Associate Justice Tom Clark later said the decision to bring together all five cases—and to seek out the Delaware and District of Columbia cases—was done out of concern for the court’s image. “We felt it was much better to have representative cases from different parts of the country,” he said in an interview after leaving the Court. “If we got a number of states involved, especially some of them that were historically more liberal towards blacks, it would help [in not making it an antisouthern case].… It would give us broader coverage.”33
The cases were ready. The Court was ready to hear the argument. After more than a hundred years of protests and meetings and plans, the NAACP had the pieces in place. Now Thurgood Marshall had to prepare his legal team to argue the biggest case of their lives, one that could revolutionize the heart of twentieth-century race relations.
CHAPTER 21
Case of the Century
THE YEAR LEADING UP TO the oral arguments before the Supreme Court on school segregation took a heavy toll on forty-four-year-old Thurgood Marshall. His eyes became puffy from lack of sleep and too many cigarettes. He put on weight. And he was grumpier than ever—now snapping at secretaries who were used to his good humor. Marshall fixated on the school segregation case, and everything else, including his wife, took a backseat.
No one had to tell him this was the biggest case of his career. This case could change the face of American society. Marshall began calling conferences of the brightest minds from around the nation to discuss every angle of the case. Lawyers, law professors, sociologists, anthropologists, and even psychologists, notably Ken Clark, all came to Marshall’s office to discuss how to convince the Court that separate but equal was a devastating burden to black people, nothing more than racism.
Although everyone was united on the idea of directly challenging segregation, the NAACP team split over whether to use social science data to make the case before the high court. Spott Robinson and a young, Harvard-educated Philadelphia lawyer, Bill Coleman, led the fight against anything but a serious, strictly legal approach. “We’ll absolutely lose. It’s weak, it’s a weak legal decision, the justices won’t buy it, they won’t go for it,” said one of the lawyers, pounding the wooden table in the conference room.
Marshall had to act as a peacemaker when the lawyers and the social scientists began sniping. But even as he tried to smooth out the tensions, some of the lawyers got mad at Marshall for giving any credence to the work of the social theorists. Finally, Marshall had to lay down the law. He had become a fan of Ken Clark’s studies—the psychologists, the historians, and the political scientists were going to stay.
Charles Black, then a Columbia law professor and adviser to the NAACP, described Marshall’s manner as direct but never heavy-handed: “You had to be impressed most by the firmness with which he was in charge. He could be the next thing to autocratic, but he did it always in a nice way.”1
Marshall’s resolve to use sociological studies in the schools cases was rooted in his life experience—as the son of a bright man who never got an education and never became more than a waiter. Marshall saw the same trap still catching many young black people. They were defeated at a young age by limits they accepted about their talents and their right to an education.
When Marshall spoke to NAACP youth groups and asked the youngsters what they were going to do when they grew up, the kids answered: “I’m going to be a good butler” or “I hope I might be able to get in the post office.” He thought to himself, That was it for them. He understood he was watching their lives get shut down before they were even grown up. He wanted to unravel this rope that was choking so many.2
Marshall saw the crippling insecurity among those black children as a legal issue. The government, by its endorsement of segregation, was promoting self-hate in black children.3 He wanted to force the government to confront its own action against America’s black citizens, and the schools cases were the perfect vehicle for putting the issue in court.
As the time approached for him to argue the cases, Marshall brought in more professors and lawyers to go over every possible angle and throw around ideas. “It was an amazing feat to bring in black lawyers from the South and white lawyers and historians from the law schools,” said Jack Weinstein, another Columbia law professor who was helping with the case. “It almost became a national enterprise.”
Conference rooms in the LDF’s offices were crammed, often with sixty or more people standing and shouting. It was smoky, with Spott Robinson’s pipe sending aromatic puffs into the air, followed by steady streams from Marshall’s cigarettes and several cigars. Law books were strewn everywhere, and some people had to sit on the edges of tables because there weren’t enough chairs. In this atmosphere tempers occasionally flared, and Marshall had to diffuse the tensions. Sometimes he would tell a joke or use his “Uncle Tom” voice to get everyone laughing and back to work.
Despite the arguments and egos, Marshall, like the spirited conductor of a swing band, orchestrated lively meetings of legal talent. The meetings became renowned as great fun even though they involved hard work and little or no pay. At one session a mischievous Marshall turned to Charles Black. He asked the southern white lawyer why he was joining forces with the dreaded NAACP to work for integration.
“Well, I’ll tell you, Mr. Marshall,” Black replied. “I come from deep, deep in Texas … [and I] heard of this really terrible organization way up north called the N-A-A-C-P. It was an awful place, with great big offices all the way up there in New York, they said. And the worst thing of all about it was that right in that big office there was this room, this special secret room. A room with no windows and no doors and walls about a foot thick—the only way that you could get in was with a combination to this huge lock. And inside that room, they said, there was nothing but hooks on the walls—hundreds and hundreds of hooks—and do you know what was hanging on each and every one of those hooks? Why, they said that on each of those hooks was a key to the bedroom of a southern white woman. And so I figured that’s an organization I wanna get involved in!”4
“Thurgood had an incredible gift,” said June Shagaloff. “He’d have his feet up on the table, with all these learned minds around him, in awe of him. He’d make them feel at home. He would pull out from other people their thinking, and he synthesized it and made it his.”
The laughs and backslapping helped, but they were also motivated by the realization that history was on the line. Those gathered would work on drafts of the brief well past midnight. The exacting Spott Robinson would go over each line of each page of each draft. Every few hours he would come out with more changes for Alice Stovall, Marshall’s secretary, or one of her assistants to type into a new draft. “If I have to do this one more time—” a frustrated Stovall finally shouted to one of the other secretaries. The older woman looked at Stovall and said: “But, Alice, I don’t know whether you know it, but you’re helping make history here tonight. If Mr. Robinson tells you to do that fifty times, you type it!” Every person in the NAACP’s office was overworked but energized by the prospect of the big case. Walter White, Roy Wilkins, the board members, and activists down to the branches across the country were focused on Marshall’s preparations to take the big gamble.
* * *
Marshall still had to travel to make speeches and to raise money for the historic cases. Even on the road he would call into the office several times every day to instruct Bob Carter or one of the other lawyers about what to do next. “Thurgood Marshall kept a hectic pace,” said Ken Clark, recalling the months before Marshall went before the Supreme Court. “You could really see the toll that the pace was taking on him.”5
In a magazine interview, Marshall joked: “Isn’t it nice—no one cares which twenty-three hours a day I work?” The magazine went on to say that Marshall had two temporary fillings placed in his teeth and had been unable to find the time to get back to the dentist during the last seven years.
The weekends were especially busy,
with out-of-town lawyers and academics rushing in to give help. On Friday evening Marshall’s office would be crowded with people, and as the night wore on he would pull out the bottle of bourbon he kept in his desk drawer.
Most nights Marshall would go over to the Blue Ribbon, a German restaurant on Forty-third Street, and have several drinks while eating a variety of bizarre food meant to impress his dining companions. One of his famed meals was fried roast beef bones. It was nothing out of the ordinary to see Marshall smoking cigarettes and drinking martinis while dining on steak tartare, with a raw egg in the middle of the raw chopped steak surrounded by onions and capers.
Meanwhile, Thurgood’s relationship with Buster was failing. He was preoccupied with work and was not putting much energy into saving the marriage. Buster, too, had a life apart. She spent her time in social clubs and as a leader of the Democrat Adlai Stevenson’s presidential campaign in Harlem. She became an active member of the black Democratic club in the neighborhood and spent time with her uncle in Brooklyn.
At age forty-one Buster still dearly wanted to try one more time to have a child with Thurgood. But the last miscarriage left her bedridden for a time. Her several miscarriages—some friends say as many as five—left her deeply disappointed, even morose. She felt she had failed herself and Thurgood. One Christmas, Buster gave Thurgood a gift he had always wanted but had been waiting to share with his firstborn son—an electric train set. He also got an engineer’s cap, and when the Marshalls had friends over for the holidays, the most memorable event would be seeing Thurgood, in the cap, running his trains.
The train set was a charming reminder to Thurgood of the big trains he saw as a boy in Baltimore and a stirring connection to the memory of his father’s work on the B & O. But the gift was also a painful reminder that he and Buster still had no children. And as the schools cases drew closer and excitement mounted, Marshall spent almost all his time at work.
Often, especially in the last days before the NAACP brief was sent to Washington, the lawyers and staff would still be at the Forty-third Street office at sunrise. “When we were preparing for the Brown decision, sometimes we slept there,” said June Shagaloff. “The proofs would be taken to the printer at 1:00 in the morning and come back at 4:30 or 5:30.”
Marshall edited the briefs several times himself to remove little “snide cracks” about the opposing white lawyers arguing for segregation.6 It was typical of Marshall to keep the fight on the most professional level, even to make his adversaries comfortable, so they would accept him as a part of the legal fraternity.
When the briefs were finally submitted, Chief Justice Vinson scheduled the oral arguments for Tuesday, December 9, 1954. Thurgood Marshall, Bob Carter, and the rest of the NAACP team spent a week in Washington going through last-minute debate and holding mock arguments at Howard University Law School, with students and professors throwing questions at the lawyers. Marshall sat through the practice sessions, listening and working over the smallest details and difficulties. The pressure was showing. He was irritable, regularly appearing with his tie twisted to one side and never without a Winston cigarette burning between his fingers.
Marshall’s tension apparently was not relieved when Justice Department officials called him to say they had filed a friend-of-the-court brief supporting the NAACP’s claim that school segregation was unconstitutional. “The failure of a state to provide equal educational facilities to some of its citizens solely because of their race or color is … a violation of the 14th Amendment,” Justice Department officials wrote to the Supreme Court.7 But to Marshall’s great disappointment the department’s brief did not call for the immediate dismantling of segregated schools. It only asked the Supreme Court to set a timetable for school districts to comply with integration.
“When we filed our brief I went on the NAACP shit list as a gradualist,” said Philip Elman, then assistant solicitor general. “[I felt] Thurgood Marshall … made every conceivable error. It was too early to go for overruling segregation with Vinson as chief justice.”8
Elman thought that the Justice Department had created a framework to allow the Supreme Court to outlaw school segregation without creating social chaos. In his mind the government’s brief was a formula to solve the problem—schools would slowly be desegregated, with lower courts handling the day-to-day oversight. But Marshall didn’t agree. He felt Elman and his colleagues had made a halfhearted gesture when he needed their complete support. Ever a pragmatist, though, he decided he would live with the equivocal support of the Justice Department and hope for better in the future. So while he complained bitterly to Elman, Marshall praised the brief to reporters.
In the middle of the hectic preparations for the court argument, Marshall made time to have lunch with John W. Davis, the man who would oppose him in the South Carolina case. As a law student Marshall had admired Davis, skipping classes to hear him make arguments at the Supreme Court. Even toward the end of his life, he retained awe for Davis’s ability as a lawyer and called him “unbelievable.” Marshall added, “I learned most of my stuff from him.”
When Marshall the law school student had listened to Davis, he had fantasized about the day he would stand to argue against the dean of American lawyers. By the 1950s Davis had argued more cases before the Supreme Court than any American except the legendary Daniel Webster. Now, days before they would meet as opponents, Marshall, age forty-four, had lunch with the seventy-nine-year-old.
The lunch went well. The impeccably dressed, white-haired Davis was a courteous and kind southern gentleman. And Marshall, accustomed to southern gents from his days at the Gibson Island Club, was thrilled to be treated as a peer by a man so well respected in the most exclusive, and all-white, circles of American law. Davis was a former congressman from West Virginia, a former U.S. solicitor general (in the Wilson administration), and he had served as U.S. ambassador to England. In 1924 he was nominated as the Democratic candidate for president but lost to Calvin Coolidge. By 1952 Davis, who had also served as the president of the American Bar Association, was prospering in private law practice with a big New York firm. Only a personal request from his good friend South Carolina governor James Byrnes persuaded him to argue one last case before the Supreme Court. This would be his one hundred and fortieth at the high court’s bar. As a member of the South’s upper class he had a sense of social obligation, and as a segregationist Davis agreed to make the presentation at no charge to the state.
The lunch with Davis caused widespread puzzlement at the NAACP. Everyone knew Marshall happily played the role of the good ol’ boy with southern sheriffs. It was no secret that he was also willing to eat in the back and sit in the “Negro” section of southern streetcars without a thought. But why, some asked, was he going out of his way to sit down and break bread with an old segregationist like Davis?
“John Davis was the enemy,” said Shagaloff. “He was everything that we were fighting. How could Mr. Marshall go to lunch with him?” When Shagaloff and some other NAACP staffers confronted him about it, Marshall explained, “We’re both attorneys, we’re both civil. It’s very important to have a civil relationship with your opponent.”
Although Davis had a good relationship with Marshall, several people, including Davis’s law partners, suggested that by taking on this case Davis risked being painted as an Old South racist. His daughter, Julia, openly urged her father not to take the case. She tried to convince him that he “wouldn’t win it,” because segregation was contrary to the integrationist “spirit of the times.” But Julia Davis recalled that her dad responded that the law was on his side, with Plessy as a precedent, and the southern way of life was at stake. He told his family that he had no problem with educating black people but that school integration would cause bad feelings between blacks and whites and lead to more racial polarization.9
Davis instructed his top assistant to write a brief that would make the case for segregated schools but not contain any negative words about blacks or integrati
on. “I worked with him very closely on [the brief] for several weeks and [the goal] was to put the case before the court in a noninflammatory manner based on the law and not try to beat the drum about race or anything like that at all,” said Taggart Whipple. “He honestly believed that the lawyer’s duty was to represent a people or cause no matter how unpopular their cause may be.”10
Although Buster had been feeling ill for some time, she drove down to Washington with Ken Clark to see Thurgood make the most important argument of his career. “She had tremendous respect for Thurgood, and I think vice versa,” Clark later recalled.
On December 9, 1952, a line of over two hundred people stretched beyond the cold, white marble steps leading into the Supreme Court. Many of the people had been there overnight, hoping to get a seat to hear the celebrated case. Every seat in the august chamber was filled, and the anxious crowd just about leaped to attention when the nine justices walked in and took their seats behind the high, polished wooden bench.
The crowd was hushed as Bob Carter rose to make the first NAACP presentation. He did not waver. He said black students in Topeka who attended segregated schools, even equally good facilities, were being denied equal educational opportunity. “The Constitution does not stop with the fact that you have equal facilities, but it covers the whole educational process,” Carter said.
Paul E. Wilson, an assistant attorney general for Kansas, really didn’t want to argue against Carter. He had even tried to refuse to come to Washington. It was only after the Supreme Court found out that Topeka was willing to let the NAACP’s case go unchallenged that the high court insisted he come. Wilson based his defense on the 1896 Plessy decision. “It is our theory that this case resolves itself simply to this: whether the separate but equal doctrine is still the law.” Wilson’s argument put the issue squarely on the Supreme Court. The state of Kansas, he argued, was happy to do whatever the Court decided, and the Court had never overturned the law of separate but equal.
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