Thurgood Marshall (38 page)

Paul E. Wilson, an assistant attorney general for Kansas, really didn’t want to argue against Carter. He had even tried to refuse to come to Washington. It was only after the Supreme Court found out that Topeka was willing to let the NAACP’s case go unchallenged that the high court insisted he come. Wilson based his defense on the 1896
Plessy
decision. “It is our theory that this case resolves itself simply to this: whether the separate but equal doctrine is still the law.” Wilson’s argument put the issue squarely on the Supreme Court. The state of Kansas, he argued, was happy to do whatever the Court decided, and the Court had never overturned the law of separate but equal.

But after lunch the real drama began as Marshall rose to make his oral presentation on the South Carolina case. The
Afro-American
reported that “all of the Supreme Court justices came to attention” when Marshall stood to speak.
¹¹
Even without microphones his voice boomed all around the crowded room and its high ceiling.

“We are saying that there is a denial of equal protection of the law,” Marshall told the packed chamber. Inferior schools and resources were not the issue, it was segregation itself. Racial separation hurt the “development of the personalities of [black] children” and “deprived them of equal status in the school community … destroying their self-respect.” He concluded that the “humiliation” black children went through was “not theoretical injury” but “actual injury.”

Marshall pointed out that not a single lawyer for any of the states with segregated schools had refuted any of his sociological evidence of the damage done to black children. And since there was nothing to refute this point, he said, the state had an obligation to integrate its schools. All black parents wanted, Marshall said, was for state segregation laws to be ruled unconstitutional.

Associate Justice Felix Frankfurter, who had been an adviser to the
NAACP when he was teaching law at Harvard, stopped Marshall’s presentation and asked if school integration might not lead to white neighborhoods “gerrymandering,” or limiting their school boundaries, to keep black students out. A confident Marshall shot back: “I think that nothing would be worse than for this court … to make an abstract declaration that segregation is bad and then have it evaded by tricks.” His solution was to give local districts the opportunity to create their own plans and allow lower courts to review them. “It might take six months to [desegregate] in one place and two months to do it in another place,” Marshall told the justices.

Frankfurter continued to pepper Marshall with questions, asking if South Carolina had the right to make any classification based on differences among children. For example, could a state separate smart students from dumb students? What if there was a good reason for having separate schools for blue-eyed children? Would Marshall object to a plan to have “all blue-eyed children … go to separate schools”? Decisively, Marshall answered: “No, sir, because the blue-eyed people in the United States never had the badge of slavery which was perpetuated in the [segregation] statutes.”

Despite Marshall’s cool demeanor at the time, this questioning got under his skin. He had expected Frankfurter to be an NAACP ally and, as a Jew, sensitive to the minority perspective. Instead Frankfurter seemed intent on posing theoretical questions that Marshall felt were taking the case off track.

“Frankfurter was a smart aleck, you know,” Marshall said later with a glare. “I was going to hurt him in the school case, but I didn’t have time. But if he’d have pushed me one more time, I was going to say, ‘May it please the Court, I wish to mention the fact that we have not come as far as some people think. For example, if this involved Jewish kids, I don’t think we’d have this problem.’ ”

After Marshall’s presentations, John W Davis stood to make the case for South Carolina’s segregated schools. The elderly Davis spoke in softer tones, and the justices asked him only a few questions. Davis’s point was that if racial segregation were outlawed, so would other kinds of classifications be illegal.

Davis went on to read from the writings of the former NAACP activist W.E.B. Du Bois to bolster his proposition that segregation was actually beneficial. “We shall get a finer, better balance of spirit, an infinitely more capable and rounded personality, by putting children
where they are wanted and where they are happy and inspired, than in thrusting them into the hells where they are ridiculed and hated.” Davis added, “There is no reason assigned here why this court or any other should reverse the findings of ninety years.”

He downplayed the Supreme Court’s earlier rulings, in the
Sweatt
and
Gaines
cases. He strongly made the point that in both cases the high court had refused to declare that separate but equal was unconstitutional. Davis emphasized that states had the right under current law to continue to segregate. So why, he asked, was the Court now willing to reverse years of precedent?

Marshall was quick to rebut. He argued that the issue was not whether states had the right to segregate but whether individual rights were being violated by racial segregation. The Fourteenth Amendment guaranteed every American equal protection. And he stressed that history made segregation by race very different from other state-imposed distinctions. Only blacks had been “taken out of the mainstream of American life,” Marshall told the justices. “I know in the South, where I spend 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.”
¹²

Over the next two days the Virginia, Delaware, and D.C. cases were argued with Spottswood Robinson, Louis Redding, and Jack Greenberg repeating the earlier arguments. By Thursday, three days after it started, all five cases had been heard and an exhausted Marshall went home to New York for Christmas.

* * *

In the first week of January 1953, the
Afro-American
published its man-of-the-year selection. Only Adlai Stevenson, the Democratic nominee who had lost the presidency to Eisenhower, got more votes than Marshall. Later in February Marshall was the guest of honor at a testimonial dinner in Baltimore, with his mother and wife. Also on the guest list were Joe Louis, Jackie Robinson, Ralph Bunche, Roy Wilkins, and Bill Hastie. Before those celebrities and an audience of six hundred people, Baltimore’s black bar, the Monumental City Bar Association, feted Marshall as “an archangel of God’s own freedom” and a man who “has sowed his life in the ground like a wheat seed that has come up bearing the fruit of liberty.”
¹³

Despite the growing mythology surrounding his power in the courtroom, Marshall was anxious about what the Court was going to do with the cases. By April he was hearing gossip about splits among the justices. He privately told NAACP leaders that he expected to win three of the five cases—South Carolina, Virginia, and Delaware—with the Court ruling that school facilities must be exactly equal. The two cases where he expected defeat were Kansas and Washington, D.C. In Kansas schools already had comparable facilities, and D.C. was a federal territory.
¹⁴

Newspaper columnists speculated about the vote, as did the justices themselves. Justice William O. Douglas later wrote that after the justices met in secret conference to discuss the cases he concluded there were five votes in place to defeat the NAACP on all the cases.
¹⁵

William Rehnquist, who later became chief justice, was a clerk to Justice Robert Jackson in 1952. He prepared a memo for Jackson that laid out the argument for keeping schools segregated. “To the argument made by Thurgood not John Marshall [a shot at Marshall by referencing the great legal thinker and first chief justice of the Supreme Court] that a majority may not deprive a minority of its constitutional rights …, 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.… I realize that it 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.”
¹⁶

With arguments pro and con still percolating, the justices were deadlocked. Then on June 8, 1953, the Supreme Court surprised Marshall and the nation. The Court issued five questions to the lawyers on either side of the cases. The questions were mostly historical. For example, did the framers of the Fourteenth Amendment intend to end school segregation? Did the Supreme Court have the power to abolish school segregation? And how would school integration be managed if the court voted to mix black and white schoolchildren?

The questions were a legal puzzle but, more important, a delaying tactic. The 1952 election had brought a new president to office, the Republican Dwight D. Eisenhower, and some members of the Court felt that the Eisenhower administration needed time to deal with a decision certain to stir the nation—one way or the other. “I’ve always thought that one of the reasons that they [listed the five questions]—and it’s been confirmed by other people—… was that a new administration was coming in,” said Warren Burger, later chief justice, but then an assistant attorney
general. “They wanted to get them in the act. So they had them reargue it, and then the [new] government was to file a brief as a friend of the court.”
¹⁷

The court scheduled the reargument for October 1953, ten months after the first argument in the case. Marshall telephoned historians around the country and asked them to research what state legislatures had said and written when they ratified the Fourteenth Amendment. He also called on historians familiar with the U.S. Congress to fill him in on the history of the amendment and what, if anything, the Congress had thought about integrated schools.

The NAACP lawyers who had battled over allowing psychologists like Ken Clark into the original case now had to cope with historians and their interpretations of evidence being thrust to the forefront. John Hope Franklin, a black Howard University historian, was in charge of research on how the Fourteenth Amendment had been put in practice after ratification in 1868. Alfred Kelly, a white historian at Wayne University in Detroit, was in charge of research on the original congressional debates on the amendment.

The combination of straitlaced lawyers who looked down their noses at everyone and Marshall’s freewheeling style, including dirty jokes and liquor bottles in his desk, sometimes made Kelly uncomfortable. And he recalled that Marshall’s moods could swing from pleasant to quite bitter and savage. Kelly recalled seeing Marshall turn fierce on one occasion when a secretary failed to bring some documents to him immediately. When the woman finally walked into Marshall’s office, he told her, “I hope you isn’t forgettin’ who the H.N. is around here.” Once the secretary had left, Kelly turned to Marshall and asked, “What’s an H.N.?” According to Kelly, Marshall “just sat back and laughed and then he said, ‘That’s the Head Nigger.’ ”

Once, when Kelly and Marshall were at work on the brief, their debate became heated and Marshall gave Kelly a nasty look. “Alfred,” he said, “you are one of us here and I like you, but I want you to understand that when us colored folks takes over, every time a white man draws a breath he’ll have to pay a fine.”

Kelly also recalled seeing Marshall read an old newspaper story headlined
NIGGER IN A PIT
, about a black railroad worker who had fallen off a train and into a pit. “Thurgood read it to us,” Kelly later said, “and kept saying the headline over and over—‘Nigger in a Pit—Nigger in a Pit—Nigger in a Pit,’ just savoring it, rolling it over and over on his tongue.
 … It seemed to epitomize the whole tragedy of the black man’s situation.”
¹⁸

Although Kelly was overwhelmed by Marshall’s personality, he and Franklin happily spent hours working with aides to review old historical documents and search for any hint of approval of integrated schools. To their disappointment, most of the research indicated that the congressmen who wrote the Fourteenth Amendment, and the state legislators who ratified it, had no intention of integrating schools.

Kelly, however, concluded they could make an argument that segregated schools violated the Fourteenth Amendment “even though very little, or nothing, was said specifically about segregated schools as such.”
¹⁹
He focused his argument on the words of liberal congressmen like Thaddeus Stevens, a Republican from Pennsylvania. After the Civil War, Stevens argued that Congress always had the right to stop the states from making distinctions in law between people.

Franklin meanwhile researched the discussions among state legislators during the debates on ratification of the Fourteenth Amendment. He too was disappointed with what he found. For the most part the states had not considered ratification to be a vote for ending school segregation.

“I suppose I was afraid that we wouldn’t win,” Franklin said in an interview. “Not only was the historical evidence stacked against [us] … but it was not possible for me to conceive of a society [where] little white kids, 5, 10 years old could go to school with blacks. I just didn’t believe it.”
²⁰

While Marshall was trying to synthesize a legal argument out of the historical research, the Supreme Court was suddenly transformed. Chief Justice Vinson died of a heart attack in September 1953, just a month before the reargument was scheduled. Marshall had never thought of Vinson as a supporter, although the chief justice had ruled for the NAACP in the
Sweatt
and
Sipuel
cases. “We knew he was against us, but we managed to get it reargued,” Marshall said later. “And then he died. The Lord was on my side!”

However, Marshall’s concern grew when President Eisenhower nominated California governor Earl Warren to be chief justice. Warren, after all, had been in charge of California’s program to put Japanese citizens in internment camps during World War II. “When Earl Warren was appointed by the president, I had the job of finding out what the hell he was all about,” Marshall said. “And I went out to California, and I checked with the conservatives and the liberals, and all of them said the same
thing. That the man was simply great. Great! And two judges whom I spoke with on the California Supreme Court said, ‘If he doesn’t do right, call us up and we’ll come and kick his ass.’ ”