Water Tossing Boulders

by Adrienne Berard

  Legal scholars later noted that Brewer’s keen understanding of the Fourteenth Amendment played a key role in the victory. He claimed the protections of the amendment belonged to every American, even prisoners. Yet in the vast sweep of history, the victory was bittersweet. For as Brewer devoted his career to securing the rights of prisoners, he overlooked another landmark case. Gong Lum v. Rice, the first Fourteenth Amendment case to challenge the constitutionality of segregated schools in the Jim Crow South, was neglected by the very man who could have been its greatest champion.

  CHAPTER IX

  SPRING, 1927

  JAMES FLOWERS STARED AT the blank leaf of paper rolled into his typewriter. Lawyers of much greater stature called this affliction “pen paralysis.” For Flowers, it was not so much a deficiency of words as a deficiency of character. He was a humble man and would have been the first to admit that he was out of his depth when tasked with writing the Supreme Court brief for Gong Lum v. Rice.

  Immediately upon graduating from law school at the University of Mississippi in 1896, Flowers went to work as counsel for the railroads, a role he would maintain for most of his life. His colleagues praised the manner in which he practiced law, “with little drama and less sensationalism,” “quietly, effectively, practically and sincerely.” Flowers conducted his personal life in exactly the same manner. “Gentle and tender to the point of sensitiveness,” he was the polar opposite of the lawyer who had handed him the brief. Try as he might, Flowers could not conjure up the style of Earl Brewer, because when it came down to it, he was an entirely different type of man.

  Flowers’s greatest obstacle was the central statute in the case, the equal protection clause of the Fourteenth Amendment. Flowers had never filed a Fourteenth Amendment suit before, and his understanding of the article was limited at best. Regardless, he decided to begin his brief by invoking the amendment about which he knew the least.

  “The single question,” he wrote, “is whether the State of Mississippi has denied to plaintiffs in error the equal protection of the laws in excluding Martha Lum from a public school. We say it has.”

  The next logical step would have been to answer how such equal protection was denied to the plaintiff, but Flowers skipped that step entirely and jumped instead to Section 207 of the Mississippi Constitution.

  In writing the decision for the Mississippi Supreme Court, the judges had relied on Section 207, which stated: “Separate schools shall be maintained for children of the white and colored races.” They based their decision exclusively on that section, without referencing the Fourteenth Amendment or its equal protection clause. Flowers, on the other hand, addressed Section 207 by pointing out its hypocrisy.

  Of course it is the white, or Caucasian race, that makes the laws and construes and enforces them. It thinks that in order to protect itself against the infusion of the blood of other races its children must be kept in schools from which other races are excluded. The classification is made for the exclusive benefit for the lawmaking race. . . . It levies the taxes on all alike to support a public school system but in the organization of the system it creates its own exclusive schools for its children and other schools for the children of all other races to attend together.

  Flowers followed his condemnation of Section 207 with an argument in its favor. He suggested that the privilege denied to Martha, the privilege bestowed to her by the United States Constitution, was the privilege of segregation, the right to be schooled away from blacks. “If there is a danger in the association,” he wrote, “it is a danger from which one race is entitled to protection just the same as another. . . . The White race creates for itself a privilege that it denies to other races; exposes the children of other races to risks and dangers to which it would not expose its own children. This is discrimination.”

  After claiming segregation as a privilege, Flowers went on to argue its merits. He advanced a theory that had festered in the depths of Southern culture since long before he was born.

  That negroes were once slaves and, as a race, had to begin as children is judicially known, even adjudicated. Laws are upheld that recognize this well-known fact. Because of their racial peculiarities, physical as well as moral, the white race avoids social relations wth [sic] members of that race. Such intercourse is objectionable; in many instances would be repulsive and impossible. The White race protects itself against conditions that would require social contact—this, as the Mississippi court says, to preserve the integrity of the Caucasian race. But has not the Chinese citizen the same right to protection that the Caucasian citiizen [sic] has? Are they not equal before the law? . . . The White race has made its laws with a view to preventing such social contact as would have a tendency to foster social relations and social equality. But this same precaution, taken with respect to its own children, is omitted when it comes to dealing with the children of the other races.

  Flowers brought his argument to a close by quoting a single Supreme Court decision, Plessy v. Ferguson, the case that established the legal precedent for segregation itself: “Thrusting the company of one race upon the other, with no adequate motive, is calculated . . . to foster and intensify the repulsion between them, rather than towards extinguishing it.”

  Flowers wanted to make it clear to the justices that he stood before them a strong defender of segregation. He came not to topple its walls, but to make them stronger, to make the “privilege” of segregation available to every American child. In citing Plessy v. Ferguson, Flowers took from judicial history the very words that had first legitimized state-sponsored segregation. “The above is repeated here,” he wrote, “to show that the courts take notice of the undesirability of association with the Negro race. . . . The state [of Mississippi] gives to the Caucasian race the exclusive privilege of a school that none but the children of that race may attend and denies the same privilege to the children of other races including the Chinese race.”

  As the brief strayed so far from its original purpose that it appeared as though Flowers sided with the defense, the lawyer typed one final paragraph with one radical suggestion: that segregated schools are, by their very nature, unequal.

  Clearly the authorities agree that if separate public schools are provided for different classes of children, the children in one class do not enjoy equal protection of the laws unless the accommodations and facilities afforded them in their separate institutions are equal to those furnished other classes. . . . Turning [Martha Lum] away from the Rosedale Consolidated High School can in no way be justified except by proof that there was another school furnishing equal accommodations available to her. Can a court assume that there was such a school? Can the placing of one class in one school and another class in another school be justified, when questioned, except by the showing that the two schools furnish substantially the same accommodations?

  As Flowers typed those last biting words, he tore the final page from his typewriter. Gathering the brief into a pile, he carried it through the busy streets of Jackson and placed it into the hands of a printer, who copied and bound the brief. Then, in a matter of days, Flowers carefully sealed his brief into an envelope and mailed it to the United States Supreme Court.

  For a successful man, Justice Louis D. Brandeis kept a simple home. He saw no need for decoration or such amenities as a telephone. He disliked typewriters, preferring to compose his opinions for the Supreme Court in longhand. Only recently, at the urging of his wife and friends, had he begun to entertain the notion of owning an automobile. He considered himself a public servant, a man the press branded “the people’s lawyer,” and a person of such caliber had no need for opulence.

  Brandeis had served as an associate justice of the US Supreme Court for over a decade. Throughout that time, he preferred his own office to that provided him by the court. The offices of the Supreme Court were located in an old Senate chamber that had been in a constant state of disrepair since 1801. Only recently, with the arrival of a new chief justice, William Howard Taft, wa
s there any discussion of relocating the court. For the time being, the justices would each have to continue to work from their own private residences. While his colleagues complained about the court’s accommodations, Brandeis rarely, if ever, criticized the dilapidated hall over which he presided. His nature was to overcome obstacles.

  The son of Jewish immigrants, Louis Dembitz Brandeis was born in Louisville, Kentucky, where his father was a successful grain merchant. At the age of eighteen, without a college diploma, Brandeis enrolled in Harvard Law School and graduated in the top of his class. Less than a year after graduating, he opened a law practice in Boston with his classmate Samuel Warren. It was through the establishment of his own firm that Brandeis took up the cause of the Progressive movement and fought to reform labor laws. In 1916 he was rewarded for his efforts and appointed to the United States Supreme Court by President Woodrow Wilson. The appointment made history, as Brandeis became the first justice of Jewish ancestry to serve on the nation’s highest court.

  After more than a decade on the Supreme Court, Brandeis was even less of a conventional figure than he had been in his youth. His gray hair grew long and bushy and he moved with a perpetual slouch. Friends and critics alike compared his appearance to that of a biblical prophet. While Brandeis’s body had begun to deteriorate, his mind was still sharp, sharper perhaps than several of his colleagues. This worried him. He had admired Justice Oliver Wendell Holmes since his early days as a young attorney in Boston. Now, at the age of eighty-six, Holmes seemed weak. “His aim is no longer sure,” Brandeis told a friend in confidence.

  The case at hand, Gong Lum v. Rice, was unlike any the court had seen before and would require all justices to be at their sharpest. The appeal, sent up from the Mississippi Supreme Court, came from the father of a nine-year-old Chinese girl. The father, Gong Lum, challenged a ruling that classified his daughter as “colored” and therefore made her ineligible to attend the state’s segregated white schools. From inside the sparsity of his home, Brandeis pored over the brief.

  The entirety of its twenty-three pages was a disaster. The lawyer, a Mr. J. N. Flowers, made two arguments at once, and both were equally confusing. One advocated for the admission of the child, Martha Lum, to a superior white school in her town of Rosedale, and the other advocated for the expansion of school segregation, to create separate public educational facilities for every race known to man. Upon close inspection, it would seem as if the lawyer was defending the very decision he was assigned to appeal. Worst of all, for Brandeis, was the brief’s excessive use of the Fourteenth Amendment.

  Brandeis hated the Fourteenth. He wanted it repealed from the US Constitution. “Much ado about nothing,” was how he once described the amendment to a fellow lawyer. Brandeis believed its clauses were far too intrusive on states’ rights. As Brandeis’s biographer noted, the justice “was loath to use it even to strike down segregation.” This could have been due to the fact that Brandeis was raised in the South or maybe his fear of federal overreach extended even into defending Jim Crow legislation. Regardless of how Brandeis developed his contempt for the Fourteenth Amendment, he took out his anger by voting with the conservative majority in every race-discrimination case that reached the Supreme Court.

  The case of Gong Lum v. Rice was similar in some ways to another case from 1922. In Ng Fung Ho v. White, Brandeis wrote the majority opinion in favor of the plaintiffs, five Chinese residents of California who were taken into custody by the commissioner of immigration for the Port of San Francisco and threatened with deportation. The Chinese residents, in turn, filed a writ of habeas corpus against the commissioner for holding them against their will. The writ was denied by the state court and was appealed to the federal court. Brandeis, invoking the Fifth Amendment, agreed that the Chinese men and women were held unlawfully, writing, “The Fifth Amendment affords protection in its guarantee of due process of law.”

  In the brief for Gong Lum v. Rice, the Fifth Amendment was never mentioned. It could have been argued that Martha Lum was deprived of her education without “due process,” a claim to which Brandeis was sympathetic. In September 1924, when the initial writ of mandamus on behalf of Martha Lum was filed with the lower courts, Earl Brewer invoked the Fifth in his argument that “the right to attend said Rosedale Consolidated High School is a valuable opportunity to her, and [one] that she is being deprived thereof without the process of law.” But Flowers, in his Supreme Court brief, did not reference the language of the writ, nor any other amendment aside from the Fourteenth. He did not cite Ng Fung Ho v. White or any other case related to people of Asian descent.

  With an effective lawyer to argue before the court, the case of Gong Lum v. Rice might stand a chance. Brandeis wrote to Felix Frankfurter, founder of the American Civil Liberties Union, to see if the Chinese plaintiffs could obtain better representation. “Some steps should be taken,” he wrote, “through Chinese minister, consuls or otherwise, to help Chinese to better counsel.”

  The news came in a telegram from the United States Capitol Building, signed by the head clerk of the Supreme Court. Reading the message, Flowers tried to keep himself from panicking.

  NOW THINK GONG LUM AGAINST RICE, NUMBER TWO FORTY, ON CALL AND PROBABLY REACHED FOR ARGUMENT ABOUT WEDNESDAY

  It had been less than a week since Flowers filed the brief, and the case was already going before the justices. Brewer was impossible to reach and Flowers was in no way prepared to argue the case alone. He immediately wired the clerk a response.

  WE DESIRE THAT GONG LUM VS RICE . . . SHALL NOT BE HEARD BEFORE THIRTY DAYS STOP PLEASE WIRE IF THIS CAN BE ACCOMPLISHED

  While many lawyers wait their entire careers for the chance to argue a case before the Supreme Court, Flowers was not like most lawyers. He avoided public speaking at all costs. Unlike Brewer, the courtroom only made Flowers anxious. Brewer’s gift for oratory was known throughout the state. He captivated a courtroom audience like a pastor at the pulpit. Without Brewer, the appeal didn’t stand a chance.

  A few days later, the clerk at the Supreme Court wired Flowers his response.

  CASE CANNOT BE CONTINUED EXCEPT BY STIPULATION OF COUNSEL OR BY MOTION MADE IN OPEN COURT AND SUFFICIENT REASONS GIVEN

  Flowers now risked forfeiting the case. He sent the clerk an application to remove Gong Lum v. Rice from the docket and reschedule the hearing for a later date. He wired the clerk and waited.

  STIPULATION OF COUNSEL TO PASS CASE GONG LUM VERSUS RICE NUMBER EIGHT HUNDRED ELEVEN MAILED YOU YESTERDAY STOP IS IT ESSENTIAL THAT ONE OF US BE PRESENT TO PRESENT APPLICATION

  “If stipulation, properly signed by counsel,” the clerk wired back, “to continue Gong Lum against Rice, is received Monday, I will present it to court and counsel need not appear.”

  The response was exactly what Flowers wanted. He had successfully stalled the case. The delay would buy him a few more weeks, maybe even months, to convince Brewer to travel to Washington and argue the case. Flowers could now get back to the lucrative work of representing the railroads. To delay Gong Lum v. Rice was to finally rid himself of its nuisance. Flowers discarded the case and returned to the corporate law in which he specialized.

  In the absence of legal counsel, the Lum family, and the rest of the Mississippi Chinese, took matters into their own hands. They appointed J.K. Young, Jeu Gong’s old friend from Tunica, to be their representative. The two men had not kept in close contact over the years, but Young was deeply interested in the case and reached out to the Lum family to offer his support. With Katherine and Jeu Gong’s blessing, Young posed as their lawyer and sent letters to the US Supreme Court. He asked for copies of the other lawyers’ briefs and requested notification for when the case would be argued before the court. He planned to attend the hearing in person.

  During the first week of October 1927, Young received word that oral arguments were to be held within a few days. Writing on his own stationery, Young sent letters to every conceivable person involved in the case. He wanted them to
know how important the outcome would be for all Chinese Americans. Hundreds of futures hung in the balance, and he was currently their only representative.

  On October 5, 1927, Young mailed a letter to the US Supreme Court. In broken English, he voiced a desperate fear that his people would be forgotten: “I has been wrote to Mr. J. N. Flowers of Jackson, Mississippi in told him at once coming on your city pay attention this business, and trust that he notify you for same. Thanking you for above favors. J. K. Young, Esq.”

  The day before Gong Lum v. Rice was to be argued in court, the clerk received a telegram from Brewer and Flowers.

  WE DO NOT WISH TO ARGUE THE CASE OF GONG LUM ET AL VS RICE NUMBER TWENTY NINE AND WE REQUEST AND AUTHORIZE YOU TO HAVE THE CASE SUBMITTED ON BRIEF

  The lawyers ceded their right to argue to case before the justices. A verdict would be rendered in secret, behind closed doors, with only the brief written by J. N. Flowers to serve as the defense for Martha Lum. J. K. Young would never stand in the courtroom. He would not be present for a decision that would determine the fate of his friends and family. The consequence of Brewer’s inaction would shape history, and a verdict would be rendered with the power to oppress millions of Americans for generations to come.

  On November 21, 1927, the nine justices of the United States Supreme Court, notorious for rendering 5–4 decisions, delivered a unanimous verdict in the case of Gong Lum v. Rice. Chief Justice William Howard Taft assigned the task of writing the court’s opinion to himself.

  “The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races,” he wrote. “Were this a new question, it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state Legislature to settle, without intervention of the federal courts under the federal Constitution.”