Ellington

When Thurgood Marshall hung out his shingle in 1933 as an attorney in his hometown of Baltimore, he immediately became a very popular attorney among fellow African Americans. One problem, though: His clients couldn't afford to pay the young man who received his law degree from Howard University in Washington, D.C.

Fortunately for the budding lawyer, he had two angels in the NAACP: Mr. Harry White, who was the NAACP's executive director, and his academic mentor, the dean of the Howard Law School—and the first legal director of the NAACP—Charles Hamilton Houston.

By 1935, Marshall was on the payroll of the NAACP. As of 1938, because of Houston's bad heart condition, Marshall—not yet 30 years of age—took over as the legal director of the NAACP's legal office, a job he held until he left in 1961 to become a federal appeals judge on the Second Circuit of the U.S. Court of Appeals.

'Working Like Demons'

For 26 years, Marshall typed briefs in the back of battered cars, but they were always perfect—no spelling or grammatical errors for Marshall because he did not want the legal papers called, by the judge and others, "nigger" briefs. Marshall worked 20-hour days for weeks on end, his only company the three packs of cigarettes he smoked every day and the Wild Turkey that lubricated his spirit.

Marshall traveled nine months of the year and his wives (he had two; his first wife died of cancer shortly after the Brown victory) were true saints because they tolerated his travels. In the days of Jim Crow, there were no first-class plane tickets, no four-star hotels, no dining at the best establishment in town.

When the word went out that "Thurgood's coming," local homes were cleaned up for his visit, local "guards" armed with shotguns and pistols protected him when he was asleep, lunches were packaged and brought to him because there were no restaurants available, and local beat-up cars were somehow glued together to transport him to the next stop. He averaged, during the 1940s, 40,000 to 65,000 travel miles annually.

Marshall handled all kinds of cases: criminal cases involving the death penalty, police brutality and outright racism by judges, prosecutors and others connected to the criminal justice system. And there were literally hundreds of civil suits filed and argued and appealed all the way to the U.S. Supreme Court. These suits involved at least four major issues that confronted blacks in the days of Jim Crow and the existence—as precedent across the nation—of the hated 1896 decision of the U.S. Supreme Court, Plessy v Ferguson, where the Court stated that the 14th Amendment's Equal Protection clause does not prohibit the separation of the races in all social areas so long as the practice was "separate and equal." The four areas were: 1) housing discrimination, 2) voting discrimination, 3) discrimination in education (from public institutions prohibiting blacks from attending all-white universities to teacher salary inequities in secondary schools) and 4) employment discrimination.

All told, Marshall and his colleagues won 39 of 46 cases in the U.S. Supreme Court—watershed cases that ended the most onerous of the many practices by whites that humiliated and psychologically destroyed the black community in most parts of the nation.

However, a bitter irony tortured Marshall's mentor, the quite ill Houston, and Marshall himself. The NAACP was winning cases but, damn it, they were winning many of them by using a doctrine, Plessy, that implicitly stated that blacks were inferior to whites in every way. And so, by 1947, Marshall was able to convince NAACP leaders that the organization had to challenge the constitutionality of Plessy itself. Jim Crow was Jim Crow, even though, as Marshall said, after 1945, it became "DeLux Jim Crow."

This change in strategic policy for the NAACP was not greeted with open arms by, of all groups, the black communities across the South who were, for the first time, receiving much more money—at least the promise of more money—from the white power structure. There were the brand new school buses, the better science equipment, the new English books, the higher salaries. For Marshall and the black community, a horrible paradox emerged.

Blacks were outraged at the change in policy. The legal folk in the NAACP wrote letter after letter to anguished presidents of local NAACP branches informing the group that the NAACP no longer was bringing "Plessy" litigation into court. At one point in 1949, a chagrined Marshall told one of his colleagues that it was easier for him to deal with the white racist lawyers than with the disgruntled and mad black lawyers, parents, and teachers.

For Marshall, it was a matter of principle, one shared with Houston and others in the organization. So long as Plessy was in the law books, so long as it was "bright letter" law on the subject of equality of the races, blacks and other minorities would forever be second-class citizens. There had to be a confrontation and the only vehicle Marshall could use was the U.S. Supreme Court.

Plessy has Left the Building

Black and white lawyers had followed Plessy, written by a 7-1 Court in 1896, for decades. And now, in 1949-1950, Thurgood Marshall was taking the uncharted, unknown step: He was asking the U.S. Supreme Court to overturn one of its own decisions. He knew, personally, a number of the sitting Justices on the Court and truly believed that they would be willing to overturn Plessy. Justice Felix Frankfurter had been a volunteer lawyer who assisted the NAACP in earlier decades. He knew Justice Hugo Black, an Alabama Klansman who was appointed to the Supreme Court in 1937 by Roosevelt and who, by 1940 had shown the nation that he was a fighter for social justice. Both were his friends.

Marshall and his fellow lawyers began the painstaking strategy by determining that they would attack Plessy, challenging the doctrine of separate but equal as it was practiced in public schools in 17 states and in the nation's capital, Washington.

It took three years for the cases to wind their way to the Supreme Court but, by 1951, the justices announced that they would hear the cases over the period of one week. Unfortunately Houston, Marshall's mentor, had died in April 1950 from a massive heart attack.

In 1952, after the first oral arguments, the court was sharply divided with four justices wanting to overturn Plessy. Frankfurter hit upon a temporary way out: re-argument in 1953 to answer a number of questions the Court had for lawyers on both sides.

In September 1953, just before the second oral arguments, God intervened on the side of Marshall. The Chief Justice, Kentucky Col. Fred Vinson Jr., had a massive stroke and died. (When he heard of the death of his chief, Frankfurter told his clerk that "This is the first indication that I have ever had that there is a God." The slot would be filled by the new president, Republican Dwight D. Eisenhower, who was coming off a military career steeped in racial prejudice and was a Plessy supporter. But it seems that Eisenhower pledged to the Republican governor of California that the first seat on the Supreme Court would be his. That man was the future "Super Chief," Earl Warren.

Bring on the Wild Turkey

In his new position, Warren stated that, in his view, unless any of his brethren could show him that blacks were inferior to whites, Plessy had to go. It was bad law in 1896, and it was bad law in 1953. But he did not take a vote. Ultimately, no one could argue that there was some kind of inferiority. Warren would get his way. On May 17, 1954, "Black Monday" as the segregationists still call it, the Court announced its decision. The lone dissenter, Stanley Reed, informed Warren at the last minute that he had changed his mind. Warren, in six-plus months, was able to turn a court around to a unanimous 9-0 decision!

Marshall was there along with other NAACP leaders. That night in New York, the champagne and the Wild Turkey flowed.

By no means, however, was the future rosy and sweet. Black Monday led to the instant creation of the white Citizens' Councils across the South and Southwest. Less than a decade later, the Ku Klux Klan re-emerged, in all its violence, in an effort to prevent the "mongrelization" of the South. And even though Brown was now the law of the land, in 2004 there are still battles being fought over discrimination and segregation in public schools.

Still, Brown is a watershed piece of law and legal theory. It put to rest the brutal and humiliating concept of racial inferiority. What Hitler did in the name of racial superiority had made no dent in the minds of white Southerners. For them, the black was the physical and moral equivalent of the Jew in Nazi-dominated Europe. And Plessy as law allowed that heresy to continue unchallenged until Charles Hamilton Houston and Thurgood Marshall, much to the anger of their own supporters, forced the nation to address the issue of equality and inequality.

Howard Ball is the author of "Thurgood Marshall and the Persistence of Racism in America." He was head of the Mississippi State political science department in the 1970s and 1980s. He now lives in Vermont.