6.

THURGOOD MARSHALL (1908–1993)

Argument Before the U.S. Supreme Court in
Cooper v. Aaron

Washington, D.C.—September 11, 1958

 

 

 

 

Thurgood Marshall was the first African American appointed to the United States Supreme Court. Before that, he led a long, distinguished career as the nation’s most famous civil rights lawyer. Marshall was the lead attorney in the fight against segregation that led to the Supreme Court’s 1954 Brown v. Board of Education ruling.

Marshall liked to tell people he was born way up South in Baltimore, Maryland. On the southern rim of the Mason-Dixon line, the Baltimore of Marshall’s boyhood was rigidly segregated. But there was also a thriving black business district and a well-organized black middle class.

Marshall’s parents were ambitious and determined. His mother, Norma, was a schoolteacher. His brash, outgoing father, Willie, was a railroad porter and a steward at a fashionable Maryland country club.

Marshall attended the prestigious, all-black Lincoln University in Pennsylvania where he decided to be a lawyer instead of a dentist. But the state university’s law school in Baltimore was segregated, so Marshall commuted by train to all-black Howard University Law School in Washington, D.C. At sunrise, Marshall caught the train to Washington; he often took the last train home at night.¹

Howard Law School had been overhauled by a demanding and ambitious Harvard Law School graduate named Charles Hamilton Houston. Thurgood Marshall started helping Houston, his mentor, fight legal cases while still a student.

Marshall graduated from Howard in 1933, at the top of his class. Houston left the university a year later to become chief lawyer for the National Association for the Advancement of Colored People (NAACP)—the nation’s leading civil rights organization. Soon after, he recruited Marshall.

With Houston’s guidance, Marshall won his first big civil rights case in 1935, when he sued the University of Maryland Law School for barring a black applicant, Donald Murray, from the school. This was Marshall’s first attack on school segregation. He argued that excluding blacks from the public university violated the Supreme Court’s doctrine of separate-but-equal because the school provided no separate—let alone equal—law school for blacks.

Legal scholar David Wilkins says that Marshall and Houston took a step-by-step approach to school desegregation for nearly two more decades: “[They] challenged both the factual equality between the black and the white schools,” Wilkins explains, “as well as the general principle that separate could be equal in some meaningful constitutional sense. Each victory then built up to the next victory and the next victory, and by the late 1940s they had won a series of cases. Brown was the culmination of that twenty-year campaign.” ²

From 1938 through 1961, Thurgood Marshall headed the NAACP’s Legal Defense and Educational Fund (LDF).³ With a team of brilliant and dedicated lawyers, Marshall conducted a courtroom crusade against Jim Crow. He and his colleagues used the U.S. Constitution to defeat discrimination in voting laws, interstate transportation, and housing codes, as well as other inequities. They achieved their greatest victory in the 1954 Brown decision, in which the Supreme Court struck down the principle of separate-but-equal—the heart of Jim Crow law. Brown is widely regarded as one of the most significant American legal decisions of the twentieth century.

When the Supreme Court issued the Brown ruling, it was the sole branch of the federal government in support of integration. Southern white leaders immediately launched a campaign known as “massive resistance” to evade or defy the Court’s order. The LDF had to fight harder than ever in court to get school districts to comply with Brown. Massive resistance reached its peak in Little Rock, Arkansas, in 1957, when Governor Orval Faubus called out the National Guard to prevent nine black children from attending Central High School. Escorted by federal troops, the “Little Rock Nine” finally made it into Central High School, but endured a year of harassment.

The Little Rock school board, citing fears of more racial upheaval, tried to suspend desegregation. Marshall fought the move all the way to the Supreme Court. In August 1958, the Court agreed to hold a special session to hear arguments in the case.

On September 11, 1958, Marshall, representing the “Little Rock Nine,” appeared before the High Court. His argument was recorded on tape, a practice the court began in 1955. Rather than worry for the black children he was representing, Marshall expressed concern for the education of white students: what would they learn about their country if a white mob could trump the law of the land? With unusual speed the Supreme Court issued a strongly worded and unanimous ruling: Little Rock schools must obey the law and desegregate immediately.

Despite the Court’s unambiguous ruling, Governor Faubus figured out another way to avoid the Court’s order: he shut down the Little Rock public school system. It took a year of court battles and political turbulence before the schools reopened in 1959.

In 1961, Marshall left his career as the nation’s leading civil rights lawyer to become a judge on the United States Second Circuit Court of Appeals. In 1965, Lyndon Johnson appointed Marshall as the first African American solicitor general of the United States. In 1967, Thurgood Marshall became the first African American to sit on the United States Supreme Court, where he served for twenty-five years. Marshall retired from the Court in 1991 and died two years later at the age of eighty-four.

 

 

 

THE TRUTH of the matter is, these entire proceedings, starting with the filing of the petition of the school board way back in February asking for time, the whole purpose of these proceedings is to get time. The objective of the proceedings is that the Little Rock schools be returned from desegregated to segregated status as of September school term.

I think we have to think about these children and their parents, these Negro children that went through this every day and their parents that stayed at home wondering what was happening to their children, listening to the radio about the bomb threats and all of that business. I don’t see how anybody under the sun could say that after those children and those families went through that for a year to tell them: All you have done is gone. You fought for what you considered to be democracy and you lost. And you go back to the segregated school from which you came. I just don’t believe it. And I don’t believe you can balance those rights.

Education is not the teaching of the three R’s. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.

And the damage to the education in Arkansas and in Little Rock and in Central High comes about through the order of Judge Lemley, which says that not only the school board and the state can and should submit to mob violence and threats of mob violence, but that the federal judiciary likewise should do so.

I don’t know of any more horrible destruction of principle of citizenship than to tell young children that those of you who withdrew rather than to go to school with Negroes, those of you who were punished last year—the few that the school board did punish: Come back, all is forgiven, you win.

And therefore, I am not worried about the Negro children at this stage. I don’t believe they’re in this case as such. I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I’m worried about their future. I don’t worry about those Negro kids’ future. They’ve been struggling with democracy long enough. They know about it.

The way this case stands, there must be a definitive decision—I hate to use the two together, it’s bad English but it’s the best way I can do it—that there be no doubt in Arkansas that the orders of that district court down there must be respected and cannot be suspended and cannot be interfered with by the legislature or anybody else. And less than that I don’t think will give these young children the protection that they need and they most certainly deserve.