Enlisting the Courts in the Civil Rights Fight
By Michael Jay Friedman
Thurgood Marshall, following his swearing in as U.S. Supreme Court Justice, September 1, 1967. (© AP Images)
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The name of Thurgood Marshall may not be as well-known outside the United States as that of his fellow civil rights leader, Martin Luther King Jr. And yet, Marshall's achievement in demolishing the legal structure that sustained racial segregation in the American South advanced the civil rights cause as profoundly as the nonviolent protests led by King.
"No other American did more to lead our country out of the wilderness of segregation than Thurgood Marshall," said his fellow Supreme Court Justice Lewis Powell.
Thoroughgood (actual birth name) Marshall was born in Baltimore, Maryland, on July 2, 1908. His father was a railroad porter and his mother was an elementary schoolteacher. In second grade, young Marshall shortened his name to Thurgood. He graduated from Baltimore's segregated Colored High School and then Lincoln University, "the first institution founded anywhere in the world to provide a higher education in the arts and sciences for youth of African descent." Lincoln produced acclaimed figures such as Marshall's classmate Langston Hughes, a major contributor to the literary "Harlem Renaissance"; Kwame Nkrumah, the first leader of independent Ghana; and his Nigerian counterpart, Nnamdi Azikiwe.
Marshall quickly distinguished himself as a gifted storyteller and a skilled debater. These were among the skills of the successful trial lawyer, and Marshall decided to pursue a career in the law. He aimed to enroll close to home, at the University of Maryland Law School. But, as a segregated school, Maryland would not admit a black student. Marshall did not apply, but it was a harsh lesson in the discrimination and resulting lack of opportunity that held back many African Americans. Maryland Law's stance, ironically, opened the door to unexpected opportunity for Marshall.
He enrolled instead at a black institution, Howard University Law School, in Washington, D.C. His mother pawned her wedding and engagement rings to pay the tuition. Marshall excelled at his studies, graduating number one in his class in 1933. At Howard Law, Marshall encountered one of the major, if under- celebrated figures of U.S. history, Vice Dean Charles Hamilton Houston (see "Charles Hamilton Houston: A Visionary on Racial Equality").
Charles Houston, Marshall's mentor, argued cases in court during his years as dean of Howard University's law school. (Scurlock Studio Records, Archive Center, National Museum of American History, Behring Center, Smithsonian Institute)
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It was Houston who devised the legal strategy that Marshall would employ in courtrooms — from the deep South to the Supreme Court of the United States — to dismantle the legal segregation that still disadvantaged African Americans.
This high-school photograph of Thurgood Marshall was taken around 1921-25. (Collection of the Supreme Court of the United States)
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After the 1861-65 Civil War and the freeing of the slaves in the American South, the U.S. government approved the Fourteenth Amendment to the Constitution. The amendment prohibited a state from depriving "any person within its jurisdiction the equal protection of the laws." But, a few years later, white Southerners resorted to segregation of the races, a practice often called "Jim Crow." (This is a term derived from a song in an 1828 minstrel show where a white man first performed in "blackface.") An 1896 Supreme Court decision, Plessy v. Ferguson, upheld this practice, ruling that racially "separate but equal" facilities met the "equal protection" standard.
Houston and Marshall determined to overturn the Plessy decision in the U.S. courts by demonstrating that, in the real world, separate was never equal. Their strategy required the patient accumulation of facts that supported their point. They also realized that it would take time to get rid of Plessy. They would undermine legal segregation one case at a time.
"White" (top) and "colored" (above) schools in Paxville, South Carolina (1935-1950), where, as in other states in the South, "white" schools often received two to three times more money per student than did schools for African Americans. (Courtesy of South Carolina Department of Archives and History)
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In 1934, Houston began to work for the National Association for the Advancement of Colored People (NAACP), an interracial group founded in 1909 to work for the abolition of segregation and discrimination. He traveled throughout the South to document the appalling state of black schools for the NAACP. Marshall, who had set up a private legal practice in Baltimore, often accompanied him on these trips.
In 1935, Marshall — and Houston as his adviser — won their first victory over legal segregation, in the case Murray v. Pearson. The triumph was especially sweet for Marshall, as the defendant was the very same University of Maryland Law School that Marshall once had hoped to attend.
In Maryland state court, Maryland Law's lawyers argued that the school met the "separate but equal" requirement by granting qualified black applicants scholarships to enroll at out-of-state law schools. In Murray v. Pearson, the state court in Maryland rejected this argument. While the court was not yet prepared to rule against separation in public schools, it did hold that the alternative opportunities Maryland afforded black law school applicants were not equal. Maryland Law was ordered to admit qualified African-American students.
After the Murray triumph, Marshall became an NAACP staff lawyer under Houston. In 1940, at the age of 32, he helped found and became the chief of the NAACP Legal Defense Fund, dedicated to providing legal assistance to poor African Americans. In that year, he won his first Supreme Court victory, a ruling that the 14th Amendment's due process clause barred the use of coerced confessions.
During the two decades that followed Murray, Marshall, Houston, and the NAACP team of civil rights attorneys struck down one pillar after another of the segregationist order:
- In Missouri ex rel. Gaines v. Canada (1938), argued by Houston, the U.S. Supreme Court extended to the entire nation the rule that where a state maintains only one law school or other type of school, it may not limit admission by race.
- In Smith v. Allwright (1944), Marshall won a Supreme Court decision barring the "whites only" primary elections in which political parties chose their general election candidates. His biographer, Juan Williams, has described how Marshall considered the case his most important triumph: "The segregationists would [demand that (the candidates) support segregation to capture their party's nomination], and by the time the black and Hispanics and ... even in some cases, the women, got to vote in the general election, they were just voting for one segregationist or the other; they didn't have a choice."
- In Morgan v. Virginia (1946), Marshall obtained a Supreme Court ruling barring segregation in interstate bus transportation. In a later case, Boynton v. Virginia (1960), Marshall persuaded the court to order desegregation of bus terminals and other facilities made available to interstate passengers. These cases led to the "Freedom Ride" movement of the 1960s.
- In Patton v. Mississippi (1947), the Supreme Court accepted Marshall's argument that juries from which African Americans had been systematically excluded could not convict African-American defendants.
- In Shelley v. Kraemer (1948), Marshall persuaded the Supreme Court to rule that state courts could not constitutionally prevent the sale of real property to blacks even if that property is covered by a racially restrictive covenant. These covenants were a legal tactic commonly used to prevent homeowners from selling their properties to blacks, Jews, and other minorities.
In all, Marshall would prevail in a staggering 29 of 32 cases he argued before the Supreme Court. His stunning record reflected the great legal talent that had congregated at the NAACP Legal Defense Fund, Marshall's shrewdness in selecting cases that would advance the team's long-term strategy of undermining segregation, and his own formidable legal skills. He was, United Press International later concluded:
... an outstanding tactician with exceptional attention to detail, a tenacious ability to focus on a goal—and a deep voice that often was termed the loudest in the room. He also possessed a charm so extraordinary that even the most intransigent Southern segregationist sheriff could not resist his stories and jokes.
Armed with this potent combination of likeability and skill, Marshall in 1946 persuaded an all-white Southern jury to acquit 25 blacks on a charge of rioting. On other occasions, he escaped only narrowly the beatings or worse that every assertive African American in the "Jim Crow" South risked.
Even as Thurgood Marshall dismantled the lies and evasions that for so long justified racial segregation, he was stockpiling the experience and wisdom that would carry him to the landmark case, Brown vs. Board of Education, and beyond.
Michael Jay Friedman is a staff writer with the U.S. State Department's
Bureau of International Information Programs. He holds a doctorate in U.S.
political and diplomatic history.
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Executive Editor: George Clack; Managing Editor: Mildred Solá Neely; Art Director/Design: Min-Chih Yao; Contributing editors: Michael Jay Friedman, Alexandra Abboud, Chandley McDonald; Photo Research: Ann Monroe Jacobs; Reference Specialist: Anita N. Green; Production Manager: Christian Larson; Web Producer: Janine Perry
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