Devil in the Grove

by Gilbert King

  On that same occasion, but away from the bench, Marshall had had a less satisfying private exchange with the assistant attorney general of Oklahoma, who’d inveighed, “You keep talking about equal justice, equal facilities. We’re setting up an atom smasher at the University of Oklahoma. Do you mean that we’ve got to set up an atom smasher for niggers? Everybody knows that niggers can’t study science.” A year later, when arguing the Sipuel case on appeal in Oklahoma, Marshall had again run into the distasteful assistant attorney general and again, Marshall recalled, “it was ‘nigger’ this and ‘nigger’ that.” More surprising, though, had been the assistant attorney general who in 1948 had arrived in Washington, D.C., to argue Sipuel v. Board of Regents of Univ. of Okla. before the Supreme Court, especially when, to Marshall’s dismay, he’d informed the justices that he was defending segregation only because of his oath of office and that if the Court ruled against him, he would “not only follow the letter, but the spirit of the law.” Marshall’s shock had ceded to curiosity when, in the lawyers’ lounge, he’d asked the attorney “what the hell happened” to him. “My son’s been a student at the University of Oklahoma,” the attorney had replied. “He’s read about this case. He’s been berating me about it, including the question whether I really believe in the U.S. Constitution. He convinced me that I was a jackass.”

  Marshall’s argument of Sipuel before the Court was observed by the future Supreme Court justice John Paul Stevens, then a law clerk to Associate Justice Wiley Rutledge: “Thurgood was respectful, forceful and persuasive—so persuasive that on the following Monday—only four days after the argument—the Court unanimously ruled in Sipuel’s favor.”

  At the time that Marshall had returned to Oklahoma City to argue McLaurin v. Oklahoma State Regents, the Dixiecrats had been stirring up their ranks with forecasts of the perils immanent in any legislation of social equality for Negroes, particularly with their predictions that “there would be intermarriage” if desegregation was enforced in educational institutions. Marshall, however, had managed to stay one step ahead of the South’s political powers that be. In Oklahoma, Marshall noted, “we had eight people who had applied and who were eligible to be plaintiffs, but we deliberately picked Professor McLaurin because he was sixty-eight years old and we didn’t think he was going to marry or intermarry. . . . They could not bring that one up on us, anyhow.”

  The state had responded to the suit by admitting McLaurin to the University of Oklahoma’s doctoral program in education, but with conditions. For one, McLaurin was forced to sit at a desk in an “anteroom” from which he could only look into the classroom. (Marshall noted that the “anteroom” was merely a “broom closet.”) Protest had then prompted the state to amend its ruling—slightly: McLaurin was assigned a special seat in the classroom; it was surrounded by a railing and marked “Reserved for Colored.” The absurdity had not been lost on the white students, who’d immediately torn down the original railing and sign, as well as all the new ones that had replaced them, at a cost to the state of more than five thousand dollars.

  Jack Greenberg found the McLaurin case to be especially attractive, and provocative, because “it offered the [U.S. Supreme] Court no escape from deciding the issue of segregation.” On the other hand, Greenberg thought at the time that “it was dangerous because it allowed no victory on grounds short of overruling Plessy, which the Court might be reluctant to do.” He, Constance Baker Motley, and Franklin Williams focused their legal savvy and abundant energy on getting the briefs and petitions cast exactly as Marshall wanted them, for Sweatt as well as McLaurin, since both cases were scheduled to be argued before the Supreme Court on the same day, April 3, 1950. At the printer’s shop, the young lawyers stood by the “clattering hot-lead Linotype machines and clanging presses,” and as the pages came off the press they edited them and read them aloud to each other to be sure the proofs were Thurgood-perfect. Their vision may have begun to blur by the time the sun started to rise; but not their focus. Or Marshall’s. Standing by them, with them, like them, as Greenberg averred, “Thurgood focused on the end of Jim Crow.”

  Once the briefs for both Sweatt and McLaurin were filed, Marshall’s mentor, Charles Hamilton Houston, did more than offer his former pupil advice. He launched an attack from the flank, by having his solid connections at the Justice Department file amicus briefs with the Supreme Court in support of both Sweatt and McLaurin, essentially stating, “Plessy must go.” Marshall himself was meanwhile filling notebooks with case summaries so that he’d have every relevant reference at his fingertips, and he’d composed lists of every question he could imagine the justices might possibly pose. In Washington, in the days leading up to his arguments, he’d regularly take his staff down to Howard University for “dry runs” before a distinguished panel of academics and lawyers, including Houston and his cousin William Hastie. Mostly, they were trying to prepare for any issue that might be raised by the inquisitional associate justice Felix Frankfurter, the former Harvard Law School professor and the reputed intellectual among the justices, who was perceived by Marshall and his team to be a potentially dangerous adversary. Marshall entered the rigorous moot court sessions at Howard “like a boxer going into training,” said Jack Greenberg. “Thurgood would limit himself to one glass of wine at dinnertime, usually sherry, and no other alcohol.”

  On April 3 and 4, with associates Greenberg, Williams, and Motley along for support, the assistant special counsel Robert Carter argued McLaurin and Marshall argued Sweatt. In just a few sentences Marshall crystallized his argument for the Court. Emotional but reserved, the lawyer stood before the justices and “employed a rhetoric with persuasive force beyond its basic ideas.” Marshall said:

  The rights of Sweatt to attend the University of Texas cannot be conditioned upon the wishes of any group of citizens. It matters not to me whether every single Negro in this country wants segregated schools. It makes no difference whether every white person wants segregated schools. If Sweatt wants to assert his individual, constitutional right, it cannot be conditioned upon the wishes of every other citizen.

  Marshall proved to be so well prepared, and his argument so tightly constructed, that he did not face a single question he hadn’t already anticipated in his “training” at Howard. The attorney general of Texas attempted unsuccessfully to counter Marshall’s case with the argument that Sweatt’s admission to the university would lead to blacks being allowed in public places such as swimming pools and hospitals. “All we ask in the south,” he said, “is the opportunity to take care of this matter and work it out [ourselves].”

  THE TWO ARDUOUS Supreme Court arguments now behind them, Marshall and his LDF lawyers returned to New York and to their work on the Groveland appeal, which Franklin Williams would be arguing before the Florida Supreme Court with Alex Akerman. Williams, though, was not eager to revisit the orange groves and white crackers of central Florida, for by the spring of 1950 he had developed a taste for arguing segregation cases in the U.S. Supreme Court, cases that, in Williams’s view, stood at the forefront of the nation’s growing civil rights movement. With the taste came ambition.

  One year earlier, Williams had accompanied Marshall to Washington, where as assistant counsel the thirty-one-year-old lawyer had argued Watts v. Indiana alongside the NAACP’s star attorney, albeit he’d had to persuade a reluctant Marshall—hard-pressed though he was, as he had no one else to argue the case—to allow him the opportunity. “I was the first deputy of Thurgood’s to argue a case before the court,” Williams noted, and he’d made a memorable debut, as the Court overturned a murder conviction because the defendant’s confession to the crime had not been voluntary. Moreover, Williams’s performance had caught the eye of Felix Frankfurter, who wrote a note to his clerk, Bill Coleman, during the proceedings: “Bill, take a few minutes off to listen to Franklin Williams (do you know him?).” Coleman replied that Williams was “now Mr. Marshall’s assistant” and that he had “studied his law at Howard and comes very
highly recommended.” Frankfurter crossed out “Howard” on the note and wrote in “Fordham,” then added one more word to describe Williams’s courtroom comportment: “Excellent!”

  Since his arrival at the LDF in 1945, Williams had aligned himself closely with Walter White, who in fact had hired the recent Fordham Law School graduate. The two men also socialized outside the office. “Walter liked me and respected me as a dynamic young guy in the office,” Williams recalled, “and Thurgood probably thought I was in league with Walter—and since I did hang out with him, I suppose I was.” So it had come as no surprise to Marshall when he learned that Williams’s promptings lay behind the memos Walter White had issued regarding the “overfamiliarity and casualness” in the LDF offices that fostered a less productive working environment. Still, Marshall more than tolerated the young attorney’s ambition. Indeed, he encouraged it, for Marshall was not a man to be threatened by bright, enterprising minds.

  A self-confident manager and a crafty leader, Marshall thrived on the talents of his staff and associates. Even Williams, as critical as he was of Marshall’s apparent informality, had to admire the effectiveness of his modus operandi. “He had great success in picking people’s brains and manipulating them in the interests of the cause,” Williams said of Marshall. “He’d get a lot of outside lawyers together in a room, and he’d be talking and laughing and drinking along with the rest of them and getting everybody relaxed and open, and he’d seem to be having such a good time with them that you wouldn’t think he was listening. But after they’d left, there it all was—he’d had the benefit of all their brains, which was his strategy in the first place. Frankly, it was a little embarrassing—until I came to understand what he was up to.”

  Williams also understood that, and why, Marshall was chary in regard to the cases he was willing to have the NAACP represent, but understanding did not restrain the younger attorney, who had Walter White’s influential ear, from criticizing Marshall for being “cautious to a fault in taking thorny cases.” Williams, not unlike other attorneys and associates of the NAACP, was eager to pursue civil rights suits more widely, whereas “Thurgood,” said Williams, “had to be convinced of victory beyond a reasonable doubt before he said yes.” Fewer of the staff and consultants at the NAACP office, however, agreed with Williams than agreed with Marshall, who was reluctant to bring cases to the Supreme Court prematurely “because they might make lasting unfavorable precedents.” Still, Marshall felt the debate as to the aims and reach of the NAACP among its executives and the LDF staff was a healthy one, and he did not discourage it. (He was not pleased, though, when the NAACP magazine, the Crisis, mistakenly referred to Franklin Williams as “special counsel.” Only half jokingly, the special counsel Marshall dashed off a memo to Williams, stating that “all pretenders to the throne may use any . . . exit to the building without picking up any past due salary,” and closing with a not-informal “Please acknowledge receipt.”)

  In the spring of 1950, Williams’s staunch ally Walter White still remained on indefinite leave from the NAACP. So Williams really had no choice. As much as he might have wished to continue working out of New York and Washington on groundbreaking civil rights cases, he was packing his bags and heading back to the Sunshine State with its scary, unwelcoming, clay-eating, car-chasing crackers.

  CHAPTER 13: IN ANY FIGHT SOME FALL

  Curtis Howard. (Courtesy of Kim Howard Turner)

  FRANKLIN WILLIAMS MADE a gallant attempt to argue to the Florida Supreme Court that Charles Greenlee could not have been involved in the alleged rape of Norma Padgett because, according to the time line established by her own testimony, police had already apprehended Greenlee miles away from the scene. The Florida attorney general, however, offered a simple explanation for any discrepancies in the time line to which the NAACP counsel attached such importance:

  Mrs. Padgett didn’t have any idea how long the four negroes took to rape her. While sexual intercourse can be a prolonged affair in some settings, it is probable that these four negroes, goaded to a sexual frenzy by the prospect of having intercourse with a young white woman, took about as much time as a bull put to a cow in heat. Cover her, a few rapid thrusts, all over, and off again.

  To Williams, who had traveled to Tallahassee with Akerman to make their case before the justices, it was like arguing “in somebody’s back yard . . . to a group of men whose tendency would be to reject the fact that in their state there could be such an oppressive atmosphere that these young men could not get a fair trial.” The justices were hardly inquisitive, and there wasn’t “much of a play back and forth” of the sort that Williams had experienced when arguing in the U.S. Supreme Court.

  To no one’s surprise, Florida’s highest court upheld the Lake County verdict. Still, the justices did grant Shepherd and Irvin a ninety-day stay of execution, which allowed time for an appeal to the higher court. Marshall set Jack Greenberg to work on the briefs with Williams while the office waited anxiously for the Sweatt and McLaurin decisions. The Groveland Boys waited anxiously in jail.

  FOR THURGOOD MARSHALL in 1950, T. S. Eliot was right: April was the cruelest month. By then the FBI had not only completed its investigation into the beatings of the Groveland Boys but had also pressured the U.S. attorney, Herbert Phillips, to file charges against deputies James Yates and Leroy Campbell. Phillips had responded by impaneling, at the courthouse in Ocala, a federal grand jury, before which Shepherd, Irvin, and Greenlee testified as to their physical abuse at the hands of Lake County law enforcement officials. The grand jury returned “no true bill,” essentially declaring the defendants Yates and Campbell innocent, and issued in addition a statement praising Sheriff McCall for his protection of the accused men from extreme violence. In a letter to Phillips the Justice Department’s assistant attorney general stated that the department was “disturbed and disappointed in the inaction of the grand jury, for we are convinced that the victims were beaten and mistreated as charged.”

  Marshall was outraged. Phillips had, at the last minute, summoned to Ocala the two physicians at the Raiford state prison who had examined the Groveland Boys, but by the time they’d arrived that afternoon the hearing had already ended. Phillips had not called any of the prison officials or FBI agents who’d interviewed the three prisoners and photographed their quite visible injuries. Furthermore, not to be accused of racial bias, Phillips had made sure that three black men were seated on the grand jury, and that they would hear the words of two upstanding deputies of the law pitted against those of three convicted rapists. It was clear to Marshall and the Justice Department that if Phillips had actually wanted indictments of the two deputies, he could easily have secured them. Instead, Herbert S. Phillips, an avowed segregationist appointed by President Woodrow Wilson in 1913, had left the critical decisions in the process to his friend Jesse Hunter, who had determined, for instance, that they didn’t “need any assistance from F.B.I. agents.”

  IN AUGUST 1949, when the Groveland Boys trial had been about to begin, Charles Hamilton Houston wrote a letter to Assistant Special Counsel Robert Carter. Ordinarily, Houston would have written to Marshall, but he knew that his former student and longtime friend, along with Roy Wilkins, was fully occupied in the administration of the NAACP office in Walter White’s absence; nor did Houston want to burden Marshall with the news of his failing health, that “something other than fatigue” was a problem. The letter assured Carter: “These education cases are now tight and sufficiently so that anyone familiar with the course of the decisions should be able to guide the cases through. You and Thurgood can proceed without any fear of crossing any plans I might have.”

  Houston, who had suffered a heart attack, had moved into the home of his physician, Dr. Edward Mazique, while attempting to regain his strength after what would later be diagnosed as acute coronary thrombosis. He had placed his casework in the hands of his father, William, with whom he’d been working over the last quarter century, but the fifty-four-year-old Charlie Houston
really “didn’t know how” to stop working, even when bedridden. More worrying than his casework were Houston’s concerns for his five-year-old son, Bo, whom Marshall called “Little Charlie.”

  Houston’s constant chest pains had increasingly been taking a physical toll on his body, and he had not wanted his son to witness him withering away but rather “to remember his father as vigorous, impressive and strong.” Houston had always felt extraordinarily protective of his young son. Joseph Waddy, Houston’s partner at their law firm, recalled an incident in a Washington, D.C., drugstore, where little Bo had climbed up on a counter stool while his father was making his purchases. “Get down from there, you little nigger—you got no business here,” the man behind the soda fountain had shouted at the boy, and had so upset the father that “when they got back to the office,” Waddy said, “we had to take Charlie into the back room and give him a sedative.”

  Although both Charlie’s wife, Henrietta, and his son had protested his more recent protective impulses, he had kissed them both good-bye as he’d put them on a train to Baton Rouge and the home of Henrietta’s sister.

  That December Houston was too infirm to shop for Christmas presents; so, to express his appreciation of the attentive Dr. Mazique, Houston gave him one of his prized possessions, a poster of an “open-air Scottsboro protest meeting in Amsterdam”—in the hope that Mazique would one day hand on the poster to Bo. To explain further to Bo the “domestic and international significance” of the landmark case he had worked on twenty years earlier, he recorded the story of the Scottsboro Boys on tape. Since Scottsboro “you have seen . . . the movement of the great masses of the people,” said Houston to his son, and therefore “it is necessary to establish the principle of the indivisibility of liberty so that the masses recognize that no matter where liberty is challenged, no matter where oppression lifts its head, it becomes the business of all the masses.”