Thurgood Marshall

by Juan Williams

  The story of how Porter had been thrown down the steps also got Houston’s attention in Washington. In the spring of 1938, Houston had won a major victory at the Supreme Court based on the exclusion of blacks from a jury in Kentucky. Joe Hale, a black man, had been convicted of murder by an all-white jury. But Houston had the conviction overturned when he argued that blacks in rural McCracken County had been illegally excluded from juries for decades. The Supreme Court agreed, ruling that “systematic and arbitrary exclusion of Negroes from the jury lists solely because of their race and color constitute[d] a denial of the equal protection [clause] of the … 14th Amendment.”1 They sent the Hale case back to Kentucky for a new trial.

  Marshall rang up Houston to tell him about the Porter case. Houston agreed that Marshall should go to Texas and launch an NAACP investigation that would focus even more attention on the issue of blacks being pushed off juries if not down the courthouse steps. Marshall announced to the press that he was going to Texas. He was all set to go when word got back to him that if Thurgood Marshall, the NAACP lawyer from New York, set foot in the Dallas courthouse, he would be killed.

  * * *

  The story began on September 26, 1938, when George Porter was summoned for jury service with a randomly selected group of Dallas citizens that included several other blacks. As was the segregationist tradition in Dallas, the judge immediately dismissed all black jurors. But Porter knew this dance. He had been summoned to jury duty twice before. Both times white jurors and court officials had threatened to beat him, even lynch him if he persisted in trying to serve. And both times the balding, dark-skinned Porter had left without resistance.

  In September 1938, however, Porter made his stand. A deputy sheriff ordered all the blacks in the jury pool to stay behind while the white jurors went to lunch. The deputy sheriff took them into a darkened room, and as the black jurors grew fearful, the deputy told them to go home. Most people quickly headed for the door, but Porter demanded to see the judge, Paine Bush. The deputy stared down at him, not budging until Judge Bush walked into the courtroom. The judge told Porter he could protest the dismissal, but it was too late for him to serve on this jury.

  Porter had anticipated the judge’s words. He told the surprised judge that he had already filed a protest in advance of being dismissed. The judge was trapped. If he dismissed Porter now it would create a controversy and possibly tar the judge’s name. Bush walked away in disgust. He told Porter that he could stay, but at his own risk.

  Porter went to lunch, but when he returned a young white man ran into the jury room and threatened to beat him up. Porter ignored the threat, but soon another white man came in. This time there was no warning. The man grabbed the unsuspecting Porter by the collar, dragging him through the halls of the courthouse. When he got him to the front door, with Porter still struggling to regain his balance, he threw the junior-college president out the door and down the front steps.

  Looking at the holes in his good suit and wiping his handkerchief over the cuts and bruises on his body, Porter marched back up the steps. At the top, a line of white men stood in front of the door and circled him. Staring past their scowling faces, Porter pushed through and ran back into the courthouse. The white men stopped their pursuit when he ran into Judge Bush’s courtroom.

  Porter’s bravery was not rewarded. The judge filled the grand jury, then dismissed Porter along with sixteen whites.2

  Just as Marshall was preparing to leave for Dallas, he heard from NAACP officials there that the chief of police was making special plans for his visit. The chief had called his top officers in and told them that a black NAACP lawyer from New York was coming to stir up trouble. And he told them that they were not to allow any acts of intimidation against the lawyer. “Don’t lay a hand on him,” the chief ordered. “Don’t touch Thurgood Marshall. Because I personally will take him and kick the shit out of him. Personally.”

  Marshall was genuinely worried: “I sort of considered the idea of having a bad cold or something and not going down there,” he said. “But I couldn’t get a cold.”

  To ease his mind Marshall decided to find out about the police chief and the rumored threat. He heard that Texas governor James Allred was a fair man and placed a call. Allred said he had heard the rumor too. “Aw no,” the governor told Marshall. “I give you my word, if you come down here, you’ll not be injured.”

  “And sure enough,” Marshall said, “when I got down there, a Texas Ranger was there.” But the ranger assigned to protect him did not seem initially to Marshall’s liking. “As he talked he kept saying ‘boy.’ I said, ‘This ain’t the man I need.’ So I called the governor, and he said, ‘He’s the best trained I’ve got. And if I straighten him out, will that be okay?’ And I said sure. So I put him on the phone. And, oh, you should have seen his face!”

  Luckily for Marshall, the Texas Ranger proved to be the right man for the job. Near the end of his first week in town, after talking with judges, Marshall was leaving the courthouse late one afternoon and walking over to his car, where the ranger was waiting for him. Suddenly Marshall saw the chief of police charging out of the nearby police headquarters, with his gun drawn. Stiff and wide-eyed, Marshall could not move. Running toward him, the chief shouted: “Hi, you black son of a bitch, I’ve got you now.” Those words broke Marshall’s trance, and he began to run to the car. The ranger, who had been sitting on the hood of the car, calmly pulled his gun and faced the chief. “Fella, just stay right where you are,” he said.

  Sweating and huffing, Marshall got in the car and slammed the door as the chief stood there gritting his teeth. The ranger, still holding the gun out, got in the driver’s seat, started the car, and drove away.

  Despite the investigation Marshall was not able to prosecute anyone in the case. But his trip to Texas put court officials throughout the South on alert. The NAACP, through Marshall’s presence, had announced that it had the legal know-how, the political power, and the people to put up a fight for the rights of blacks. By putting pressure on the governor and drawing press attention to rude handling of black jurors in Texas, Marshall got Judge Bush to reverse his position. A few weeks after the trip, Bush allowed a black juror, W. L. Dickson, to remain on a jury. Governor Allred then assigned rangers to protect black jurors in the courthouse. And blacks gradually began to do regular service on juries throughout Texas.

  * * *

  When Marshall got back to New York, he immediately went to work with Walter White and Roy Wilkins on a less dramatic but even more threatening problem. The Internal Revenue Service (IRS) had ruled that money contributed to the NAACP to pay for its high-profile legal cases was not tax deductible because of the group’s antilynching lobbying campaign in Congress. Without that tax-exempt status, the legal office would be penniless; it depended totally on donations.

  Marshall began negotiations with the IRS and proposed setting up a separate, legal affairs arm of the NAACP that would not be involved in lobbying. The new organization was incorporated on March 20, 1940, and was called the NAACP Legal Defense and Educational Fund, Inc. (LDF). Its first director-counsel was Thurgood Marshall.

  There was still a problem, though. The LDF and the NAACP shared board members and often paid each other’s employees. The separation was a sham, and Marshall worried that the IRS would see through it. But Arthur Spingarn, president of the NAACP, was a close friend of Treasury Secretary Henry Morgenthau. “So we didn’t have too much trouble,” said Marshall, highlighting the NAACP’s acceptance and growing political ties to whites in government and legal circles even as the nation’s racial problems persisted.3

  Throughout the late 1930s and early 1940s, an era when the NAACP was closely linked to white, left-wing groups, Marshall’s status grew to the point that he was nominated for a seat on the board of the American Civil Liberties Union (ACLU). He accepted in an effusive letter, calling it a “distinct privilege” to be on the board.4 The National Lawyers Guild, another predominantly white left-wing grou
p, also made him a board member.

  Walter White also gave Marshall a personal link to high-society white politicians and corporate lawyers. White moved in upper-class WASP social circles that fascinated Marshall. He would occasionally go to White’s Manhattan apartment for dinner with such prominent political figures as the Republican Wendell Willkie, who ran for president in 1940.

  Marshall, unlike White, was not a socialite at heart. He was not comfortable with the sensationalism often used by reporters, and he initially resisted being drawn away from legal issues and into highly publicized crusades. For example, White started a media campaign against the continued use of crude, racist stereotypes in popular culture. In magazines, in advertisements, and on the radio, black Americans were commonly referred to as “darkies” and “shines.” White had recently fought to get a shrimp company to change the name of one of its brands, Nigger Head Shrimp.

  Marshall thought White needed a public relations agent, not a lawyer, for these cultural wars. But as he became closer to White, Marshall saw the potential of such protests. He began by publicizing a letter he wrote challenging the Whitman candy company for selling Pickaninny Peppermints. Whitman’s production manager wrote back that the word was not a slur but meant a “cute colored kid.” Marshall exchanged letters with Whitman’s executives for more than four years. He got Carl Murphy and the Afro-American involved. The paper ran a front-page story headlined: IF YOU WANT TO BE CALLED A NAME, BUY WHITMAN’S. Marshall complained to the candy company that Pickaninny was as bad an epithet as “Sheeny, Dago, Kike and Wop.”5 Whitman’s eventually relented.

  In a second newspaper fight over epithets, Marshall battled with a tobacco company that sold pipe tobacco under the brand name Nigger Hair. A lawyer for the American Tobacco Co., which sold Lucky Strikes, quickly wrote back to the NAACP: “I may inform you that immediately upon the receipt of the communication calling our attention to the … use of a certain brand name that was originated back in 1878, [it] was immediately discontinued.”6 In a small way Marshall was making an impact, and he enjoyed reining in the large corporations.

  As the NAACP grew as an organization, Marshall had to do more traveling across the South to raise money and meet the local NAACP officials. These frequent trips made him a well-known figure among chapters in the region. He preached that joining the NAACP was the best way for black people to unite. He was steadily becoming the face of the NAACP, the man from New York who was interested in their problems. Back at headquarters, Walter White and Roy Wilkins increasingly relied on him to keep them up-to-date about members and local issues.

  Marshall’s letters from the road offered a view of local NAACP concerns as well as his humor. He began one by writing that it was another “installment in that stirring saga of unselfish devotion to a great cause, ‘Saving the Race,’ by Thurgood Marshall.”7

  “Louisville stop was a success,” he wrote in another memo in May 1940, after a meeting with local NAACP officials in an effort to build pressure on Kentucky’s senators to get their support on antilynching bills. He also complained to White that “it is a crime for the NAACP to take [me] away from Louisville on Derby day.” Marshall joked that if he had stayed, “I would have made enough money to pay off the deficit in the legal defense fund.”8

  Marshall traveled through the South by train, and he was welcomed into towns by black people, who would put him up in their homes. There was usually no hotel that would accept a black traveler. Monroe Dowling, Marshall’s friend in New York, recalled that even when he stayed overnight in the South, Marshall had to be aware of his enemies. “He never slept in the same place twice,” said Dowling. “But he had guts enough to go to Mississippi and walk in the daytime unaccompanied. He was brave.”9

  Marshall was also willing to put up with threats and insults so he could do NAACP business. He was not opposed to saying “yes, sir” and accommodating whites in any way possible, just as long as he could make his case in court.

  Once, while changing trains, Marshall came face-to-face with the reality of life for the average southern black man. “I had about a two- or three-hour stopover,” he recalled. “And while I was waiting I got hungry, and I saw a restaurant. So I decided that if I got hungry enough I’d go over there and put my civil rights in my back pocket and go to the back door of the kitchen and see if I could buy a sandwich. And while I was kibitzing myself to do that, this white man came up beside me in plain clothes with a great big pistol in a case on his hip and he said, ‘Nigger, boy, what are you doing here?’ And I said, ‘Well I’m waiting.’ And he said, ‘What did you say?’

  “I said, ‘Sir, I’m waiting for the train to Louisiana—Shreveport.’ And he said, ‘Well, there’s only one train comes through here and that’s the four o’clock. You better be on it, because the sun is never going down on a live nigger in this town.’ And you know what? I wasn’t hungry anymore. It dawned on me he could just blow my head off and he wouldn’t even have to go to court. This was Hernando, Mississippi.”

  His travels through the South were not all grim conflict with racists and revving up support among poor black people. In New Orleans, Marshall stayed with friends including a local lawyer who was starting to do civil rights work, A. P. Tureaud. He also made friends with Daniel Byrd, a former Harlem Globetrotter, a handsome man who became Marshall’s main partner in New Orleans for crawfish and liquor.

  “When Thurgood would come down sometimes we would take him out in the state where they were having a rally to raise money,” said Byrd’s wife, Mildred. “Back then you could lose your job, just for joining the NAACP. All these little one-horse towns we used to take him to. And those people didn’t have much to offer. We might have to sit at a table in the kitchen with a lamplight, and those people would be serving their little, meager dishes to us. He would just sit there and eat it like it tastes like turkey. Thurgood, he was humble as a lamb. Because sometimes the gravy looked black as my daughter’s hair, but it tasted good and they would just serve what they had.”10

  * * *

  The travels were also having an impact on Marshall’s thinking about how the NAACP could best come to grips with segregation and racism. In rural Louisiana and across the South, blacks lived under the yoke of a white, segregationist political dictatorship. They had no way to break down the leadership of the racist power structure that controlled their lives. Black southerners were not just poor. They lacked political strength because of intimidation or the outright denial of their right to vote. After several months of crisscrossing the South, Marshall wrote to Walter White that winning the right to vote was the key to integrating the South and an issue all blacks could rally around. And he was convinced the case would come from only one place—Texas.

  Texas was a completely Democratic state. The Union Army’s occupation of Texas after the Civil War led to white resentment that fueled support for the Democratic Party. Blacks were allowed to vote in general elections, but those contests had little meaning because the Democratic nominees always won. And blacks had no power in the selection of Democratic candidates because Texas Democrats did not allow them in the party. At the NAACP’s annual conference in Philadelphia during June 1940, Marshall gave a speech asking for financial support for an attack on the white primary system. “I do not believe we will ever be in a better position politically than we are at the present time,” he said. “Take Texas, where there are a million Negroes. If we get a million Negroes voting in a bloc we are going to have some fun.”11

  Walter White, too, saw a great political opportunity in attacking discrimination against black voters in Texas. During the 1940 presidential and congressional elections, several powerful Texans in Washington had been blocking the NAACP’s effort to get antilynching laws passed in Congress. Sen. Tom Connolly had been involved in the successful filibuster against the antilynching bill. Rep. Martin Dies headed a House committee to investigate Communists and other anti-American subversives, but he refused to investigate the Ku Klux Klan and other racist grou
ps. And Vice President John Garner, a Texan who was less than sympathetic to the NAACP, was a leading contender to run for president if Roosevelt decided against trying for a third term.

  Marshall’s trip to Texas for the Porter case put him in touch with local black leaders, including the real estate power broker and Texas NAACP leader Maceo Smith. A commanding man who smoked big, pungent cigars, Smith wanted to bring a new lawsuit against the white primary. But the Texas NAACP had already brought three suits against the white system. As early as 1927 the NAACP had gone to court to fight for blacks to be allowed to vote in the primary, but every time the Democrats had found a way to keep the primaries limited to whites. Smith got angry with the association because he was pouring his money and the association’s energy into fighting the white primaries and nothing had changed.

  Marshall, over drinks and dinners with Smith and his wife, Fannie, persuaded the local leader that now was the time to take one more swing at the white primary system. By January of 1941, with the help of W. J. Durham, a black lawyer from Sherman, Texas, Marshall had brought the fourth NAACP suit in fifteen years against Texas Democrats for not allowing blacks to vote in their primary. He found a plaintiff in Sidney Hasgett, a Houston man who had unsuccessfully tried to vote in the Democrats’ August 1940 runoff and was willing to stand up to criticism that he was a pawn for the NAACP and northern agitators.

  To get the case into a Houston courtroom, Marshall had to struggle not only with the facts of Texas law but with simply getting the brief typed. “Sometimes he wrote it out in longhand, and then he would get it typed to the best of his ability, by some public stenographer, if she was colored,” remembered his friend Monroe Dowling. “He never went to a white public stenographer ’cause they wouldn’t write—they were not honest.”