These Truths

by Jill Lepore

  Desk Set played on its audience’s fear of automation, of machines that would make workers redundant. But, more bracingly, it offered a proposal about mass democracy and the chaos of facts. Citizens find it impossible to gather all the information they need to make an informed decision about a political issue; they are easily deluded by television and other forms of mass media and mass advertising; they struggle to sort through fact and fiction. But computers have no problem handling a vast store of knowledge; they are animated only by logic; they are immune to persuasion. It seemed possible—it had certainly been Mauchly’s dream—that computers would help people become better citizens, that the United States would become a techno-utopia. Desk Set wondered, instead, whether computers had about them the whirring mechanical menace of totalitarianism, another cross of iron.

  IV.

  THOROUGHGOOD MARSHALL WAS born in Baltimore in 1908, the son of a steward who served at an all-white resort and a kindergarten teacher who taught at all-black schools. He knew all about the color line; he knew about it as intimately as a prisoner knows the walls of his cell. Marshall, who started spelling his name “Thurgood” in the second grade because it was simpler, first read the Constitution when he was made to study it as punishment for raising hell at school. “Instead of making us copy out stuff on the blackboard after school when we misbehaved,” Marshall later explained, “our teacher sent us down into the basement to learn parts of the Constitution.” He pored over every word. He figured he’d found the key to the lock on that cell door. His parents wanted him to become a dentist, but after working his way through college as a dining-car waiter on the B&O Railroad, he decided he wanted to be a lawyer. He’d learned his pride, and how to argue, from his father during arguments at the dinner table. Whenever he’d say something smart, his father would say, “Why, that’s right black of you.”128

  Unable to attend the segregated University of Maryland Law School—a ten-minute trolley ride from his family’s house—he instead went to Howard, which required riding in segregated railroad cars, forty miles each way. Graduating first in his class in 1933, he two years later successfully sued, as counsel, the state of Maryland, arguing that, because the state provided no law school for African Americans, it had defied the “separate but equal” doctrine of the Supreme Court’s 1896 ruling in Plessy v. Ferguson. By 1950, Marshall had convinced the NAACP to abandon this line of argument—demanding equal facilities—in favor of arguing against separation itself.

  Marshall started the NAACP’s legal and educational defense fund right after he won his case against the state of Maryland. As its chief counsel, he argued hundreds of cases across the South as part of a years-long strategy to end Jim Crow, at one point carrying as many as 450 cases at once. He started with higher education—law schools and professional schools—and worked his way down to colleges with the idea of eventually challenging segregation all the way down to the kind of kindergarten classrooms where his mother had taught. It had taken him a long time to convince colleagues at the NAACP to abandon “equalizing” arguments in favor of integration. (Equalizing had always been a means to end segregation, if gradually, the idea being that states would eventually be broken by the cost of maintaining separate schools if they had to be genuinely equal.) But by 1950, African Americans had challenged Jim Crow in the military and in housing and had also gained more political power. The Great Migration of blacks to the north and west meant that, nationally, anyway, large numbers of black men and women could vote, even if 80 percent of blacks in the South were still disenfranchised. By the middle of the decade, television, too, would argue in favor of making a leap in civil rights litigation: southern racial violence and intimidation, long hidden from view outside the South, could now be seen in living rooms across the country.

  Aiming to bring a challenge to segregation in the nation’s public schools to the Supreme Court, an objective endorsed by Truman’s Justice Department, Marshall began building a docket of cases in 1951. Several were eventually consolidated under a title case concerning a third grader named Linda Brown, who lived in Topeka, Kansas. Her father, Oliver L. Brown, a welder and part-time pastor, wanted her to go to a school blocks away from their house. But Topeka’s segregated school system assigned Linda to a school a long walk and a bus ride away, an hour of travel each way. Oliver Brown agreed to join a civil suit against the Topeka Board of Education, filed by the NAACP’s Legal Defense Fund. The case was called Brown v. Board of Education.

  On the eve of oral arguments in December 1952, Marshall was near to physical collapse from overwork. At the Supreme Court building, a line began to form before dawn, men and women bundled against the morning frost in winter coats and hats. Oral arguments lasted three days. Justice Stanley Reed asked Marshall whether segregation wasn’t in the interest of law and order. Marshall was willing to stipulate, for the purpose of argument, that maybe it had been when the court decided Plessy. But “even if the concession is made that it was necessary in 1895,” he said, “it is not necessary now because people have grown up and understand each other.” Marshall offered the court a singularly hopeful picture of American race relations. “I know in the South, where I spent most of my time,” he said, “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.”

  Justice Felix Frankfurter asked Marshall what he meant by “equal.” Marshall, six foot four, his wavy black hair slicked back, his thin mustache as pointed as a punctuation mark—Newsweek once described him as “a rumpled bear of a man”—answered, with his slight southern drawl, “Equal means getting the same thing, at the same time, and in the same place.”

  John W. Davis, the seventy-eight-year-old former solicitor general, U.S. ambassador to Britain, and Democratic presidential candidate in 1924, argued the other side, stressing states’ rights and precedent. A formidable opponent, Davis had made 139 appearances before the court; this would be his last. He asked, “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?” And, on tradition: “There is no reason assigned here why this Court or any other should reverse the findings of ninety years.”129

  But Marshall’s argument, strenuous and intricate, aimed to lift from the shoulders of African Americans the weight of history. Instead of arguing from precedent, Marshall borrowed from Louis Brandeis: he presented the findings of social science. In establishing the constitutionality of Jim Crow laws, Plessy v. Ferguson had cited the “customs and traditions of the people.” Marshall presented the court with reams of empirical research on the consequences for black children of separate schooling. Jim Crow laws, Marshall told the court, are Black Codes, and the only way the court could possibly uphold them, he said, would be “to find that for some reason Negroes are inferior to all other human beings.”130

  As the court was keenly aware, the case to end segregation was aided by the conditions of the Cold War itself. The United States billed itself as the leader of the “free world,” and fought against the Soviets for influence in emerging polities in the third world, but frequently found itself indicted for its racial order at home. When the finance minister of Ghana, on a visit to the United States, stopped at a Howard Johnson’s in Delaware and tried to order orange juice, he was told that blacks were not allowed in the restaurant. When the Haitian secretary of agriculture was invited to Biloxi, Mississippi, for a conference, he was told he was unable to stay at the conference hotel. “Can serious people still speak of American democracy?” asked one Haitian newspaper. Newspapers from Bombay to Manila reported on Jim Crow. “The Negro question” was one of the principal themes of Soviet propaganda, the U.S. embassy in Moscow reported. And so, when the Topeka case first reached the Supreme Court, Truman’s Justice Department urged the court to overturn Plessy, partly on the grounds that legal
ly sanctioned racial discrimination in the United States undermined American foreign policy aims. “Racial discrimination furnishes grist for the Communist propaganda mills,” said Attorney General James P. McGranery, “and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.” In his brief, the attorney general included two pages written by Dean Acheson, the secretary of state, emphasizing the cost of Jim Crow at home to the United States’ reputation around the world. “Racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations,” Acheson reported, “and it jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.” Desegregation had become a matter of national security.131

  As the oral arguments ended, Davis was overheard saying, “I think we’ve got it won, 5–4, or maybe 6–3.” He’d read the bench well. When the justices began their deliberations in closed session, Chief Justice Fred Vinson, a Kentucky Democrat, opened by noting that precedent did indeed support segregation. Vinson thought it would be better if the desegregation of schools came from Congress, and that if the court acted ahead of popular opinion, public schooling in the South might be effectively abolished because segregationists would rather close their schools than admit blacks. Reed, also from Kentucky, said that he thought the time to end segregation would come when the “body of people” thought it was unconstitutional, which hadn’t happened yet. Like Reed, Justice Robert Jackson said he thought that if the court had to decide this question, “then representative government has failed.” Frankfurter, a longtime liberal who, once on the court, had become its most dogged opponent of judicial activism, wanted—like Texan Tom C. Clark—to delay. Frankfurter had served on the NAACP’s Legal Defense Committee and had hired a black law clerk, the court’s first, in 1948, but, as much as Frankfurter wanted segregation to end, Marshall hadn’t convinced him that it was unconstitutional. Roosevelt appointee and former Columbia University law professor William O. Douglas thought the whole thing was “very simple”: the “14th amendment prohibits racial classifications.” Hugo Black, from Alabama, was one of the strongest voices in opposition to segregation, even though he himself had been a member of the Klan in the 1920s—a blot that he strained to scrub clean. Had the justices then taken a straw vote (which they did not), it appears likely that four would have found segregation unconstitutional, two would have reaffirmed Plessy, and three would have been uncertain. Worried about the political consequences of a divided decision—a worry that extended to mass violence—Vinson decided to reschedule the case, to be reargued in December 1953.133

  All bets on the outcome of the case were called off, though, when, on September 8, 1953, Vinson died, altogether unexpectedly, of a heart attack. Eisenhower, who had, in an effort to unite the divided Republican Party, named his rival and Nixon’s great political enemy Earl Warren as his solicitor general, had also, at the time, promised Warren a seat on the court. When Vinson died, Eisenhower appointed Warren as chief justice, a position Warren would hold for sixteen years, presiding over the most liberal bench in the court’s history. Brown v. Board was the first case the Warren Court tackled.

  Warren, opening the discussion, saw the case entirely differently than had Vinson. “Separate but equal doctrine rests on [the] basic premise that the Negro race is inferior,” he began, agreeing with Marshall that the “only way to sustain Plessy” was to agree with the premise of racial inferiority, which was impossible, he said, because “the argument of Negro counsel proves they are not inferior.” Warren’s vote, added to the four justices who in the earlier session made clear that they believed segregation to be unconstitutional, meant that Warren’s argument would prevail, 5–4, even if no other justices joined his side. The justices’ clerks nearly unanimously supported Warren’s position, all but a young William Rehnquist, as he made plain in a memo to his boss, Justice Jackson. “I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues,” Rehnquist wrote, “but I think Plessy v. Ferguson was right and should be reaffirmed.”133 (Nixon would appoint Rehnquist to the court in 1971.)

  The court was scheduled to hand down its decision on May 17, 1954. The NAACP was so uncertain how the court would decide that it prepared two press releases, one for either possible decision. Reporters flooded the galleries. The decision had been made unanimous. Justice Jackson, in the hospital recovering from a heart attack, came to court that day, so committed was the court to a display of unity.134 Warren delivered the opinion he’d written about the nature of change over time. “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written,” he insisted. “We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” In assessing the evidence not of the past but of the present—the conditions in American schools—he concluded that “separate educational facilities are inherently unequal.”135 At least on paper, Jim Crow was over.

  Much of the public greeted the decision with elation and joy, nowhere better captured than in a photograph of a young mother sitting on the steps of the Supreme Court, cradling her young daughter in the crook of her arm, holding in her lap the next day’s newspaper, with its outsized front-page headline HIGH COURT BANS SEGREGATION IN NATION’S SCHOOLS. Warren’s opinion was greeted with near equal pleasure by Cold Warriors, who called it a “blow to communism.” Even the Republican National Committee—granting Eisenhower credit for a decision that Truman’s Justice Department had pursued—celebrated the court’s ruling, stating that “it helps guarantee the Free World’s cause.”136

  But not all civil rights activists had supported Marshall and the NAACP’s legal strategy, not all African Americans wanted their schools to be desegregated (which often resulted in black teachers losing their jobs), and many who did nevertheless placed greater priority on other political goals. In a 1935 essay called “Does the Negro Need Separate Schools?” W. E. B. Du Bois had written about something almost ineffable in a teacher’s understanding of the world of her students. Dissenters within the NAACP found that its willingness to bring the fight for civil rights to the courts came at the expense of securing better jobs, equal pay, and fair housing. In Atlanta, home to five historically black colleges and universities, nearly half the city’s public school teachers were black and, of those, three-quarters were black women. Black teachers had been lobbying the legislature for equal pay and for equal funding for black schools. Atlanta lawyer A. T. Walden had begun filing pay equity suits on behalf of the city’s teachers in 1942 and the next year had filed a class action suit with Thurgood Marshall. In 1950, when Marshall turned the NAACP strategy to integration and Walden began pursuing desegregation cases, the editor of the Atlanta Daily World was among the most outspoken of those black leaders who objected, arguing that much would be lost for black children sent into white schools, especially at a time when the legislature, under growing grassroots pressure, was beginning to move on equalizing funds and opening new black schools. The strongest reservations were those of black schoolteachers; even in Topeka, they “wanted no part of the effort to desegregate the schools.” After Brown, they continued to be skeptical. Marshall did not hide a frustration laced with contempt. “We will try to convert them to our way of thinking,” he said, days after the ruling. “But we will walk over them if they get in our way.”137

  Among whites, especially in the Jim Crow South, Brown was met with swift and sustained resistance. Eisenhower had been dismayed by the ruling: “I am convinced that the Supreme Court decision set back progress in the South at least fifteen years,” he said privately. “The fellow who tries to tell me you can do these things by FORCE is just plain NUTS.”
Segregationists prepared for battle. “There is nothing in the United States Constitution that gives the Congress, the President, or the Supreme Court the right to declare that white and colored children must attend the same public schools,” said Mississippi senator James Eastland. And a new movement began, called “Impeach Earl Warren.”138

  The court urged schools to desegregate “with all deliberate speed.” Some schools in cities and towns like Washington and Baltimore complied. The overwhelming majority did not. In some cities, like Atlanta, where many black families were deeply ambivalent about the NAACP’s legal strategy, the school board dragged its feet, and black activists and black teachers’ unions didn’t press them. In other cities, all-white school boards simply refused to budge. In 1955, in eight states in the South, not a single black child attended school with a white child. The Richmond News Leader wrote that year: “In May of 1954, that inept fraternity of politicians and professors known as the United States Supreme Court chose to throw away established law. These nine men repudiated the Constitution, spit upon the Tenth Amendment and rewrote the fundamental law of this land to suit their own gauzy concepts of sociology. If it be said now that the South is flouting the law, let it be said to the high court, You taught us how.”139

  The court could disavow Jim Crow, but it would take a fight to dismantle it. Sometimes that fight took place at the very doors of public schools, where black children were placed on the front lines. It also took place on buses and in restaurants, in the acts of defiance that had become commonplace in the 1940s, even if they had been rarely reported. After Brown, reporters took notice. On December 1, 1955, in Montgomery, Alabama, Rosa Parks, a forty-two-year-old seamstress, refused to give up her seat on a bus to a white man. Parks, born in Tuskegee, had joined the NAACP in 1943, when she was thirty; secretary of her chapter, she’d worked on voter registration and the desegregation of transportation. Parks had made a purposeful decision to challenge segregated seating on the city’s buses. The driver stopped the bus and asked her to move, and when she again refused, he called for police, who arrested her.