A People's History of the Supreme Court

by Peter Irons

  Clark made notes of each child’s responses. When he tallied them, the results closely matched his findings in similar tests he had conducted in New York City, Philadelphia, Boston, and several Arkansas communities. All sixteen of the Clarendon County black children correctly identified both the white and brown dolls. But ten chose the white doll as the one they wanted to play with; eleven said the brown doll looked “bad” to them; and nine picked the white doll as the “nice” one.

  What brought Kenneth Clark from New York to Scott’s Branch? Thurgood Marshall had decided to use the Briggs case to attack school segregation at its roots: what made the enforced separation of black children from whites most damaging, he felt, was not tattered books and untrained teachers, but the stigma of inferiority that segregation inflicted on black children. School officials could buy newer books and hire better teachers for black children, but they could not erase feelings of inferiority from their minds. Marshall enlisted Clark as an expert witness, hoping that his testimony would make this point. His credentials were impressive. A social psychologist who taught at City College in New York, Clark and his wife, Mamie, also a psychologist, had devised the doll test to study the development of self-images in black children. “We were really disturbed by our findings,” Clark later said of his initial studies. “What was surprising was the degree to which the children suffered from self-rejection. I don’t think we had quite realized the extent of the cruelty of racism and how hard it hit.” The Clarks published an article in 1940 titled “segregation as a Factor in the Racial Identification of Negro Pre-School Children” and reported on a decade of follow-up studies at a White House conference in 1950. Thurgood Marshall hoped that federal judges would listen carefully to this eminent scholar.

  The Briggs case was assigned to federal district judge J. Waties Waring, a scion of Charleston society. Marshall had tailored the case for Judge Waring, certain that he would get a favorable ruling. Born in 1880 into a family that had owned slaves. Waring had slowly turned against segregation. He joined the federal bench in 1941 and shocked fellow members of the upper-crust Charleston Light Dragoons with his judicial rulings. He jailed a white farmer for holding a black man in “peonage” against his will and ruled in 1945 that South Carolina must equalize the salaries of black and white teachers. He also presided in 1946 over the trial of the white police chief who had blinded Isaac Woodward, a black army veteran, with his billy club. “I was shocked by the hypocrisy of my government,” Waring later said of the federal prosecutor’s failure to call witnesses against the chief. And in 1948, Thurgood Marshall argued before Waring that South Carolina could not exclude blacks from its primary elections. “It is time for South Carolina to rejoin the Union,” Waring wrote in ruling for Marshall. For this opinion, he endured burning crosses on his lawn, gunshots at his house, and a large chunk of concrete through his front window. “Unfortunately, the judge was not hit,” a rural newspaper lamented.

  Unfortunately for Marshall, Waring shared the bench at the Briggstrial with two other federal judges. Putting the case before a three-judge panel had been Waring’s decision. Marshall had originally sought only equal spending on Clarendon County’s schools, but Waring had urged him to amend his complaint and attack South Carolina’s segregation laws directly. Federal law then provided that constitutional challenges to state laws would come before three-judge panels. Marshall complied with Waring’s initiative, although the outcome of the Briggs case was now doubtful. Judge George Timmerman, who sat with Waring on the South Carolina federal bench, was a rabid defender of white supremacy and a sure vote for segregation. The third judge, John Parker of the Fourth Circuit Court of Appeals, had been nominated to the Supreme Court in 1930 by President Hoover, but was rejected by the Senate, largely because he had spoken against black voting. However, Parker had gained the respect of blacks after his defeat and upheld their claims in two important cases Thurgood Marshall had argued before him. Everyone knew the Briggscase rested on Parker’s vote.

  The trial began on May 28, 1951, and opened with a surprise. The school board’s lawyer, Robert Figg, admitted to the judges that “inequalities in the facilities, opportunities and curricula in the schools of this district do exist.” Figg hoped his concession would “eliminate the necessity of taking a great deal of testimony.” He also hoped, quite obviously, that his ploy would keep Marshall’s expert witnesses off the stand. Marshall looked stunned, but quickly replied that since his complaint attacked segregation on constitutional grounds, “we must be able to show the inequalities as they actually exist.” Fortunately, Judge Parker, who presided, allowed Marshall to continue. He first called L. B. McCord, Clarendon’s school superintendent. Marshall asked why the county separated the white and black children. “You would have to ask the children why,” McCord replied. “None of them have ever asked me to go to one school or the other.” He had trouble with other questions as well, refusing to admit that the county spent less on black children than whites. Roderick Elliott, the first defendant and school board chairman for twenty-five years, could not even identify the district’s boundaries or name any schools.

  Marshall turned the podium over to Robert Carter, his young but experienced associate. He first called Matthew Whitehead, professor of education at Howard University, who had inspected both white and black schools in Clarendon, armed with Judge Waring’s order. Whitehead’s report had prompted Robert Figg to concede the obvious inequalities. The white schools all had lunchrooms; none of the black schools did. In one black school “there was not a single desk” for students; “there was a desk for every child” in the white schools. The white schools had indoor toilets; the black schools had outhouses.

  Kenneth Clark spent just one hour on the witness stand in the Briggs trial. He had never before testified as an expert, but he spoke calmly and confidently. “I was just stating what I had learned over the years,” he later recalled. Robert Carter led him through his background and credentials, and Clark outlined his prior research on the self-images of black children. The cumulative effects of discrimination, prejudice, and segregation “have definitely detrimental effects on the personality development of the Negro child,” Clark stated. “The essence of this detrimental effect is a confusion in the child’s concept of his own selfesteem—basic feelings of inferiority, conflict, confusion in his self-image, resentment, hostility towards himself, hostility towards whites,” he continued.

  Clark then described his “doll studies” at the Scott’s Branch school. “The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities,” he concluded. Robert Figg hardly bothered with cross-examination; he expressed surprise that Clark had conducted his tests alone with each child. Once the judges knew “that his testimony was based on very few children, that there was no witnesses to the tests,” Figg later said, “I didn’t press the matter.” His final comment showed how bandly Figg misjudged Clark’s testimony: “Nobody took it seriously.”

  Three years would pass before the American people learned how seriously the Supreme Court took Kenneth Clark’s testimony. Meanwhile, the three judges who heard it met to decide the case. Robert Figg had conceded the inequality of Clarendon County’s schools at the trial. Judge Parker had asked him what decree the court should issue “in the light of your admissions.” Figg asked in return for “a reasonable time” to draw up plans to equalize the black and white schools. Judge Parker issued the panel’s decision on June 23, 1951. Writing for himself and Judge Timmerman, Parker gave the defendants six months to report back on progress toward that goal. He also denied the plaintiff’s motion to declare school segregation unconstitutional. Parker did not consider the Sweatt and McLaurin decisions relevant to public schools, where “the thought of establishing professional contacts does not enter into the pictur
e.” He deferred to Plessy in declining to find that “segregation is violative of fundamental constitutional rights.” Parker ended with an echo of Oliver Wendell Holmes’s dissent in the Lochner case: “The members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics.”

  Judge Waring filed a lengthy dissent that focused on the connections of racial prejudice and segregation. “There is absolutely no reasonable explanation for racial prejudice,” he wrote. “It is all caused by unreasoning emotional reactions and these are gained in early childhood.” Waring considered Sweatt and MacLaurin even more reason to rule for the Briggs plaintiffs: “If segregation is wrong, then the place to stop it is in the first grade and not in graduate colleges.” He put his last words into italics: “Segregation is per se inequality.”

  Much like Harry Briggs and the other Clarendon County plaintiffs., Judge Waring paid a price for his Briggs dissent. Social ostracism and death threats finally drove Waring from his ancestral home in Charleston. He resigned his judicial post and moved to New York, where he died in 1968 at eighty-eight. He returned in death to Charleston; only a handful of white people attended the services at Magnolia Cemetery, but two hundred black mourners came, many from Clarendon County. “He’s dead,” one black farmer said, “but living in the minds of the people here still.”

  Two days after Judge. Parker ruled against the Briggs plaintiffs in South Carolina, Robert Carter and Jack Greenberg traveled to Topeka, Kansas, to represent the plaintiffs in Brown v. Board of Education, a case that had been filed in federal district court on February 28, 1951. The two young NAACP lawyers, one black and one white, could not both stay in white hotels in this Jim Crow city. They actually hoped to win this case, with three sympathetic federal judges on the bench. The relative equality of black and white schools in Topeka worked in their favor; the only real issue was segregation. Kenneth Clark did not come to Topeka, but Carter and Greenberg called another social psychologist with impressive credentials. Louisa Holt held a doctorate from Radcliffe, was a University of Kansas professor, and also taught in the school of psychiatry at the prestigious Menninger Clinic in Topeka. It did not hurt that Judge Walter Huxman, who presided at the Brown trial, greatly admired the clinic’s founder and director, Dr. Karl Menninger.

  Robert Carter asked Louisa Holt to assume that Topeka’s separate schools were equal in quality. Considering “the segregated factor alone,” he continued, “in your opinion does enforced legal separation have any adverse effect upon the personality development of the Negro child?” She answered in a lengthy sentence. “The fact that it is enforced, that it is legal, I think, has more importance than the mere fact of segregation by itself does because this gives legal and official sanction to a policy which inevitably is interpreted both by white people and by Negroes as denoting the inferiority of the Negro group.”

  Despite Holt’s forceful testimony, Robert Carter and Jack Greenberg lost their case in Kansas. Ruling on August 3, 1951, all three judges upheld Topeka’s right to keep Linda Brown out of the white school near her home. Writing for the panel, Judge Huxman considered himself bound by Plessy as controlling precedent. Nonetheless, he cited Louisa Holt’s testimony in holding that enforced segregation injured black children. “Segregation of white and colored children in public schools has a detrimental effect upon the colored children,” he wrote. “The impact is greater when it has the sanction of law; for the policy of separating the race is usually interpreted as denoting the inferiority of the negro group.” Huxman’s opinions also included findings that Topeka’s separate schools were virtually equal in quality, holding that he hoped would force the Supreme Court to confront Plessy head-on when the Brown case reached the justices on appeal. “I tried to wrap it up in such a way that they could not duck it,” Huxman later boasted.

  Along with the Briggs and Brown cases, three more challenges to school segregation reached the Supreme Court in 1952. One came from Delaware, tucked just under the Mason—Dixon line and southern in sympathy if not geography. The lower-court decision in this case, Gebbart v. Belton, marked the only NAACP victory among the five school cases. The state’s highest judicial officer, Chancellor Collins J. Seitz, had earlier ordered the all-white University of Delaware to admit black undergraduates, the first such ruling in the nation. In the Gebbart case, after visiting several black and white schools around the state, Seitz ordered the immediate admission of black students to white schools in April 1952. “This is the first real victory in our campaign to destroy segregation of American pupils in elementary and high schools,” Thurgood Marshall crowed to the press.

  The Virginia case, Davis v. Prince Edward County, came before three judges who differed greatly from Chancellor Seitz. Circuit judge Armistead Mason Dobie presided at the June 1952 trial along with district judges Sterling Hutcherson and Albert Bryan. Native sons of Virginia, they honored its traditions and mores, including racial segregation. The judges allowed the state’s lawyer, Justin Moore, to demean black plaintiffs and insult Jewish witnesses. Isador Chein, a prominent psychologist, endured Moore’s anti-Semitism with stoic restraint. Moore asked Chein “what sort of racial background” he had. “I think what you want to know is am I Jewish,” Chein replied. “Are you 100 percent Jewish?” pressed Moore. “How do I answer that?” Chein inquired. “I don’t know—you know,” Moore demanded. Chein replied that “all of my ancestors, as far back as I know, were Jewish.” Moore looked triumphant. “That answers my question,” he said knowingly.

  Judge Bryan wrote for all three judges in ruling for their native state. Racial separation in Virginia’s schools, they held, rested “neither upon prejudice nor caprice” but, had “for generations been a part of the mores of her people. To have separate schools has been their use and wont.” This use of the archaic term for “custom” reflected the judges’ attachment to Virginia’s past, and their exclusion of blacks from “her people” spoke volumes. They dismissed all evidence that enforced segregation inflicted emotional wounds on black children. “We have found no hurt or harm to either race,” they concluded. Sitting in the Confederancy’s last capital, the defiant judges refused to follow. General Lee in surrendering their lost cause.

  The NAACP played no formal role in the final school case, Bolling v. Sharpe, which was filed in the District of Columbia by James Nabrit III, who taught many NAACP lawyers at Howard Law School. Nabrit had worked for years with Thurgood Marshall, but he chafed at Marshall’s cautious approach. When a group of black parents approached him in 1950, Nabrit decided to file a suit that made no mention of unequal school facilities. He put all his chips on the number five. Because the Fourteenth Amendment applied only to states, Nabrit could not raise an equal protection challenge to Washington’s segregated schools. He relied instead on the Fifth Amendment’s protection of “liberty” against governmental abridgment. “The. educational rights which petitioners assert are fundamental rights protected by the due-process clause of the Fifth Amendment from unreasonable and arbitrary restrictions,” Nabrit claimed. But he lost his bet when federal judge Walter Bastian ruled that Nabrit had failed to show any evidence of school inequality. Therefore, Plessy governed the case and barred any relief for the plaintiffs,. Ironically, the Plessy majority in 1896 had approvingly cited Washington’s segregated schools to justify Louisiana’s segregated railroads. Fifty-five years later, Judge Bastian returned the favor.

  The first round of Supreme Court argument. in the five school cases began on Monday, December 8, 1952. Promptly at noon, Chief Justice Fred Vinson led his colleagues from behind a velvet curtain to the bench. Every seat in the Supreme Court chamber was occupied, more than half by blacks who came to hear Thurgood Marshall and other lawyers give voice to their grievance against segregation. If anyone expected verbal fireworks, there were few pops. Jack Greenberg, who succeeded Thurgood Marshall as NAACP director-counsel in 1961, argued briefly in the Delaware case. “
Any description of the oral arguments,” he later wrote, “must make clear how dull” they were. More than a dozen lawyers, on both sides, stood up and sat down without making a single memorable statement.

  Contrary to widespread belief, Marshall did not argue the leadoff Brown case. Robert Carter spoke for Linda Brown and other black children in Topeka. He wanted to talk about school inequalities, but the justices wanted to know how he felt about Plessy. After all, if the cases raised no greater issue than which schools had better facilities, people would not be crowding the courtroom and hallways to hear the arguments. Carter finally offered his opinion that Plessy “should squarely be overruled.” The lawyer for Kansas used less than half of his allotted time and said nothing of importance. Thurgood Marshall then rose to speak for the Briggs plaintiffs in South Carolina. He had appeared many times before the Court, but never in a case of this significance. “He hovered imposingly over the lectern as he addressed the justices familiarly, but respectfully,” Jack Greenberg recalled. Unlike Carter, who conceded the relative equality of Topeka’s separate schools, Marshall hammered on the glaring disparities in Clarendon County’s schools. He also tried to deflect questions on Plessy, but agreed with Carter that it should be overruled. Just before he sat down, Marshall brought laughter from the audience by declining Justice Jackson’s facetious invitation to file suits for American Indians who were segregated in reservation schools. “I have a full load now, Mr. Justice,” Marshall smilingly replied.