A Defiant Life

by BALL, HOWARD

• ISBN13: 9780676806663
• ISBN10: 067680666X
• Format: Trade Paper
• Copyright: 2001-04-17
• Publisher: Broadway Books

Summary

Thurgood Marshall's extraordinary contribution to civil rights and overcoming racism is more topical than ever, as the national debate on race and the overturning of affirmative action policies make headlines nationwide. Howard Ball, author of eighteen books on the Supreme Court and the federal judiciary, has done copious research for this incisive biography to present an authoritative portrait of Marshall the jurist. Born to a middle-class black family in "Jim Crow" Baltimore at the turn of the century, Marshall's race informed his worldview from an early age. He was rejected by the University of Maryland Law School because of the color of his skin. He then attended Howard University's Law School, where his racial consciousness was awakened by the brilliant lawyer and activist Charlie Houston. Marshall suddenly knew what he wanted to be: a civil rights lawyer, one of Houston's "social engineers." As the chief attorney for the NAACP, he developed the strategy for the legal challenge to racial discrimination. His soaring achievements and his lasting impact on the nation's legal system--as the NAACP's advocate, as a federal appeals court judge, as President Lyndon Johnson's solicitor general, and finally as the first African American Supreme Court Justice--are symbolized by Brown v. Board of Education, the landmark case that ended legal segregation in public schools. Using race as the defining theme, Ball spotlights Marshall's genius in working within the legal system to further his lifelong commitment to racial equality. With the help of numerous, previously unpublished sources, Ball presents a lucid account of Marshall's illustrious career and his historic impact on American civil rights. From the Hardcover edition.

Author Biography

<b>Howard Ball</b>, professor of political science and University Scholar at the University of Vermont, is a leading expert on the U.S. Supreme Court. He is the author of eighteen previous books and dozens of articles in leading political science journals and law reviews. He lives in Richmond, Vermont, with his wife, Carol, their dogs, Max and Casey, and a quarterhorse named Stormin' Norman. Their three daughters, Melissa, Sheryl, and Sue, visit on occasion.<br><br><br><i>From the Hardcover edition.</i>

Table of Contents

Chronology of ``A Life Well Lived''	xv
Acknowledgments	xvii
Foreword: Associate Justice William J. Brennan Jr.	xix
Born Into Racism and Segregation in America	1	(18)
Slavery, Race,and Racism: The Historic Context	1	(2)
Hooded Terror and the Civil War Amendments	3	(2)
Redirecting Civil Rights: The U.S. Supreme Court Strikes Down Civil Rights Legislation, 1883-1896	5	(1)
Plessy v. Ferguson: Legitimizing Jim Crow	5	(4)
Race, Sex, and Lynching	9	(1)
1903: W. E. B. Du Bois's Souls of Black Folk	10	(3)
1908: Growing Up in Baltimore	13	(6)
The Rise of the NAACP and Charlie Houston's ``Social Engineers''	19	(21)
The Birth of the NAACP	19	(4)
The NAACP's First Two Decades, 1910-1930	23	(5)
Early Litigation Efforts, 1915--1936	28	(1)
Charlie Houston's ``Social Engineers''	29	(4)
The Scottsboro Incident, 1931	33	(2)
The Margold Report	35	(2)
The Du Bois Crisis, 1934	37	(3)
Marshall Joins the NAACP	40	(17)
``No Good Turkey''	41	(4)
Thurgood Marshall, Esq.: Joining the NAACP's National Office, 1936	45	(5)
The NAACP's 1936 Public Education Initiative: Beginning the Attack on Plessy v. Ferguson	50	(3)
Marshall's Colleagues in the NAACP	53	(4)
``Thurgood's Coming'': Mr. Civil Rights	57	(38)
Creating the ``Inc Fund,'' October 1939	58	(3)
Adding Staff to the NAACP's Legal Office	61	(2)
The Inc Fund's Legal Strategies, Rules, and Policies	63	(2)
Marshall, the Communist Party, and the FBI	65	(2)
Be Cool, Stay Cool	67	(2)
Mr. Civil Rights: ``Thurgood's Coming''	69	(3)
The Inc Fund's Educational Equity Lawsuits	72	(5)
Voting and Voter Registration Litigation	77	(3)
The Criminal Justice Cases	80	(2)
Segregated Transportation and Travel Cases	82	(1)
Residential Discrimination and Restrictive Covenants Litigation	83	(2)
The Politics of Race During the Roosevelt and Truman Administrations	85	(7)
The ``New Deal'' and African Americans	86	(2)
The World War II Race Riots	88	(2)
The Vital Change: Harry S Truman	90	(2)
The Assault on Public School Segregation and the Plessy Doctrine	92	(3)
Segregation in the Military: A Special Humiliation	95	(19)
Military Segregation in World War I	97	(1)
Segregation in the Armed Services in World War II	98	(2)
World War II ``Soldier Troubles''	100	(6)
From War's End to the Korean War	106	(4)
The Korean War	110	(4)
The Public Education Battles Begin: Brown v. Board	114	(34)
Marshall's NAACP Strategy Implemented: The Public School Segregation Cases	116	(3)
The U.S. Supreme Court Hears the School Segregation Cases	119	(8)
Going Back to the Court	127	(5)
The Supreme Court Overturns Plessy	132	(3)
The Brown Implementation Decree	135	(5)
Massive Resistance: The White Deep South's Response to Brown	140	(8)
The Segregation Battles Continue and the Civil Rights Movement Emerges	148	(27)
The ``New Wave'' in Civil Rights	150	(2)
The Alternatives to the NAACP: SCLC and SNCC	152	(5)
The Little Rock Crisis	157	(6)
The U.S. Supreme Court Reaffirms Brown: The Cooper v. Aaron Decision	163	(3)
Eisenhower's Civil Rights View: ``Make Haste Slowly''	166	(5)
Ike's Ambivalent Support of the 1957 Civil Rights Act	171	(2)
Marshall Leaves the NAACP	173	(2)
A New Life: Thurgood Marshall, Government Servant	175	(25)
The ``New Frontier'' and Civil Rights	175	(5)
Marshall's Appointment to the U.S. Court of Appeals, 1961	180	(5)
Lyndon Johnson and Civil Rights	185	(3)
Marshall's Appointment as U.S. Solicitor General, 1965	188	(2)
Thurgood Marshall, ``General''	190	(2)
Marshall's Appointment to the U.S. Supreme Court, 1967	192	(8)
Mr. Justice Marshall	200	(21)
The Outsider on the Court	201	(7)
Friends, Colleagues, and Antagonists	208	(7)
``My Knuckleheads'': Justice Marshall and His Law Clerks	215	(1)
Thurgood Marshall's Jurisprudence	216	(5)
The Meaning of Equality in the Fourteenth Amendment	221	(34)
Equal-Protection Litigation	221	(5)
Equality of Educational Opportunity After Brown	226	(12)
1970: Busing to End Segregated Schools (Swann)	227	(4)
1973: The Question of De Facto School Segregation (Keyes)	231	(2)
1974: Court Unanimity Disintegrates over the Question of Interdistrict Busing (Milliken)	233	(3)
After Milliken: A Court Divided on How to Achieve School Desegregation	236	(2)
Racially Discriminatory State Action	238	(2)
Private Acts of Racial Discrimination and ``State Action''	240	(4)
Ending Nonracial Class and Caste Discrimination in America	244	(8)
Gender-Based Discriminations	244	(3)
Wealth, Poverty, Illegitimacy	247	(2)
Resident and Illegal Aliens	249	(2)
Age and Mental Retardation Discrimination	251	(1)
Marshall's Concept of Genuine Equality	252	(3)
Bakke and the Affirmative Action Battles: ``They Just Don't Get It!''	255	(28)
1964: Affirmative Action's Beginnings	256	(2)
The Bakke Case: Defining Affirmative Action	258	(12)
The Constitutionality of Court-Ordered Affirmative Action Programs	270	(3)
Are ``Voluntary'' Affirmative Action Plans Constitutional?	273	(3)
Government Contracting and Licensing and Affirmative Action Goals	276	(4)
The Affirmative Action Battles	280	(3)
Procedural Fairness and Substantive Justice: Realities and Myths	283	(30)
The Hugo, Oklahoma, Criminal Justice Horror: Lyons	284	(2)
Marshall versus Rehnquist: The Uneven Battles	286	(1)
Protection Against ``Unreasonable'' Searches and Seizures	287	(9)
The Fifth Amendment and the Specter of Coerced Confessions	296	(4)
The Right to Counsel and Other Sixth Amendment Protections	300	(3)
Marshall's Views About the Death Penalty	303	(8)
Marshall's Criminal Justice Jurisprudence	311	(2)
Marshall and First Amendment Freedoms	313	(42)
The First Amendment: An Absolute Set of Freedoms?	314	(2)
Freedom of Speech and Expression	316	(26)
Protected Speech	317	(2)
Unprotected Speech	319	(3)
Peaceful Assembly and Association Rights	322	(6)
The Predicament of the ``Speech Plus Conduct'' Cases	328	(5)
Freedom of the Press and Clashes with Fair Trial Guarantees	333	(6)
Freedom of the Press versus the Right to a Fair Trial	339	(3)
The ``No Establishment of Religion'' and ``Free Exercise'' Clauses	342	(11)
The ``No Establishment of Religion'' Clause	344	(5)
The ``Free Exercise of Religion'' Clause	349	(4)
Marshall and the First Amendment Freedoms	353	(2)
The Constitution as Evolving Guarantor of New Rights	355	(22)
The Right to Privacy	356	(6)
Abortion as a Woman's Personal---and Private---Choice	362	(15)
Roe's Antecedents	363	(1)
Roe v. Wade	364	(5)
Roe's Progeny: The Woes of Roe	369	(8)
Justice Marshall: Always the Outsider, Always Defiant	377	(12)
Marshall for the Defense	382	(5)
Marshall's Epitaph	387	(2)
Research Notes	389	(18)
Bibliography	407	(8)
Case Index	415	(4)
General Index	419

Excerpts

From Chapter 1

Born into Racism and Segregation in America

Thurgood Marshall was born in 1908. That year an African American named Jack Johnson knocked out Tommy Burns, the then world heavyweight champion. This was the first time a black man had taken the title away from a white man. As soon as Johnson won, the search was on for the "great white hope" who would take the crown away from him. For African Americans, Johnson's victory may have been the only joy they had that year.

On July 2, Thurgood Marshall's birthday, there were stories in the newspapers about race riots, accompanied by crude racial jokes, reminders of the inferiority of the African American in a world dominated by whites. The sociology of the day, as exemplified by the work of Herbert Spencer, U.S. Supreme Court decisions of that era, and Admiral Alfred Thayer Mahan's treatise on world power, all argued scientifically and legally for the racial inferiority of Thurgood's people.

Although vastly outnumbered by the colored peoples of the world, whites used their power and technology ruthlessly to dominate the lives of nonwhites, particularly in America, where African Americans were worse off than impoverished serfs of some feudal kingdom. Since the end of the Civil War, they had been seen as a societal problem that called for a final resolution. By the turn of the century, that solution was state-ordered Jim Crow segregation of white and black, America's version of white South Africa's policy of apartheid. This was the America into which Thurgood Marshall was born.

Slavery, Race, and Racism: The Historic Context
In August 1619, the first shipment of Negro slaves, comprising about twenty persons, arrived at Point Comfort, near Jamestown, Virginia. In 1640, a Virginia judge set the tone for America's history of racial discrimination when he sentenced three indentured servants who had run away and had been captured by local authorities. He punished the two white indentured servants by adding one year apiece to their indenture. The third indentured servant, an African American, was punished for his failed escape "by [being] sentenced . . . to a lifetime of service."

During the early seventeenth century and continuing up to 1865, slavery was legally recognized in law and politics. African Americans were seen as chattel property, much like oxen and wagons, to be bought and sold at the whim of the slave owner. From the earliest days of British colonialization of North America, African American slaves had no legal or civil rights. By the time the U.S. Constitution was adopted in 1787--almost two centuries after slavery had come to America--every Southern state constitution contained clauses that perpetuated slavery by forbidding state legislators from emancipating slaves.

The U.S. Constitution referred to the slaves only in property and electoral enumeration terms. Despite the new nation's commitment to equality, pronounced in the Declaration of Independence, slavery was sanctioned. Slaves were not citizens, but merely properties valued, for purposes of determining each state's electoral representation, as three-fifths of a human being. The 1793 Fugitive Slave Act further extended the property rights of slave owners to all the states. When the nation's capital was established in 1801, only "free white inhabitants" could elect members of the Washington, D.C., city council.

In 1842, in the case of Prigg v. Pennsylvania, the U.S. Supreme Court held that a slave owner's property rights took precedence over a state's right to protect African Americans. The 1850 amendment to the Fugitive Slave Act reaffirmed that slaves were chattel property. It appointed and authorized U.S. marshals to hold hearings and return slaves to their masters.

The ultimate sanction was the U.S. Supreme Court's Dred Scott v. Sandford decision of 1857, confirming that slavery was the law of the land. Dred Scott, a slave, sued for his freedom in federal court in a non-slave state. By a seven-to-two vote (five of the seven justices were born and raised in the South), the Supreme Court said, in part, that Scott was property and had "no rights a white man has to respect." Scott, because he was black, did not have legal "standing" to bring a suit in any federal court, even if he were a free black. Chief Justice Roger Taney wrote in blunt terms: "It is difficult at this day to realize the state of public opinion in relation to that unfortunate race. . . . They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect."

Hooded Terror and the Civil War Amendments
After the Civil War's end and Lincoln's assassination, the radical Republican Reconstruction Congress succeeded in introducing and getting ratified, between 1865 and 1870, the thirteenth through fifteenth Amendments to the Consti-tution, the so-called Civil War Amendments. The Thirteenth Amendment,
ratified in 1865, ended slavery.

The Fourteenth Amendment, ratified in 1868, was a direct response to Black Codes enacted in localities across the South after 1865 to control and limit the legal and political status--and conduct--of their recently freed slaves. In some cases, these codes "amounted to a virtual re-enslavement of blacks." They deprived African Americans of their basic individual rights. Louisiana's code, for example, starkly stated that "the people of African descent cannot be considered as citizens of the United States."


From the Hardcover edition.

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Excerpted from A Defiant Life: Thurgood Marshall and the Persistence of Racism in America by Howard Ball
All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.