I had thought - we'd all thought - that once we got the Brown case, the thing was going to be over. You see, we were always looking for the one case to end all of it.
Thurgood Marshall knew that white southerners would resist desegregation. But the struggle to get the Court's ruling enforced in the South challenged Marshall's nearly religious belief in the American constitutional system. The man who was so familiar with the depths and extremes of Southern race hatred had been something of an idealist about the power of the U.S. Constitution to overcome injustice. That idealism, of course, drove Marshall's work. But William Taylor, who joined the Legal Defense Fund just after the Supreme Court ruled on Brown in 1954, told American RadioWorks that Marshall and his legal team were truly unprepared for the backlash that followed the 1954 ruling. Taylor says:
I was a kid from New York who had very little experience with black people. I experienced Anti-Semitism…[but] I didn't have the basis of experience to know how deeply entrenched racism was in this country. Thurgood Marshall knew. He had grown up in that atmosphere. He had gone with Charlie Houston in the South in the 1930s and the 1940s and seen discrimination in its rawest form. Yet he and (colleagues) Bob Carter and Connie Motley had the feeling that once the Supreme Court changed the law things would be dramatically different. He grew up with great faith in the law and when it didn't happen that way, it was a disappointment.
In a campaign known as "Massive Resistance," Southern white legislators and school boards enacted laws and policies to evade and defy the Court's ruling. As Richard Kluger writes in Simple Justice (2004), "the South interpreted 'all deliberate speed' to mean 'any conceivable delay.'" In 1956, nearly every congressman in the deep South-101 in total-signed the "Southern Manifesto," stating the Brown decision represented "a clear abuse of judicial power." Law-abiding Southerners who once justified Jim Crow by citing the Court's Plessy decision now disregarded the Court's authority. Opponents of the Brown decision argued that the federal government had no power to force states to integrate schools. The state's rights argument had been a Southern rallying cry against the emancipation of slaves 100 years earlier. Now it was being used against integration. And where laws could no longer be used to keep black and white children from attending the same schools, mobs of white people would.
On September 3, 1957, New York Times correspondent Ben Fine filed a story predicting integration would occur peacefully in Little Rock, Arkansas. The school board had carefully selected nine black students to integrate the all-white Central High School, and local officials expected a smooth start. Within days, Fine was covering the most violent opposition to school desegregation since the Brown decision was handed down. Fine described the startling situation:
Three hundred militia-men-state guards with uniforms, bayonets, gas masks-surrounded Central High School. About fifty state troopers helped, too. And we still didn't know whether the troops were going to be used to uphold the law or not. We assumed that they were for law and order because the governor did not announce why the troops were there. But we knew the next day. On Thursday the nine Negro students attempted to get into school, because they thought the guards were there to help them. Well, they didn't help them. (Columbia University Oral History Collection)
"Little Rock" became national shorthand for white racial hatred. Scenes of National Guardsmen using bayonets to block black children from entering Central High School were pictured on television and in newspapers. Arkansas Governor Orval Faubus warned of bloody violence if black students were allowed in the school.
Thurgood Marshall, the man who had won the 1954 Brown ruling outlawing segregation, flew to Little Rock. Having seen his share of riots in other parts of the country, Marshall was worried about what he saw in Little Rock:
I saw an old colored gentleman sitting on a box with an old squirrel rifle, one of those real long barreled rifles-on Fourth Street, the main Negro street-and I went up to him. I said, "What are you doing sitting there for?" He said, "Get out of my way. Get out of my way. Just let a white son of a gun come by here." Now, here's a 60, 70-year-old man, going to shoot somebody. That's the end of the road. (Tushnet, 2001)
Ben Fine, who spent a month covering the showdown, described daily confrontations with a mob of segregationists:
It's one of these almost incredible things, to see normal people, many of them-most of them-churchgoers, and if you'd get them in their homes, they would be the kindest, nicest people…But in a mob group…something happens when that group gets together. Individually they would be nice to me, but in the group they would be ready, if they could, to tear me limb from limb. Many times they would just come up and bang me in the back or trip me or step on my foot or do all kinds of annoyances. By the end of the day I was black and blue. (Columbia University Oral History Collection)
For nearly three weeks the nine black students waited to get into Central High as Marshall fought for them in a federal district court, and as the white mob surrounding the High School grew. Thurgood Marshall soon realized he needed reinforcements and called on President Dwight Eisenhower to intervene. Author Richard Kluger told American RadioWorks there was reason to doubt the president would help. Eisenhower's ambivalence about integration had been apparent since his first comments on the Brown decision in 1954.
He did not say my fellow Americans we must follow this because it is the morally right thing to do. He said, 'we have to obey the Supreme Court because it is the Supreme Court and they have spoken...He gave a mechanical answer.
Law Professor Michael Klarman says that President Eisenhower was quoted as saying in the summer of 1956 and summer of 1957 that under no circumstances would he use federal troops to enforce the Supreme Court's order to desegregate. "That pretty much meant to white southerners," Klarman says, "that they could never be forced to do what they didn't want to do, because ultimately the court order doesn't mean anything unless there's a federal army behind it."
While Eisenhower kept his distance, a federal court ordered Faubus to remove the Arkansas guardsmen and let the black students into Central High. On September 23rd, Faubus relented. Now with a police escort, the Little Rock Nine filed into school. The crowd at Central High School -men in work shirts, gray-haired church women and girls in checkered dresses - erupted in violence. Local police hustled the black students out of the school. The mayor of Little Rock telegrammed Eisenhower for help. The president was still reluctant to endorse integration, but saw the crisis as a challenge to federal authority. On September 24, 1957, President Eisenhower spoke from the White House.
I have today issued an Executive Order directing the use of troops under Federal authority to aid in the execution of Federal law at Little Rock, Arkansas...Mob rule cannot be allowed to override the decisions of our courts.
On the morning of September 25, 1957, nine African American students were escorted into Little Rock Central High School by federal troops. The troops remained at the high school for the entire year. But even they could not protect the black students from a year of abuse and ridicule by white students.
Citing fears of another year of racial upheaval, the Little Rock school board tried to suspend integration at Central High School. Thurgood Marshall fought back, asking the US Supreme Court to convene a special session to settle the crisis. The court agreed. Lawyers for the Little Rock school board said they were unsure whether the Supreme Court's Brown ruling applied to Arkansas schools. On September 11, 1958, Marshall appeared before the nine justices and his argument was recorded on tape.
Education is not the teaching of the three R's. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law…I do not know of any more horrible destruction of principle of citizenship than to tell young children [in Little Rock] that those of you who withdrew, rather than to go to school with Negroes…'Come back, all is forgiven, you win.' Therefore, I am not worried about Negro children in these states…I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I am worried about their future. I don't worry about the Negro kids' future. They have been struggling with democracy long enough. They know about it.
With unusual speed the Court ruled unanimously that Little Rock schools had to integrate immediately. Two weeks later the Justices issued a lengthier opinion, which- in an unusual move to signal the ruling's importance-each one signed. The Court wrote:
One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but…[t]he constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature…Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. (Irons and Guitton, 1993)
The Warren Court ruled that school segregation violated the 14th Amendment guaranteeing equal protection under the law. Governor Faubus had declared that states were not compelled to follow the Brown decision because it was not clear, he said, whether Brown applied to all school districts. So the Court included a basic civics lesson in its ruling. It explained that the Constitution spawned a government that ensured each citizen's right to equal justice under law. States had no constitutional right to dodge the Court's ruling on segregation-quite the contrary. The Constitution of the United States is the "supreme law of the land," the opinion said. "The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law."
Thurgood Marshall felt this was the strongest order the Court could issue, short of setting a date by which all schools had to desegregate. But Governor Faubus figured out another way to avoid the Court's order: he shut down the Little Rock public school system. It took a year of court battles and political turbulence before the schools reopened, in 1959.
Thurgood Marshall had always put great faith in the 14th Amendment. In fact, he viewed the concept of equal treatment under the law as fundamental, and that all decent people would agree. As Marshall said in one radio interview, "The 14th Amendment is a high moral document…It's more than legal…As Christians we don't need the 14th Amendment if we practice what we preach." But many whites in the deeply religious Southern states saw no moral mandate to desegregate, let alone a legal one. Little Rock was but one extraordinary example of the steps Southern governors, lawmakers and citizens took to resist the Brown ruling.
Thurgood Marshall was genuinely surprised by the virulent opposition to integration in the South. "I guess, as you look back…we put some trust in the decency of man" After the Brown ruling, Marshall said,
We all shouted and sat down. That was when we should have sat down and planned...The other side planned all the delaying tactics they could think of. And so they took the initiative, and we ended up blocking their blocking tactics. By that time, we'd lost all of our initiative. And I think that's where we made a mistake, and I'm just as responsible for that as anybody else.
Thurgood Marshall never witnessed full integration of America's public schools. Today, racial segregation in schools is commonplace, but no longer by law. Courts have ordered some school districts to halt bussing and other desegregation programs. And some African Americans are nostalgic for the era when they controlled their schools. Viewed through the lens of Marshall's own expectations, Brown would appear to be a failure.
On the other hand, historian Adam Fairclough-along with other experts, and Marshall's own contemporaries-say the Brown decision had a crucial, far-reaching impact on the struggle for civil rights. In Better Day Coming (2001), Fairclough writes:
For all its messy and disappointing consequences, the Brown decision still turned out to be a turning point in the struggle for black equality. It destroyed the legal basis for racial segregation. It inspired blacks with the knowledge that the Supreme Court was on their side. And it compelled a reluctant Eisenhower to use federal power to overrule state power. Like a Newtonian law of politics, the NAACP's campaign against segregation was bound to precipitate an equal and opposite white reaction. That reaction did not indicate failure: it showed that the Civil Rights Movement needed new tactics, broader support, and deeper commitment in order to push the struggle forward.
Massive resistance and the Little Rock crisis did not shake Thurgood Marshall's fundamental faith in America's judicial system. But the Brown ruling's aftermath taught Marshall that litigation would always be essential to protect the rights of those Americans descended from slavery. The next decades would prove the need for relentless pressure in courts, especially to enforce voting rights and civil rights laws. Marshall believed he and other African American lawyers had an obligation to keep fighting. In 1966, as the nation's first black Solicitor General, Marshall spoke at a symposium on the role of the Negro lawyer:
I say to each lawyer in the group: go back to Charlie Houston's phrase: Regardless of what else you might do and must do, a lawyer is a social engineer…There is no better time than the future to do what Charlie Houston at Howard set out in the late 20s to do - to impress upon the Negro lawyer the need to make his contribution to his people…Take a part of what you've gotten from your education and give it back to your community. The lawyer is better equipped than anyone with the possible exception of the doctor to do this. The Negro lawyer has an even greater opportunity because his people need it so much more than the others.
A year after the speech, Thurgood Marshall became the first black person appointed to the Supreme Court. His fight for the rights of African Americans, as well as women, the poor, and many others would continue for another 25 years.