Thurgood Marshall

by Juan Williams

  Thurgood Marshall had defined himself as not wanting to lead protests, but the massive publicity given to the Columbia riot and trials made his name and face synonymous with the growing civil rights movement. Personally and professionally, Marshall found he was achieving a long-held ambition. He was now in the lead of the burgeoning social revolution to end racial segregation.

  CHAPTER 14

  Jim Crow Buster

  MARSHALL’S SUCCESS IN COLUMBIA, TENNESSEE, and his victories in defending black soldiers made him a regular face in newspapers both black and white. And in 1946 he was selected as the winner of the NAACP’s top award, the Spingarn Medal. Walter White, whose ego needs rarely allowed him to profusely praise others involved with civil rights, was the first person to tell Marshall that he had won the award. Afterward White dropped Marshall a note to say, “No more suitable choice could possibly have been made.”1

  Marshall was thirty-seven when he won the medal in May of 1946, making him the second youngest person to receive the prestigious award; only Richard Wright, the author of Native Son, had won it at a younger age, thirty-one. The award had previously been given to such people as the author W.E.B. Du Bois and Paul Robeson, the human rights activist, actor, and singer.

  Marshall stood to receive the award at the NAACP convention in Cincinnati. Robert W. Kenny, the attorney general of California, handed him the honor after introducing him as an American hero: “The very immensity of the task [of ending racial discrimination] is one of the things which makes the work of Thurgood Marshall more significant.… His efforts have reached into the lives of many, many thousands—hundreds of thousands—of Americans and throughout the history of the United States.”2

  In the heart of his acceptance speech Marshall proudly declared his integrationist ideal once again: “A Negro sharecropper’s baby born in the most miserable shack of Mississippi,” he said, should have the same rights as the richest white child born in a mansion. But Marshall added that such equality had yet to be achieved. Reaching back to the Civil War period, Marshall said that after “the shooting war was won,” the northern states had enacted civil rights amendments to the Constitution but did not have the courage to enforce “the principles for which the war was fought.”3 So, Marshall concluded, the South continued to treat blacks as people without rights—slavery by another name.

  Marshall got a standing ovation, and he was genuinely thrilled. Part of the kick for him was that he was being honored by some of America’s most celebrated figures. At that dinner he was sitting next to Joe Louis, the heavyweight boxing champ, yet he was the one getting the applause.

  Marshall and Louis were quite a contrast. The lawyer was not much of an athlete. “I couldn’t hit the side of a barn with a paddle or catch a cold in a rainstorm,” he told a reporter for the New York Post.4 But Marshall liked sports, especially boxing. He attended several of Louis’s fights, including the boxer’s famous victory in New York over Max Schmeling, the German fighter who had been cited as a living example of white racial superiority by Adolf Hitler. “I knew Joe very well, a marvelous guy but just not too intelligent,” Marshall remembered. “The only trouble with Joe was, you know, wine, women, and song, the bad features that kill off all men. He didn’t drink wine and he didn’t play any music. The only thing left was women.”

  Marshall’s Spingarn award speech was excerpted in the Baltimore Afro-American and the Pittsburgh Courier. It was reprinted in its entirety in the NAACP Bulletin. The Afro also wrote a long feature story on Marshall’s parents, who still lived in Baltimore. The story was almost a psychoanalysis of young Marshall. Its headline read: MOTHER CONSIDERED POWER BEHIND SPINGARN MEDALIST.

  “Throughout his mother’s role has been that of providing the type of constant and dynamic support and encouragement on which both Thurgood and his older brother, Aubrey, a doctor, have leaned heavily,” said the story. It portrayed Mrs. Marshall as a ranking member of black society because of her son’s success. The paper said she had recently switched churches, from St. Katherine’s, where Thurgood had been baptized, to the black bourgeois pews of St. James Episcopal Church.5

  The Afro story barely mentioned Willie Marshall, except as Norma Marshall’s husband of forty-two years and a former headwaiter at the Gibson Island Club. Now sixty-four years old, Willie had been working as a janitor at an FBI training academy in Baltimore for several years and was fast approaching retirement. After his unhappy departure from the Gibson Island Club, he had continued to drink heavily. His communication with Aubrey and Thurgood had been cut to a minimum. Willie on rare occasions visited Thurgood in New York, but Norma would regularly come North to see her son and spend time with Buster and Aunt Medi. “Thurgood and his mother were very close,” Alice Stovall, Marshall’s secretary at the NAACP, recalled in an interview. “She and his Aunt Medi were the two main people in his life.”6

  After the whirlwind of the Spingarn Award, Marshall settled back into the demanding reality of the NAACP’s overwhelmed legal department. He was now juggling two key cases that would end up in the Supreme Court.

  In the first case, Morgan v. Virginia, Marshall asked the high court to ban segregated seating on buses that traveled between states, no matter what local segregation laws might be in place. Irene Morgan, a black woman from Baltimore, had taken a Greyhound bus from a town in Gloucester County, Virginia, to Baltimore in July 1944. But when the bus reached Saluda, Virginia, and more whites got on, the driver, citing Jim Crow laws, asked her to take a seat in the back with other blacks. She said no and was arrested and fined ten dollars.7

  Morgan appealed the fine with the help of Howard Law School Professor Spottswood Robinson, a rail-thin, brilliant black lawyer who went nowhere without his pipe. When she lost, Robinson took her case to the Supreme Court of Virginia. She lost again, but Robinson, working with Marshall and the NAACP, took the case to the U.S. Supreme Court.

  A lanky Marshall, in his best double-breasted dark suit, stood before the nine justices of the high court with just a slight case of nerves. It was only his fourth Supreme Court appearance, but his easy, polite manner—stripped of heavy academic language and flowery rhetoric—and his light humor made the young black lawyer a fast favorite among the older white justices. Marshall always took a moment to thank the justices, whisper some confidence, and make each of them feel as if he were relying on their superior knowledge to help him through the maze of laws.

  In the Morgan case, heard in March 1946, Marshall elaborated on the expertly crafted argument Spottswood Robinson had made in Virginia. For seventy years, Marshall explained, showing his reverence for the court, the justices had “consistently condemned” state laws that tried to require segregation of interstate commerce. He added that these Jim Crow laws were “invasions of an area where national power under the commerce clause is exclusive.”

  Marshall reached back to 1878 to cite Hall v. DeCuir, a Louisiana case decided while the Civil War was still fresh in the Supreme Court’s mind. “Even then,” he told the justices, “this court was quite sure that the nation, to the exclusion of the states, must have control of this aspect of interstate travel.” In fact, the federal government wanted total control of interstate travel to give businesses the greatest possible protection. The rights of black passengers were secondary but still a concern. Even in the 1896 Plessy v. Ferguson decision, the Supreme Court had ruled that Louisiana laws compelling segregation of rail passengers was valid only if the train did not cross into another state.

  “Today we are just emerging from a war in which all of the people of the United States were united in a death struggle against the apostles of racism,” Marshall told the justices. “How much clearer must it be today than it was in 1877 that the national business of interstate commerce is not to be disfigured by disruptive local practices bred of racial notions alien to our national ideals.”8

  Marshall’s presentation to the high court was widely praised, especially by Walter White, who now found it useful to be Marshall’s top b
ooster inside the NAACP. White even used NAACP funds to pay for Buster Marshall to travel to Washington to hear Thurgood argue the Morgan case. It was the first time she had seen him argue at the Supreme Court.9

  Two and a half months later, in early June 1946, the Supreme Court gave a near-unanimous victory to Marshall. In a 7-1 ruling Justice Jackson was at the Nuremberg war crimes trials], the court said Irene Morgan had been wrongly forced to give up her seat. The opinion concluded that state segregation placed an “unfair burden” on interstate commerce.

  * * *

  The Morgan victory got attention in the black press, but the nationwide reaction was muted because hard-line segregation on buses was generally limited to a few states in the South. Emotionally, however, the case was a big confidence booster for Marshall, who was at the time feeling overwhelmed by an endless stream of criminal cases bubbling up from NAACP branches. The constant phone calls about black people doing hard time on phony charges and death sentences for black defendants stretched the legal office’s resources and Marshall to near the breaking point.

  He had to turn away far more of these cases than he could accept. His favorite strategy was to argue that indictments and convictions of black defendants were illegal when blacks were intentionally excluded from trial juries. He had first seen this strategy used by Charles Houston in the George Crawford murder case during law school. Marshall had subsequently used it in several cases, although it almost always failed.

  The strategy finally worked for him in two cases in 1947 and 1949. In Patton v. Mississippi, Eddie “Buster” Patton was given the death penalty after being charged with killing a white man. The Supreme Court overturned the conviction and ruled unanimously that any practice of excluding citizens on the basis of race from jury duty resulted in unconstitutional indictments and verdicts.

  In the other case, Watts v. Indiana, Robert Watts, a black man, was charged with murdering a white man in Indiana. In a letter to the NAACP written in barely legible script, he complained that he was framed: “They questioned me for six days and nights standing up.… I just couldn’t take it any longer and they forced me to sign about ten confessions to every unsolved crime in Indianapolis.”10 Again the Supreme Court ruled in Marshall’s favor. The Court found that the confessions were invalid because they were coerced and that the state had intentionally kept blacks off the jury.

  But Marshall did not have a perfect record on high-profile criminal cases. In one surprising defeat the Supreme Court ruled against Samuel Taylor, an illiterate teenager who was convicted in Alabama of raping a fourteen-year-old white girl. Marshall challenged the conviction, claiming that police beat Taylor to force him to confess. The Court ruled Marshall’s appeal was unfounded. It was Marshall’s second defeat at the Supreme Court, and, as in the first (the Lyons case from Oklahoma), he had failed to persuade the justices that a defendant was beaten or scared into confessing a crime he did not commit.

  Marshall’s work on criminal cases sometimes took him to unexpected places. On one occasion, to stop an execution he had to find U.S. Supreme Court Chief Justice Fred Vinson. It was already late when he realized that Vinson was his only hope and that the chief justice was neither at home nor at his usual club. Marshall called other justices as well as Vinson’s friends, but no one knew where he was. Finally, he started asking around among the black janitors, maids, and chauffeurs at the Supreme Court. He quickly got the word that he should try the Statler-Hilton Hotel.

  There he found Vinson in an elegant suite, complete with grand piano and plush purple carpeting, playing cards with President Truman. “How did you find me?” Vinson asked. “I can’t tell you,” Marshall said. He then handed Vinson his brief. The always cold, skeptical Vinson looked it over with a scowl on his face. “Can you vouch for this being true?” Vinson demanded, waving the brief in the air as the president looked on. “Yes sir, I wrote it.” Vinson held his breath for a second, looked at Truman and then back to Marshall. “I’ll tell you one thing, if you’ve got guts enough to break in on this, I’ve got guts enough to sign it,” said the chief justice.

  Despite Vinson’s willingness to sign the stay of execution, Marshall never developed any admiration for the chief justice. “No, no,” said Marshall. “Vinson was awful. I think he was one of the worst people.” Marshall liked Vinson’s predecessor, Harlan Fiske Stone, whom he saw as a kindly grandfather of a judge. But Vinson was different. “He’d put your ass in jail,” said Marshall.

  The criminal cases took up a lot of Marshall’s time. They led him into some tricky situations, and ultimately they were unsatisfying to him. He was looking for cases that would have nationwide and lasting impact on legal segregation.

  He found one such case in complaints from NAACP branches about restrictive covenants in property contracts that banned blacks and Jews from buying houses in select neighborhoods. Getting decent housing had been a particularly large problem for black veterans returning from the war. While black soldiers qualified for housing loans, they often could not buy the houses they wanted because of these covenants. The Federal Housing Administration added to the NAACP’s alarm over the issue because they permitted blacks and whites to be segregated in federally subsidized housing.

  Marshall was familiar with restrictive covenants because they were first devised in his hometown, Baltimore. When well-to-do black businessmen began moving into white neighborhoods in the early 1900s, segregationists on the Baltimore city council passed laws restricting the sale of property in mostly white neighborhoods. Cities across the South followed suit.

  In 1917 the Supreme Court ruled that citywide residential segregation laws were unconstitutional. Baltimore’s advocates of whites-only neighborhoods reacted to the ruling by creating an ingenious new instrument of segregation—restrictive covenants. The covenants were clauses in the deeds of houses that prohibited their sale to people stereotyped as undesirables, such as blacks, Jews, or other ethnic and racial minorities.11 This new technique of keeping blacks out of white neighborhoods proved very popular, not only in the South but throughout big cities in the North.

  In July 1945, as the war was coming to an end, Marshall held an NAACP conference for lawyers to look for new approaches to attack housing discrimination. “Restrictive covenants are increasing in number and we are constantly being requested to work out some procedure for invalidating them,” he wrote in a letter asking lawyers as well as housing experts, politicians, and top social scientists to attend the gathering.12 At that meeting Robert C. Weaver, a leading authority on housing in big cities, pinpointed residential segregation as a major source ofracial hostility in the nation as well as a negative factor in health and crime statistics.

  Walter White, Bill Hastie, and the NAACP’s chairman, Charles Toney, attended Marshall’s Chicago conference, making it a major event. Marshall positioned himself as an able shepherd for this flock of black intelligentsia. He was a charmer who defused all the big egos by blowing everybody else’s horn, making them all heroes. He would tell jokes about himself, usually about how scared he was in some small southern town. He kept everybody laughing with his larger-than-life tales, accentuated with his big hands, and his impersonations of stupid, bullying sheriffs. Even after long days Marshall was in the blues clubs with the scholars and policy makers until late. But he was up early for every meeting so that nothing got away from him. The conference heightened Marshall’s status because it showed him to be without a doubt the leader of the NAACP’s effort to defeat restrictive covenants. This was Marshall in full flower, for the first time acknowledged by senior black leaders as one of their own.

  After the conference Marshall began tracking dozens of housing bias cases. Four of those reached the Supreme Court, headed by the St. Louis case Shelley v. Kraemer. Marshall made the fight a constitutional issue by having his lawyers focus on the idea that racial covenants violated the Fourteenth Amendment, which gave equal protection to all Americans. Charles Houston, who represented clients challenging restrictive covena
nt laws in Washington, D.C., was one of a team of lawyers in court with Marshall. Walter White and the editors of several black newspapers, including the influential Louis Martin from Detroit and Carl Murphy from Baltimore, went to the Supreme Court for the argument.

  Marshall picked up on Bob Weaver’s contention that ghettos created crime and endangered public health. It was the first time Marshall had used sociological evidence in making a presentation to the Supreme Court. The case generated headlines when three of the nine justices had to remove themselves because of a conflict of interest—they owned properties with deeds that included restrictive covenants. “It shows how deep the case cuts,” Charles Houston told news reporters, “when one-third of the nation’s highest court disqualifies itself.”13

  The heart of the NAACP’s challenge to the covenants came when Marshall, on January 22, 1948, told the justices that restrictive covenants worked only because the states acknowledged them as legal. The Constitution guaranteed that government cannot sanction a racially discriminatory contract, Marshall told them. In his low-key way he argued that a state court was “not a mere arbiter in a private contractual dispute” but “the arm of the state,” which enforced discrimination.14

  Justice Felix Frankfurter, one of Houston’s old Harvard professors, expressed doubts about the relevance of the NAACP’s sociological evidence to an argument over the constitutionality of the law. Marshall responded that the sociological material was presented only to display the damage a bad law can have on the nation’s crime rate, health care, and schools.15

  The justices peppered Marshall with questions about the right of individuals to sell to whomever they pleased. The questions came with particular force because the lawyer who had preceded him had made a bad, even comic, presentation that did not address the obvious question of the sellers’ right to do business with whomever they chose.