched by Gerald Ford, his old nemesis, who, as a Michigan congressman, had tried unsuccessfully to have him impeached in the early 1970s. Ford had ascended to the presidency, replacing Richard Nixon, who resigned in disgrace on August 9, 1974, in the aftermath of the Watergate scandal.

At first, Douglas’s recuperation at Walter Reed Army Hospital proceeded fairly well, though he had lost the use of his left arm and leg and was confined to a wheelchair. He was present for oral arguments at the beginning of the Court’s 1975-76 term in the fall of 1975. But his condition deteriorated, and it became clear that he would be unable to continue on the Court. He resigned on November 18, 1975, having served thirty-six and a half years, longer than any other justice.

In farewell, he penned a free-verse poem entitled “Keep the Faith” to the Court’s staff:

Keep the faith in the rule of law not only for our own people but for the people of the world.
Keep the faith in a unity of mankind irrespective of race, intellect, color, religion, or ideology.
Keep the faith in the informed citizenry who can govern wisely and justly.
Keep the faith in the system that allows a place for every man no matter how lowly or how great.
Keep the faith in a system which does not leave every issue of human rights to the ups and downs of the political campaigns.

His departure provided a Republican president with the opportunity to appoint yet another conservative justice. Ford nominated John Paul Stevens, a judge on the U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin), as Douglas’s replacement. Considered somewhat moderate, Stevens, a native of Chicago, had finished first in his class at Northwestern University Law School and afterward had clerked for Supreme Court justice Wiley Rutledge from 1947 to 1949. During his time as Rutledge’s clerk, he met Douglas, whom he greatly admired. At the time of Stevens’s appointment by Rutledge, Douglas had already been on the Court for eight years.

Stevens subsequently went into private practice, specializing in antitrust law. He made his mark in 1969, serving as general counsel to a commission investigating judicial corruption in Illinois. The investigation forced the resignations of two Illinois State Court judges.

Nixon appointed him to the Seventh Circuit court of appeals in 1970, as a favor to Illinois senator Charles Percy. On the bench, Stevens earned a reputation for thoroughness. Ford was attracted to his conservative midwestern outlook and his reputation as a hard worker. He also hoped that Stevens’s relative anonymity would make the nomination noncontroversial. He was right. Although women’s groups complained that the time was right for the first appointment of a female to the High Court, Stevens won unanimous Senate approval in December 1975.

The two had feuded, but Marshall rued Douglas’s departure. Now he found himself aligned with Brennan against an overwhelming conservative majority composed of Burger, Stewart, White, Blackmun, Powell, Rehnquist, and Stevens. He could rely on Blackmun to vote to uphold abortion, and both Stewart and White sometimes joined the liberals. But he could foresee no set of circumstances in which he would be guaranteed a five-to-four majority.

Moreover, Douglas’s retirement could not have come at a worse time, for the Court was about to reconsider the issue Marshall held closest to his heart: capital punishment. On March 31, 1976, the Court heard oral arguments in Gregg v. Georgia, a consolidation of cases from states that had revised their sentencing procedures to satisfy the guidelines established in Furman.

The Court was asked to decide if the revisions the states had made in their sentencing codes after the 1972 Furman decision were constitutional. Since Furman, fifteen states had rewritten their sentencing guidelines to require juries to consider mitigating and aggravating circumstances, and twenty had revised their codes to provide for mandatory death sentences for certain crimes, such as murder for hire or killing a correctional officer.

In January 1976, the justices agreed in conference to review fifty petitions. Burger wanted to review only cases involving the most heinous crimes, one of them a razor mutilation, but he did not have the three other votes needed to limit review. Agreement was reached, however, to hear only homicide convictions.

The conference decided to review one case from each of five states. The Georgia case, Gregg v. Georgia, was the appeal of Troy Leon Gregg, sentenced to die for the robbery and murder of two men. None of the cases to be reviewed involved the question of racial prejudice or other collateral concerns.

Marshall and Brennan were disturbed by this approach. Marshall had successfully raised the racial question in the Furman case and believed it was still a crucial factor for consideration in the cases now before the Court. But this time he failed to get enough votes in conference to have the race of the defendants taken into consideration.

The cases came from Georgia, Florida, North Carolina, Texas, and Louisiana. Georgia required a jury to review aggravating circumstances before imposing capital punishment, and the sentence had to be approved by the state supreme court.

Florida initiated separate sentencing trials after conviction of first-degree murder so a jury could consider aggravating and mitigating circumstances. This allowed a jury’s sentence to be overturned by the trial judge or by Florida’s supreme court.

North Carolina invoked a mandatory death penalty for all premeditated murders, or murders committed in the commission of a felony, to meet the objection that death sentences were often arbitrarily imposed.

Texas imposed the death penalty only in certain kinds of murders—contract killings, the murder of a prison employee, or deliberate and unprovoked murders—or where there was a belief that a defendant would kill again. This, too, was done to meet the concern raised in Furman that death sentences were often meted out arbitrarily.

Louisiana sanctioned a mandatory death penalty for all first-degree murder convictions but allowed juries to consider lesser sentences for second-degree murder or manslaughter. Lawyers for Louisiana believed this revision satisfied Furman’s requirement that juries be informed of available alternative sentences.

The Court’s deliberations took a bizarre turn when Douglas, from his retirement chambers, insisted on being present at the oral arguments and participating as a “tenth justice.” Eventually he was persuaded that there was no legal provision for him to take part in the Court’s proceedings.

On July 2, 1976, the court delivered a lengthy, splintered ruling, with Justice Potter Stewart speaking for the majority. The upshot of the decision was that, by a seven-to-two vote, the Court held the death penalty did not constitute “cruel and unusual” punishment under the Eighth Amendment. In ruling on the constitutionality of the revised criminal codes passed by the five states, the majority pointed to Georgia’s as a model statutory scheme, although Burger, White, and Rehnquist voted to uphold all five new laws. Marshall and Brennan were alone in dissent, maintaining that capital punishment was per se cruel and unusual.

What especially angered Marshall was the assertion by several members of the Gregg majority that retribution was an acceptable reason for imposing the death sentence because it discouraged lynchings and other acts of vengeance. He wrote in his dissent, “It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.”

As the result of the Court’s ruling in Gregg, states were free to resume executions of the nation’s seven hundred death-row prisoners. Executions in fact resumed on January 17, 1977, when Gary Gilmore, thirty-six, convicted of murder during a robbery, was shot to death by a Utah firing squad.

Courtroom observers said Marshall was visibly shaken as the decision in Gregg was read. He left the Court early that day. Later that night, six days away from his sixty-eighth birthday, he suffered a mild heart attack.

Heart attacks change people’s lives. Cancers can be surgically removed, or treated with chemotherapy or radiation, and often life can be resumed almost as if nothing had ever happened. But heart attacks can profoundly affect life-styles, regardless of how mild they are said to be.

A weakened heart increases the work of the other organs. Inevitably, if unnoticeably at first, the lungs and kidneys especially are called upon to work harder. Fluid builds in the lungs; unsupported by a vigorous heart, they are unable to expel it. So Lasix or other diuretics are administered on a regular basis, thereby increasing the strain on the kidneys.

Meanwhile, limbs and joints begin to ache from the reduced rate at which blood is pumped through the body, carrying strength-giving oxygen. The constant discomfort can make a person irritable. Together with the psychological impact of confronting one’s own mortality and advancing years, this condition can sour even the sweetest disposition.

Moreover, smoking, with the damage it causes the heart, becomes suicidal, and Thurgood Marshall loved to smoke. A lot of favorite foods are proscribed because of their salt or cholesterol content, and Thurgood Marshall loved eating all the wrong things. Liquor becomes criminally suspect, and Marshall still enjoyed bourbon. To quit smoking and drinking and to diet strictly, all in combination, was difficult. It is hard for anyone to change the habits of a lifetime.

He felt sorry for himself in his own humorous, self-deprecating way. As the nation’s hard-working solicitor general, he once described himself to Sidney Zion of the New York Times as “a hedonist with no time for pleasure.” After his heart attack, he was a hedonist lacking even the constitution for self-indulgence. He was forced to reevaluate his career, its strains and, lately, frustrations. There was still the need to carry on the fight for his beliefs and principles on behalf of the poor. But, paradoxically, there was, at the very same time, the need to find greater distance from all the stress, in order to better preserve his strength and to survive, so that he could prolong the years he had left to devote to the struggle. Survival was the key.

He harbored no hope of shifting the conservative direction of the Court. This situation angered him greatly. Lyndon Johnson was right when he told biographer Doris Kearns Goodwin, “No matter how well you may think you know a Negro, if you really know one, there’ll come the time when you look at him and see how deep his bitterness is.”

Yet Marshall refused to let his bitterness consume him. He held it at bay, kept it in check, as he had his fear of death. He was alone now except for his good friend Brennan. That realization imbued him with serenity. He took solace in it.

He softened his days. He went to work a little later, left a little earlier.

Meanwhile, he girded for what he saw as his last remaining battles. He could not win, but surrender was unthinkable. He focused on his legacy.

The threat to American democracy, as he saw it, was the danger that history was about to repeat itself. In the decades that followed the Civil War, America craved absolution for its sins against the Africans dragged to these shores in chains and held in dehumanizing slavery. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, the Reconstruction and Civil Rights Acts, and the multitude of federal agencies, such as the Freedmen’s Bureau, set up to assist the newly freed slaves and their descendants, were well-intentioned efforts to supplant dehumanization with equality. In short, to make amends.

But like a vaccination that did not take, repentance gave way to baser sentiments, fear, prejudice, and cruelty. It did not take long for the country to reverse course.

Marshall saw the Court’s conservative trend presaging civil rights reversals that would obliterate the gains made during the 1950s and 1960s. In his view, the same thing had happened when the retrenchment of the 1870s, 1880s, and 1890s undid much of what Reconstruction had achieved.

Marshall made his feelings known during the 1977-78 term when the Court decided for the first time to address squarely the question of affirmative action. On October 12, 1977, the justices heard oral arguments in University of California Regents v. Bakke.

Allan Bakke was denied admission to the medical school of the University of California at Davis in 1973 and 1974. Both years, he had failed to achieve the cumulative score—based on grade-point average, admissions test performance, interviews, and recommendations—that was required under the school’s general admissions program.

The school also ran a special admissions program for disadvantaged minorities, who could gain admission despite lower cumulative scores. Each year, sixteen out of one hundred places were set aside for special admissions. Bakke claimed the special admissions program operated as reverse discrimination in violation of the equal-protection clause.

On June 28, 1978, the Court issued a mixed ruling. The justices refused to order Bakke’s admission because he failed to show that he would have been admitted but for the special admissions program. But the court struck down Davis’s separate admissions program as a violation of equal protection. A plurality of the justices maintained, however, that race was one of many factors that could be taken into consideration for purposes of determining admission.

Justice Powell, writing for the Court, pointed to Harvard College’s admissions program as a model. Harvard did not have a separate admissions process for minorities, but in order to promote diversity within its student body, Harvard took into consideration an applicant’s race.

Under the Harvard program, race was accorded some weight along with grade-point average, entrance examination scores, extracurricular interests, recommendations, and geographic background. Harvard’s reasoning was that a ghetto black might not have done as well on the Scholastic Aptitude Test (SAT), or attended as prestigious a secondary school, as a white from a more affluent background. Yet the black applicant, in rising above his circumstances, might have demonstrated resourcefulness and academic commitment in the face of unfavorable odds that reflected an admirable strength of character and resolve. In addition, because of his underprivileged background, the black applicant might lend to Harvard’s academic community unique perspectives on American society that would enrich intellectual thought and discussion.

Harvard’s program was different from a selection process that chose people just because they were black, although Harvard did choose some people just because they were excellent hockey players or just because they played the violin well. The joke around Harvard after the Bakke ruling was that a black applicant from Salt Lake City who could play hockey and was also a virtuoso violinist was a shoo-in for admission, irrespective of his SAT scores.

Marshall regarded the ruling as a setback for affirmative action. He dissented from the part of Powell’s opinion that invalidated separate admissions. But he concurred that race was one of many factors that could legitimately be taken into consideration in making admissions decisions.

His carefully crafted concurrence set forth the entire history of discrimination against blacks as he saw it, from slavery to the present day. “I do not agree that petitioner’s admissions program violates the Constitution,” he wrote. “For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

If affirmative action programs, set-asides, or quotas accorded blacks some degree of privileged treatment, then so be it. In Marshall’s view, blacks needed special protection. He pointed out, “Although Negroes represent 11.5% of the population, they are only 1.2% of the lawyers and judges, 2% of he physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors. The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the past is reflected in the still disfavored position of the Negro.”

Marshall charged, “The racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.”

He distinguished blacks from others. “The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it to the pot.”

He concluded, “These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effect of past discrimination.”

A few months later, he took the extraordinary step of speaking out publicly, breaking a self-imposed, ten-year moratorium on public statements about race. On November 18, 1978, Marshall returned to his alma mater, Howard University, and warned his listeners not to be complacent about civil rights.

Speaking forcefully to a gathering of five hundred in Howard’s Cramton Auditorium, he alluded to reports of a resurgence of the Ku Klux Klan, declaring that bigots “in every phase of American life are still laying traps for us.” He cautioned, “The Klan never dies. They just stop wearing sheets because sheets cost too much.”

He told his listeners, “Be careful of the people who say, ‘You’ve got it made. Take it easy. You don’t need any more help.’ Today we have reached the point where people say, ‘You’ve come a long way.’ But so have other people.”

He asked, “Has the gap [between blacks and whites] been getting smaller? No. It’s getting bigger.”

He refused to let his own success belie the pervasiveness of racial prejudice. “These Negro kids are not fools,” he stated. “They know that if someone says they have a chance to be the only Negro in the Supreme Court, the odds are against them.”

He expressed his frustration over the slow pace of change, saying that he used to assure people that “things are going to get better.” But in recent years, he said, the response he most often heard was “You not only told me that but you told my father too and he’s no better off. Are you going to tell my children that, too?”

Advising his audience that blacks have to be better than whites in order to succeed in a prejudiced society, he quoted his mentor Charles Houston: “You’ve got to be better, boy. You’ve got to move better.” He chided, “Don’t listen to that myth that inequality has been solved. Take it from me, it has not been solved.”

Nevertheless, the Court continued its inexorable retrenchment. On April 22, 1980, the justices upheld, six to three, an at-large system for electing city commissioners in City of Mobile, Alabama v. Bolden. Blacks had charged that Mobile’s at-large electoral framework unfairly diluted black voting strength, the result being that whites, not blacks, got elected.

Writing for the majority, Justice Stewart concluded that blacks have no constitutional right to elect blacks. Instead, the Constitution prevented merely the purposeful, or intentional, denial of the right to vote. The Court failed to find in the Mobile voting scheme evidence of an intent to discriminate.

Marshall dissented. He argued that discriminatory impact alone violated the Constitution. Requiring the victims of discrimination to demonstrate governmental intent to discriminate against them imposed an insurmountable burden, in Marshall’s view.

He wrote, “An approach based on motivation creates the risk that officials will be able to adopt policies that are the products of discriminatory intent so long as they sufficiently mask their motives through the use of subtlety and illusion.”

He warned of social unrest: “If this Court refuses to honor our long-recognized principle that the Constitution ‘nullifies sophisticated as well as simple-minded modes of discrimination,’ it cannot expect the victims of discrimination to respect political channels of seeking redress.”

Meanwhile, Republican Ronald Reagan was waging a successful campaign in the 1980 presidential election. A number of key factors contributed to his landslide victory over incumbent Democrat Jimmy Carter. Among them were a faltering economy, with double-digit inflation and unemployment, and foreign policy setbacks, including the taking of American hostages in Iran. But the crux of Reagan’s appeal was a pledge to unleash a conservative “revolution” that would restore American greatness by bringing about a return to “traditional” social and moral values, which he claimed had been eroded by government policies dating back to Franklin Roosevelt’s New Deal of the 1930s.

Reagan attacked racial preferences in university admissions and job hiring and promotions. He exploited the popular view that affirmative action programs, for which “quotas” became the catchword, amounted to reverse discrimination, in effect punishing individual whites unjustly for the sins of their forebears.

In addition, he aligned himself with the pro-life movement, pledging to commit his best efforts to reversing the Court’s decision in Roe v. Wade.

Nevertheless, Marshall won a key victory on July 2, 1980, when the Court decided Fullilove v. Klutznick. By a six-to-three vote, with Stewart, Rehnquist, and Stevens dissenting, the Court upheld federal regulations establishing a set-aside program for minority contractors. Minorities were defined to include “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”

Under the regulations, state and local governments were required to set aside for minority business enterprises (MBEs) 10 percent of the federal funds allotted them for local public works projects. The contract awards were to be made even if the MBEs were not the lowest bidders on contracts, based on the assumption that MBEs were forced to cover costs inflated by the present effects of past discrimination. For example, minority businesses were typically forced to pay higher rates for loans and insurance.

In his concurring opinion, Marshall, joined by Brennan and Blackmun, hailed the ruling. “It is clear to me,” he wrote, “that the racial classifications employed in the set-aside provision are substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past racial discrimination.”

Not long after Reagan was elected, however, the Court dealt pro-choice advocates another setback with its ruling in H.L. v. Matheson, decided on March 23, 1981. By a six-to-three vote, with Marshall, Brennan, and Blackmun dissenting, the justices upheld a Utah law requiring physicians to “notify, if possible,” the parents or guardian of minors seeking abortions. Minors who did not wish to have their parents notified could instead seek the consent of a judge.

Writing for the majority, Chief Justice Burger concluded, “The possibility that some parents will not react with compassion and understanding upon being informed of their daughter’s predicament...does not undercut the legitimacy of the State’s attempt to...enhance the probability that a pregnant young woman exercise as wisely as possible her right to make the abortion decision.”

Again looking beyond legal principles to the practical effect of the Court’s ruling, Marshall dissented. He insisted, “This [parental notification] scheme forces a young woman in an already dire situation to choose between two fundamentally unacceptable alternatives: notifying a possibly dictatorial or even abusive parent and justifying her profoundly personal decision in an intimidating judicial proceeding to a black-robed stranger. For such a woman, this dilemma is more likely to result in trauma and pain than in an informed and voluntary decision.”

Reagan was provided with the opportunity to make his first appointment to the Court just three months after he was sworn in as president. In April 1981, Potter Stewart announced plans to retire, after twenty-two years on the court. Reagan used Stewart’s departure to fulfill his campaign promise to appoint the first woman justice. Her name: Sandra Day O’Connor.

The president announced the nomination on July 7, 1981. Said one Reagan Justice Department official, O’Connor “was the most conservative woman we could find.”

A native of Arizona, O’Connor had graduated from high school at the age of sixteen and completed both undergraduate and law studies at Stanford University in just five years. She graduated near the top of her law school class, several places behind William Rehnquist, who finished first. After graduation, O’Connor found her job options limited by sex discrimination. Despite her impressive academic credentials, none of the major law firms in San Francisco or Los Angeles would offer her more than secretarial positions. She recalls, “None had ever hired a woman as a lawyer, and they were not prepared to do so.”

She went to work for a small law firm in Phoenix, then left to be a housewife and raise her three sons. Subsequently, she got involved in state politics, eventually becoming majority leader of the state senate in the early 1970s. In 1979, she was named to the state court of appeals by Democratic governor Bruce Babbitt. When Reagan announced her nomination, she was fifty years old.

During her confirmation hearings, O’Connor refused to answer whether she would vote to overturn Roe v. Wade. But she told the Senate Judiciary Committee that she found abortion “personally repugnant.” In July 1981, the Senate approved her nomination by a vote of ninety-nine to zero.

Over the next two terms, O’Connor typically joined with the conservative majority, often providing the decisive fifth vote in cases that limited the rights of criminal defendants. In addition, she voted with Burger, White, Rehnquist, and Powell in a controversial 1984 decision that upheld the constitutionality of government-sponsored nativity scenes, regarded by critics as a significant weakening of the wall traditionally separating church and state.

Again, Marshall felt compelled to speak out, criticizing publicly the Court’s reactionary trend. In September 1984, he delivered an address to a conference of Second Circuit appeals court judges in Hartford, Connecticut. He used the occasion to accuse the Court of denying adequate remedies to victims of constitutional rights violations, charging that the Court’s conservative majority was turning the Bill of Rights into “an unenforced honor code.”

He made specific reference to a ruling that upheld a New York law permitting preventive detention of any juvenile suspected of being a “serious risk” to commit another crime. The Court conceded that prison conditions exposed juveniles to the threat of violence and sexual assault. But the majority concluded that juvenile victims of such abuses could seek damages after the fact in lower courts. Marshall stated, “Given [the possibility of violence], I find it shocking that rather than make an assessment of how likely those evils were under the New York system, it instead validated the scheme as a whole and offered a hollow remedy for individual abuses.”

He went on to criticize the Court for a ruling he regarded as insensitive to the needs of the handicapped. In a Vermont case, the justices conceded that lengthy delays in processing Social Security benefits caused the handicapped great hardship, but the decision left it to Congress to remedy the situation. He warned, “Decisions that [fail to offer effective remedies] will erode the faith in the law of those who rely on the law’s protection.”

His open dissent was echoed by Stevens and Blackmun, both regarded as conservative justices. In an August 1984 speech dedicating a new building at the University of Chicago Law School, Stevens accused the Court of overstepping its authority.

A month later, Blackmun told an audience at the Cosmos Club in Washington, D.C., that the Court’s conservative majority was arriving at its rulings “by hook or by crook.” He also complained that the Court had lost its collegiality, saying there was “very little humor” left among the justices.

Despite O’Connor’s conservative reputation, civil rights groups had hoped that, as a past victim of discrimination, she would harbor liberal sentiments regarding issues related to affirmative action. She disappointed them. For example, she joined with a plurality of the justices to hand Marshall a defeat in a crucial case, Wygant v. Jackson Board of Education, decided on May 19, 1986.

In Wygant the Court struck down a collective-bargaining agreement between the Jackson, Michigan, school board and the teachers’ union. The agreement was part of a concerted effort by Jackson officials to compensate for the underrepresentation of minorities by increasing the number of minority teachers and administrators.

The agreement provided that, in the event of layoffs, those hired last would be fired first, except that the percentage of minority personnel laid off would not be allowed to exceed the total percentage of minorities employed by the school system. In other words, if minorities constituted 10 percent of the total work force, no more than 10 percent of those minorities could be laid off. The result was that, when layoffs occurred, some minority schoolteachers were retained ahead of white teachers with more seniority.

Marshall dissented. He conceded his belief that the layoffs were “unfair.” Nevertheless, he stated, “unfairness ought not to be confused with constitutional injury.” He reasoned that any scheme basing job retention on seniority would have a disproportionately negative impact on minorities, since minorities had only recently gained access to previously discriminatory job markets. He declared, “I believe that a public employer, with the full agreement of its employees, should be permitted to preserve the benefits of a legitimate and constitutional affirmative-action hiring plan even while reducing its work force.”

Reagan won an overwhelming reelection victory over the Democratic candidate, former Vice President Walter Mondale, in November 1984, carrying forty-nine of fifty states. He was handed two more Supreme Court appointments halfway through his second term. During a private conversation in the White House in May 1986, Warren Burger, seventy-nine, expressed to Reagan his desire to step down after having served seventeen years as chief justice. Burger told the president he wished to direct his full-time energies to chairing the commission that was organizing the upcoming bicentennial celebration of the Constitution’s ratification.

Reagan chose Rehnquist to replace Burger as chief justice. Throughout his tenure as an associate justice, Rehnquist had demonstrated his unwavering fidelity to conservative principles. To fill the seat made vacant by Rehnquist’s elevation, Reagan selected an outspoken, if unheralded, ideologue with impeccable academic credentials: Antonin Scalia, who became the first Italian American nominated to the High Court.

Antonin Scalia, “Nino” to family and friends, was born on March 11, 1936, in Trenton, New Jersey. His father was an Italian immigrant who taught romance languages at Brooklyn College and was an authority on Dante. His mother, a first-generation Italian American, was an elementary school teacher.

Scalia graduated from a Jesuit high school, the St. Francis Xavier Military Academy in Lower Manhattan, as valedictorian. He finished college at Georgetown University at the top of his class. He went on to become an editor of the Harvard Law Review, again finishing first in his class at Harvard Law School in 1960. After law school, he went to work for one of the nation’s largest and most prestigious law firms, Jones, Day, Reavis, and Pogue. He left private practice after six years to teach law at the University of Virginia in Charlottesville.

During the Nixon administration, he served as general counsel for the Office of Telecommunications. Under President Ford, he became head of the Justice Department’s Office of Legal Counsel, a post at one time held by Rehnquist.

After Ford was defeated by Jimmy Carter in 1976, Scalia became a scholar in residence at the American Enterprise Institute (AEI), a right-wing think tank that, like the Hoover Institute in Palo Alto, California, generated many of the ideas and policies that fueled the Reagan revolution. He left the AEI to teach law at the University of Chicago.

A devout Roman Catholic and father of nine children, he opposed abortion. He was also an impassioned opponent of affirmative action. In fact, he loathed the concept. From Scalia’s Italian-American perspective, affirmative action programs were nothing more than self-serving attempts by “Aryan” judges and justices to assuage their liberal guilt over wrongs done to blacks at the expense of less privileged, hard-working white ethnics.

Scalia felt no such guilt. In a 1979 lecture at the University of Chicago, he explained, “My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man’s brow, I don’t think he had ever seen a black man.”

He said he was “entirely in favor of according the poor inner-city child, who happens to be black, advantages and preferences not given to my own children because they don’t need them. But,” he went on, “I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer—solely because of his race—to the son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead.”

In summary, he condemned affirmative action “because it is based upon concepts of racial indebtedness and racial entitlement, rather than individual worth and individual need, and that is to say, because it is racist.”

Reagan appointed him to the U.S. Court of Appeals for the District of Columbia Circuit in 1981, shortly after he became president.

The Republican-controlled Senate approved both Supreme Court nominations on September 17, 1986. Nine days later, Rehnquist and Scalia were sworn in. With Rehnquist in charge, bolstered by Scalia, Reagan was confident the Court’s rightward movement would accelerate.

Two weeks later, the beginning of the 1986-87 term ushered in the era of the Rehnquist Court. Marshall found himself aligned with Brennan against six conservatives—Rehnquist, White, Blackmun, Powell, Stevens, and O’Connor—and one ultraconservative, Scalia.

Anxious to rid the Court of the remaining liberals, critics began to insinuate that Marshall’s age and ill health had rendered him uninterested in his work. Some went so far as to assert that Marshall rarely wrote his own opinions and had, in effect, relinquished power to his law clerks, operating as a justice in name only.

According to Gay Gellhorn, a professor at the District of Columbia School of Law who clerked for Marshall during the mid-1980s, nothing could have been further from the truth. Gellhorn recalled, “He never lost interest in his work.” In Gellhorn’s words, Marshall maintained a “litigator’s attentiveness,” a nuts-and-bolts interest not just in legal issues but in how advocates structured their cases and presented them to the Court.

Moreover, Gellhorn was impressed by Marshall’s “voluminous retention” of cases. She said he “never forgot anything he read. While discussing a point of law with us, he might say, ‘Now wait a minute, isn’t there a Second Circuit appeals court ruling that addresses this point?’ We might not recall having seen it. But whenever he told us something was there, and we went to look for it, we found it.”

Glen M. Darbyshire, a Savannah, Georgia, attorney who clerked for Marshall during the Court’s 1986—87 term, expressed similar views in a September 1991 article for the ABA Journal, “Clerking for Justice Marshall.” According to Darbyshire, Marshall accorded his clerks “creative freedom” to draft opinions after defining the central focus and rationale that he wanted them to use. “Nonetheless,” wrote Darbyshire, “his review of draft opinions could be exacting.” Darbyshire explained, “He edited with a thick blue pencil that could, with a single stroke, obliterate pretentious or ineffective wording. His law clerks, before submitting drafts to him, followed a detailed procedure for reviewing and editing them for substantive or grammatical errors—all in a determined effort to avoid the blue pencil.”

Despite his obvious frustrations, both Gellhorn and Darbyshire remember Marshall as a lively wit and consummate raconteur—“a great schmoozer,” as Gellhorn put it—who enjoyed relating his life’s adventures, from his early days as a struggling, young Baltimore attorney, to hitting after-hours parties with heavyweight champion Joe Louis and his Harlem entourage.

Darbyshire recalled a get-acquainted cocktail party at the Court at the beginning of the 1986-87 term. “Twenty minutes into the affair, nearly half of the clerks were gathered around him listening to raucous tales while the rest of us discussed our law schools and geographic origins with other justices.”

A year later, Marshall exhibited his feistiness in a September 1987 television interview with journalist Carl Rowan. Rowan asked him to grade the civil rights records of recent presidents. Marshall’s candor ignited a controversy when he dismissed Ronald Reagan as “the bottom,” calling his administration a throwback to the era “when we [blacks] really didn’t have a chance.”

He said of Franklin Delano Roosevelt, “I don’t think [he] did much for the Negro.” He criticized Dwight D. Eisenhower as well, saying, “I don’t think [he] did anything except try to undermine the Brown decision.”

Of his beloved Lyndon B. Johnson, he declared, “His [civil rights] plans were just unbelievable,” which, according to Marshall, explained why “they...[got] rid of him.” He reserved faint praise for Jimmy Carter, commenting, “His heart was in the right place, but that’s the best I can do with him.”

At first, Reagan, who was close to Marshall’s age, tried to dismiss the unprecedented criticisms of a sitting president by a Supreme Court justice with characteristic humor. He remarked offhandedly, “A young fellow like me is not going to get angry at an old fellow like him.”

Later, the president assumed a more defensive posture. At a state dinner for Swedish prime minister Ingvar Carlsson on September 9, he responded, “I hope he [Marshall] will be informed that that isn’t my record, and I will point to the record we had not only in this administration but as governor of California, and I was raised in a household where the greatest sin was prejudice. From boyhood on, I have been on the side of civil rights and no discrimination and I am just sorry that he is not aware of that.”

Time magazine commented wryly in its September 21, 1987, edition, “It’s best that the president, 76, keeps his sense of humor. Marshall, 79, vowed not to retire from the court as long as Reagan remains in the White House.”

A year later, in an August 10, 1988, address to the National Bar Association (NBA) convention in Washington, D.C., Marshall reiterated his view that Reagan administration policies and the conservative Court posed a threat to hard-won advances made by blacks.

“We’re not gaining ground, my friends. We might be losing,” Marshall told the assembled delegates.

The National Bar Association was formed in 1925 as an alternative to the American Bar Association, which, until 1952, did not admit African-American lawyers. At the time of Marshall’s speech, the NBA claimed ten thousand members.

Asked to justify a separate bar association for blacks “at this late date,” Marshall replied, “The answer is simple: It’s not that late.”

On January 23, 1989, the Rehnquist Court dealt advocates of affirmative action the major blow Marshall had long expected. In City of Richmond v. J.A. Croson Co., Justice O’Connor delivered on behalf of the Court a splintered decision striking down the Virginia city’s set-aside program for minority contractors.

Anthony Kennedy, the newest justice, voted with the plurality to overturn the Richmond plan. A graduate of Stanford University Law School, Kennedy was appointed to the U.S. Court of Appeals for the Ninth Circuit, covering a number of western states, including California, by President Gerald Ford in 1975. He had replaced Justice Lewis Powell on February 18, 1988, following Powell’s retirement.

Under the Richmond plan, prime contractors awarded city construction contracts were required to subcontract at least 30 percent of the total dollar amount of each contract award to MBEs. The city council had adopted the plan based on evidence that despite the fact that Richmond was 50 percent black, only 0.67 percent of the city’s prime construction contracts had been awarded to MBEs in recent years.

A plurality of justices objected to the Richmond scheme because there was no showing of past discrimination by the city itself. In addition, the plan was held to be too broad in its reach. It made MBEs nationwide eligible for the set-aside, not just those based in Richmond. Moreover, no MBE was required to show that it had itself been the victim of discrimination. In other words, the plan, designed to remedy broad-based societal discrimination, lacked the required specificity.

The Court distinguished between the federal government, on the one hand, and states and localities, on the other. In the Court’s view, the federal government had the power under the Fourteenth Amendment to use racial classifications to enact broad-based remedies for past discrimination; state and local governments did not.

In an eloquent concurrence, Justice Scalia bitterly attacked all remedial measures that employ racial quotas or preferences.

He wrote, “It is plainly true that in our society blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help to ‘even the score’ display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still.”

He continued, “The relevant proposition is not that it was blacks, or Jews, or Irish who were discriminated against, but that it was individual men and women, ‘created equal,’ who were discriminated against. And the relevant resolve is that it should never happen again.”

He went on, “Racial preferences appear to ‘even the score’ (in some small degree) only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against white. Nothing is worth that embrace.”

Scalia left the door open for race-neutral programs that grant preferences based on a showing of economic disparity rather than race. He reasoned, “Since blacks have been disproportionately disadvantaged by racial discrimination, any race-neutral remedial program aimed at the disadvantaged as such will have a disproportionately beneficial impact on blacks.” In other words, since a disproportionate number of black people are poor, any program aimed at helping the poor will benefit blacks most. He concluded, “Only such a program, and not one that operates on the basis of race, is in accord with the letter and the spirit of our Constitution.”

Marshall, joined by Brennan and Blackmun, filed a bitter dissent. He complained, “Today’s decision marks a deliberate and giant step backward in this Court’s affirmative-action jurisprudence. Cynical of one municipality’s attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general. The majority’s unnecessary pronouncements will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination.” He declared, “The battle against pernicious racial discrimination or its effects is nowhere near won.”

Nine months later, Marshall traveled to Bolton Landing, New York. On September 9, 1989, he told the conference of Second Circuit appeals court judges that recent decisions of the Court “put at risk not only the civil rights of minorities but the civil rights of all citizens.”

He stated, “It is difficult to characterize last term’s decisions as the product of anything other than a deliberate retrenchment of the civil rights agenda. We could sweep it under the rug and hide it, but I’m not going to do it. We have come full circle [since Brown]. We are back where we started.”

His despair was deepened by the resignation of William J. Brennan on July 20, 1990. In 1978, Brennan had undergone radiation treatments for a malignant tumor in his throat. The following year, he had suffered a stroke. At the age of eighty-four, he cited “advancing age and medical condition” as his reasons for stepping down.

Overshadowed throughout his long and illustrious tenure by the likes of Earl Warren, Hugo Black, and William O. Douglas, Brennan had served as one of the Court’s key consensus builders during the Court’s liberal heyday. In a begrudging accolade to a formidable adversary, the conservative National Review in 1984 offered the following assessment of Brennan’s work: “There is no individual in this country, on or off the Court, who has had a more profound and sustained impact upon public policy in the United States.”

Marshall told ABC News in July 1990, “There’s nobody here that can persuade the way Brennan can persuade. Brennan will sit down with you and talk to you and show you where you’re wrong. Well, there’s nobody with that power on the court today.” Brennan, he insisted, “cannot be replaced.” He had become Marshall’s closest ally, and also his dearest friend. Thurgood’s grandson was named after him.

All human beings have their limits. There is only so much that anyone can take. Pride and purpose crumble under the crush of age and illness, punctuated by resignations and deaths. Enduring marriage provides comfort and solace. Children and the births of grandchildren provide momentary joy. But each graveside shovelful of dirt, each good-bye, is a loss. And the cumulative effect of the losses is overpowering. Brennan’s departure left Thurgood Marshall disconsolate.

He contemplated his own retirement. But first, he decided to indulge in one last affront to a conservative Republican president.

In a July 1990 interview with ABC News, he ridiculed President George H. W. Bush’s nomination of David H. Souter, an obscure New Hampshire Supreme Court judge, to be Brennan’s replacement. His remarks were broadcast nationwide on the July 26 edition of ABC’s “Primetime Live.”

“When his [Souter’s] name came down, I listened to television,” Marshall said. “And the first thing, I called my wife and asked, ‘Have I ever heard of this man?’ She said, ‘No, I haven’t either.’ So I promptly called Brennan because it’s his circuit. And his wife answered the phone, and...she said, ‘He’s never heard of him either.’”

Marshall was asked whether he would vote for Bush if he ran for reelection. He replied, “It’s said that if you can’t say something good about a dead person, don’t say it. Well, I consider him dead.” He went on to express his opinion that Bush’s peripatetic chief of staff, John H. Sununu—a former New Hampshire governor who had in fact recommended Souter’s nomination—was “calling his [Bush’s] shots.” (Sununu would resign within the space of a few months amid charges of unethical conduct relating to personal travel at government expense.)

Bush refused to comment directly on the remarks, attributing his reticence to his “very high regard for the separation of powers and for the Supreme Court.”

But Bush’s attorney general, Richard Thornburgh, said Marshall’s comments “saddened” him. He added that to his knowledge it was “the first time any Supreme Court justice has ever criticized in our history an appointment and, indeed, the president who made the appointment.”

In Congress, Senate minority leader Robert J. Dole accused Marshall of taking “cheap shots” and making “partisan and demeaning political statements” about Souter and the president.

Souter’s nomination was confirmed by the Senate on October 2, 1990, by a vote of ninety to nine. He joined Marshall on the bench for the start of the Court’s 1990-91 term.

That term was to be Marshall’s last. On June 27, 1991, he announced his retirement.

THIRTEEN

Marshall’s Legacy

Thurgood Marshall was the legal conscience
for all Americans, not just black Americans.
—Attorney Juanita Jackson Mitchell

Thurgood Marshall was rolled in a wheelchair to the jaws of a construction fork lift and hoisted with all deliberate speed to the stage of Philadelphia’s Independence Mall. He was guest of honor at the city’s 1992 Fourth of July celebration of the nation’s 216th birthday. Marshall, who had celebrated his eighty-fourth birthday two days earlier, appeared more infirm than he had thirteen months earlier, when he retired from the Supreme Court. But on this day his voice still flashed with the fiery indignation that had wilted two generations of segregation foes.

“The battle has not yet been won; we have barely begun,” he said. “Americans can do better.... America has no choice but to do better to assure justice for all Americans, Afro and white, rich and poor, educated and illiterate. Our futures are bound together.” The racially mixed crowd cheered loudly and stopped only after Thurgood waved his cane and shouted, “Enough, enough.”

Thurgood Marshall was the fourth recipient of the Liberty Medal, established in 1988 to honor “an individual or an organization from anywhere in the world that has demonstrated leadership and vision in the pursuit of liberty of conscience or freedom from oppression, ignorance and deprivation.”

In 1989, the medal’s first recipient was Lech Walesa, Poland’s president and founder of the Solidarity movement. Former U.S. president Jimmy Carter received the award in 1990, and it was shared by past Costa Rican president Oscar Arias Sanchez and the French medical organization Medecins Sans Frontieres (Doctors Without Borders) in 1991.

Martin Meyerson, chairman of the Liberty Medal Award Selection Committee, opened the ceremony by saying, “Activists from Benjamin Franklin to Martin Luther King Jr. would have appreciated today as we recognize the distinguished American patriot Thurgood Marshall.” There probably was no better place for Thurgood Marshall to be on this Independence Day than the birthplace of the U.S. Constitution. He had spent most of his life vigorously defending constitutional principles while angrily reminding America that its founding document was flawed.

Five years earlier, in 1987, during the bicentennial celebration of the Constitution, Marshall made clear his displeasure with the original document. The nine Supreme Court justices had been asked to reenact the drafting of the Constitution. Marshall refused to participate, noting that the Constitution had failed to abolish slavery. He told the brethren, “If you are going to do what you did two hundred years ago, somebody is going to have to give me short pants and a tray so I can serve coffee.”

He explained, “I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformations to attain the system of constitutional government, and its respect for the individual freedoms and human rights we hold as fundamental today. When contemporary Americans cite ‘the Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.”

In fact, the Constitution had required more than a “civil war and momentous social transformations” to perfect it. It was a document that at its inception excluded black slaves who could not vote and were counted for representation purposes as three-fifths of a person. And it would be more than 130 years after the original document’s ratification before women, black or white, could vote.

Thurgood Marshall had a panoramic view of American life, from the powerful Oval Office of the White House and the majestic marble corridors of the Supreme Court to the tar-paper and tin-roofed shacks of Virginia, Alabama, Tennessee, Georgia, Mississippi, Florida, Texas, the Carolinas, and Arkansas, where black Americans lived in fear of night riders and in frustration with a system that denied them the basic decencies of life and at times life itself. His twenty-four-year tenure as an associate justice of the U.S. Supreme Court epitomized the battle of black Americans for equality, but his reputation as the most powerful civil rights advocate of the century had been authenticated long before he joined the Court in 1967.

As a young attorney on the streets of his native Baltimore Maryland, in the 1930s, Marshall used the NAACP, the powerful civil rights organization conceived the year he was born, as an instrument for social and legal change. Its anachronistic name— “N Double A C P”—and the whispered phrase “Thurgood is coming” struck fear in the hearts of white southerners who had tried to keep the racist shackles of segregation clamped firmly around the ankles of millions of black Americans. He came to personify the NAACP as an organization that stirred pride in the souls of black folk who looked to it for succor.

During his career as director-counsel of the NAACP’s Legal Defense and Educational Fund, he became the most successful lawyer in Supreme Court history. Together with his team of Fund lawyers, he was responsible for striking down the barriers to voting rights for African Americans. In addition, he successfully challenged laws preventing black students from receiving quality educations and black families from purchasing homes in previously all white neighborhoods, like Lake Barcroft in Fairfax County, Virginia, where he and Cissy raised their sons.

His victory in Brown v. Board of Education in 1954—overturning Plessy v. Ferguson’s separate-but-equal doctrine, which had given legal sanction to racial segregation, American apartheid—stands as a singular, monumental achievement unmatched in its scope and social impact.

Juanita Jackson Mitchell, Marshall’s friend from Baltimore who was an active NAACP attorney, spoke of his career two weeks before she died, in July 1992. “He brought a vitality and a sense of mission to the NAACP that it would not otherwise have had. Thurgood was the legal conscience for all Americans, not just black Americans.”

Marshall went on to become one of the most effective advocates on behalf of the U.S. government during his tenure as solicitor general. His opposition to the government’s use of evidence obtained illegally through electronic eavesdropping and surveillance devices struck a principled blow upholding the privacy and civil liberties of all citizens.

As the first African American to sit on the Supreme Court, he never lost touch with or respect for the common man or woman. He was always praised for his humanity. “I like people,” he said. “I like to have them around me.”

He was especially sensitive to the plight of the poor. His association with poor Americans—black and white—during the years he traveled across the nation as an NAACP attorney gave him a unique insight into the problems of the less fortunate that was not shared by his Supreme Court colleagues. As the last liberal holdover from the Warren court, he construed the Bill of Rights and the Constitution’s civil rights amendments as instruments to protect the powerless and the disadvantaged.

In 1970, for example, an attorney asked the Supreme Court to overturn a lower-court ruling that would have forced local governments to increase welfare payments to indigent families. Marshall took the lawyer to task. “Is the argument that there is not enough money available a proper one for the most affluent nation in the world today?” he asked.

When the lawyer replied, “The pit is not bottomless,” Marshall inquired, “Do you want us to note that this government is unable to pay people enough to eat?” Marshall said the question was not economics “but the vital interest of a powerless minority, poor families without breadwinners and the stuff which sustains children’s lives, food, clothing and shelter.”

By the end of his Supreme Court career, he had written over eighteen hundred dissents, more than any of his colleagues. At times he was joined by only one or two other justices. After Marshall’s appointment new justices named by Presidents Nixon, Ford, Reagan, and Bush held different views on the rights of individuals and justice. The result was that the philosophical distance between Marshall and his Supreme Court colleagues became greater as the Court moved to the conservative right. Yet he never despaired at finding himself in the minority because of his strong conviction that his opinions were morally correct.

He failed in his efforts to persuade the Court’s majority that poverty should be regarded as a “suspect classification” and that government actions having a disproportionately negative impact on the poor should be struck down. He also failed to muster the needed votes for his view that, having established a constitutional right to abortion, governments should be required to finance abortions for indigent women in order that they might effectively exercise that right.

His greatest defeat was on the issue of capital punishment. Only his close friend and liberal ally William Brennan came to share his view that the death penalty is cruel and unusual punishment. As a Supreme Court justice, Marshall always voted for stays of execution when eleventh-hour death-penalty appeals came before the Court. He left standing instructions with his law clerks to call him at any hour of the night so he could record his vote to grant a stay of execution, even when he knew the Court’s majority would deny the doomed petitioner’s request. Court records indicate Marshall filed more than 250 dissents from capital punishment denials of certiorari, the discretionary procedure the Court uses to decide which cases it will hear on appeal from lower courts.

On the day Marshall retired, there were more than two thousand death-row prisoners in the United States, and the pace of executions had begun to increase as the Court began swiftly reducing the number of death-penalty cases it would hear on appeal. In June 1992, there were 2,588 condemned prisoners in the United States, according to the National Coalition Against the Death Penalty. Of this number, 1,316 were white and 1,008 were black, along with 47 Native Americans, 14 Asians, and 13 condemned prisoners whose race was unknown. Forty-one women were included in this total.

Nevertheless, while Marshall was unsuccessful in abolishing the death penalty, he succeeded in making some major reforms in death-sentencing procedures. His 1985 majority opinion in Ake v. Oklahoma allowed indigent defendants to have a psychiatrist present for their insanity defenses to murder charges. And in Ford v. Wainwright, in 1986, Marshall persuaded a majority of the Court that the execution of mentally ill prisoners violated the Eighth Amendment. In that opinion he noted “the natural abhorrence civilized societies feel at killing one who has no capacity to defend himself.”

Shortly after his 1991 retirement, Marshall reiterated his opposition to capital punishment in simple terms: “I am not for the death penalty. I don’t see what’s gained by it.”

At the same time, Marshall failed to escape criticism from the left. Opponents of the Vietnam War have justifiably assailed him for his refusal to support William O. Douglas’s repeated efforts to have the Court take up the issue of the war’s constitutionality. For many antiwar activists, the battle cry of the 1960s and early 1970s was “If you’re not part of the solution, you’re part of the problem.” For them, Marshall was part of the problem on Vietnam. In hindsight, it is difficult to justify his refusal to bring before the Court for full airing and discussion one of the most divisive legal, social, and political issues of the day.

Meanwhile, militant blacks accused him of failing to appreciate their contribution in the struggle for equal rights. One thing the militants did was lend credibility to Marshall’s moderate call for working for change within the system. Before Malcom X’s call for liberation “by any means necessary” and Martin Luther King’s strategy of mass protest and civil disobedience, Marshall had himself been labeled a radical for calling on blacks to seek redress through the courts. For whites, King’s activism increased Marshall’s appeal; Malcolm X’s emergence made Marshall an even more politically palatable alternative.

In addition, Marshall’s unequivocal commitment to racial preferences as an effective tool for remedying the effects of past discrimination may well prove misguided. The privilege of preference is limited to but a select few who are qualified to take advantage of the opportunities that preferences open up for them. In this regard, the direct reach of affirmative action, noble as its aims may be, is too restricted to lift up or eliminate the black underclass, the masses of disfranchised African Americans who are most in need of basic skills and equal educational opportunity.

However, affirmative action can be used to guarantee the representation in the ranks of the privileged classes of poor people whose talents, because of their underprivileged status, might otherwise have gone unnoticed. Exposure to their perspectives, which are shaped by poverty and struggle, may bear the fruits of increased understanding and compassion for the poor.

Yet skin color alone is no guarantee that a person will think in a certain way. In fact, the color and background of a man like Clarence Thomas, nominated by President Bush to replace Marshall, betrays most liberal assumptions about affirmative action’s benefits.

A black graduate of Yale Law School, Thomas, forty-three years old at the time of his appointment, was born in rural poverty in segregated Pin Point, Georgia. At the age of seven, he went to live with his grandfather in Savannah, Georgia, where for the first time he had indoor plumbing. He acquired a Catholic education and, for a time, considered entering the priesthood, enrolling in the Immaculate Conception Seminary in northeastern Missouri after high school. Later, he attended Holy Cross College in Worcester, Massachusetts, before entering law school at Yale.

In 1974, he went to work for Missouri attorney general John Danforth, who was later elected to the U.S. Senate. Then, after three years as an attorney for the Monsanto Corporation, he rejoined Danforth in Washington, D.C., as a legislative assistant from 1979 to 1981. He served briefly in the civil rights division of the Department of Education in 1981 before Ronald Reagan appointed him head of the Equal Employment Opportunity Commission (EEOC).

Thomas complained of racial slights and insults throughout his growing up, and he was a beneficiary of Yale’s commitment to affirmative action. But he infuriated liberals early in his EEOC tenure by attacking racial preferences in hiring.

“I am unalterably opposed to programs that force or even cajole people to hire a certain percentage of minorities,” he told a New York Times interviewer in July 1982. “I watched the operation of such affirmative action policies when I was in college, and I watched the destruction of many kids as a result. It was wrong for those kids, and it was wrong to give that kind of false hope.”

Instead, he called for increased black self-reliance. He told a Washington Post interviewer in July 1983, “I’ll put the bottom line on you: I don’t think we caused our problem, but we’re damn sure going to have to solve it.”

He was also critical of the civil rights movement. In an October 1987 review of Harvard Law School professor Derrick Bell’s book And We Were Not Saved, Thomas wrote, “The tragedy...is that as blacks achieved the full exercise of their rights as citizens, government expanded and blacks became an interest group in a coalition supporting expanded government. Instead of reflecting the diversity of the black community, blacks’ political views have become homogeneous. Yet black ambitions need not be so closely wedded to ever-expanding government.”

As EEOC chairman, Thomas shifted the commission’s focus away from class-action litigation to investigating more limited, specific acts of discrimination. He also rejected the use of statistics on minority hiring as evidence of employer bias. Once, in an appearance before a congressional committee, he asked rhetorically whether Georgetown University’s all-black basketball team was proof of discrimination against whites.

In 1990, Bush appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, where he served just sixteen months before being nominated to the Supreme Court.

At first, Thomas’s nomination appeared to be a shrewd political move on the part of the president. By making effective, if cynical, use of the skin color of a nominee opposed to racial preferences, Bush threatened the Democratic coalition of liberals, women’s groups, and blacks. Liberals and feminists were aligned against Thomas because of his conservatism and outspoken opposition to abortion. At the same time these groups risked antagonizing blacks whose paramount goal was to have an African American succeed Marshall. The white liberal leadership of the Democratic party knew that by opposing Thomas, they also risked further alienating white middle-class voters—the so-called Reagan Democrats—who regarded racial preferences as reverse discrimination.

But developments took a stunning and unexpected turn during Thomas’s confirmation hearings. Anita Hill, a black thirty-five-year-old University of Oklahoma Law School professor, appeared before the Senate Judiciary Committee and a shocked national television audience to charge Thomas with making lurid and degrading sexual overtures to her during her time as his assistant at both the Department of Education and the EEOC. She endured three days of grueling questioning by Thomas’s Republican supporters, who attacked her credibility and motives. Throughout it all, she maintained a steely composure and was ultimately perceived as a damaging and compelling witness.

In response, Thomas, his confirmation clearly in jeopardy, characterized Hill’s testimony and the efforts to discredit him as “a high-tech lynching for uppity blacks.” He denied Hill’s charges “categorically.”

Despite Hill’s allegations, Thomas went on the win Senate confirmation on October 15, 1991, by a narrow margin, 52 to 48, far short of the 69 to 11 vote endorsement the Senate had given the first Afro-American justice a quarter century earlier. He was sworn in eight days later.

Nevertheless, Hill had succeeded in refocusing the national debate. More was at issue after her testimony than partisan politics or the credibility of two articulate and persuasive individuals, a black man and a black woman pitted against each other. What began to matter more was who had the power to judge whether Anita Hill had told the truth or whether Clarence Thomas was fit to be only the second African American to serve on the Supreme Court. It seemed wholly out of balance that those judgments should be rendered by a Senate Judiciary Committee that was a wealthy, exclusive panel of all-white, all-male senators. On the day Clarence Thomas was confirmed, there were no blacks, and only one woman, serving in the U.S. Senate.

During the Court’s 1991-92 term, his first as an associate justice, Thomas demonstrated himself to be exactly what his conservative proponents had hoped and his liberal opponents had dreaded. Most often, he aligned himself with the Court’s two most conservative members, Rehnquist and Scalia. He has voted to restrict the constitutional protection accorded prison inmates; he has called for softening the wall that has traditionally separated church and state; and, dissenting from the Court’s ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, decided on June 29, 1992, he has called for Roe v. Wade to be overturned outright.

Nevertheless, Thurgood Marshall’s retirement may ultimately produce a farther-reaching social transformation than he could have brought about by remaining on the bench, given the Court’s composition at the time. The reaction to Thomas as Marshall’s replacement galvanized the women’s movement; more women sought elective office in 1992 than ever in the nation’s history. One result was the election of Carol Moseley Braun. Braun became the first black woman to serve in the U.S. Senate.

In his July 4, 1992, acceptance of the Liberty Medal, Thurgood Marshall warned America that the battle for equality was not over. His admonition raised the question of whether America’s racial problems of the 1990s and the emerging twenty-first century can be solved with the tactics of the 1950s and 1960s as younger black Americans grow more distant from organizations like the NAACP.

Thirty years earlier, Thurgood Marshall had told NAACP executive secretary Roy Wilkins that his abiding ambition was to “put the NAACP and the Inc., Fund out of business.” It was a lighthearted and optimistic remark meant to imply that one day racial intolerance would no longer be a part of the American landscape.

Decades later, in Philadelphia, Marshall said, “Unfortunately, much of the civil rights agenda has not changed, although Afro-Americans can eat and sleep in more places than they could decades ago.”

But a lot of things have changed since Thurgood Marshall began his legal career more than a half century ago. The venerable civil rights lawyer and jurist, whose great-grandfather had been a slave, was responsible for many of those changes. In 1936, Senator “Cotton” Ed Smith stood on the steps of a South Carolina courthouse and derided the presence of black delegates at that year’s Democratic National Convention in Philadelphia. In 1992, Ronald Brown, the first black chairman of the Democratic National Committee, rose to the podium in New York City’s Madison Square Garden and gaveled the Democratic National Convention to order.

There were fewer than 500 black elected officials in 1965. In 1992, more than 7,400 blacks held elective office, including 26 members of the U.S. House of Representatives and Virginia governor L. Douglas Wilder, whose predecessor thirty-eight years earlier had launched an attack of “massive resistance” against school desegregation.

Moreover, white majorities have elected black mayors in Denver, Colorado; Seattle, Washington; Kansas City, Missouri; Rockford, Illinois; Dayton, Ohio; and Tallahassee, Florida. This is significant progress because it indicates that white America has begun to realize its moral obligation to assure fairness and equality for all citizens. Many of the civil rights problems formerly addressed by the NAACP and Marshall are now resolved by black elected officials or by the use of the ballot to make white elected officials responsive to the concerns of African Americans.

In addition, racial progress is reflected in the number of African Americans who hold positions on the boards of major corporations, anchor the evening television news, or have high-level positions in government, the military, in universities, and who sit on federal courts. In many ways, the NAACP has fallen victim to its own success as more African Americans enter the mainstream of the nation’s life.

At the same time, income disparity between whites and blacks persists nationally. According to the New York Times’s analysis of 1990 census data, “[T]he 1989 median household income was $31,435 for whites and $19,758 for blacks. Put another way, a black household typically brought in 63 cents for every $1 that went to a white household. In 1979, it was 62 cents for every $1.”

Moreover, the unemployment rate for blacks remains more than double that for whites. According to the U.S. Department of Labor, the annual average rate of unemployment for blacks in 1990 was 11.3 percent, compared with 4.7 percent for whites. In 1980, black unemployment was 14.3 percent, compared with 6.3 percent for whites.

Today the NAACP, which Thurgood Marshall so valiantly helped to lead, is faced with the dilemma that it is no longer relevant or in tune with a new generation of black Americans, many of whom have never been denied service at a lunch counter, refused admission to a school because of their race, turned away at the voting booth, or terrorized by the Ku Klux Klan. Benjamin C. Bradlee, former executive editor of the Washington Post, once asked retired NAACP executive director Benjamin Hooks, “Ben, I used to read about the NAACP all the time. What’s happened to you?”

In a 1992 Crisis magazine article, Hooks acknowledged the organization’s dilemma. “I know it’s a problem,” he wrote. “It’s very upsetting.”

Hooks went on to express his frustration. “My predecessor, Roy Wilkins, used to make the same complaint. Why can’t the NAACP ever get credit? During his [Wilkins’s] time it was the Student Non-Violent Coordinating Committee, the Southern Christian Leadership Conference, and the Congress of Racial Equality, and now its Trans Africa and the Black Congressional Caucus.” Yet, Hooks pointed out, the NAACP’s 1992 membership of nearly five hundred thousand in fifteen hundred adult branches is the largest it has ever been.

The change began in the early 1960s with the emergence of civil rights leaders like Martin Luther King Jr. and the civil rights protests by college students who challenged segregation in the streets instead of the courts. But it is clear that those protests could not have succeeded had it not been for Thurgood Marshall’s unrelenting fight to win the cases that struck down legalized segregation in America.

The NAACP shares Thurgood Marshall’s belief that there is still much to be accomplished. It is broadening its agenda beyond the traditional role of protecting civil rights through litigation, but the rapid gains made from the 1940s until the 1970s have slowed, and Thurgood Marshall is among the first to recognize that the nation is far from realizing the ideals expressed by sociologist Gunnar Myrdal in his “American Creed” of the “essential dignity of the individual human being, of the fundamental equality of all men and of certain inalienable rights to freedom, justice, and a fair opportunity.”

The NAACP is now turning its attention to black economic development, teenage pregnancy, infant mortality, substance abuse, and other problems that are endemic in black communities. These problems are heightened by the disintegration in black America of the traditional two-parent family and the fact that one of every four African-American men between the ages of twenty to twenty-nine is either in prison or on parole or on probation. Overt discrimination is masked in police brutality, unemployment, and inadequate health care, social problems that are latter-day extensions of segregation and discrimination.

The struggle for full equality continues, and America is far from becoming an egalitarian society. That goal remains elusive even though America champions the freedom of people the world over and the United States has frequently committed its military forces—white and black—to defend it.

But not everyone agrees that the NAACP should shift in emphasis as it attempts to address current social problems. Charles Tate, president of the Booker T. Washington Foundation, a research group based in Washington, D.C., said:

“There’s been a lot of talk about the NAACP becoming involved in things like the drug problems, but I think it would be a serious error to push the group into other directions that detract from its abilities to handle civil rights. There are new civil rights challenges in areas such as environmental protection, since most toxic waste dumps are in black and Hispanic areas. It is misguided to suggest that the NAACP change its focus when we have people standing on the sidelines with no focus. If black people need to move in new directions, let’s not change the direction of the NAACP. Let’s build new institutions to move in new directions. The Congressional Black Caucus is an example of that.”

No matter what direction the fight for equality now takes, it is clear all America has benefited from Thurgood Marshall’s contribution to the nation’s democracy, not just the country’s 30 million black citizens. He used his legal talents to support the rights of the powerless and to make “equal protection of the laws” more than just an idealistic legal phrase. Thurgood Marshall did not write the Constitution, but no American can read it without recognizing his imprint on it.

Randall L. Kennedy, a professor at Harvard Law School, who was Marshall’s law clerk in 1983, said, “It seems to me that Marshall worked as an advance guard. First, he was very much a disrupter and a rebel. Then others took over that position, and he became an advance guard at being a black American insider at very high levels of government. At each point, he has been a pioneer, opening doors that others have gone through behind him.”

Thurgood Marshall, perhaps, offered the best assessment of his career on the day he retired from the Supreme Court. “I don’t know what legacy I left. It’s up to the people. I guess you could say, ‘He did what he could with what he had.’ I have given fifty years to it, and if that is not enough, God bless them.”

EPILOGUE

Fanfare for the Common Man

Inscribed above the front entrance to the
Supreme Court building are the words “Equal justice
under law” Surely no one individual did more
to make those words a reality than Thurgood Marshall.
—Chief Justice William H. Rehnquist

Retired Justice Thurgood Marshall looked forward to administering the oath of office to Vice President Albert Gore, but on Inauguration Day, Wednesday, January 20,1993, he was too ill to make the twenty-two-mile trip from his Lake Barcroft home in Fairfax County, Virginia, to the West Front steps of the United States Capitol. His former colleague on the Supreme Court, Justice Byron R. White, substituted for him at the ceremonies installing only the second Democratic administration in a quarter century. On Sunday, January 24, at two P.M., just four days after William Jefferson Clinton became the nation’s forty-second president, Thurgood Marshall died of congestive heart failure at Bethesda Naval Medical Center in Maryland. He was eighty-four.

Years earlier, when asked about the possibility of his retiring from the increasingly conservative Court, he jauntily replied, “Don’t worry, I am going to outlive those bastards.” It was probably fitting that if some of the “bastards” survived him, at least he refused to die on the watch of one of the Republican presidents whose appointments had propelled the Court from the liberal left Thurgood embraced to the conservative right he abhorred.

As news of his death spread across Washington, D.C., the nation, and the world, tributes to his life and achievements mounted. Newly elected President Clinton declared, “He was a giant in the quest for human rights and equal opportunity in the whole history of our country and every American should be grateful for his contributions.” Senator Edward M. Kennedy of Massachusetts, whose brother had given Marshall his first appointment to the federal bench in 1961, called him “a living embodiment of our nation’s highest ideals.” Congressman Kweisi Mfume, chairman of the Congressional Black Caucus and a Maryland Democrat from the streets of Marshall’s native Baltimore, said, “He gave the Constitution the power the Framers articulated but did not practice, that Lincoln affirmed but did not perfect.”

Alluding to the fact that he had, as an advocate, already earned his place in history before ascending to the Court, Harvard law professor Laurence Tribe, a leading constitutional scholar, called him simply “the greatest lawyer in the twentieth century.”

Civil rights leader Jesse Jackson spoke for millions of grateful people when he said, “For most of us who grew up under segregation, we have never known a day without Thurgood Marshall hovering over us to protect us.”

Sherman A. Parks Jr., a forty-two-year-old black lawyer and president of the Topeka, Kansas, school board that was sued in Brown, reflected on how Marshall had changed his life in particular: “I am a black male, and now I am an attorney and the president of the school board that spawned the case.”

Among past and present justices, even his ideological opposites voiced deep admiration. Retired chief justice Warren E. Burger recalled that, as a lawyer, Marshall “literally took his life in his hands” to try civil rights cases in the south. Justice Clarence Thomas, who replaced Marshall as the only African American on the Court, characterized him as “a great lawyer, a great jurist and a great man.”

In a moving eulogy delivered from the pulpit of Washington’s National Cathedral, where the nation’s leaders gathered on January 28, 1993, Chief Justice William H. Rehnquist also heralded Marshall’s personal bravery, which Marshall himself downplayed when he spun his entertaining yarns, his war stories.

“Some of these stories had a humorous twist to them,” Rehnquist said, “but they also gave a sense of what he had been up against. His forays to represent his clients required not only diligence and legal skill but physical courage of a high order.”

The sixteenth chief justice proceeded to make an extraordinary pronouncement: “Inscribed above the front entrance to the Supreme Court building are the words ‘Equal justice under law.’ Surely no one individual did more to make these words a reality than Thurgood Marshall.” Thus, with the all-inclusive phrase “no one,” Rehnquist ranked Marshall alongside Washington, Jefferson, and Lincoln. This statement was from the same man who, as a law clerk some thirty years earlier, had urged that Plessy’s separate-but-equal doctrine be upheld.

At five P.M. on the Sunday that Marshall died, Thomas Snyder of Washington, D.C.’s Gawler’s Funeral Home dispatched a van to remove Marshall’s body from the Naval Hospital’s morgue and bring it to Gawler’s, a stately, red brick mortuary on upper Wisconsin Avenue in the District of Columbia’s affluent Friendship Heights subdivision.

Gawler’s was one of Washington’s oldest funeral parlors, established in 1850. Joseph Gawler, a cabinet-maker by trade, produced coffins as a side line in his small, three-story frame house on Pennsylvania Avenue, one block from the White House.

Over the years, Gawler’s has handled the funerals of some of the nation’s most prominent people, among them: presidents Woodrow Wilson, William Howard Taft, Franklin D. Roosevelt, Dwight D. Eisenhower, John F. Kennedy, and Supreme Court justices Oliver Wendell Holmes, Harlan Stone, Fred A. Vinson, Robert H. Jackson, Felix Frankfurter, Hugo Black, Earl Warren, Abe Fortas, Potter Stewart, and Arthur J. Goldberg.

Despite its reputation as the mortuary of the powerful and famous, some members of Washington’s old-line black elite wondered about the Marshall family’s decision to use Gawler’s instead of McGuire’s Funeral Home across town on Georgia Avenue. McGuire’s, owned by a fourth-generation African-American Washington family, had traditionally buried the city’s socially prominent black citizens since the turn of the century. “I guess they understood Thurgood was an integrationist to the very end,” observed one of Thurgood’s former law clerks.

Gawler’s morticians prepared Marshall’s body, draped his Supreme Court robe around him, and placed him in a pine coffin. “Justice Marshall’s family said he wanted a simple pine casket,” Thomas Snyder explained, “and we had one in our inventory.” The coffin was taken to Gawler’s Eisenhower room. “There was a brief, private viewing just for Mrs. Marshall, family members, and a few close friends,” Snyder said.

At 9:30 A.M., Wednesday , January 27, Thurgood’s pine coffin, covered with an American flag, was carried up the thirty-six steps of the Supreme Court through a somber phalanx of robed current and former justices and placed on a massive Vermont marble catafalque in the building’s Great Hall outside the courtroom. Throughout the day and into the evening, some 18,000 people filed past the bier to pay their final respects to “Mr. Civil Rights.” His sons, lawyer Thurgood Marshall, a member of Vice President Gore’s staff, and John William Marshall, a Virginia state police officer, took turns standing vigil over their father’s remains.

Early next morning, the grounds of the National Cathedral at the corner of Wisconsin and Massachusetts avenues, in the city’s fashionable upper northwest quadrant, resembled a civil rights mass meeting of the 1960s. People—black and white, Jew and Gentile—who had been active in the civil rights movement and perhaps had not been together since the dark days of Montgomery, Selma, Atlanta, and Little Rock, a quarter century earlier, exchanged greetings in the unseasonably balmy, overcast January weather. The black war wagons of the U.S. Secret Service and uniformed officers from the Metropolitan Police force, the U.S. Park Service, the U.S. Capitol Police, and the Executive Protection Service appeared to stretch for miles, while uniformed policemen patrolled the area with dogs.

It might indeed have been a scene reminiscent of Birmingham, Alabama, decades before, when Police Chief Bull Connor’s officers turned their vicious dogs and billy clubs on civil rights demonstrators. But on this day the law enforcement authorities were not concerned with the presence of people like Julian Bond, John Lewis, Jesse Jackson, Lonnie King, Marian Wright Edelman, and the scores of other veterans of the civil rights movement. The officers had not come to prevent black people from getting a meal at a lunch counter, attending classes at a southern school, or riding in the front seat of a Greyhound bus to Jackson, Mississippi. Instead, they were there to protect the President and Vice President of the United States and the leaders of Congress, including most of the members of the U.S. Senate and House of Representatives, along with every living current and former member of the Supreme Court. All were there to pay tribute to Thurgood Marshall.

Salutations were kept short because everyone seemed anxious to find seats in the crowded mahogany pews of the National Cathedral. The coffin, draped this time with the flag of the Episcopal Church, of which Marshall was a devoted member, was wheeled into the main chapel where it rested in front of 4,000 mourners, not all of whom were renowned. Among them were seventy-year-old Miriam Johnson and her sixty-seven-year-old friend Agnes Miles, who rode a bus all night from their homes in Birmingham, Alabama, to be there. “And we rode on the front seats,” Mrs. Johnson said, knowing her comment was a testimony to Thurgood Marshall’s career.

By 10:30 A.M., when Edward Madison Nassor began the prelude, “Land of Rest,” on the fifty-three-bell Bessie J. Kibbey memorial carillon, it was clear to those in attendance that Thurgood Marshall’s funeral would be more a celebration of his life than a mourning of his passing. He was described variously by those who eulogized him as a practical joker, a good-humored curmudgeon, and a champion of the weak and oppressed.

Ralph K. Winter, a judge on the United States Court of Appeals for the Second Circuit in New York, served as a law clerk in the early 1960s for Judge Marshall of the same court. He spoke of how, during the 1940s, Marshall would call travel agencies to uncover whether their booking practices were discriminatory and, if so, get them shut down. On one occasion, he was surprised when a travel agent reserved him a room in a Florida hotel. “Excuse me, is this hotel restricted?” Marshall asked.

“Oh, Mr. Marshall,” replied the agent, “I didn’t know you were Jewish!” Feigning black dialect, Marshall responded, “Ahh, sister, have I got news for you!”

Winter went on to relate that Marshall’s favorite appellation for his law clerks was “knucklehead,” concluding, “I’m prouder of the title ‘knucklehead’ than any other one I’ve ever had.” An old friend, William T. Coleman, the former transportation secretary who also worked on Brown, observed, “History will ultimately record that Mr. Justice Marshall gave the cloth and linen to the work that Lincoln’s untimely death left undone.” He went on to wonder aloud, as the justices looked on and listened, whether the civil rights cause would have suffered the same reversals at the hands of a more conservative court if Thurgood Marshall had been available to represent the NAACP, instead of thrust into the role of a dissenting, minority justice.

Coleman concluded with his gaze resting on the new President. He asked rhetorically, “Could a son of Arkansas be president if Marshall’s efforts had not been successful? Please do not think us ungracious when we wonder if a son of Arkansas would be here today if Marshall, in that hot summer of 1958 had lost, not won, the Little Rock school case. Could there be a cabinet reflective of the American people if Marshall had lost Brown v. Board of Education}”

Vernon E. Jordan, former head of the National Urban League and a close adviser to President Clinton during the new administration’s transition, delivered what was perhaps the most poignant appraisal of Marshall’s life and work. His mission, said Jordan, was “to cleanse our tattered Constitution and our besmirched legal system of the filth of oppressive racism and to restore to all Americans a Constitution and a legal system newly alive to the requirement of justice.”

He added, “He was a teacher who taught us to believe in the shield of justice and the sword of truth, a role model whose career made us dream large dreams and work to secure them, an agent of change who transformed the way an entire generation thought of itself, of its place in our society, and of the law itself. Farewell, Mr. Civil Rights. Farewell, Mr. Justice Marshall. We thank you for all you have done. Good night, sweet prince, and flights of angels sing thee to thy rest.”

With that, the choir of Howard University raised their voices in “The Battle Hymn of the Republic,” which Marshall often commented should be made the national anthem. Their exuberant rendition brought members of the audience to their feet to join in the singing. Soon the massive cathedral reverberated with the hymn’s righteous indignation over slavery, injustice, and oppression, its solemn vow to trample the grapes of wrath. “Mine eyes have seen the glory of the coming of the Lord...”

The choir concluded the services with “Lift Every Voice and Sing,” the James Weldon Johnson poem set to music that is known as the Negro National Anthem. The President and Mrs. Clinton joined in the singing without having to refer to the lyrics printed on the funeral program. Afterward, the cathedral’s great organ burst forth with Aaron Copland’s “Fanfare for the Common Man,” and this most uncommon man’s plain pine coffin was wheeled from the chapel and placed in a waiting hearse. Thurgood Marshall was buried the next day across the Potomac River, in Arlington National Cemetery, in the Supreme Court circle.

But his story was not yet over, for intrigue and controversy were to follow him even to his grave.

Within a month of his burial, Columbia University released to the general public transcripts of interviews that were taped during the 1970s for the university’s oral history project. By agreement with the justice, the transcripts had been sealed until after his death. The transcripts contained extraordinarily candid, often intemperate, observations about some of the leading characters and personages Marshall had dealt with in his day. His comments, often critical, sometimes laudatory, always colorful, were hardly out of character. Yet they ignited a firestorm of controversy because of their potential for changing the favorable, longstanding perceptions accorded some of the leading figures in modern American history.

Marshall was especially biting in his criticism of Robert F. Kennedy, who, as attorney general, brokered the devil’s pact with Mississippi senator James O. Eastland that had made Marshall a federal appeals court judge. His brother the President was, according to Marshall, “a very sweet man.” By contrast, he said, “Bobby was like his father [Joseph P. Kennedy], He was a cold, calculating character. ‘What’s in it for me?’ I mean, not like his brother. He had no warm feelings. None at all.”

He went on to say that the then attorney general “was primarily interested in getting the president reelected He constantly pushed [President] Kennedy to push the dates back on which he would make these [civil rights] moves. It would have gone much faster but for that.”

He was critical of black leaders, as well. Conceding that Dr. Martin Luther King Jr. was a “great” leader, he nonetheless maintained that King “wasn’t worth diddly squat as an organizer.” He complained, “All he [King] did was to dump all his legal work on us, including the bills. And that was all right with him. So long as he didn’t have to pay the bills.”

He reiterated his long-standing animus against Malcolm X, explaining, “I just don’t believe that everything that’s black is right and everything that’s white is wrong. I think that anybody in their right mind knows it, and that’s what they [the Black Muslims] were preaching.”

He characterized Black Muslims generally as “the nicest, sweetest, most decent people you will ever run across.” But he insisted, “I wouldn’t agree with anything a Muslim ever said, any time, any place.” He concluded with regard to Malcolm X, “In the end he kept wanting to talk to me, and I kept telling him to go to hell.” The Black Muslim leader was slain in Harlem in 1965.

Some of his most vitriolic remarks were directed against President Dwight D. Eisenhower, whose conduct in the immediate wake of Brown he called “despicable.” He also attacked General Douglas MacArthur’s refusal to desegregate army units under his command.

“I questioned him about the continuation of segregation in the army,” said the justice, recalling his visit to Korea in 1951, “and he said he was working on it. And I asked him how many years he’d been working on it. And he said he didn’t really remember how many. He said he didn’t find the Negroes qualified, and when he found them qualified they would be integrated. Well, we didn’t part that friendly.”

Again, his warmest praise was reserved for Lyndon Johnson, the president who appointed him to the Supreme Court and who, according to Marshall, was “a lovely guy” who “died of a broken heart.” Marshall insisted, “If he’d been reelected, he’d have been still alive today.”

Recalling the occasional phone calls he received from his old drinking buddy shortly after the former president left office, Marshall revealed, “He would call me for the express purpose of getting out of it. He would say, ‘No moaning at the bar,’ or something like that. And then he’d say, ‘Okay, now, go have a drink.’ I’d say, ‘Providing you do.’”

As revealing as the Columbia University transcripts were, however, a far more explosive controversy erupted in May 1993 when the Library of Congress released the late justice’s papers, including correspondence and case files, from his years on the Court. The case files contain confidential notes and internal memoranda between Marshall, his law clerks, and the other justices, as well as draft opinions in various stages and other related materials. Taken as a whole, the papers, which consist of some 173,700 items and occupy roughly 231.6 linear feet of shelf space, provide a rare glimpse into the internal workings of the Court and the modus operandi of the various justices who jealously guard their privacy and the confidentiality of their deliberations.

Reaction to the documents’ release was swift and strident. In a sharply worded letter to Librarian of Congress James H. Billington, dated May 25, 1993, Chief Justice Rehnquist accused the library of exercising “bad judgment” in making the papers available so soon after Marshall’s death. Many of the issues the papers dealt with still confronted the justices, and many of the justices Marshall worked with, and whose thoughts and sentiments his papers reflected, still sat on the Court.

“Most members of the court recognize that after the passage of a certain amount of time, our papers should be available for historical research,” Rehnquist conceded. “But to release Justice Marshall’s papers dealing with deliberations which occurred as recently as two terms ago is something quite different.”

Claiming to speak for a majority of the justices, who he said were “surprised and disappointed” by the opening of Marshall’s files, Rehnquist warned, “Unless there is some presently unknown basis for the library’s action, we think it is such that future donors of judicial papers will be inclined to look elsewhere for a repository.”

The Marshall family protested the documents’ release as well. On Friday, May 21, 1993, Cissy Marshall said through her attorney, William T. Coleman, “My husband had great respect for the court and its tradition of confidentiality. I am certain he never intended his papers to be released during the lifetime of the justices with whom he sat and I am surprised that the Library of Congress has chosen to release them at this time.”

Coleman added, “All I can say is that we were shocked and utterly surprised at his [Billington’s] attitude. We thought that he acted improperly, and that he was turning something that was a great contribution—namely the preservation of the papers—into an act destroying confidentiality, which certainly adversely affected the Court and the way they do business.” Convinced that lawyers were somehow using the files to formulate strategies for future cases, Coleman, who clerked for Justice Felix Frankfurter during the Court’s 1948-1949 term, complained, “I will say that this is the worst thing I have seen happen in a long time around this town.”

Billington, for his part, insisted that he had merely carried out the late justice’s “exact intentions.” He refused to restrict the public’s access to the collection. “The library must honor the expressed wishes of one of our great jurists,” he maintained. To do otherwise, he contended, would be “a breach of contract and a violation of the trust placed in the library” by Justice Marshall. He concluded, “Open access to the papers, as called for in Justice Marshall’s instrument of gift, must be maintained.”

The instrument of gift itself, signed by Justice Marshall on October 24, 1991, provides, in relevant part:

I hereby dedicate to the public all rights, including copyrights throughout the world, that I may possess in the Collection.

Access. With the exception that the entire Collection shall be at all times available to the staff of the Library for administrative purposes, access to the Collection during my lifetime is restricted to me and to others only with my written permission. Thereafter, the Collection shall be made available to the public at the discretion of the Library.
Use. Use of the materials constituting this gift shall be limited to private study on the premises of the Library by researchers or scholars engaged in serious research.
Reproduction. Persons granted access to the Collection may obtain single-copy reproductions of the unpublished writing contained therein.

Aside from the question of how the files might be used by lawyers to prepare cases for argument before the Court, there seems to be little in the collection that is in the nature of a striking revelation, or an embarrassment for the Court. In fact, the files reflect a dignified and thoughtful collegiality among the justices, who work hard and diligently, strive admirably to arrive at consensus, and document even their most informal communications in order to avoid misunderstandings. The files appear to contain few handwritten notes or vote tallies taken by Marshall during conferences. Evidently, he was not a prodigious note-taker or, more often than not, chose not to include his notes in the collection.

The case files do reveal intensive jockeying back and forth among conservatives, liberals, and centrists over such volatile issues as abortion, civil rights, and sex discrimination. For example, in 1989, the Court apparently came within ten days of overturning Roe v. Wade, which established women’s constitutional right to abortion. Late in the term, Rehnquist circulated the last of four drafts of a proposed majority opinion in Webster v. Reproductive Health Services that would have upheld a Missouri law imposing severe abortion limitations. Three justices, in proposed dissents, were prepared to pronounce “Roe no longer lives.” In the end, however, Rehnquist failed to hold the majority he felt he had, and Roe was reaffirmed, if somewhat weakened. In Webster, Justice Harry Blackmun, Roe’s author, was able to declare, “For today, at least, the law of abortion stands undisturbed.”

The files also reveal that during the 1988-1989 term, personal rancor surfaced between Justices William Brennan and Anthony Kennedy over the Court’s commitment to racial equality. In Patterson v. McLean Credit Union, Brenda Patterson, an African-American woman who worked as a teller and file clerk for a credit union in Winston-Salem, North Carolina, sued her employers for racial harassment and the denial of a promotion. At issue was whether Patterson was entitled to unlimited monetary damages since the discrimination she complained of had occurred after, not before, she was actually hired.

Brennan said yes, that Patterson’s claim to damages was valid. He prepared a majority opinion, but subsequently found himself in dissent. Bitter over the defeat he was about to suffer on what he regarded as a crucial civil rights issue, he prepared an angry opinion which charged, “The court’s fine phrases about our commitment to the eradication of racial discrimination...seem to count for little in practice.”

Incensed, Justice Anthony Kennedy prepared his own opinion that included a footnote rebuking Brennan, who, he wrote, “thinks it judicious to bolster his position by questioning the court’s understanding of the necessity to eradicate racial discrimination.” He concluded, “The commitment to equality, fairness, and compassion is not a treasured monopoly of our colleagues in dissent.”

Ultimately, both Brennan’s attack and Kennedy’s rebuke were dropped from the final versions of their opinions.

The files show that Marshall found himself at odds with Justice Lewis Powell during the 1985-1986 term over a capital punishment case, Vasquez v. Hillery. Vasquez, who was black, was sentenced to death in 1962. He challenged his conviction on grounds that blacks had been systematically excluded from the grand jury that indicted him. Since Vasquez did not raise this particular issue in federal court until 1978, Powell wrote to Marshall on November 7, 1985, expressing concern over the timeliness of Vasquez’s appeal. He asserted, “It could well be that the court’s opinion in this case will encourage convicted persons with long sentences to defer seeking relief until retrial becomes difficult or impossible.”

Marshall wrote back, “[I]t is hard for me to believe that any prisoner would voluntarily sit in jail for years, knowing he has a meritorious claim that could result in his freedom.” He ended up writing the majority opinion, which held that a conviction could be reversed at any time after it is demonstrated that an indicting grand jury was improperly constituted. Powell and two others dissented.

What these and hundreds of other examples demonstrate is that liberal and conservative justices tend to disagree, which comes as no surprise. But if the Court is, more or less, what it appears to be, why then the desire on the part of the justices for secrecy?

Any outsider who has ever tried to probe the Court’s internal workings or gain access to the justices knows that the Court is like what used to be said of the Kremlin: It is a closed society, an enigma wrapped inside a mystery locked up in a riddle. Critics have contended that the Court’s denial of access to its deliberations is wholly inappropriate within the context of a democratic society.

While he was a federal appeals court judge, Warren E. Burger once said, “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis. In a country like ours, no public institution, or the people who operate it, can be above public debate.” Yet when he became chief justice, Burger instituted a Draconian regime of secrecy.

He was not alone. Even justices who have been the most ardent defenders of First Amendment freedoms and the public’s right to know have been xenophobic in their defense of the Court’s secrecy. Hugo Black, an absolutist about free speech and press, burned many of his papers before his death so that their contents could never be revealed.

Thurgood Marshall contemplated destroying his papers as well. On July 24, 1980, Mrs. Anna T. James, law librarian at Texas Southern University’s Thurgood Marshall School of Law, wrote to the justice, requesting that he deposit at least some of his papers at her institution. “The name of our law school implies that a collection of documents about your career is housed at our institution,” she wrote. “To that end, we have begun to acquire materials which focus on three stages of your career: civil rights attorney, solicitor general, and jurist. To enhance this project, we would like to discuss the possibility of you donating a portion of your judicial papers and personal memorabilia to our library.”

Marshall rejected her request out of hand. In a tersely worded reply dated July 31,1980, he wrote, “I have your letter concerning the possibility of my placing a collection of documents about myself in your institution. I have very little to contribute because upon my death all of my personal records will be destroyed.”

Obviously he changed his mind, which should have come as no surprise to anyone who knew him. As former National Security Adviser McGeorge Bundy wrote in a column for the Washington Post, “Are we not allowed to suspect that part of him really wanted his papers to be fully and promptly used? I myself suspect that he would have read [about this controversy] with some pleasure. He was never a stuffy man.”

As to what the documents reveal about the Court as an institution and the individual justices as people, Charles Rodell’s observation in his remarkable book Nine Men: A Political History of the Supreme Court From 1790 to 1955, is apt. “Supreme Court Justices,” he wrote, “off the bench as well as on it—are deemed by the myth to be, properly, apolitical persons, unaffected by what goes on in the nation outside their marble temple, aloof and remote from the workaday world. Myths or no myths, solemn show or no solemn show, the Supreme Court is nothing other than nine sometimes wise, sometimes unwise, but always human, men.” And, of course, these days, women. Thurgood Marshall was one of the wisest, and most human, of those who ever served there.

Index of Principal Cases Cited

U.S. SUPREME COURT DECISIONS

Ake v. Oklahoma, 470 U.S. 68 (1985)

Alexander v. Holmes County, Misssissippi, 396 U.S. 1218 (1969); 396 U.S. 19 (1969)

Beal v. Doe, 4321 U.S. 438 (1977)

Boiling v. Sharpe, 347 U.S. 497 (1954)

Brown v. Board of Education, 345 U.S. 972 (1953)

Brown v. Board of Education, 347 U.S. 483 (1954)

Brown v. Board of Education, 349 U.S. 294 (1955)

Chambers v. Florida, 309 U.S. 227 (1940)

Cooper v. Aaron, 358 U.S. 1 (1958) Craig v. Boren, 429 U.S. 190 (1976)

Dandridge v. Williams, 397 U.S. 471 (1970)

Dred Scott v. Sandford, 60 U.S. (393)

Ford v. Wainwright, 477 U.S. 399 (1986)

Fullilove v. Klutznick, 488 U.S. 448 (1980)

Furman v. Georgia, 408 U.S. 238 (1972)

Gong hum v. Rice, 275 U.S. 78 (1927)

Gregg v. Georgia, 428 U.S. 153 (1976)

H. L. v. Matheson, 450 U.S. 398 (1981)

Harris v. McRae, 448 U.S. 24 (1980)

Hodgson v. Minnesota, 110 S. Ct. 2926 (1990)

Hurd v. Hodge, 334 U.S. 24 (1948) James v. Valtierra, 402 U.S. 137 (1971)

Johnson v. Committee of Admissions, 407 U.S. 915 (1972) Kadrmas v. Dickinson public Schools, 487 U.S. 450 (1988)

Loving v. Vriginia, 388 U.S. 1 (1967)

McLaurin v. Oklahoma State Regents, 399 U.S. 637 (1950) Milliken v. Bradley, 428 U.S. 717 (1974)

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) Missouri ex rel. Gaines v. Canada, 337 (1938)

Mobile v. Bolden, 446 U.S. 55 (1980)

Mueller v. Allen, 463 U.S. 388 (1983)

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1957)

Olmstead v. United States, 111 U.S. 438 (1928)

Patterson v. McLean Credit Union, 491 U.S. 164 (1989)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Regents of University of California v. Bakke, 438 U.S. 265 (1978)

Richmond v. J. A. Croson, 488 U.S. 496 (1989)

Roe v. Wade, 410 U.S. 113 (1973)

Rostker v. Goldberg, 453 U.S. 51 (1981)

San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973)

Schlesinger v. Reservists Committee, 418 U.S. 208 (1974)

Shelley v. Kraemer, 334 U.S. 1 (1948)

Sipes v. McGee, 334 U.S. 1 (1948)

Sipuel v. University of Oklahoma, 332 U.S. 631 (1948)

Smith v. Allwright, 321 U.S. 649 (1944)

South Carolina v. Katzenbach, 383 U.S. 301 (1966)

Stanley v. Georgia, 394 U.S. 557 (1969)

Swann v. Charlotte-Mecklenberg, 402 U.S. 1 (1971)

Sweatt v. Painter, 339 U.S. 629 (1950)

Terry v. Adams, 345 U.S. 345 U.S. 461 (1953)

Trop v. Dulles, 51 U.S. (1958)

United States v. Classic, 313 U.S. 299 (1941)

United States v. Kras, 409 U.S. 434 (1973)

Vasquez v. Hillery, 474 U.S. 254 (1986)

Wygant v. Jackson Board of Education, 476 U.S. 267 (1987)

Wyman v. James, 400 U.S. 309 (1971)

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

SECOND CIRCUIT APPEALS COURT DECISIONS

Keyishian v. Board of Regents, 345 F.2d 236 (1965)

Mertens v. Flying Tiger Line, Inc., 341 F/2d 851 (1965)

People of the State of New York v. Galamison, 342 F.2d 255 (1965)

Seneca Nation of Indians v. United States, 338 F.2d 55 (1964)

United States v. Ayala, 307 F.2d 574 (1962)

United States v. Fay, 33 F.2d 12 (1963)

United States v. Wilkins, 348 F.2d 844 (1965)

MISCELLANEOUS

Murray v. Maryland, 182 A.2d 590 (1936), 169 Md. 478 (1937)

Acknowledgements

As author of the ebook and print versions of this book, I have enjoyed working with Ebooks for Students, a non-profit publisher with a stated mission to teachers with inexpensive class sets of biographies and popular histories. The goal of this publisher is to make it easier for teachers to assemble collections of ebooks at reading levels appropriate for their students, rather than relying on a single, one-size-fits-all history textbook in each class.

I would like to thank a few people who made the production of this ebook possible:

Jonathan P. Silberman, for patiently answering so many questions about InDesign, the software package used in the formatting of this ebook;

Katie Kassof, for her many revisions of the cover;

Natalie J. Pappas, for final proof-reading and review prior to publishing; and

Jim McCabe, for suggesting this project, and for his work in seeing it through to completion.

Select Bibliography

BOOKS

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COLLECTIONS

Archives of the Afro-American Newspapers, Coppin State University

Archives of the Atlanta University Center’s Woodruff Library

Archives of the United States Supreme Court

Ralph J. Bunche, unpublished letters and memorandums.

John P. Davis, unpublished papers and memorandums.

Moorland-Spingarn Research Center, Howard University, Washington, D.C.

Schomberg Center for Black Culture, New York Public Library.

Lincoln University (Pa.) Library

The New York Historical Society

Library of Congress, Manuscript Division

The White Law Library, Catholic University of America.

Lincoln University (Pa.) Library

The National Archives

New York Historical Society

The Vivian Harsh Collection at the Carter G. Woodson Regional Center of the Chicago Public Library

The National Association for the Advancement of Colored People, Baltimore,Maryland.

The Southern Christian Leadership Conference, Atlanta, Georgia.

Index

“Model cities” program

Aaron v. Cooper

Aaron v. Faubus

ABA Journal

abortion

Abrams, Morris

affirmative action

Alabama Christian Movement for Human Rights

Albertson, Mark

Alexander v. Holmes County Board of Education

Augliere, Mrs. Vincent

Barber v. Page

Barnett, Ross

Bates, Daisy

Beal v. Doe

Belafonte, Harry

Bennett, Rev. L. Roy

Bickel, Alexander

Black Muslims

Black Power

Black, Hugo

Blackmun, Harry Andrew

Blossom, Virgil T.,

Bond, Julian,

Borders, William Holmes

Branton, Wiley

Braun, Carol Moseley,

Brennan, William J.

Brisbane, Arthur H.

Brown v. Board of Education

Brown, H. Rap

Burger court

and abortion

and capital punishment

conservative trend of

Burger, Warren E.

nomination of

Buses, boycott of

Bush, President George H. W.

Busing,

Califano, Joseph

Calloway, Cab

Cambodia, and bombing halt

Capital punishment

Carmichael, Stokely

Carswell, G. Harold

Central High School, Little Rock

City of Mobile, Alabama v. Bolton

City of Richmond v. J. A. Croson

civil disobedience

and bus boycotts

Civil Rights Act of

Clark, Don

Clark, Hunter R.

Clark, Kenneth

Clark, Ramsey

Clark, Tom

Clark, Tom C.

Clifford, Clark

Coleman, George,

Coleman, William

Communists

Conference of Prince Hall Grand Masters

confessions

Congress of Racial Equality

Congress, U.S.

southern influence in

Court of Appeals

Cox, Harold

Current, Gloster

Dandridge v. Williams

Darbyshire, Glen M.

Davis, John W. and Brown v. Board of Education

Davis, Michael D.

DeFunis v. Odegaard

Dexter Avenue Baptist Church

Dillard University

Dirksen, Everett

Dole, Robert J.

double jeopardy

Douglas, William O.

Douglass, Frederick

Eastland, James O.

Ebenezer Baptist Church

Eckford, Elizabeth

Eighth Amendment

Eisenhower, President Dwight D., and Eisenhower administration

Ellington, Duke

Ellison, Ralph

Equal Rights Amendment (ERA)

Ervin, Sam J.

Evans v. Newton

Evers, Medgar

Evidence, and illegal seizure

Faubus, Orville

Felder, James

Fifteenth Amendment

Fifth Amendment

Fine, Benjamin

First Amendment

Ford, President Gerald R.

Fortas, Abe

Fourteenth Amendment

Frankfurter, Felix

Freedom Rides

Frontiero v. Richardson

Fullilove v. Klutznick

Furman v. Georgia

Garner v. Louisiana

Gellhorn, Gay

Georgetown Day School

Gilmore, Gary

Goodman, Andrew

Goodwin, Doris Kearns

Great Society

Greenberg, Jack

Gregg v. Georgia

Harlan, John Marshall

Hartsfield, William B.

Haynesworth, Clement F.

Hill, Anita

Holland, Spessard L.

Hollowell, Donald

Holtzman, Elizabeth

Homer Thornberry

Hooks, Benjamin

Hoover, J. Edgar

Horne, Lena

Humphrey, Hubert

Interposition

Interracial marriage

Interstate Circuit, Inc. v. City of Dallas

Jackson, President Andrew

Jenkins, Herbert

Johnson, Lady Bird

Johnson, James Weldon

Johnson, Lady Bird

Johnson, President Lyndon

civil rights policies of

Johnson, President Lyndon B.

and Marshall Court nominations

and solictor general position

civil rights policies of

Johnston, Olin D.

Judiciary Committee

Justice Department

Katzenbach and the United States v. Morgan

Katzenbach, Nicholas B.

Kennedy, Anthony

Kennedy, Edward M.

Kennedy, Randall L.

Kennedy, Robert F.

Kennedy, Roger

King Martin Luther Sr.

King , Martin Luther Jr.

and Montgomery bus boycott

and Selma march

and Southern Christian Leadership Conference

assassination of

King, A.D.

King, Coretta Scott

King, Lonnie

Ku Klux Klan

Kuchel, Thomas H.

Labor unions

Lewis, John

Liberty Medal

Liuzzo, Viola

Los Angeles and Watts riots

Loving, Richard and Mildred

Loyalty oaths

Lynchings

Maddox, Lester

Malcolm X

Mann, Woodrow

Mansfield, Mike

Mapp v. Ohio

Marshall, Cecelia “Cissy”

Mays, Benjamin Elijah

Mazique, Marguerite

McCarthy, Abigail

McCarthy, Eugene

McClellan, John L.

McCorvey, Norma

McGrory, Mary

McKissick, Floyd

McMath, Sid

Meredith, James

Miller, Harvey

Miller, John E.

Miranda v. Arizona

Mississippi Burning

Mitchell, Danny

Mitchell, John N.

Mitchell, Juanita Jackson

Morehouse College

Morgan, John P. and Christine

Morsell, Dr. John

Nash, Diane

National Bar Association

Newark, New Jerseyriot in

Nixon, E. D.

Nixon, Richard M.

and southern strategy

and Supreme Court

civil rights policy

O’Connor, Sandra Day

Parks, Rosa

Parvin, Albert

Patterson, John

Penn, Lemuel E.

Pentagon Papers

People of the State of New York v. Galamison

Philadelphia, Mississippi, murders in

Pickwick restaurant

Pope, Roslyn

pornography

Poussaint, Alvin

Powell, Lewis

privacy

racial terrorism

Rat Extermination Act

Reagan¸ President Ronald and Reagan administration

civil rights policies of

Rehnquist, William H.

Reitman v. Mulkey

Restrictive covenants, in housing

riots

Robb, Charles S.

Roberts, Lloyd D.

Robinson, Jackie

Robinson, Jo Ann

Roe v. Wade

Rustin, Bayard

Safe Streets and Crime Control Act

Scalia, Antonin

South Carolina v. Katzenbach

Southern Christian Leadership Conference

Stanley v. Georgia

Stennis, John C.

Stevens, John Paul

Student Nonviolent Coordinating Committee

Taggert, Paul

Thomas, Clarence

Thurmond, Storm

Till, Emmett

U.S. News & World Report

U.S. Supreme Court

and Brown compliance

and voting rights

black employees of

Marshall nomination to

United Nations

United States v. Guest

United States v. Kras

University of California Regents v. Bakke

University of Mississippi

University of Missouri

urban migration

Vietnam

Vietnam Veterans Against the War

Vinson, Fred A.

Voting rights

and Selma march

and Voting Rights Act

Walden, A.T.

Wallace, George

Ward, Horace

Warren Court

Warren, Earl

Washington Post

Washington Star

Watkins, H. C.

Watts, Los Angeles, riot in

welfare payments

Wheat Street Baptist Church

About the Authors

Hunter R. Clark (b. 1955) is a tenured professor of law at Drake University in Des Moines, Iowa, where he teaches Constitutional Law, a seminar on the U.S. Supreme Court, and directs the International and Comparative Law and Human Rights program. A graduate of Harvard College and Harvard Law School, Clark met Justice Thurgood Marshall in high school while serving as chief page for the U.S. Supreme Court. Marshall wrote Clark’s recommendation for admission to Harvard Law School. From 1981 to 1986, Clark wrote weekly articles for Time magazine on subjects ranging from law and politics to science, diplomacy, religion, and the arts. He is the author of Justice Brennan: The Great Conciliator (1995), a biography of the late U.S. Supreme Court justice.

Michael D. Davis (1939-2003) was a pioneering African American journalist and civil rights activist, and a leader of the Atlanta sit-ins in the 1960s. His father, John P. Davis (1905-1973), founded the National Negro Congress in 1935, and worked with Thurgood Marshall during the early years of the civil rights movement. A graduate of Morehouse College, Mike Davis became the first black reporter on the Atlanta Constitution in 1964. He served as a war correspondent in Vietnam, winning an NAACP award for his coverage of black troops in Southeast Asia. Later he worked as a reporter for the Baltimore Sun Papers, and as a metropolitan editor for WRC-TV NBC in Washington, D.C. He was the author of Black American Women in Olympic Track and Field (1992). He died in 2003.