THE LAW: The Tension of Change

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One midnight in the bitter year 1932, two journalists—one white, one Negro—walked south along Philadelphia’s Broad Street in a sleety drizzle. They were talking of the Negro problem, the white man with a vehement impatience for justice, his companion more calmly and out of a deeper feeling for the scope and depth of the subject. Before parting, they stood a while under the marquee of the old Broad Street Station. Across the square under the arcade of city hall, dozens of men, wrapped in newspapers, slept. Panhandlers and a few night-shift apple-sellers stood on corners. A bus from upstate unloaded job-seekers; a bus for upstate loaded job-seekers. Soggy streetwalkers drifted to and fro in a depressed market. The Negro concluded the conversation: “After all, the very most we can hope for is complete political, economic and social equality with the white man.” Then, gazing at the Hogarthian scene, he added, not derisively but with compassion: “And look at the white man.”

In the bright, lush September of 1955, in a day of confidence—as in a time of despair—the central problems of U.S. whites and Negroes again blended into one: how to shape law, government, customs, practices, schools, factories, unions and farms in ways more consistent with man’s nature and man’s hopes. How, within the enduring framework of U.S. society, to let one change call forth another in some reasonably harmonious order. One of the most important changes on the U.S. scene in September 1955, as the nation’s children trooped back to school, was the astounding progress of racial desegregation. In Kansas City, Mo. and Oklahoma City, in Oak Ridge, and Charleston, W. Va., white and Negro children for the first time sat together in classrooms. This simple fact, part of a vast and complex social revolution, resulted from a legal victory: the U.S. Supreme Court’s decisions of May 17, 1954 and May 31, 1955, holding segregated schools contrary to the 14th Amendment.

For Conscience & Repute. The name indelibly stamped on this victory is that of Thurgood Marshall, 47, counsel for the National Association for the Advancement of Colored People. He is at his sincerest and loudest (and that is very sincere and quite loud) in declaring that he is only one of the millions, white and Negro, whose courage, sweat, skill, imagination and common sense made the victory possible. Like all great victories, the school-desegregation decision opened up terrifying vistas of future obstacles and perils for all Americans. Most centrally and immediately, Marshall must deal with the future course of desegregation and the intertwined issues of the social revolution of which he is a leading figure. He cannot set the course, not even for the N.A.A.C.P. But what he decides to do about a thousand practical legal questions will interact powerfully with the decisions and attitudes of other men of similar and quite different and opposite views. The resultant of these forces will determine the pace, the style and the success of an effort to remove from U.S. life a paralyzing sting in its conscience and the ugliest blot upon its good name in the world. Failure to achieve an orderly solution of the Negro problem would be—and this Thurgood Marshall feels deeply—much more than defeat for the Negro. It would be a failure at the very core of the American genius—its capacity for constructing forms strong and shrewd enough to withstand the tensions of change. From the nation’s start, its three chief resources have been its fabulous mines of law, politics and social (including economic) organization. The abundance of material things —the bales of cotton, bushels of corn, ingots of steel—is a byproduct of these three primary riches, not the take from a geographic roulette wheel or the hoard of materialist greed. Today’s drive of the U.S. Negro toward equality is as strong as any social tide in Asia or Africa or Europe. At the centers of those other drives for change stand agitators, conspirators, men of violence. The strength and flexibility of the U.S. Constitution make possible the fact that the man at the vortex of the Negro issue in the U.S. is a constitutional lawyer. The Sore Arm. His is a highly technical calling. The Constitution itself is a complex work of statecraft, put together by some of the most sophisticated political scientists who ever lived. Along with the document there is the constitutional residue of 168 years (this Saturday) of intense legal, political and social history—a coral-like cathedral of precedent, compromise, balance and bold interpretation. It takes scholars to move in this maze—and Thurgood Marshall is a sound, conscientious, imaginative legal scholar, although by no means the best of his day. Technical skill is not all a U.S. constitutional lawyer needs. The job is to apply the Constitution to life, which will not sit still. For example, in the mid-20th century it became a fact of life that millions of U.S. Negroes could not feel themselves clothed in the minimum dignity of men as long as they suffered under certain legal disabilities. And millions of Southern whites, with an intensity perhaps equal to that of the Negroes, resist the change the Negroes feel they must have. A constitutional lawyer involved in this conflict must understand men as well as the legal technicalities through which their raw emotions may, without violence, be composed into a more or less successful image of justice. Thurgood Marshall’s feeling of love and awe for the Constitution is exceeded only by his love and awe toward his clients: the Negroes, and especially the Negroes of the South and the border states, who, facing threats of firing, or beating or even death, continue to sign the legal petitions and complaints that must be the starting point of Marshall’s cases from the slum and the cotton field to the high and technical levels of the Supreme Court. Of these local N.A.A.C.P. leaders in the South, Marshall says: “There isn’t a threat known to men that they do not receive. They’re never out from under pressure. I don’t think I could take it for a week. The possibility of violent death for them and their families is something they’ve learned to live with like a man learns to sleep with a sore arm.” The Big Stretch. Marshall must stretch all the way from an understanding of this simple horror to the labyrinthine subtleties and the well-yoked ambiguities that form the mind of Mr. Justice Felix Frankfurter. He must stretch from his hatred of inequality to a recognition that much of the opposition to Negro equality is just as honestly felt as his own convictions. (“Some of my best friends are Dixiecrats —but they’re honest Dixiecrats.”) He must stretch all the way from an idealist’s demand for nothing less than justice (“On the racial issue, you can’t be a little bit wrong any more than you can be a little bit pregnant or a little bit dead”) to a practical lawyer’s acceptance of what he can get when he knows he can get no more. So stretched, his tense personality reflects the tensions of his job and his time and his nation. And somehow, also, his personality reflects the symmetry of the Constitution he serves and expounds. “Thurgood,” says a psychologist friend, “is a delicate balance of turmoils ” He is a big (6 ft. 2 in., 210 Ibs.), quick-footed man, with a voice that can be soft or raucous, manners that can be rude or gentle or courtly, and an emotional pattern that swings him like a pendulum from the serious to the absurd. His dignity can slide easily into arrogance and his humility into self-abasement, but not for long. Humor—his own humor—brings him back toward center. Marshall will listen so avidly to his colleagues’ scholarship that he has been called a brain-picker, but he trades jokes with no man. Around him, the ceaseless flow of anecdotes is all outward. Buffoonery relaxes his tense spiritual muscles. Buffoonery and work. After the long, argumentative conferences, after the horseplay and the backslapping, when he goes home to his lonely Harlem apartment, he becomes Thurgood Marshall the scholar, reading, noting, thinking, remembering-late into the night almost every night. He walks into a cheap Harlem bar and is greeted by friendly smiles, not because of what he has done for his race (the barflies probably don’t know who he is), but because they know him as a man who tells funny stories about cotton hands and baseball games and “that little ol’ boy down in Texas.” He walks into the Supreme Court and is greeted by respectful nods, not because he is a crusader, but because the Justices of the U.S. Supreme Court know they can speak to Thurgood Marshall as lawyer to lawyer, technician to technician.

Out of the Congo. Thurgood Marshall says: “American Negroes have no ties with Africa. Their history begins right here.” Nevertheless, like a Virginia gentleman recalling the ancestral manor in Gloucestershire, Marshall begins his family history in the old country with a great-grandfather on his mother’s side. “Way back before the Civil War, this rich man from Maryland went to the Congo on a hunting expedition or something. The whole time he was there, this little black boy trailed him around. So when they got ready to come back to this country, they just picked him up and brought him along. The years passed and he grew up, and, boy, he grew up into one mean man. One day his owner came to him and said: ‘You’re so evil I got to get rid of you. But I haven’t the heart to sell you or give you to another man. So I’ll tell you what I’ll do: if you’ll get out of the town and county and state, I’ll give you your freedom.’ Well, my great-grandfather never said a word, just looked at him. And he walked off the place, settled down a couple miles away, raised his family and lived there till the day he died. And nobody ever laid a hand on him.”

This most un-African parable of independence is succeeded in Marshall’s repertory of family stories by his paternal grandfather, “a rough and tough sailor-man. He never knew what his first name was so he took two—Thoroughgood and Thornygood. He drew two sailor’s pensions till the day he died—one in each name. I was named Thoroughgood after him but by the time I was in the second grade, I got tired of spelling all that and shortened it.” His maternal grandfather, Isaiah O. B. (for Olive Branch, he said) Williams, also went to sea, came home with money and a taste for opera and Shakespeare. He opened a grocery on Baltimore’s Den-meade Street, and sired six children. The first was Avonia Delicia and the second Avon (both for the bard’s river), the third was Denmedia Marketa (for the store), another was Norma Arica (he heard Norma in Arica, a Chilean port) and the remaining two, for reasons lost to history, were Fearless Mentor and Ravine Silestria.

Isaiah bought a house next to a white man who turned surly and mean. One day the neighbor repented because the party fence between their property needed fixing; he suggested that they do the job together. “After all,” said the white man, “we belong to the same church and are going to the same heaven.” But Isaiah, remembering the slights he had received, turned down the olive branch. “I’d rather go to hell,” he snapped.

The chip-on-the-shoulder tradition was shared by Thurgood’s father, Will, a dining-car worker on the B. & O. and later steward of Baltimore clubs, including the Gibson Island club, a yachtsman’s paradise with jellyfish for serpents. Will, light-skinned and blue-eyed, used to tell Thurgood and his brother Aubrey, “If anyone calls you nigger, you not only got my permission to fight him—you got my orders to fight him.” Once, Thurgood followed orders. Delivery boy for a hat store, he was trying to board a trolley with a stack of hats so high he “couldn’t see over or around them. I was climbing aboard when a white man yanked me backwards. ‘Nigguh,’ he said, ‘don’t you push in front of no white lady again.’ I hadn’t seen any white lady, so I tore into him. The hats scattered all over the street, and we both got arrested.”

Scroonched Down. Will Marshall was always saying that he would “sleep in the streets” rather than betray his principles. Thurgood says it too. But Thurgood is no fanatic, and he has no martyr complex. He tells two stories to prove it.

When his father got him a summer dining-car job on the B. & O., lanky Thurgood Marshall complained to the chief steward that his white waiter’s pants were too short. “Boy,” said the steward, “we can get a man to fit the pants a lot easier than we can get pants to fit the man. Why don’t you just kinda scroonch down in ’em a little more?” Says Thurgood: “I scroonched.”

The other story happened years later when Lawyer Marshall was in a small Mississippi town, waiting for a train to Shreveport, La.

“I was out there on the platform, trying to look small, when this cold-eyed man with a gun on his hip conies up.

‘Nigguh,’ he said, ‘I thought you ought to know the sun ain’t nevuh set on a live nigguh in this town.’ So I wrapped my constitutional rights in Cellophane, tucked ’em in my hip pocket and got out of sight. And, believe me, I caught the next train out of there.”

Whence this caution, moderation and restraint? Thurgood’s mother, Norma Arica, has been for 28 years a Baltimore schoolteacher and numbers six other schoolteachers among her own and her husbands close relatives. As a teacher, she was among the aristocrats of Negro Baltimore, and her feeling about white-Negro relationships is balanced and moderated by her sense of service and leadership among her own people.

Up from the Basement. In all-Negro Douglas High School, one of Marshall’s uncles gave him an A in algebra, but in grammar school he was repeatedly punished for breaking rules. Day after day, the principal sentenced Marshall to the basement, and allowed him to leave only when he had learned a section of the U.S. Constitution. “Before I left that school” he says, “I knew the whole thing by heart.” He does not contend that the seeds of his career sprouted in the basement, but such discipline did reinforce a respect for authority, which he retains in uneasy balance with the strongly rebellious elements in his makeup.

He went off to Lincoln University, near Chester, Pa., an institution then with an all-Negro student body and an all-white faculty. The important event of his undergraduate years occurred at the Cherry street Memorial Church in Philadelphia:

“We went in there because we learned that’s where all the cute chicks went.” The one he met was Buster Burey. “First we decided to get married five years after I graduated, then three, then one, and we finally did just before I started my last semester.” (Buster died of lung cancer last February. They had no children.)

Marshall decided to try law school. The University of Maryland was barred to him, so he commuted to Howard University in Washington. Within a week Marshall knew that “this was it. This was what I wanted to do for as long as I lived.” Only a fair college student, he had to meet very tough standards at Howard. “I got through simply by overwhelming the job. I was at it 20 hours a day, seven days a week.”

On to the N.A.A.C.P. Out of Howard he hopefully hung out a shingle in Baltimore (his mother took the rug off her living-room floor to put in his office). Nothing happened. It was 1933, and hardly anybody was worth suing. Marshall’s practice lost him $1,000 the first year. The next year he did better, building up a well-to-do clientele and a reputation, but he was increasingly involved in low-fee hard-work cases on civil rights. In a Maryland court, he won separate-but-equal status for a client. Donald Murray at the University of Maryland School of Law, a right about which he felt strongly. To the N.A.A.C.P. leaders, this victory tagged him as a really effective attorney in the N.A.A.C.P.’s kind of case.

In 1936 he went to work for the N.A.A.C.P. “temporarily” under his old law-school mentor. Charles Houston, but by 1938 admitted it was a permanent double-time job. His salary then was $2,600 a year. (Present salary: $15,000.)

The N.A.A.C.P. was winning graduate-school cases in the courts, but the defenant states complied merely by setting separate “schools” for one or two students. “It was beginning to look as though every time we won a lawsuit we were working our way deeper into the separate-but equal hole. The fact was we just weren’t ready to tackle segregation as an evil per se. We didn’t know enough.”

Before World War II Marshall had succeeded Houston as chief counsel of N.A.A.C.P. He won some key victories: against a union which had closed-shop contracts but discriminated against Negroes; against discrimination in the U.S Air Corps, a long step toward the present desegregation of the armed forces; against the Democratic Party of Texas, which claimed that it was a private organization and could make its own rules barring Negroes from voting in primary elections. The River Pilots. Toward the end of the war, N.A.A.C.P. leaders began to face the failure concealed in the success of if separate-but-equal victories. In 1943 group of 100 N.A.A.C.P. leaders, mostly lawyers, met in Manhattan. Marshall recalls: “Like somebody at the meeting said, while it was true a lot of us might die without ever seeing the goal realized we were going to have to change directions if our children weren’t going to die as black bastards too. So we decided to make segregation itself our target.”

“Segregation itself” had long been a target of Negro spokesmen. But Thurgood Marshall is not primarily a Negro spokesman; he is a constitutional lawyer ihe problem facing him and his colleagues was how to attack segregation itself on legal grounds. The weight of the precedents ran against them. Where would they find evidence to turn the balance?

The answer was peculiarly contemporary and peculiarly American. Just as U.S military staffs swim—and sometimes drown—in rivers of expert reports, just as U.S. business turns more and more to specialized organizers of facts, so Marshall & Co. mobilized a small army of psychologists, psychiatrists, sociologists and anthropologists to prove what every Negro among them believed to be obvious: that segregated education could not be “equal.”

The night before a Supreme Court school-segregation argument, Marshall & Co. went through an interesting exercise Howard University. Dean Houston years before had started moot courts with lawyers on the bench and students in the courtroom all trying to anticipate hard questions that the Supreme Court Justices might ask. A student threw the N.A.A.C.P. men into a nose dive by asking how they would get around an old Supreme Court decision upholding a Louisiana law which said nobody could be a Mississippi River pilot whose father hadn’t been. Marshall & Co. worked far into the night on that one. Next day, it turned out to be one of the first questions Justice Frankfurter asked. Marshall took evasive action and Frankfurter, the record indicates, was diverted if not satisfied.

“I Was So Happy.” In the Supreme Court arguments, Marshall was facing the man who for 30 years had been the most prestigious U.S. constitutional lawyer: John W. Davis. For weeks Marshall had been overworked, nervous, irritable. In court he was, as always, calm, polite, quick to grasp the inferences of a question, never loud, never oratorical. At one point he managed to get into a few potent sentences his analysis of the South’s attitude:

“I got the feeling on hearing the discussion yesterday,” he said, “that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something. Everybody knows that is not true. Those same kids in Virginia and South Carolina—and I have seen them do it—they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school . . . Why, of all the multitudinous groups of people in this country, [do] you have to single out the Negroes and give them this separate treatment? It can’t be because of slavery in the past, because there are very few groups in this country that haven’t had slavery some place back in the history of their groups. It can’t be color, because there are Negroes as white as the drifted snow, with blue eyes, and they are just as segregated as the colored men. The only thing it can be is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible. And now is the time, we submit, that this court should make it clear that that is not what our Constitution stands for.”

This, and Marshall’s social-scientist approach, paid off. In his opinion for the whole court, Chief Justice Earl Warren in sentence after sentence reflected the conviction that under present conditions of U.S. life, education could not be separate and equal. When he heard the decision read, says Thurgood Marshall: “I was so happy, I was numb.”

Unchanging Instrument. He has a profound respect for the federal judiciary. He has tried case after case before Southern federal judges, whose convictions on the subject of segregation he knows to be diametrically opposed to his own. “And they believe what they believe just as hard as I believe what I believe.” In all those cases, before all those judges, Marshall remembers only one judge who was, in his opinion, unfair and discourteous.

Marshall knows that he and the South ern federal judges he respects are checked by the same steely framework of the Anglo-American legal tradition and, especially, the U.S. Constitution. He says: “The difference between the Constitution and the law is something a lot of people don’t seem to appreciate. The law can fluctuate because of the changing whims of the people and their legislators. But the whole purpose of the Constitution is to serve as an instrument which cannot be changed overnight, which does not change when mores and customs change.”

Southerners charge that Marshall was instrumental in “changing the Constitution” in the Supreme Court’s desegregation decision. But from his point of view —and from the court’s—he merely produced new evidence to show that the old rule of separate-but-equal (Plessy v. Ferguson, 1896) did not really give the equality before the law which the 14th Amendment guarantees.

Hard to Procrastinate. Achieving desegregation, county by county, school district by school district, throws upon Marshall a tremendous load of responsibility and decision. The present picture from state to state varies over a wide range (see Report Card). Oklahoma is. from N.A.A.C.P.’s standpoint, surprisingly good, North Carolina surprisingly bad. In some areas, Marshall may not want, for tactical reasons, to bring suit now—but when local N.A.A.C.P. people urge him, he finds it bitterly hard to procrastinate, lest those men and women who sign the petitions feel that the N.A.A.C.P. has let them down. In other areas, he might want to proceed more vigorously, but clients, because of fear, do not come forward. Marshall does not blame them. He remembers the time when he scroonched down in his B. & O. pants, and the time on the Mississippi railroad platform when he wrapped his constitutional rights in Cellophane.

Generally speaking, segregation is ending in areas where Negro population is less than 10%. Where it ranges between 10% and 25%, the fight may not be too hard.

Where it approaches or exceeds 50%, the end can hardly be imagined. Yet Marshall will not accept a theoretical solution that the only chance for desegregation in Mississippi and other parts of the Deep South is a mass migration of Negroes that will drastically change population percentages (see map). Perhaps he remembers his ancestor from the Congo, who would not leave the state even for his manumission.

Last week, after vacation, Thurgood Marshall was back in Manhattan, dealing briskly with scores of tactical decisions in the desegregation fight. Across the land, he guided and coordinated the work of scores of lawyers in one of the biggest legal operations in U.S. history. He seemed fresh and rested, though the vacation, his first in eight years, had been a mockery.

Work caught up with him at Miami, and at the end of the job his nerve ends were raw. He was in a mood of acute awareness of how far he and his cause had come, and at the same time, he felt a strong sense of how hard and long was the road ahead. He did not want merely to win, but to win in the way that would cause least pain to Negro and white and reflect the most credit on the U.S. Constitution.

Stretched on the rack of one of the tensest and most exciting careers in the U.S. today, Thurgood Marshall in Miami said: “I’m gonna take a two-day vacation to rest from my vacation. I’m going to Havana. Never been there; hear they treat a man fine.” The ghost of an anticipatory smile flitted over his face; then the pained look came back. “Don’t know why I’m going to Havana,” he said slowly. “Trouble is when I get there, you know who I’m gonna find there, too? “Me.”