Thurgood Marshall (39 page)

When Marshall got back he told his legal team that he now calculated they had five sure votes on the Court to end school segregation: “You damn right, that was the first time we thought that we had a five-to-four.”

In November, five months after the Court had posed the five questions to the lawyers, the NAACP responded with a 256-page brief that Marshall estimated cost them $40,000 for research, travel, and printing. The heart of the answer was that the Court had previously ruled discrimination was not constitutional: “Time and again,” the brief read, the Supreme Court had ruled that if a state had “deprive[d] a Negro [of] the right which he would have freely enjoyed if he had been white, then that state’s action violated the 14th Amendment.”

On the basis of the research, Marshall made highly selective use of history. Despite inconclusive supporting evidence, the NAACP made a strong argument that when Congress passed the Fourteenth Amendment, “the framers intended that the Amendment would deprive the states of power to make any racial distinction in the enjoyment of civil rights.”

In its most powerful language, the NAACP’s brief said the only way the Court could allow blacks to be segregated in public schools was if it concluded that blacks were inferior to whites. Marshall argued school segregation could not be upheld on any other grounds.
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John W. Davis, meanwhile, filed a brief that indicated, with far greater support from historical evidence, that Congress and the states that ratified the Fourteenth Amendment did not want to abolish school segregation.

The Supreme Court then asked the Justice Department to file a friend-of-the-court brief on the five questions. The high court even delayed oral arguments, from October to December 1953, to allow the department extra time to prepare the brief. Marshall confided to friends that he doubted President Eisenhower’s Justice Department would ever write a brief favorable to the NAACP.

When Justice did submit its answers, it responded that Congress was inconclusive about whether it intended to outlaw segregated schools. Despite its lack of clarity on the history, the brief stressed that the current “compulsory segregation” of schoolchildren was a violation of the Fourteenth Amendment’s guarantee of equal rights.
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Just after Thanksgiving, Marshall and his best lawyers went to Washington
for a second time to prepare oral arguments. This time Marshall was less tense. He stayed up late most nights, drinking and entertaining fellow lawyers and famous visitors. “I always used to thank God that the Court didn’t start until [after] 12:00, because during the
Brown
argument, Thurgood was out until around 4:00 in the morning,” said Bill Coleman, one of the young lawyers advising Marshall.
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Marshall also went back to Howard University’s law school for another round of practice arguments. Lou Pollack, a respected New York lawyer who was advising the NAACP, recalled that while the “mock” arguments were intense and rigorous, they could also be filled with laughter. During one session, a faculty member asked if the court had the power to end school segregation unilaterally. “Thurgood fell on one knee, Al Jolson-like, and said, supplicant-like: ‘Power? Power? White boss, you got the power to do anything you want!’ ”
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While in Washington, Marshall and his staff became accustomed to a nightly knock at the door. When they answered, a black man dressed in a butler’s uniform offered a freshly baked cake, then walked away. Marshall had no idea who the man was but decided he would offer him one of the NAACP’s tickets to get into the Court on the day of the argument. The kindly butler told Marshall not to worry about it and left as mysteriously as he appeared.

On Monday, December 7, 1953, the Supreme Court opened its session to hear responses to the five questions. As Marshall was settling into his seat, he saw a surprising face. There, seated among the wives of the justices, was the butler who had been bringing him cakes at the hotel. Marshall made a quick connection between the man and Nina Warren, the wife of the chief justice, who lived near where Marshall had been staying. It was the Warrens’ butler who had been providing the NAACP lawyers with their nightly dessert.
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Marshall, with Spott Robinson, began the presentation by arguing that Congress intended the Fourteenth Amendment to end school segregation. He focused on the Supreme Court’s history of rulings that protected individual rights over any claim of states’ rights. But the justices found the arguments weak; they openly showed a lack of interest and left Marshall fumbling before he finally stopped. He later told Jack Greenberg that he sent a Masonic hand signal—indicating distress—to Justice Jackson, a fellow Mason.

After his subpar performance, Marshall was deeply worried that the experienced and venerated John W. Davis might take advantage to score
heavily with the Court. Marshall watched closely as the silver-haired Davis stood and with confident ease announced that there was no doubt that Congress had intended to keep schools segregated. He noted that the schools had remained segregated after ratification of the Fourteenth Amendment and Congress had never even prohibited school segregation in the capital. This was evidence, Davis continued, of the true intent of the men who wrote the amendment. And he said the Supreme Court had ruled several times that the practice of segregation was legal.

“I am reminded,” Davis concluded, “of Aesop’s fable of the dog and the meat: The dog, with a fine piece of meat in his mouth, crossed a bridge and saw the shadow in the stream and plunged for it and lost both substance and shadow. Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige? … I entreat [my opponent] to remember the age-old motto that the best is often the enemy of the good.”

For all his years of admiration for Davis, Marshall was not impressed with his opponent’s argument. He felt Davis had not capitalized on the weakness in the NAACP’s position. In Marshall’s opinion Davis had looked like a struggling old man. “Well, he was down, he was over the hill,” said Marshall. “He was old. And he cried. Real tears, while he was arguing. He was telling the story about the dog with the bone in his mouth. When he told that story he had tears in his eyes. He sure did.”

In his rebuttal the next day, Marshall showed no signs of the fumbling that had bedeviled him the first day. He began with a razor-sharp swipe by reminding the justices that Davis had said blacks were seeking “racial prestige” and social status by going to schools with whites. “Exactly correct,” said Marshall. “Ever since the Emancipation Proclamation, the Negro has been trying to get … the same status as anybody else regardless of race.” In an impassioned conclusion, Marshall told the Court that the only justification for continued school segregation was the desire to keep “the people who were formerly in slavery … as near that stage as is possible.”

His second-day argument drew a strong, positive response. “This time he took a different, more effective approach—he came on like a locomotive,” Paul Wilson, the lawyer for Kansas, later wrote. Bill Coleman, the young Harvard Law graduate who had been a clerk to Justice Frankfurter, sent Marshall a letter two days later that read: “I must say that your rebuttal was the most appropriate and the most forceful argument I have ever heard in any appellate court.… While you were making
it I could not help but watch the smile of understanding on Mr. Justice Frankfurter’s face.”
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With the final arguments done, Marshall was left in limbo. The Court’s ruling was not due until the spring. Marshall’s legal team, however, had run up huge bills. So despite the upcoming holidays, he went on the road to give speeches at NAACP fund-raisers. One of the biggest was in New York just before Christmas. Calvert Whiskey sponsored a $15,000 testimonial at the Hotel Astor that attracted more than a thousand people. At the dinner Marshall thanked the corporation as well as the Masons, who contributed $24,000 a year to the NAACP’s legal fund, and the local branches. In January, Marshall went to a national meeting of black publishers, who had raised almost $18,000 with special ads calling for contributions to the NAACP. The special counsel, speaking to the publishers in Tuskegee, predicted that the Supreme Court would end school segregation. He said he expected full integration to take place in four to five years, with the worst trouble in “some sections of the black belt, some of them right here in Alabama, where the Supreme Court decision … would have no effect for 30 years.”
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Marshall was on the road again in March 1954, when he told an audience in Charlottesville, Virginia, that “come Hell or high water, we are going to be free by ‘63.” Asking them to remember the promise of the emancipation of the slaves by President Lincoln on January 1, 1863, Marshall made a prediction. “On freedom’s 100th anniversary we will be free as we should have been in 1863.… The soul of the white man is in the hands of the Negro, because we are the only ones who—with blood, sweat and tears—got the money to go to court to get the rights others enjoy as a matter of course.”
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By early May the Supreme Court still had not ruled, and Marshall was beginning to wonder if the ruling might be delayed until the next term. He was in Mobile, Alabama, where he had spoken on Sunday, May 16. He was scheduled to speak in Los Angeles the next day when he received a phone call—he never said from whom—telling him that he might want to be at the Supreme Court instead. Marshall caught the next flight to Washington.

At 12:52 P.M. Chief Justice Warren, with all the associate justices in attendance, started reading the Court’s decision in the schools cases. As Warren began to read, Marshall was not certain which way he was going. Warren said: “In approaching this problem we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted or even to
1895 when
Plessy v. Ferguson
was written. We must consider public education in the light of its [current role] in American life.”

Marshall, seated in the lawyers’ section, focused a glare at Justice Stanley Reed. Marshall thought Reed, a Kentucky native, was the most likely leader of a bloc of votes to keep school segregation in place. Marshall heard that Reed had prepared a dissent, with the help of a privately hired law clerk. He wanted to watch Reed’s face as a clue to what was going to happen. Reed only stared back at him, wide-eyed.

While Marshall and Reed were staring each other down, Warren continued: “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 … a right which must be made available to all on equal terms.… 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.”

Then in dramatic style Warren made a historic pronouncement: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Marshall later recalled that when he heard those words, “I was so happy I was numb.”
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“When Warren read the opinion,” Marshall recalled, “Reed looked me right straight in the face the whole time because he wanted to see what happened when I realized that he didn’t write that dissent and I was looking right straight at him. I’m sure Reed laughed at that.”

In fact, one of Reed’s clerks, John Fassett, had done research on arguments to support a possible dissent. Reed, however, decided to vote with the majority. The ruling was unanimous. “Earl Warren,” said E. Barrett Prettyman, Jr., a clerk to Justice Jackson, another possible dissenter, “worked very hard, to his credit, to convince people and particularly the last one or two holdouts that it would not be in the interest of the court or the country to have divergent views on this vital subject.”
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After the justices stood and filed out, Marshall was quickly surrounded by reporters. But first he turned to James Nabrit II and George Hayes, the two lawyers who had argued the Washington, D.C., case, and said, “We hit the jackpot.”
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Marshall was filled with brash confidence and told the press that he did not think southern states would “buck the Supreme Court.”

The
Afro
’s next edition read:
SEGREGATION ILLEGAL NOW
. The story
quoted Marshall as saying: “It is the greatest victory we ever had … the thing that is gratifying to me is that it was unanimous and on our side.”
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One of the few children in the courtroom that day was the son of Joe Greenhill. An assistant attorney general in Texas, Greenhill had argued against Marshall in the
Sweatt
case. He was on vacation and just happened to be visiting the Court that day with his family. After talking with reporters, Marshall, bursting with happiness, picked up Greenhill’s kid. The large brown man began running through the grand marble halls with the small white child. “He picked up our son Bill and put him on his shoulders and ran down the corridor of the Supreme Court,” said Greenhill. “He was having a good time, we were having a good time, and to hell with dignity. He just won a biggie.”
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No Radical