Pages 572-577


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SIMPLE JUSTICE                                                                    Pages 572-577



Facing the Supremes



IN SOME OF HIS APPEARANCES before the Supreme Court, he was good; in others, he tended to be a bit on the dull side. On this day, he was at his best. He took the offensive from the start and he held it throughout the argument.

The lawyers on the other side, Marshall noted wryly, did not seem to think much of the expert witnesses the plaintiffs had produced. Nor, it seemed, had the District Court in Charleston thought too much of them, for its decision ignored their testimony almost completely – testimony that stood uncontradicted. But both his adversaries and the court below were in grave error, for what the entire body of social-science evidence, starting with Robert Redfield’s testimony in Sweatt (and read into the record in Briggs), had demonstrated was that there was no real difference in the learning potential of white and black children – and without a contrary showing by the state of South Carolina, its law classifying school youngsters by race was without a basis in reason or in law. Not only had the state failed to give a good reason for its racial-classification law; its adoption had also proven exceedingly harmful to the colored children who had been segregated without legitimate cause.

As to Judge Parker’s decision holding that school segregation was properly a matter of legislative policy for each state to decide for itself, Marshall asserted that this view ran directly counter to many opinions of the Court and emphatically against the intentions of the framers of the Fourteenth Amendment, which had been passed precisely to protect the rights of Negroes from usurpation by the states. It was not sufficient to say that the majority of people in South Carolina, as spoken for by their legislature, approved the practice of segregation and therefore it was legal and proper. As far back as 1823, said Marshall, the Court had struck down a South Carolina law under which free Negro sailors who came to Charleston could be detained in jail so long as their ship was in port – a practice countenanced in the name of public safety and necessity. Said the Court’s opinion:






SIMPLE JUSTICE                                                                    Pages 572-577



. . . But to all this the plea of necessity is urged; and of the existence of the necessity we are told the state alone is to judge. Where is this to land us?  It is not asserting the right in each state to throw off the federal constitution at its will and pleasure? If it can be done as to any particular article it may be done as to all; and, like the old confederation, the Union becomes a mere rope of sand.


And that was a decision nearly half a century before the adoption of the Fourteenth Amendment. In the intervening years, the Civil War had been fought to reestablish federal supremacy over willful claims by any state to run its affairs as it saw fit, regardless of the federally guaranteed rights of minorities.

Now if the Justices found that extension of the principle laid down in their Sweatt and McLaurin decisions – namely, that intangible factors such as reduced career prospects and intramural restrictions upon their movements denied Negro students equal educational opportunities – was too narrow a ground for overturning segregation, there was another very substantial body of law that would serve the purpose. Among other examples of it, he cited Justice Holmes’s 1927 opinion in Nixon v. Herndon, the first of the Texas white-primary cases, which noted: “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.” The Court, Marshall declared, “has repeatedly said that these distinctions on a racial basis or on a basis of ancestry are odious and invidious, and those decisions, I think, are entitled to just as much weight as Plessy v. Ferguson or Gong Lum v. Rice.”

When Chief Justice Vinson and Justice Frankfurter put questions to him on the relevance of Plessy and its antebellum antecedent, Roberts v. City of Boston, Marshall stayed on the offensive:


. . . I can not conceive of the Roberts case being good for anything except that the legislatures of the states at those times were trying to work out their problems as they best could understand. And it could be that up in Massachusetts at that time they thought that Negroes – some of them were escaping from slavery and all – but I still say that the considerations for the passage of any legislation before the Civil War and up to 1900, certainly, could not apply at the present time. I think that every race has made progress, but I do not believe that those considerations have any bearing at this time....


There then followed this exchange, with Marshall at his rough-hewn best:


JUSTICE FRANKFURTER: Do you really think it helps us not to recognize that behind this are certain facts of life, and the question is whether a legislature can address itself to those facts of life in despite of or within the Fourteenth Amendment, or whether, whatever the facts of life might be, where there is a vast congregation of Negro population as against the states where there is not, whether that is an irrelevant consideration? Can you escape facing those sociological facts, Mr. Marshall?

MARSHALL: No, I cannot escape it. But if I did fail to escape it, I would have to throw completely aside the personal and present rights of those individuals.






SIMPLE JUSTICE                                                                    Pages 572-577



JUSTICE FRANKFURTER: No, you would not. It does not follow because you cannot make certain classifications, you cannot make some [other] classifications.

MARSHALL: . . . [S]o far as the appellants in this case are concerned, I cannot consider it sufficient to be relegated to the legislature of South Carolina where the record . . . shows their consideration of Negroes ....  I think that when an attack is made on a statute on the ground that it is an unreasonable classification, and competent, recognized testimony is produced, I think then that the least that the state has to do is to produce something to defend their statutes.

JUSTICE FRANKFURTER: I follow you when you talk that way.


A few moments later, Marshall stressed that he was not asking the Court to command the admission of the plaintiffs to any specific school or for the Justices otherwise to mix into the everyday workings of the local communities. “The only thing that we ask for is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem to assign children on any reasonable basis they want to assign them on.”  Frankfurter indicated he thought that might lead to gerrymandering and, in so saying, revealed one of the gravest problems troubling him about the case:  “I think that nothing would be worse than for this Court – I am expressing my own opinion – nothing would be worse, from my point of view, than for this Court to make an abstract declaration that segregation is bad and then have it evaded by tricks.”  Marshall suggested that gerrymandered school districts would be readily apparent to any court and outlawed; the main thing, first of all, was to have the principle of racial classification struck down and then to give local districts time to proceed in good faith – “it might take six months to do it one place and two months to do it another place.”

At the close, Justice Jackson asked Marshall if his argument about the reach of the Fourteenth Amendment would not apply to Indians as well as Negroes.


MARSHALL: I think it would. But I think that the biggest trouble with the Indians is that they just have not had the judgment or the wherewithal to bring lawsuits.

JUSTICE JACKSON: Maybe you should bring some up.

MARSHALL: I have a full load now, Mr. Justice.


John W. Davis succeeded him at the lectern. The Justices, Davis’s colleagues like to remember, leaned forward in their places, eagerly attentive.

He was as good as his precepts. He was clear. He was direct. He was cutting. His sentences had beginnings, middles, and endings. And there was a Victorian elegance to his language that added authority to his every assertion.






SIMPLE JUSTICE                                                                    Pages 572-577



He had three points to make, he said, basically adhering to his brief. First, South Carolina had complied with the mandate of the court below and equalized its schools or was well on the way to doing so. Second, the right of a state to clas­sify its public-school pupils by race was “not impaired or affected” by the Four­teenth Amendment. Third, the social-science testimony offered by the plaintiffs, “be its merit what it may, deals entirely with legislative policy, and does not tread on constitutional right. Whether it does or not, it would be difficult for me to con­ceal my opinion that that evidence in and of itself is of slight weight and in conflict with the opinion of other and better informed sources.”

Though the Court made a practice of peppering the advocates before it with questions -- Justice Frankfurter spoke fifty-three times, for example, during Thur­good Marshall’s argument immediately preceding – John Davis was interrupted only twice during his remarks. The first time it was by Justice Burton, who asked the same question he had put to Paul Wilson earlier:


What is your answer, Mr. Davis, to the suggestion . . . that at that time [of the adoption of the Fourteenth Amendment] the conditions and relations between the two races were such that what might have been unconstitu­tional then would not be constitutional now?

DAVIS: My answer to that is that changed conditions may affect policy, but changed conditions cannot broaden the terminology of the Constitution. The thought is an administrative or a political one, and not a judicial one.

JUSTICE BURTON: But the Constitution is a living document that must be interpreted in relation to the facts of the time in which it is interpreted. Did we not go through with that in connection with child labor cases, and so forth?

DAVIS: Oh, well, of course, changed conditions may bring things within the scope of the Constitution which were not originally contemplated, and of that perhaps the aptest illustration is the interstate commerce clause. Many things have been found to be interstate commerce which at the time of the writing of the Constitution were not contemplated at all....  But when they come within the field of interstate commerce, then they become subject to congressional power, which is defined in the terms of the Constitution itself.  So circumstances may bring new facts within the purview of the constitutional provision, but they do not alter, expand, or change the lan­guage that the framers of the Constitution have employed.


That brought Felix Frankfurter out of his respectful and unaccustomed silence:


Mr. Davis, do you think that “equal” is a less fluid term than “commerce between the states”?

DAVIS: Less fluid?


DAVIS: I have not compared the two on the point of fluidity.

JUSTICE FRANKFURTER: Suppose you do it now.






SIMPLE JUSTICE                                                                    Pages 572-577



JUSTICE FRANKFURTER: The problem behind my question is whatever the phrasing of it would be.

DAVIS: That what is unequal today may be equal tomorrow, or vice versa?


DAVIS: That might be. I should not philosophize about it. But the effort in which I am now engaged is to show how those who submitted this amendment and those who adopted it conceded it to be, and what their conduct by way of interpretation has been since its ratification in 1868.

JUSTICE FRANKFURTER: What you are saying is that, as a matter of history, history puts a gloss on “equal” which does not permit elimination or admixture of white and colored in this aspect to be introduced?

DAVIS: Yes, I am saying that.


In ticking off the precedents that he said supported his position, Davis began with Plessy, added Cumming, Berea College, and Gong Lum, and then reached out o undercut Marshall’s position by claiming Gaines, Sipuel, Sweatt, and McLaurin, all four of which he said were, in granting Negroes relief, “decided solely on he basis of inequality” under the separate-but-equal concept.

For the NAACP’s social scientists, the old gladiator reserved his most lethal thrusts. It seemed to him, said Davis, that “much of that which is handed around under the name of social science is an effort on the part of the scientist to rationalize his own preconceptions. They find usually, in my limited observation, what they go out to find.” He mocked Kenneth Clark’s doll test on sixteen children in Clarendon County as “that intensive investigation,” the results of which “we are invited to accept as a scientific conclusion,” and then cited the seemingly conflicting data in the textbook chapter the Clarks had written. He went on to say, as he did in the South Carolina brief, that many learned authorities approved of segregation, but the only one he cited by name was Du Bois, whom he called “perhaps the most constant and vocal opponent of Negro oppression of any of his race in the country.” To invoke Du Bois’s words in support of mandatory school segregation – words from an article in which Du Bois explicitly disclaimed that he had any such intention – was an act of intellectual fraudulence beyond any advocate’s permissible range of selective citation. But no one called Davis on it.

He closed, well before his hour was up, on a note of winged oratory:


. . . Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not, of all the activities of government, the one which most nearly approaches the hearts and minds of people – the question of the education of their young?

Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact?

I respectfully submit to the Court, there is no reason assigned here why this Court or any other should reverse the findings of 90 years.






SIMPLE JUSTICE                                                                    Pages 572-577



For all his forensic virtuosity, Davis had left untouched Marshall’s main point, and in rebuttal now the NAACP lawyer came on powerfully to stress the omission.  The most significant factor running through all these arguments, he said, is that for some reason, which is still unexplained, Negroes are taken out of the mainstream of American life in these states. “There is nothing involved in this than race and color, and I do not need to go to the background of the statutes or anything else. I just read the statutes, and they say ‘white’ and ‘colored.’” Under the Constitution, the individual rights of minority members may not be relegated to the mercies of the majority, even one exercising its most mature judgment, said Marshall.  In Sweatt, the state of Texas had produced a public-opinion poll showing that most of the people wanted to maintain segregation, yet the Court ruled in effect that such a preference trampled on the rights of the Negro plaintiff….




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