A People's History of the Supreme Court

by Peter Irons

  Franklin Roosevelt had placed his attorney general on the Court when he named Frank Murphy in 1940. Murphy’s death in July 1949 gave Harry Truman a third appointment, and he also turned to his attorney general, Tom C. Clark, who became the first Texan on the Court. Born into a family of lawyers in 1899, Clark attended the University of Texas Law School and joined his father’s Dallas firm in 1922. He spent most of his career in government service, with ten years in the Justice Department. As head of the War Frauds Unit, he worked closely with Senator Truman; as an active Texas Democrat, Clark helped Truman win the vice-presidential nomination in 1944 and was promoted to head the Justice Department in reward.

  Under Clark’s direction, the Justice Department took an active role in civil rights enforcement and an equally active role in searching for subversives. He pressed a reluctant J. Edgar Hoover to assign FBI agents to lynching cases and authorized the prosecution of Communist Party leaders for sedition. During eighteen years on the Court, Clark remained consistent, voting for civil rights plaintiffs and against Communist defendants. His opinions were dull but competent, and he spent much time working to improve judicial administration. Clark retired in 1967 when President Lyndon Johnson named his son, Ramsey Clark, as attorney general. He devoted the years before his death in 1977 to improving the quality of justice, concerned more with nuts and bolts than grand designs, much as he had approached cases on the Court.

  Truman’s final judicial appointment was also his worst. justice Wiley Rutledge died in September 1949, two months after Frank Murphy; the president quickly named another former Senate crony, Sherman Minton of Indiana, to succeed Rutledge. Elected to the Senate in 1934, the tobacco-chewing Hoosier had befriended Truman and vocally supported President Roosevelt’s court-packing plan. When Indiana’s Republicans swept, back to power in 1940, Minton lost his Senate seat. President Roosevelt rewarded him for political loyalty with a federal appellate judgeship; he served for eight years without distinction before Truman promoted him to the Supreme Court. He joined the “Truman Bloc” in most cases, although he dissented in several cases that struck down Jim Crow laws. Forced by illness to resign in 1956, Minton returned to Indiana without leaving any mark in Washington. He well deserved the failing grade that scholars placed beside his name.

  No president added more illustrious names to the Court’s history than Franklin Roosevelt. And none placed more failures on the bench than Harry Truman. We Could aptly call his nominees the “Four Horsemen of Mediocrity,” the term applied by Justice William O. Douglas to all but Tom Clark, whose mediocre opinions were balanced with devoted service to judicial reform. Ironically, scholars have consistently ranked Truman among the “top ten” presidents, and he certainly grew in the job after the “load of hay” fell on him in 1945. But he never recovered from his bad case of “cronyism” in making appointments. Fortunately, the Supreme Court survived the bout of mediocrity it caught from Truman.

  During the war, more than 900,000 black soldiers risked their lives to defend a Constitution whose protections they did not enjoy in a segregated army and navy. One expressed his resentment in angry words: “The Army jim-crows us. The Navy lets us serve only as messmen. The Red Cross refuses our blood. Employers and unions shut us out. Lynchings continue. We are disenfranchised, jim-crowed, spat upon. What more could Hitler do than that?” Many of these soldiers returned home determined to do something about segregation. They joined the NAACP, boosting its membership and energizing local chapters that had been dormant for years. In communities across the South, black veterans tried to register to vote, pressed local officials to improve their children’s schools, and protested discrimination in jobs and housing.

  The southern reaction to black demands for full citizenship was often hostile and sometimes violent. The case of Isaac Woodward was just one of dozens reported in 1946. After combat duty in the Philippines and New Guinea, Woodward reported to Camp Gordon, Georgia, for his army mustering-out. Carrying his honorable discharge papers, he headed for home in North Carolina on a Greyhound bus on February 12. The white driver cursed the black veteran for taking too long at a “comfort stop” and summoned police in Batesburg, South Carolina. They dragged Woodward into the local jail and beat him senseless. During this assault, Chief L. I. Shaw gouged Woodward’s eyes with a billy club and left him blind. State officials refused to prosecute Shaw, and an all-white federal jury acquitted him of charges that he had violated Woodward’s civil rights. The federal attorney who prosecuted Shaw failed to produce any witnesses other than the bus driver who had Woodward arrested. White spectators cheered the jury’s verdict.

  On July 25, a band of twenty white men dragged two black farmhands and their wives from a car in Monroe, Georgia. One of the black men had recently been charged with stabbing his white employer. Led by a “dignified looking white man,” the vigilantes lined up their victims, counted “one, two, three,” and fired more than sixty bullets into them. “The upper parts of the bodies were scarcely recognizable from the mass of bullet holes,” the New York Times reported. One of the murdered blacks, George Dorsey, had just returned from army service in North Africa and Australia. Georgia governor Eugene Talmadge told the press that “things like that are to be regretted,” adding that “nothing can be gained by giving equal rights to someone with an artificial civilization.” Sheriff E. S. Gordon said that because a white farmer who witnessed the massacre “could not identify any member of the band he had gone as far as he could with his investigation.” Attorney General Tom Clark ordered “a complete investigation” of the murders, but no prosecutions resulted.

  “Mob acts of violence against Negroes are assuming alarming proportions,” the NAACP charged in September 1946. Two months later, President Truman appointed a blue-ribbon President’s Committee on Civil Rights to determine whether new federal laws were needed “to safeguard the civil rights of the people.” The committee’s 1947 report, To Secure These Rights, urged “the elimination of segregation” in housing, education, employment, public facilities, and transportation. The president endorsed the report and urged Congress to enforce its recommendations with legislation.

  One witness before the president’s committee spoke from years of experience in civil rights litigation. Thurgood Marshall, counsel for the NAACP Legal Defense and Education Fund, was the nation’s leading black lawyer. Born in Baltimore in 1908, he applied to the University of Maryland’s all-white law school after graduating from an all-black college. Turned down because of his race, Marshall studied law at Howard University, the “black Harvard” in Washington, D.C. He won his first civil rights case in 1936, forcing Maryland to admit Donald Murray to its law school. Because the state did not appeal to the Supreme Court, the Murray case did not establish any precedent on racial segregation outside Maryland.

  Thurgood Marshall commanded a dedicated platoon of lawyers who fought segregation with a battle plan drafted in 1931 by Nathan Margold, a young Jewish lawyer and protégé of Felix Frankfurter, then a Harvard law professor. Hired by the NAACP to research Jim Crow laws and recommend a long-range litigation strategy against segregation in public education, Margold produced a 218-page document that became the “master plan” for Marshall’s legal troops. Margold took the Supreme Court’s “separate but equal” ruling in Plessy v. Ferguson as his starting point. After documenting the obvious fact that schools for blacks were rarely equal to those for whites, Margold considered two legal strategies. One would focus on lawsuits designed to force southern officials to make black and white schools truly equal in quality. This approach had two advantages: it would avoid a frontal attack on Plessy, which stood firmly in the 1930s as precedent; and judicial rulings that ordered equal facilities would impose heavy financial burdens on local school boards. The second legal strategy would assert that separate schools could never be equal because segregation imposed a “badge of servitude” on black children. This approach had many risks, but one virtue: judges could not evade the Eq
ual Protection Clause of the Fourteenth Amendment. Margold urged NAACP lawyers to rely for precedent on Yick Wo v. Hopkins, in which the Supreme Court ruled in 1888 that laws that public officials applied to racial minorities “with an evil eye and an unequal hand” violated the Constitution.

  Margold advised NAACP leaders that “it would be a great mistake to fritter away our limited funds on sporadic attempts to force the making of equal divisions of school funds in the few instances where such attempts might be expected to succeed.” This approach would force civil rights lawyers to file separate lawsuits in each southern school district, to recruit plaintiffs in each district who had the courage and fortitude to face hostility from whites and delays in court, and to perform the laborious task of digging out the facts of school funding disparities in each case. Even if they succeeded, lawsuits to equalize facilities would require judges to act as school superintendents, checking the quality of textbooks, playgrounds, and lavatories. “And we should be leaving untouched the very essence of the existing evils” of segregation, Margold warned. “On the other hand,” he wrote, “if we boldly challenge the constitutional validity of segregation if and when accompanied irremediably by discrimination, we can strike directly at the most prolific sources of discrimination.”

  The “Margold Report” became a bible for Thurgood Marshall and his legal staff. But they did not read it literally as commanding a frontal attack on elementary and secondary school segregation in the Deep South. Such an approach would have sent Marshall’s troops on a suicide mission. The notion of little black boys rubbing knees with little white girls was unthinkable in the 1930s. Marshall decided instead to mount a flanking attack on the Old Confederacy, beginning with graduate education in border states. This campaign, if successful, would establish legal precedent for a final assault on the citadel of segregation, grade schools in the Deep South.

  Marshall’s strategy of encirclement won its first major victory in 1938 over the University of Missouri, which excluded blacks from its law school. Lloyd Gaines was denied admission because he was black, just as Thurgood Marshall had been turned away in Maryland. University officials agreed to pay his tuition if Gaines attended law school in another state, but he demanded admission in Missouri. The NAACP filed suit in state court against the university’s registrar, whose last name was Canada; the Missouri supreme court ruled against Gaines, and the Supreme Court accepted his appeal.

  Chief Justice Hughes wrote for the Court in Gaines v. Canada, holding that Missouri could not give whites a legal education in the state and deny blacks that right. Hughes cited Yick Wo for support on this issue, calling that decision “the pivot upon which the case turns.” But he then let Missouri off the hook. Hughes cited Plessy in holding that states could provide black and white law students with “equal facilities in separate schools” without violating the Constitution. Missouri promptly established a black law school, but Lloyd Gaines never showed up for classes and his case ended with a Pyrrhic victory for NAACP lawyers.

  World War II interrupted the NAACP campaign against segregated education, and ten years separated the Gaines decision from the next graduate school case. Ada Lois Sipuel graduated with honors from Oklahoma’s State College for Negroes and applied in 1946 to the state’s all-white law school. She was denied admission and promised that a black law school with “substantially equal” facilities would soon be established. Thurgood Marshall argued for Ada Sipuel in the Supreme Court on January 8, 1948. This was an easy case for the justices. Four days later, they unanimously ordered Oklahoma to provide her a legal education “as soon as it does for applicants of any other group.” The Court’s brief and unsigned opinion cited the Gaines decision as precedent. Missouri had opened a real law school for blacks, although it was certainly not equal to the all-white school. Oklahoma took a different tack, roping off a section of the state capitol and calling it a law school. This pretend school had no library and no faculty, and Ada Sipuel refused to be a pretend student.

  Thurgood Marshall returned to the Supreme Court in Sipuel v. Oklahoma Board of Regents and argued, for the first time, that segregation was flatly unconstitutional. Even if states provided blacks with better schools than whites, he said, separating them by race imposed a “badge of inferiority” on blacks. But 1948 was a presidential election year and the Court shied away from this divisive issue. Over the dissents of Justices Frank Murphy and Wiley Rutledge, the Court sent the Sipuel case back to state court for hearings on whether Oklahoma’s pretend law school was equal to its real, all-white school. Marshall called Dean Erwin Griswold of Harvard Law School as a witness, but the state judges covered their ears and ruled against Ada Sipuel. By 1949, after Harry Truman returned to the White House with a surprising upset of Thomas Dewey, Oklahoma officials wearied of legal battle and admitted Ada Sipuel to its real law school.

  The NAACP victories in the Gaines and Sipuel cases did nothing to end public school segregation in the Deep South. They did not topple Plessy or destroy the “separate but equal” doctrine. They did not even force the admission of blacks into all-white schools; Oklahoma legislators, not the state’s judges, ended segregation at the university level. But these cases gave civil rights lawyers a powerful weapon for the battles that lay ahead. The Gaines decision established, and Sipuel echoed, the principle that states must furnish blacks with educational facilities “substantially equal” in quality to those afforded whites. Given the vast disparity in funding between black and white schools, virtually no chance existed that separate schools would ever approach equality. In 1940, the average yearly expenditure in southern states for black children was $21.40, less than half the $50.14 spent on whites. Bridging this gap would cost each state millions of dollars, and white lawmakers were not willing to spend that much on black children.

  Between 1948 and 1950, civil rights lawyers and leaders debated their options in challenging segregation at the elementary and secondary level: they could file suits to equalize school expenditures, or mount an attack on segregation itself. During this time, two more graduate school cases—from Texas and Oklahoma—moved slowly through the lower courts. Thurgood Marshall viewed these cases as the last skirmishes before the final assault on public school segregation in the Deep South. He offered lawmakers in Texas and Oklahoma a last chance to make separate university facilities equal in every respect. This alternative to integration would impose a crushing financial burden on southern states. In Texas, for example, the physical plant of the state’s white universities was valued at $72 million, those for blacks at $4 million. Whites could choose from 106 fields of study, blacks from only forty-nine (including carpeting and mattress making). The white libraries owned 750,000 volumes, the black schools just 82,000. Complying with Plessy would cost the Jim Crow states hundreds of millions of dollars at the university level, and billions more for elementary and secondary schools. Hoping to evade the equally unpleasant choices of integration or bankruptcy, university officials in Texas and Oklahoma tried different approaches in the Sweatt and McLaurin cases.

  Heman Marion Sweatt, a black postal worker, had applied to the University of Texas Law School in 1946 and was rejected on racial grounds. After NAACP lawyers filed suit against state officials, Texas judges gave the university six months to offer Sweatt a legal educatoin “substantially equivalent” to that provided whites. Charles T. McCormick, dean of the all-white law school, quickly offered plans for an all-black school. It would occupy four basement rooms in an Austin office building, it would have no library, and it would employ three part-time instructors. McCormick would also serve as the new school’s dean. Marshall promptly challenged these plans, and state judges ordered a second hearing, at which McCormick testified under oath that the two law schools were equal in quality. The Texas judges agreed that four rooms for blacks equaled the massive building in which 850 white students took classes. Marshall filed an appeal with the Supreme Court that invited the justices—including Tom Clark, an alumnu
s of the Austin law school—to look for themselves at the two schools and decide whether Dean McCormick had testified truthfully.

  George McLaurin applied in 1948 to the University of Oklahoma’s graduate education school. Then in his sixties, McLaurin had taught for decades in black public schools; he held a master’s degree and now sought a doctorate. The Supreme Court had ruled in January 1948 that Oklahoma must offer Ada Sipuel a legal education “as soon at it does” for any white applicant. Rather than build a new school for blacks, officials in the Sooner State admitted her to the white law school. They also admitted George McLaurin to the white graduate school. But his “equal” education came with conditions. University officials decided to teach the longtime teacher a lesson. He could not sit in classrooms, but could listen to lectures from a hallway seat, next to a sign that read “Reserved for Colored.” He could study at a “colored” desk on the library’s mezzanine, but not in the reading room. He could eat at a “colored” table in the cafeteria, but only after white students finished their meals. NAACP lawyers challenged these demeaning conditions as “badges of slavery” imposed on McLaurin, but they lost the first two rounds in lower federal courts.

  While the Sweatt and McLaurin cases moved slowly through courts in Texas and Oklahoma, another trio of cases reached the Supreme Court in record time. These cases all raised challenges to restrictive covenants in housing, a method of enforcing residential segregation in many cities, north and south. These covenants, part of the property deed, typically barred the sale or leasing of housing to blacks, Jews, or Asians, depending on the property owner’s prejudices. Restrictive covenants were supposedly “private contracts” between buyers and sellers, binding subsequent purchasers to their terms. Entire neighborhoods in some cities were covered by covenants signed by most or all property owners.