Brown v. Board of Education
In December 1954, I landed the job that would shape my entire professional career. In May of that year, the Supreme Court had decided unanimously in Brown v. Board of Education that laws and policies that called for racial segregation of public schools violated the equal protection guarantees of the United States Constitution. The decision mandated a huge change in the status of black citizens. It was and is rightly regarded as the most important Supreme Court decision of the last century.
A few weeks after the May 17 decision, I graduated from law school, and in June, Harriett and I were married. Because I had expected to be drafted into the army immediately, I had not engaged in any kind of job search. But my entry into the army was deferred. So I found myself on the job market without any preparation. I took a short-term job with the Corporation Counsel of the City of New York—then the largest law office in the world—which handled all of the city’s legal business. The work was interesting in some respects. I became the most junior member of the city’s legal team in defending against a big lawsuit brought by several printing plants on the west side of Manhattan. The plants had suffered damage when the ground settled after the City pumped water out of nearby excavations in order to build the Brookly-Battery Tunnel. I learned a fair amount from the skilled lawyers on both sides. But I hoped for a job more suited to my interest in social justice.
In the late fall, Jack Greenberg, who had argued one of the Brown cases, came to Columbia Law School to discuss the victory with students. Harriett, then a third-year student, attended and after the presentation approached Greenberg and asked if there might be any jobs for lawyers available in his office. He said that the NAACP Legal Defense Fund had a one-year position for a new lawyer and that the position might still be open.
The next day, I went tearing down to the Legal Defense Fund headquarters on West Forty-Third Street in Manhattan. Their offices turned out to be extremely modest. I was armed with a résumé and a letter of recommendation from Charles Black, a professor of constitutional law at Columbia who had been a central figure in helping to draft the brief in the Brown case. I knew Charles because he had been married earlier that year to Barbara Aronstein, Harriett’s best friend from Brooklyn
College and a fellow student at Columbia.
After interviews with the senior lawyers I was told that the job was mine, and I accepted it on the spot. I was shown to my office, which had on the door a plaque reading “Prince Hall Masons Fellow.” This signified that the position was created with the financial support of Charles Wesley Dobbs, a wealthy Atlanta businessman and Mason (the father of Mattiwilda Dobbs, who in 1956 became the first black soprano to sing at the Metropolitan Opera).
I was entering a new world for which my education at Yale LawSchool had prepared me only partially. Yale had long been my school of choice because of its reputation gained in the ’30s and ’40s as the place for people who were dedicated to public service and social change. Its faculty in that era included William O. Douglas, who later ascended to the Supreme Court; Robert Hutchins, the educational innovator who became dean of Yale Law School and president of the University of Chicago at 30;Thurman Arnold, the Roosevelt adviser on antitrust policy and perceptiveanalyst of capitalism; Judge Jerome Frank, who helped found the progressive philosophy of legal realism, and other public thinkers and civic doers. By the time I arrived, these figures had been succeeded by other teachers who helped maintain the school’s reputation.
I found that I had little interest in the commercial and tax courses in the curriculum. Rather, what engaged my attention were substantive courses in civil rights, international law, judicial philosophy, and other offerings like evidence and procedure that had their own internal logic=
Yale was also helpful by opening a wider world to me. This was my first experience in living away from home and encountering people who were not New Yorkers. There was a fairly large contingent of sons of privilege (women numbered only ten in a class of almost two hundred). Most of this contingent, along with some others, were destined for careers at large law firms or in business. But there were still others who had different ideas about their futures. One who immediately captured my attention was Allard Lowenstein, a New Yorker who, while an undergraduate student at the University of North Carolina, had become president of the National Student Association. He left the impression of a whirling political dervish wherever he went. When I arrived as a transfer student at Yale in September 1952, having spent the January 1952 semester at New York University Law School, one of the first events I attended was a speech by Eleanor Roosevelt that Allard had arranged in the midst of the Eisenhower-Stevenson election campaign.
In later years, Allard went off on a mission to visit members of the outlawed African National Congress, who were followers of Nelson Mandela. The result of his visit was a petition to the United Nations and a book, Brutal Mandate, detailing the horrors of apartheid, published in 1962. Later trips included underground visits to Spain to help those planning to establish democracy after Franco. Only rarely wasAllard to be found in class in New Haven; yet he maintained his good standing at the law school. His freestyle advocacy gave me an alternative model to the more structured process being taught in our classes.
Yale did instill in me something of the fabled ability to “think like a lawyer.” This meant to me the duty to scrutinize facts carefully and to examine all sides of an argument, if only to be prepared to counter positions different from my own. On the other hand, almost all the case books and materials we studied were drawn from appellate decisions rather than the trial courts which had actually been the battlefields for competing facts.
And in those days there were few legal clinics where a student could gain practical experience. My one brief stint was at the Legal Aid Society where I was able to meet real people with real problems.
Things were different when I got to the Legal Defense Fund. While I did not deal directly with clients, the lawyers I worked with were bonded with the people they represented. Like their clients, they had engaged in a lifelong struggle for equal opportunity while living and breathing the stifling air of segregation and discrimination. Thurgood Marshall was chief counsel, having worked since the 1930s with his mentor Charles Houston to build the Legal Defense Fund. The fund pursued litigation challenging the legalized caste system that southern States had imposed after the end of Reconstruction and that with only a few exceptions had been approved by the federal courts until the end of the 1940s. Thurgood had grown up in Maryland in an era when lynchings were not uncommon and, when he took on the civil rights work of the Fund, he often traveled to the most dangerous areas of the Deep South to gather facts and line up clients. Marshall had only a handful of lawyers in the New York office. His chief deputy was Robert Carter, my day-to-day boss. When I joined the Fund, Bob was pushing hard on cases to take full advantage of the victory in Brown a few months earlier. The other staff lawyers were Jack Greenberg, who later succeeded Marshall as head of the Fund when Thurgood was named as a federal appellate judge; Constance Baker Motley, who became a federal district judge in New York, joining Bob Carter as a colleague on the bench; and Elwood Chisholm, who had taught at Howard Law School.
This small band of lawyers was able to have a great impact in part because of a network of cooperating lawyers who worked with the Fund throughout the South and in a few other locales. For instance, Virginia was one of the four cases challenging segregation that the Supreme Court accepted and consolidated as the Brown case. Much of the trial work was done by Spottswood Robinson and Oliver Hill, law partners in Richmond. Robinson, who had the best academic record in the history of Howard Law School, provided much of the intellectual spark for Virginia and other cases while Hill, also a high-achieving classmate of Thurgood’s at Howard Law School, did much of the trial work. In Delaware (another of the Brown cases), the cooperating lawyer was Louis Redding, who was the first Negro admitted to the practice of law in the state in 1929. Redding expressed himself precisely, often eloquently, and he came through to everyone he met as a person of great dignity. In Washington, D.C., the site of Bolling v. Sharpe, the companion case to Brown, the legal team was headed by James M. Nabrit, Jr, later to become dean of Howard Law School and president of the university. Nabrit, a passionate advocate who hadstruggled against ugly discrimination in his native Texas, took over the D.C. case when Charley Houston died. Nabrit insisted that nothing less than full desegregation would be an adequate remedy.
When I arrived in December 1954, Bob Carter immediately put me to work on legal initiatives to expand Brown’s prohibition of segregation laws and policies. My first assignment was to put together research for an NAACP petition to the Interstate Commerce Commission, seeking rules that would bar racial segregation not only in the terminals of interstate rail carriers but in the leased restaurants in the terminals as well. We relied on broad language in the Interstate Commerce Act banning “any undue or unreasonable prejudice or any disadvantage in any respect whatsoever.” Although we won a substantial legal victory in 1955, it was not until the bloody violence against the Freedom Riders in 1961, almost a decade later, and the resulting litigation in the Supreme Court that segregation in rail and bus terminals was finally ended.
Next, I went to work on a series of charges to be filed with the National Labor Relations Board against oil companies in Texas, Louisiana, and Arkansas. As I read through the dozens of affidavits of Negro workers compiled by Herb Hill, the NAACP’s labor secretary, I began to understand the frustration and anger the workers must have felt. These were people who regardless of experience were assigned unskilled, menial jobs when they were hired. They were denied entry into apprentice job training programs. Even when they came to perform more skilled work, they were kept in the lowest job categories and paid minimum wages. If they joined a union, they were assigned to a separate, colored local, an appendage to the main union, which provided them no representation. Many had coped with these injustices for a decade or more. As I worked, I wondered about the outrage these workers must have felt and about the toll that such discrimination must have taken on them and their families as they were denied the opportunity to have their labors rewarded with even a modest wage and fair treatment.
Here again, we were relying on a law—the National Labor Relations Act—that called for nondiscrimination against workers but that did not address racial practices specifically. It would be almost a decade before the president and Congress took decisive action against job discrimination.
As I worked on these and other matters in the winter of 1954, the major looming question was what rules the Supreme Court would adopt in providing a remedy for the racial segregation of public schools that it had outlawed in the first Brown decision. When Earl Warren came to the Court as chief justice in October 1953, he performed a miracle, persuading his deeply divided colleagues to come together in the unanimous Brown opinion. But the miracle came at a price. Warren, a superb politician, decided that it would not be wise to burden the Southern states with the invidious intent of the systems of segregation they had maintained for half a century nor with the bonds in which black people were held. Instead, his opinion focused on the harm that racial isolation did to black children, citing social science evidence to support the conclusion that segregation “harmed their minds and hearts in ways unlikely ever to be undone.” Beneath the surface, the opinion seemed to be a plea to southerners, saying, “We know we are asking you to change a whole way of life, but we are forced to do it because the lives and futures of little children are at stake.” Instead of evoking understanding, the opinion was challenged by Southern leaders as based not on law but on mushy social science.
Most tangibly, the price Chief Justice Warren paid for a united court was the decision to postpone the question of remedy for a year and to call on the parties to file new briefs. As the Legal Defense Fund mobilized to prepare reply briefs answering the court’s questions about remedy, my task was to read all of the briefs filed by the state defendants and the other briefs filed by states as friends of the court, and to summarize their arguments. I still have the charts that I prepared then and I am struck with how blatantly racist some of the claims were. For example, Texas, Maryland, North Carolina, and Florida said that the jobs of Negro teachers would be jeopardized because it would be “impractical” to use them in mixed classes; the latter two states said that intelligence tests show that white children have much higher achievement than Negroes and that integration would lower school standards; Florida said that integration would cause health problems because of the greater incidence of disease among Negroes. Virginia said that, in deciding on an assignment system, the differing health and morals of the races ought to be considered.
My friend Charles Black summed up these Southern arguments by neatly likening them to the “defendant who killed his father and mother and came to court pleading for mercy because he was an orphan.”
To prepare for oral argument, Thurgood, as he often did in important cases, convened his “kitchen cabinet.” It included the key lawyers in the cases—Carter, Greenberg, Motley, Robinson, Hill, Redding, and Nabrit.
There were others present, including Bill Coleman, an honors graduate of Harvard Law School and the first African American to serve as a law clerk for a Supreme Court justice (in this case Felix Frankfurter). William (Bob) Ming was full professor at the University of Chicago Law School and a respected theoretician.
While there was a clear objective for this and similar meetings, there was no set agenda. The sessions were freewheeling, high spirited, and often raucous. Ming, who seemed to produce an idea a minute, might go off on a rhetorical flight, with Coleman or Robinson following up with a sober analysis of the arguments. Nabrit brought passion as well as practical wisdom to the table, reminding Thurgood to “wrap himself in the American flag” as he closed his presentation. Thurgood said little; I wondered what he was thinking. Later, I discovered that he had carefully sifted through the avalanche of conversation to identify the three or four points that would be most useful to him in the argument and the best ways to answer the most challenging questions he might face.
Gradually it dawned on me that I had lucked into a convocation of some of the best legal minds and most accomplished advocates in the nation.
In addition, while most did not wear their hearts on their sleeves or project the intensity of some latter-day public-interest lawyers with whom I would work, they had all been tested in the crucible of racism and had a clear personal vision of the evil they were fighting.
For example, Bill Coleman in many ways was among the most measured and soft-spoken members of the group. By 1990 he had become senior partner in a major law firm and a member of the boards of directors of several large corporations after having served as secretary of transportation under President Ford. The major civil rights issue pending in Congress at the time was legislation to restore the effectiveness of the fair employment laws that a conservative majority of the Supreme Court had undermined in a series of decisions. Bill Coleman and I paid a visit to Senator John Danforth (R) of Missouri, whose support was key to reaching a favorable outcome. Danforth was accompanied by a young aide who was his legislative chief of staff. At one point, the aide said something that seemed to downgrade the importance of having strong fair employment laws. Coleman responded quietly. Directing his gaze at the young aide, he gave a brief personal history, saying that after graduating magna cum laude from Harvard Law School as an editor of the law review and serving as Justice Frankfurter’s law clerk, he could not obtain a job with any of the major law firms in his home town of Philadelphia. He noted that a partner in one of these major firms was the aide’s father. While times had changed, Coleman said, protections were still needed against this kind of biased and hurtful treatment. The aide looked rueful and Senator Danforth became a valuable ally in the successful campaign to enact the Civil Rights Act of 1991.
Massive Resistance and Little Rock
In the spring of 1955, the Court issued its remedy decision in Brown.While there was some good news tucked away in the opinion—notably, that states were required to completely dismantle their racially dual education systems and replace them with “unitary” systems—the major news was very disappointing. Public authorities were required to desegregate their schools “with all deliberate speed,” a vague formulation that was to be given content by each individual district judge, meaning that
courts would be faced with pressures for delay in every community.
The Court’s decision was accompanied by more bad news. President Eisenhower refused to say what he thought about the Court’s mandate to end segregation and embraced a brand of social Darwinism by saying that “the law could not change the hearts and minds of men.” In Congress, the only organized effort was the drafting of the Southern Manifesto by elected officials of the Old South—a document that challenged the authority of the Supreme Court to interpret the Constitution and called for nullification of the desegregation decisions. Into the vacuum created by these abdications of responsibility, Southern governors and legislators leaped. Led by Virginia state legislators, they fashioned a strategy of massive resistance. One part of the strategy was designed to delay and thwart desegregation orders, by requiring black students to overcome a series of administrative hurdles in order to gain entry to new schools, by allowing state money to support private segregation academies, and by providing for the closing of public schools if courts issued final desegregation orders. The second part of the strategy was to launch a direct attack on the NAACP, seeking to intimidate the organization by demanding membership lists and tax information, and threatening lawyers with criminal prosecutions or disbarment for stirring up litigation.
After these developments, much of the heady atmosphere created by Brown evaporated. From then on, work at the Legal Defense Fund became a combination of trying to implement and extend the decision, and to ward off the attacks on the NAACP, its sister organization. I found myself becoming familiar with such phrases as “barratry, champerty, and maintenance” and “running and capping”—all archaic concepts of lawyer misbehavior that Southern politicians were dusting off to disable the NAACP and its lawyers. Ultimately, in these cases theSupreme Court ringingly affirmed the right of public-interest lawyers and their clients to bring test cases to the courts.
All the while, I was learning from Thurgood and Bob how to be an advocate. Bob had a creative mind and liked to push the envelope. It was he more than anyone who pioneered the use of social science evidence. In Brown, psychologist Kenneth Clark testified about the results of his “doll tests” in which African American children consistently expressed positive views about white dolls and negative views about black dolls, supporting the conclusion that segregation led to low selfesteem. The use of such social science evidence became standard in many types of public-interest litigation. At the same time, Carter organized and managed the case docket, pushing hard to take full advantage of the 1954 victory.
Thurgood had a deceptively folksy manner. He loved to tell stories and jokes, and we seemed to develop an affinity because I appreciated his stories and liked to tell my own. He was at times raucous and crude in his manner. Years later when I asked Bob Carter what he thought about a television docudrama in which Thurgood was layed by Sidney Poitier, he paused a moment and replied, “Sidney Poitier was Thurgood as we all wished him to be.” Thurgood also liked to loosen up for oral arguments with a few drinks. It had become traditional to do a “dry run” of an argument at Howard University Law School, with lawyers assuming the role of justices and asking challenging questions. After one such session, we repaired the night before argument to Thurgood’s suite at the old Park Sheraton in Washington. A half dozen of us talked about the case for hours while Thurgood consumed most of the contents of a bottle of Jack Daniels. Somehow he was fully alert and ready for argument the next morning.
Thurgood was also a skillful politician. He had a friendly, joshing manner with lawyers representing the other side. Even though he detested the positions they were advocating, he apparently had decided that nothing was to be gained by dealing with them as enemies. I thought at times that if he had chosen, Thurgood could have
been elected to public office.
Underneath all this, Thurgood was a superb advocate. He used the sessions with his kitchen cabinet to decide on his basic arguments and on how to handle potentially difficult questions. He had the critical skill that the great oral advocates I’ve known have all possessed—the ability to translate complex problems into simple terms without distorting or reducing their content. He was able torelate to and even bond with Supreme Court justices. They had learned that he would be well prepared and that, without histrionics, he would describe the plight of his clients in ways that made them real people for the justices.
All through 1955 and the first half of 1956, I continued to write briefs in a wide variety of cases. When my one-year internship concluded, I became a regular staff member. Although my work was in New York, I occasionally attended meetings around the country. In April 1955, NAACP leaders gathered in Atlanta to express their determination to carry through with the effort to desegregate. I flew down to the meeting with Frank Reeves, a Howard Law School professor and black civil rights lawyer who later became commissioner of the District of Columbia. We had heard that, despite rigid segregation in almost all hotels in Atlanta, there was one Holiday Inn that accepted black patrons. We obtained directions at the airport and took off in our rented car. The trouble was, we were directed to a different Holiday Inn and wound up in Hapeville, a rural outpost in the metropolitanarea. When we arrived, a huge Confederate flag hung in the lobby told us that we were in the wrong place. The angry glares of an assortment of white men hanging around the lobby confirmed this. We took off in a hurry. Some months later, Frank and I were returning by auto from a meeting in Virginia. We decided to stop in northern Virginia at one of the then-new fast food joints for something to eat. We ordered from the car and in a few minutes a waitress appeared carrying our order. When she saw Frank in the car she turned on her heel and took the trays back to the restaurant. We briefly discussed repeating our adventure at other fast food places but decided it wouldn’t be a good use of our time.
In February 1956, the NAACP invited Martin Luther King Jr. to speak at its annual board meeting to be held in New York. It would be a small affair of about fifty board members and staff. King had recently emerged on the scene as the leader of the successful Montgomery bus boycott. But the NAACP eyed him warily as a potential rival for leadership and decided to use the invitation to establish contact. As the most junior member of the legal staff, I was asked to meet King at LaGuardia Airport in a limousine and escort him to the meeting. My neighbors on West Ninety-second Street in Manhattan gawked as the limousine pulled up to my house. I don’t recall anything of note about my conversation on the way in except that he was self-possessed and friendly. Long after the event it struck me that, at the age of twentyfour, I had met a man who was destined to change the face of America and who was already a leader at the age of twenty-eight. Thurgood took a less benign view of King. He believed that, with his direct action movement, King just made a mess and that it fell to Thurgood and his staff to clean it up. I have to think, however, that in his heart Thurgood had come to know that legal victories were not enough and that it required the leadership of a King to get black people to take ownership of the Brown decision and strive to make it a reality. In the dozen years that King lived after our first encounter—years in which he changed the face of the nation—we met on several occasions, and he always expressed appreciation for the work others and I were doing at the U.S. Commission on Civil Rights, which was one small piece of the effort to alter American attitudes about race.
In July, 1956, my draft notice came from the army and I was sent to Fort Hood, Texas, for basic training with the Fourth Armored Division. The temperature in central Texas was over one hundred degrees practically every day and the area was a wasteland. Once when I was on a detail, the supply sergeant told me that I had just received a package “from the States.” It certainly felt like we were not in our own country. But when basic training was concluded, I was sent (thirty pounds lighter) to an assignment some of my journalist friends had held in prior years, with the Recruiting Publicity Center at Governors Island, New York City. My work at the center, largely consisting of writing ad copy to entice young men to enlist in the army, was less than demanding and I found I could leave by four p.m., catch the ferry into Manhattan, and then spend the next several hours each day at my work for the Legal Defense Fund.
My situation permitted me one more frolic and detour. Quiz shows had become the rage and several friends encouraged me to seek to become a contestant on the most rigorous one, Twenty-One. I took the test and was accepted, becoming a standby on Twenty-One and a contestant on a sister show, Tic Tac Dough. There I won seven thousand dollars before deciding on the advice of Harriett to take the money and run. The show was fun, enabling me to display my mastery of such trivia as the pen name of Charles Dickens (Boz), the nom de plume of Amandine Dupin (George Sand), and the name of a popular 1930s tune (“Jeepers Creepers”), On the other hand, to my embarrassment as a lawyer. I froze when asked the first five words of the preamble to the Constitution, being able to recall only the first five words of the Declaration
of Independence. My winnings helped supplement my low yearly salary at the Legal Defense Fund (four thousand dollars) and my meager army pay. The windfall was especially welcome since our first child, Lauren, had been born only a couple of months earlier and Harriett was still on unpaid maternity leave from her job with a labor-law firm. But I was also ready to quit the show, in part, because I thought I was being cast in a role—the humble and lowly army private in uniform— to encourage the audience to think that anyone could win.
When I informed Jack Barry, Tic Tac Dough’s host, of my decision he was very upset. It was ratings week and the show’s producers had a considerable investment in me because I was now an identifiable figure to their audience. If I stayed, Barry said, I would be guaranteed that only half my winnings would be at stake, instead of all of them. I refused. That day I received a call at the base from a producer asking me to talk to Dan Enright, the chief producer of the show, who would make me a better offer. I assumed that he would propose to give me answers. Before they could “improve” their offer, I again said no to continuing. I said that it would be impossible for me to say anything else because acceptance of any inducements could lead to my losing my license to practice law, for unethical behavior.
My participation on the show did earn me an appearance before a grand jury when the quiz show scandal broke months later. There I was told by the grand jury foreman that at least on Tic Tac Dough, I had won more money than anyone who was not being supplied with answers. I never did figure out the mindset of people of stature who
did take answers. When I was a standby on Twenty-One, the other standby was a professor at Columbia University. As we stood in the wings, we tried to answer the questions being put to the contestants. I found the questions difficult and missed several. She answered all of them. Later she went on the show and won more money than any previous contestant—including Charles van Doren, who was famously fed answers—after which it was revealed that she had also been given answers. Since I doubted that she had been fed answers as a standby, I never understood why she would not trust in her own abilities when she became a contestant.
When I returned to the Legal Defense Fund, I discovered that things had changed. The Internal Revenue Service had been putting pressure on the Fund. Since its sister organization, the National Association for the Advancement of Colored People (NAACP), engaged in legislative lobbying, it was not eligible for tax-exempt status. If the Fund was deemed too closely tied to the NAACP, it could lose its tax-exempt status, too. The solution was to separate the organizations. Thurgood, who had been counsel for the NAACP as well as director-counsel for the Fund, stepped down from the former position, and Bob Carter became general counsel of the NAACP. I found that the schism was more than formal. Thurgood and Bob had ended their friendship, and other lawyers on Thurgood’s staff suggested that I line up with Thurgood
and terminate my work and friendship with Bob. I refused to do so and walked a tightrope to keep up my relationship with both.
On the policy side, Bob, always searching for new frontiers, sought to expand litigation to attack school segregation in the North. Relying on the Supreme Court’s implication that segregation caused harm even if not deliberately imposed, he appeared not to appreciate fully the legal difficulties in making the case in Northern states where there were no current segregation statutes. But Thurgood had a more practical political objection. He thought it would not make sense to open a second front in a war in which there was still major resistance on the first front. If suits were brought in the North, some white folks who had been supportive of civil rights would begin to focus on the implications for their own lives and withdraw their support. This was the substantive element of the breach, but I gathered there were other elements as well. Bob and Thurgood did not reconcile until the 1980s. Julius Chambers, a successor to Thurgood at the Fund, planned a reception to honor Bob that was in the nature of an olive branch. Bob was clearly touched but, not able to fully suppress his acerbic wit, he said in his speech that “Now I know what it feels like to be rehabilitated.”
The high point in my career at the Fund came right after I returned to the Fund full-time on the completion of my army stint. I was put to work immediately on the Little Rock school case. In 1957, the massive resistance tactics of Arkansas governor Orval Faubus had created a confrontation at Central High School, where a court had ordered desegregation for the first time. President Eisenhower was forced to deploy federal troops to ensure that the court’s order would be obeyed and that the nine black students would gain entry to their classes. In 1958, however, as resistance continued, the school board decided to suspend desegregation during the next school year. While the Supreme Court had said in 1955 that delays based on community resistance would not be countenanced, such delays were occurring in many places, such as Richmond, Virginia; Atlanta, Georgia; New Orleans, Louisiana; and Jackson, Mississippi. Little Rock, Arkansas, posed the clearest challenge to the Court’s authority.
In the summer of 1958, the issue came to a head and the Supreme Court decided to convene an extraordinary summer session to address the crisis the case posed. There have been only a handful of summer sessions in the Court’s history.) The oral argument was scheduled for August 28, 1958, and, as I entered the Court with Thurgood, Bill Coleman, and Jack Greenberg, I think we all had the sense of history being made. Thurgood made a strong argument followed by an eloquent statement from J. Lee Rankin, the United States solicitor general. Rankin said in part: “If you teach these children in Little Rock or any other place that as soon as you get some force and violence, the courts of law in this country are going to bow to it, they have no power to deal with it, they will give way to it, will change everything to accommodate that, I think you destroy the whole educational process then and there.”
The oral argument had been scheduled so rapidly that there was not enough time to follow the usual procedure of submitting briefs before argument. Afterward it fell to me to draft the Fund’s brief in a few days. The basic question was whether the Rule of Law would be upheld or whether the Constitution’s protections as interpreted by the Supreme Court could be nullified by violent local resistance. I put together a brief history of how the Court had handled previous crises and a statement of why it was crucial to the integrity of our constitutional system that the Rule of Law be upheld in this case. With input from other lawyers and relatively minor editing, the brief was approved for submission and I took the train to Washington to file the copies with the Clerk’s office. In September, the Court upheld our position with the unequivocal statement that “the constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and the Legislature. . . .” Not only was the decision unanimous, each justice signed his name to the opinion, an unprecedented action. There was still much strife to follow, but the Little Rock decision made it clear finally that Brown was the law of the land and would have to be obeyed.
In the years after I left the NAACP in 1958, I maintained my friendship with Bob, but I saw Thurgood only sporadically, and in his later years on the Supreme Court I saw him hardly at all. My friend Wiley Branton, the Little Rock lawyer who was one of the few people to see Thurgood regularly, reported that he had become embittered. I got some inkling of this in the ’80s. At a time when there were many events celebrating the bicentennial of the Constitution, Thurgood had made a powerful speech to the American Bar Association in Hawaii, arguing that the original Constitution was defective because it countenanced slavery and that we did not have a Constitution we could be proud of until adoption of the post–Civil War Amendments. Not long thereafter I was helping plan a commemoration for lawyers and judges and civil rights advocates on the adoption of the Fifteenth Amendment, which was intended to guarantee black people the right to vote. I thought Thurgood would be the ideal keynote speaker and sent him an invitation, asking Wiley to put in a good word. A couple of weeks later, my assistant pulled me out of a meeting, telling me Justice Marshall was on the phone. I said hello and he roared back at me, “Why in the hell should I do that?” I thought quickly. “Because your speech to the Bar in Hawaii was so powerful and this would be a great audience to hear your message.” “I did it once, I don’t need to do it again,” he said, ending the conversation.
In the 1970s, two 5–4 decisions of the Court—one, written by Justice Powell, countenancing major disparities in state school financing that worked to the disadvantage of minority and poor children and the other, written by Chief Justice Burger, all but closing the door to metropolitan school desegregation remedies (the only kind that would work in segregated cities), dealt a crushing blow to the quest for equal educational opportunity. Thurgood’s dissents were strong and eloquent, but decidedly in the minority.
It may have been particularly galling to Thurgood, having reached a position of great influence, to find that he could no longer preserve the victories he had achieved as an advocate. With Reagan’s appointments to the Court in the ’80s things only got worse. In 1992, after Thurgood had resigned and Clarence Thomas was narrowly confirmed to be his successor, Thurgood’s longtime assistant, Alice Stovall, called to ask whether I would like to have lunch with him in the office he still maintained at the Supreme Court. I leaped at the opportunity. Our lunch was mainly nonpolitical; we swapped stories and talked of the old days. But toward the end Thurgood leaned toward me and said in a conspiratorial tone, “Do you know what they told me about Clarence Thomas?” No, I said. He said, “There were ten Negroes in his class at
Yale Law School and he ranked number ten.”
The comment illustrates one aspect of Thurgood’s character. He was a firm believer in the merit principle. His opposition to Thomas was based not just on the latter’s anti–civil rights positions (“a black snake is no better than a white snake,” he had said) but on his conviction that Thomas simply did not have the intellectual qualifications for the position. Thurgood’s bitterness, it seems to me, also stemmed from another conservative part of his character—his almost religious faith in the power of the law. That faith helped sustain his belief that law could be the instrument for overcoming entrenched racism in this country. When Potter Stewart, the swing vote on the Court, shrank in the Detroit case from approving the only school desegregation remedy that would work, Thurgood wrote in dissent that “today’s decision I fear is more a product of perceived political realities than of the application of neutral principles of law.”
He was right, of course, but I remain sad that he felt so alienated.Certainly the struggle for equality today is being thwarted on many fronts. And I find irony in Thurgood’s name being etched on so many schools that remain racially isolated. But this nation is a different and much better place because of his heroic efforts. And I wish he could
have allowed himself to savor his contributions and accomplishments.