ON the morning of December 9, 1952, four hundred spectators lined the marble corridors of the vast Supreme Court building in Washington, D.C. Many of them had waited there overnight hoping to get a seat. Inside, about three hundred people packed the awe-inspiring room. Half of them were black. Seating was not segregated. The crowd included Reverend DeLaine from Clarendon County, South Carolina. DeLaine had organized the uprising leading to Briggs v. Elliot, one of the five cases to be argued. Thurgood Marshall had given him a ticket for the proceedings.
Marshall and his team had been preparing for this battle since August. “Well before we appeared in court,” wrote Jack Greenberg, “we anticipated that Brown might be a historic case.”
At long meetings in Marshall’s New York office they had debated their course of action. Marshall listened and challenged everything everyone said. Should they attack segregation head-on? Would any of the Supreme Court Justices be sympathetic to white Southerners and support segregation? How much testimony from social scientists should they use? Would the Supreme Court Justices think Kenneth Clark’s psychological tests using dolls foolish? And if the NAACP won and the Court ordered integration in the schools, how would this ruling be put into effect?
The Fund lawyers often slept in the office, working past midnight on the briefs. “Each brief called for an end to segregation in education,” wrote Greenberg. Spottswood Robinson, who had represented the striking students in Virginia, reviewed every draft. Whenever he had more changes for Marshall’s secretary to type, she’d shout, “If I have to do this one more time—!” But an older secretary said to her, “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!”
Spottswood Robinson III (left) and Thurgood Marshall (right) in Washington, D.C.
Marshall edited the briefs to remove any “snide cracks” about the opposing lawyers who would be arguing for segregation. Ten days before the Supreme Court date, Marshall and his team traveled to Washington, D.C., and holed up in a suite at the Statler Hotel. They conducted a “dry run” of their arguments at Howard Law School for an audience of students and professors who hurled questions at them. These might be the very questions the justices would ask.
Marshall invited his chief opponent, John W. Davis, to have lunch with him. Some of the NAACP lawyers were puzzled. Marshall explained, “We’re both attorneys, we’re both civil. It’s very important to have a civil relationship with your opponent.”
Lunch went well. Davis was courteous and kind. Marshall enjoyed being treated as a peer. As a college student earning money for tuition, he had waited tables in an exclusive club for white Protestants on Chesapeake Bay where his father was the steward of the all-black staff. Now Marshall was being served along with a white Protestant lawyer. Marshall greatly admired Davis, a distinguished older lawyer from Charleston, South Carolina. Davis had argued hundreds of cases before the Supreme Court, more times than any other living lawyer. When Marshall had been a law student at Howard he had cut classes to hear Davis in the Court. “I learned most of my stuff from him,” he said.
Now Davis headed a powerful law firm in New York City. His friend Governor James Byrnes of South Carolina had asked him to take Briggs v. Elliot. Davis, a confirmed segregationist, had agreed to do it without charging a fee. He felt confident that he would win. In a speech about how to star in the Supreme Court he had said, “Always go for the jugular vein. . . . Get right to the heart of your case. And sit down before your time is up.”
From left to right: Attorneys Harold Boulware, Thurgood Marshall, and Spottswood Robinson III confer at the Supreme Court prior to presenting arguments against segregation in schools during Brown v. Board of Education
At noon on the opening day of the oral arguments, the nine justices, wearing robes, took their seats. The lawyers, all men, followed a dress code: They either wore vests or kept their suit jackets buttoned. Davis conformed to an earlier tradition and wore formal morning clothes. The first case on the agenda was Brown. Each side had one hour to speak. When a red light flashed, signaling that time was up, a lawyer had to stop even if he was in the middle of a sentence.
At 1:35 p.m., Robert Carter began arguing on behalf of Oliver Brown, his daughter Linda and the nine other plaintiffs from Topeka. By now Linda was ten years old and in fifth grade. She and her younger sister, Terry, still took the long trip to attend Monroe, the school for blacks. Carter told how segregated schools deprived black children of equal educational opportunities. He said, “Sep-arate but equal . . . should squarely be overruled.”
His opponent, Attorney General Paul Wilson, defended Jim Crow schools in Kansas. He disagreed that segregation hurt black children. The court adjourned promptly at 2:00 p.m. for lunch, then reconvened at 2:30 p.m.
After Carter finished his remarks, Marshall went to the lectern to argue Briggs v. Elliott. He had been “edgy and irritable” until his turn came. Marshall spoke against South Carolina’s practice of segregating schoolchildren on the basis of race. Expert witnesses like Kenneth Clark had testified in the lower court that this practice harmed children. Justice Felix Frankfurter interrupted him and asked how integration would be carried out if it were deemed constitutional. Marshall answered that the details would have to be worked out by local school boards. “It might take six months to do in one place and two months to do it another place.”
Davis took his turn and stated that South Carolina was in the process of making schools equal. The evidence of social scientists had nothing to do with constitutional rights. He made fun of Clark’s tests using dolls in Clarendon County and said that many “learned authorities” approved of segregation. The practice was ninety years old and he saw no reason for change.
In his rebuttal, Marshall stressed his main argument. “For some reason,” he said, “Negroes are taken out of the mainstream of American life. . . . There is nothing involved in this case other than race and color.”
He added, “I know in the South, where I spend most of my time, you will see white and colored kids going down the road together to school. They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together.”
Spottswood Robinson spoke next on behalf of the students who had gone on strike at Moton. Barbara Johns, who had organized the strike, had already graduated from Alabama State Laboratory High School in Montgomery. John Watson, another of the plaintiffs, had graduated from Moton and had joined the Air Force. A new black high school was under construction. A new school would not mean equality, however. Barbara Johns, Dorothy Davis, John Watson and the other black students should have been admitted to the white high school, and black students like them should have that opportunity.
The court adjourned and Robinson continued the next day. His opponent, Justin Moore of Richmond, Virginia, argued that the student strike had blocked financing for a new high school for blacks, which wasn’t true. “The strike was really inspired by outsiders,” he lied. Moore also declared that segregation did not endanger black children. Justice Robert Jackson asked him about the Fourteenth Amendment, which protects the rights of individuals. Moore replied that the Fourteenth Amendment did not cover local matters such as schools.
That afternoon, James Nabrit and his colleague, George Edward Chalmers Hayes, an experienced black lawyer who taught at Howard, began their presentation on behalf of Spottswood Bolling, Jr., and the children of Shaw Junior High.
At 4:30 the session ended, but the following day Hayes carried on. He argued that school segregation in Washington, D.C., was unconstitutional. It violated the Fifth Amendment by denying black children the liberty to attend unsegregated schools. Nabrit spoke and charged that individual liberties of citizens such as the children were provided for in the Bill of Rights.
Their opponent, Milton Korman, said, “Separate public schools had been established in the District [of Columbia] before the Civil War ended and the amendments had been put through. These were slaves who had just been freed. . . . The District was trying to do its best for these people who had been in bondage. But there was no intention to invite them into their homes or to share their schools.” Korman insisted that Shaw Junior High, which was across the street from a pawnbroker’s shop, had been established out of a “kindly feeling.”
Nabrit rose for the rebuttal. In a stirring speech, he said, “In the heart of the nation’s capital, in the capital of democracy, in the capital of the free world, there is no place for a segregated school system.”
On Thursday, December 11, Attorney General Albert Young of Delaware spoke first because he had lost in the state courts. He said that chancellor Seitz had acted too quickly in ordering the white schools in Claymont and Hockessin to admit black students. Delaware had every intention of making Howard High School equal to Clayton.
But lawyers Redding and Greenberg pointed out that students like Ethel Belton, who lived in Clayton, would still have a ten-mile bus ride to and from school. Evidence showed that Shirley Barbara and other black children who had started attending integrated schools were getting along with their white classmates.
Greenberg said, “I concluded the argument in the Delaware case, which was also the end of the arguments for all five cases.”
On the way out of the Supreme Court Building, Davis was overheard remarking to his colleague from Virginia, “I think we’ve got it won.”
