Thurgood Marshall

by Juan Williams

  According to the agent’s memo, Marshall’s biggest concern was that the reporter would next visit NAACP branches in the South and hear rumors about FBI misconduct. Marshall told the agent that if he had evidence with “teeth” of FBI wrongdoing, he would contact the bureau. And Marshall confided to the agent that he did not like the newspaper’s attempt at muckraking and damaging the FBI.6

  * * *

  A month later, in June 1959, Marshall was in touch with the FBI again about the black militant Robert Williams. As the NAACP branch president in Union County, North Carolina, Williams had been quoted in papers across the country urging blacks to “meet violence with violence.” Wilkins and the NAACP immediately suspended Williams for contradicting their stand against racial violence by whites or blacks. The suspension made national headlines, and Williams was portrayed as being disgraced. Days later, however, a Communist-backed group formed the Robert Williams Defense Committee to offer him legal and financial support. Their work was not widely publicized, but it came to Marshall’s attention, and he wanted to make sure the FBI knew about it.

  Marshall, concerned by this mixture of black militants and Communists, asked for a face-to-face meeting with the FBI’s agent in charge of the New York office to discuss how the NAACP was responding to Williams’s call to arms. He also wanted the bureau to know that neither he nor the NAACP had anything to do with the Communist-led defense committee. At the start of the meeting, Marshall gave the agents three documents that linked the defense committee with Communists. But his greatest alarm was over Williams’s defiant call for self-defense.

  The agents later wrote in a memo to Hoover, “Mr. Marshall mentioned that his purpose in furnishing the information was due to the fact that he believed [Robert Williams] will seek to arouse the people in the North Carolina area to take action which could become violent and cause racial unrest and tension.… He is afraid of people agitating on such matters in the South, since race tensions can be easily aroused, especially during the summer months.”

  At the end of the memo the agents noted that Marshall told them, “No one else in the NAACP was aware of the fact that he had furnished the above information.” More and more, Marshall was acting on his own and at a distance from the organization. He promised to keep the FBI updated on the case, a few days later sending the New York FBI office an advertisement he had found in Detroit for a meeting of the “Friday Night Socialist Forum” held in support of Williams.7

  Robert Williams’s ties to Communists had started a year earlier, when two black boys, ages nine and seven, were arrested and charged with rape after they were found playing a kissing game with a seven-year-old white girl. Williams, as the head of the local NAACP branch, tried to get the national office to defend the boys. But Williams said Marshall and the NAACP told him they did not want “anything to do with the case because it was a ‘sex case.’ ” A frustrated Williams turned to a New York civil rights attorney with Communist ties, Conrad Lynn. Despite Lynn’s efforts the boys were found guilty and sentenced to fourteen-year terms in a state reform school.

  Williams remained a loyal member of the NAACP. But just a few months later he butted heads with the national office. In the spring of 1959, a Union County white man was charged with attempting to rape a black woman who was eight months pregnant. The man was acquitted by an all-white jury after the defense concluded its argument by saying, “This man is not guilty of any crime—he was just drinking and having a little fun.” Following the acquittal Williams told reporters: “This demonstration today shows that the Negro in the south cannot expect justice in the courts. He must convict his attackers on the spot. He must meet violence with violence, lynching with lynching.”8

  It was this call for violence that prompted Roy Wilkins to suspend Williams and led to Marshall’s secret meeting with the FBI. But the case was not over. Wilkins and Marshall feared that the suspension would lead to heated debates at the NAACP’s fiftieth annual convention, set for New York in July. The leaders were specifically worried that the Black Muslims might try to exploit the controversy to disturb the convention.

  “We went to see Malcolm to make sure that we could have our convention without any disruption, and Malcolm said he wouldn’t disrupt it,” said Gloster Current, the NAACP’s director of branches.

  But Marshall and Wilkins could not stop Williams and his supporters from launching floor fights and holding large street demonstrations outside the convention. Inside, Williams justified himself by telling the delegates that when Klansmen and Nightriders attacked, “we must defend ourselves.” A good number of the delegates applauded. “This is all I advocated. If I advocated it then, I advocate it now,” he said.

  Wilkins and Marshall argued that Williams was undermining the NAACP’s tradition of achieving change through peaceful protest and appeals to the law. They led the convention to vote in support of Williams’s six-month suspension. “We abhor violence,” the NAACP said in a statement. “We reject violence in any way to achieve any of [our] objectives.”

  However, there were enough pro-Williams voices to force the addition of a statement supporting black people who defended themselves. Delegates said blacks facing violent racists need not be compliant sheep going to slaughter: “We do not deny, but reaffirm the right of individual and collective self-defense against unlawful assaults.”9

  Williams later was reelected president of the Union County NAACP and in 1960 traveled to Communist-led Cuba. He also went to China and other Communist countries. His travels seemed to validate Marshall’s tips to the FBI. But the Union County NAACP’s vote to reelect Williams indicated their comfort with his militancy and cemented the distance between Marshall and elements of the NAACP rank and file.

  Marshall’s alienation from radicals such as Malcolm X and Robert Williams was based on his judgment that they did little to make life better for black Americans. The radicals may have touched a nerve and given release to pent-up anger among black people. But Marshall accurately concluded that compared with his efforts to end legal segregation and win voting rights for all Americans, there was nothing the radicals had to show as evidence of how they improved black life in America.

  Hurt by what he perceived as a lack of appreciation for his efforts to create real change in race relations, Marshall became emotionally distant from much of the burgeoning activism in the civil rights movement by the end of the 1950s. He didn’t see the nonviolent strategies of Martin Luther King, Jr., as effective, and he viewed Malcolm X’s talk about separatism and violence as destructive. Marshall thought Robert Williams’s infatuation with Communists was just plain stupid. In an era when government leaders were paranoid about Soviet expansion, Marshall was right to conclude that there was no advantage for already maligned black people to gain by signing up with Communists.

  Marshall’s decision to provide information to Hoover’s FBI could have cost him his credibility among civil rights activists had it become known. But the relationship was kept secret. And Marshall did succeed in keeping the FBI from mistakenly attacking the NAACP and the LDF as Communist fronts or bases for militant violence. In his heart Marshall wanted to protect mainstream civil rights groups from becoming easy targets for attacks that could set back the fight to defeat segregation and win equal rights for all.

  Marshall’s secret ties to the FBI and the information he gave the bureau were justified by the arc of the African-American struggle, dating back to antislavery efforts, to end government-sanctioned racism in America. But once he had made his pact with Hoover and set himself apart from the likes of Malcolm X, not to mention much of the NAACP, Marshall had all but ended his time as the much-honored legal leader of the movement.

  CHAPTER 27

  Exit Time

  MARSHALL FELT TRAPPED. He was tired of the young militants who criticized him. And he had grown discouraged with fighting segregationists over issues he thought he had won long ago. His frustration peaked when he lost a Supreme Court case in which the state of Virginia accused
the NAACP of instigating frivolous lawsuits against segregation. The Supreme Court ruled on a technicality; the state court had not reviewed the case.

  Marshall was upset that the high court would give credence to such a case by allowing it to continue. It just added to the foot-dragging by segregationists. The decision came down in June, and Marshall spent the summer restless and distracted, unable to focus his mind or his legal strategy. His efforts had hit a brick wall—less than 6 percent of black children in the South attended integrated schools despite the Brown decision. In the fall he surprised his staff by announcing that he was taking a two-month leave of absence to travel overseas.

  The trip came as an invitation from Tom Mboya, the leader of black Kenyans involved in the movement to gain independence from Britain. Mboya had come to the United States early in 1959 and while in New York met black American leaders, including Marshall. Mboya told New York papers that he found “the American Negro community incredibly impressive.”1 He was particularly struck by Marshall’s success as a lawyer. Mboya asked if he would come to Africa and assist in drafting a constitution for Kenya’s independence.

  It was the perfect reason to take a break from the U.S. civil rights struggle. Before leaving in January 1960, Marshall did extensive research. “When I did the constitution for Kenya, I looked over just about every constitution in the world just to see what was good,” Marshall said, pounding his fist on the desk to drive home the point. “And there’s nothing that comes close to comparing with this one in the U.S. This one is the best I’ve ever seen.”

  But when he arrived in Kenya, not everyone welcomed him. As he tried to go into the constitutional conference in Nairobi, he was barred by police because he and Mboya were seen as supporters of the radical Jomo Kenyatta. Kenyatta had been convicted and was in jail for leading the Mau Mau rebellion, which had resulted in the widespread murder of white settlers in the early 1950s. Marshall, barred from the meeting, started to argue and push by a white policeman, but he stopped when he realized a police search could land him in jail since he had anti-British pamphlets in his pocket.

  Marshall backed away from the confrontation but asked if he could say a few words to the large crowd of black Kenyans waiting outside the negotiations room. The police refused, but Marshall said he would not give a speech, simply offer “one word of greeting.” The policeman, seeing that the light-skinned foreigner with his lawyer’s satchel had attracted attention from the locals, agreed.

  Marshall pulled his six-foot-two, 220-pound frame on the top of an old station wagon and waved his arms to quiet the crowd. Then, in his booming voice, he shouted, ‘Uhuru,’ and pandemonium broke out. The policeman was stunned. The one word Marshall had shouted was political dynamite. It meant “freedom now.”2

  Marshall was never allowed into the talks in Nairobi. But when meetings resumed in England a week later, the Kenyan delegation asked him to fly with them to London, where he was welcomed by the British.

  The black Kenyan nationalists wanted democratic elections in which natives would be given the right to vote. But hard-line white settlers were fearful that majority rule would mean a black-run government that would confiscate their land and property. Marshall told reporters that without a constitution allowing for black rule, there would be an uprising “that nobody can control—any more than they could control the Mau Maus.”3 He was not, however, without concern for the whites. Just as he had made a career of asserting black minority rights in the United States, Marshall was anxious to protect the white minority in Kenya. “Well, I said that I was going to give the white Kenyan the same protection I would give a Negro in Mississippi. That’s what I did,” he later recalled.

  Marshall’s key contribution to the Kenyan constitution was to make it illegal for the government to claim land belonging to white settlers without paying for it. “Kenya only has one asset and that’s land,” he explained. “So I provided in my constitution that they could take the lands but they had to pay you. And if they don’t give you the price you like, you can file an action in the highest court—I’m damn proud of the constitution I wrote.”

  Not everyone was pleased to see Marshall in London exercising his influence. Writing from Nairobi, Robert Ruark of the New York World Telegram and Sun said Marshall should have stayed home. Under the headline AFRICA ISN’T MARSHALL’S BUSINESS, he wrote: “The intrusion of Thurgood Marshall … into the muddled mess between Great Britain and its colony seems to me to be meddling of the highest order.… He is not an African. He is an American and a mostly white one at that. If he knows anything about Africa or Africans, he read it somewhere.”4

  But Marshall’s work on the Kenyan constitution was celebrated in black American newspapers, which focused on kinship ties between black Africans and black Americans. The Afro-American quoted Marshall as saying the efforts to integrate schools in America and the fight for independence of the colonies in Africa were part of the same “emergent struggle for freedom all over the world.”5

  Not all of Marshall’s time was spent reading legal documents. While in London, he met Prince Philip. The prince teased him by asking, “Do you care to hear my opinion of lawyers?” Marshall, with a playful grin, shot back, “Only if you care to hear my opinion of princes.”

  * * *

  There were some final details still to be cleared up on the constitution, but Marshall was being swamped with telegrams and calls from New York about a new wave of mass protests in the United States. Student sit-ins at segregated restaurants in the South were spreading quickly after their start at a Woolworth’s lunch counter in Greensboro, North Carolina. The sit-in tactic, supported by Martin Luther King, Jr.’s Southern Christian Leadership Conference, produced big headlines around the country as southern sheriffs began arresting hundreds of young people on charges of trespassing. The students’ parents asked the LDF to get their children out of those dangerous southern jails.

  Marshall came home in late February to deal with the crisis. As lead lawyer for the LDF, he became a singular voice of caution. He challenged his staff to tell him why the LDF should do anything for the students. “Thurgood stormed around the room proclaiming in a voice that could be heard across Columbus Circle that he did not care what anyone said, he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going in their stores or lunch counters and refusing to leave when ordered to do so,” wrote Derrick Bell, a young lawyer who had just joined the staff. Bell recalled that Marshall told the LDF staff it was futile to go before any judge and talk about a sit-in when the law was clear that the students were trespassing on private property. Almost as if he was defying the popularity of the cause, Marshall told his lawyers the only way he would take the cases was if they could find some new, convincing arguments. But he added, “I know you can’t, because they don’t exist.”6

  The LDF prepared several memos on possible legal strategies for getting the students out of jail, but none made the grade with Marshall. However, an outpouring of telephone calls from NAACP members, as well as pressure from black newspapers and offers of money from churches and foundations, persuaded him that the LDF had no choice but to act as the students’ legal representatives. Money was pouring in, even from conservative, older southern blacks who felt sympathetic to the young demonstrators.

  Looking for strategies for defending the students, Marshall called a conference of civil rights lawyers at Howard University on March 18. Most of the lawyers, like Marshall, were skeptical of finding any legal basis for defense. The courts had long held that store owners had the right to refuse to do business with anyone they chose not to serve.

  Marshall’s young, activist staff, however, put forward the idea that a restaurant had to deal with anyone who walked in the door, regardless of race, under the equal protection clause of the Fourteenth Amendment. And Marshall became a convert when he began to consider that if racial prejudice were enforced by the state’s police and courts, then it was unconsti
tutional. By the end of the three-day conference, Marshall had set aside $40,000 to defend sit-in protesters. “Once a store is opened to the public it means it is open to everybody—without discrimination,” he told the Washington Star after the conference. “If it sells pins and needles to a Negro at one counter, it can’t keep him from buying hamburgers [at another counter].”7

  The legal strategy was in place, but there was another battle to be fought. While Marshall wanted to be totally in charge of the legal representation of the students, Roy Wilkins and Bob Carter wanted to limit the LDF to the role of advisers. Marshall won out by agreeing to let Wilkins deal with local NAACP leaders while he, using his ties with civil rights lawyers around the country, retained control of how the cases were argued in various state courts.

  The response from segregationists to Marshall’s support for the students was sharp. Georgia’s senator Richard Russell told reporters that sit-ins were an attempt to “invade and impair the right of private property in this free America.” He concluded that if Marshall and the sit-in students won the Supreme Court’s support, the Constitution would be “distorted” and no one could “feel secure in his property rights.”8

  While Marshall was staving off Senator Russell’s attacks, he found himself the target of barbs from black students who were leery of him. They did not want Marshall, one of the older black leaders—people they saw as too conservative—taking charge of their budding movement and the energy, publicity, and money it was attracting. In fact, the LDF was raising substantial sums of money because of the sit-ins. They brought in more than $500,000 in 1960, about one and a half times what they had raised the year before.

  While Marshall remained dubious that the sit-ins would do any good, he nevertheless made fund-raising speeches around the nation, praising the students’ activism and asking for donations to help with their legal bills. The students were “furnishing a lesson for all of us,” Marshall told an AME Zion convention in Buffalo. “What they are doing is telling us that we are too slow,” he said to one audience. “I am telling you they are right.”9