Much has been written about Thurgood Marshall, but this is the first book to collect his own words. Here are briefs he filed as a lawyer, oral arguments for the landmark school desegregation cases, investigative reports on race riots and racism in the Army, speeches and articles outlining the history of civil rights and criticizing the actions of more conservative jurists, Supreme Court opinions now widely cited in Constitutional law, a long and complete oral autobiography, and much more. Marshall's impact on American race relations was greater than that of anyone else this century, for it was he who ended legal segregation in the United States. His victories as a lawyer for the NAACP broke the color line in housing, transportation, voting, and schools by overturning the long-established "separate-but-equal" doctrine. But Marshall was attentive to all social inequalities: no Supreme Court justice has ever been more consistent in support of freedom of expression, affirmative action, women's rights, abortion rights, and the right to consensual sex among adults; no justice has ever fought so hard against economic inequality, police brutality, and capital punishment.

Mark V. Tushnet is a professor of constitutional law at Georgetown University Law Center and is the author of Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991. He lives in Washington, D.C.

Foreword

9

(9)

Randall Kennedy

Introduction

18

PART I BRIEFS AND ORAL ARGUMENTS

1

(66)

Lyons v. Oklahoma (1944)

3

(15)

Brown v. Board of Education (1952)

18

(7)

The School Desegregation Arguments (1952-1955)

25

(34)

Cooper v. Aaron (1958)

59

(8)

PART II WRITINGS AS A LAWYER

67

(104)

``Equal Justice Under Law'' (The Crisis, July 1939)

69

(9)

``Negro Discrimination and the Need for Federal Action'' (Lawyers Guild Review, November 1942)

78

(5)

``The Gestapo in Detroit'' (The Crisis, August 1943)

83

(7)

``The Legal Attack to Secure Civil Rights'' (Speech at the NAACP Wartime Conference, 1944)

90

(8)

``Mr. Justice Murphy and Civil Rights'' (Michigan Law Review, 1950)

98

(18)

``The Supreme Court as Protector of Civil Rights: Equal Protection of the Laws'' (Annals of the American Academy of Political and Social Sciences, May 1951)

116

(10)

``Summary Justice---The Negro GI in Korea'' (The Crisis, May 1951)

126

(12)

Remarks at a Testimonial Dinner Honoring Raymond Pace Alexander, November 25, 1951

138

(7)

``An Evaluation of Recent Efforts to Achieve Racial Integration in Education Through Resort to the Courts'' (Journal of Negro Education, 1952)

145

(12)

``The Meaning and Significance of the Supreme Court Decree'' (Journal of Negro Education, Summer 1955)

157

(8)

``The Rise and Collapse of the 'White Democratic Primary''' (Journal of Negro Education, Summer 1957)

165

(6)

PART III WRITINGS AS A JUDGE

171

(132)

``Celebrating the Second Circuit Centennial'' (St. John's University Law Review, 1991)

173

(1)

Remarks at the Second Circuit Judicial Conference [Civil Rights Enforcement and the Supreme Court's Docket] (September 8, 1978)

174

(6)

Remarks at the Second Circuit Judicial Conference [The Dangers of Judicial Restraint] (May 1979)

180

(3)

Remarks at the Second Circuit Judicial Conference [The Judiciary and Fundamental Human Liberties] (May 1980)

183

(4)

Remarks at the Second Circuit Judicial Conference [The Importance of Judicial Neutrality] (May 1981)

187

(3)

Remarks at the Second Circuit Judicial Conference [The Problem of Summary Disposition in the Supreme Court] (September 9, 1982)

190

(3)

Remarks at the Second Circuit Judicial Conference [Division on the Court and the ``Need'' for a New Appellate Court] (October 1, 1983)

193

(5)

Remarks at the Second Circuit Judicial Conference [The Need for Effective Remedies When Constitutional Rights Are Violated] (September 14, 1984)

198

(4)

Remarks at the Second Circuit Judicial Conference [Affirmative Action] (September 5, 1986)

202

(4)

Remarks at the Second Circuit Judicial Conference [Pretrial Detention] (October 17, 1987)

206

(5)

Remarks at the Second Circuit Judicial Conference [The Right to Effective Assistance of Counsel] (September 9, 1988)

211

(5)

Remarks at the Second Circuit Judicial Conference [The Future of Civil Rights] (September 8, 1989)

216

(4)

``Law and the Quest for Equality'' (Washington University Law Quarterly, 1967)

220

(7)

``Group Action in Pursuit of Justice'' (New York University Law Review, 1969)

227

(9)

Remarks of the Honorable Thurgood Marshall Upon the Occasion of His Acceptance of Honorary Membership in the Association of the Bar (November 20, 1973) (The Record of the Association of the Bar of the City of New York, 1974)

236

(6)

``Advancing Public Interest Law Practice: The Role of the Organized Bar'' (American Bar Association Journal, 1975)

242

(7)

Remarks, New York State Bar Association on Receiving the Gold Medal Award for Distinguished Service in Law (January 30, 1976)

249

(7)

Address at the Eighth Conference on the Law of the World (August 23, 1977)

256

(6)

Remarks at the American College of Trial Lawyers Spring Meeting (March 14, 1977)

262

(4)

Remarks of Mr. Justice Marshall: Acceptance of Learned Hand Medal (May 1, 1975)

266

(6)

Tribute to Charles H. Houston (Amherst magazine, Spring 1978)

272

(5)

Commencement Address, University of Virginia (May 21, 1978)

277

(4)

``Reflections on the Bicentennial of the United States Constitution'' (Harvard Law Review, 1987)

281

(5)

``Remarks on the Death Penalty Made at the Judicial Conference of the Second Circuit'' (Columbia Law Review, 1986)

286

(7)

Remarks at the Annual Dinner in Honor of the Judiciary, American Bar Association (August 6, 1990)

293

(3)

``A Tribute to Justice William J. Brennan, Jr.'' (Harvard Law Review, 1990)

296

(7)

PART IV JUDICIAL OPINIONS

303

(108)

Equal Protection

Miliken v. Bradley (1974)

305

(16)

Dandridge v. Williams (1970)

321

(7)

San Antonio Independent School District v. Rodriguez (1973)

328

(19)

Affirmative Action

Regents of the University of California v. Bakke (1978)

347

(9)

City of Richmond v. J. A. Croson (1989)

356

(15)

Poverty

United States v. Kras (1973)

371

(2)

Ake v. Oklahoma (1985)

373

(8)

Bounds v. Smith (1977)

381

(4)

Privacy and Free Expression

Stanley v. Georgia (1969)

385

(4)

Police Department of the City of Chicago v. Mosley (1972)

389

(4)

Criminal Justice

Powell v. Texas (1968)

393

(11)

Payne v. Tennessee (1991)

404

(7)

PART V REMINISCENCES

411

(104)

``The Reminiscences of Thurgood Marshall'' (Columbia Oral History Research Office, 1977)

413

(102)

Selected Bibliography

515

(2)

Appendix: Annotated List of Important Decisions

517

(19)

Permissions Acknowledgments

536

(2)

Index

538

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Chapter One

Lyons v. Oklahoma (1944)

The issue in Lyons was whether a defendant's constitutional rights were violated when his confession to murder was admitted in his trial. Lyons first confessed after being beaten; he then repeated his confession. The first confession was not admitted against him, but the second one was. Long-standing state rules of criminal procedure barred the admission of coerced confessions. It was not until 1936, however, that the Supreme Court held that admitting a coerced confession into evidence at a criminal trial violated a defendant's right to due process of law. (Today we would say that admitting such a confession violated the defendant's rights under the Fifth Amendment not to be compelled to testify against himself, but the Supreme Court did not hold that the self-incrimination clause limited state governments until 1964.) The issue of police brutality and so-called "third degree" tactics attracted a great deal of attention from the public and legal academics in the 1930s, which amplified a more focused concern by some that police officers were particularly harsh in dealing with African Americans suspected of crimes against whites. Marshall's brief in Lyons was written to evoke these concerns without specifically mentioning them.

W. D. LYONS V. STATE OF OKLAHOMA

Brief on Behalf of Petitioner.

Statement of Facts.

Late on the night of December 31, 1939, Elmer Rogers, his wife and one son were brutally murdered in their home near Fort Towson, Oklahoma. Another son, James Glenn Rogers, escaped with his smaller brother, Billie Don. Both Mr. and Mrs. Rogers were shot with a shotgun and the house set afire, burning both of them and one of the young boys.

The crime aroused the entire community and there was much newspaper publicity. Shortly thereafter several white prisoners from a nearby prison camp were arrested for the crime. This brought about additional publicity condemning the Oklahoma State Prison System. Warden Jesse Dunn of the State Prison System was sent to Fort Towson and began a personal investigation of the situation, and shortly thereafter made a change in officials in charge of the prison camp.

Vernon Cheatwood, special investigator for the Governor of Oklahoma, was sent to Fort Towson after the convicts from the nearby prison camp had been arrested for the crime. Vernon Cheatwood had been a special investigator for six or seven years and had much experience in obtaining confessions. During his investigation the prisoners arrested for the crime were released and W. D. Lyons, a young Negro, was arrested in Hugo, Oklahoma.

The "Arrest".

On the night of January 11, 1940, W. D. Lyons left his mother-in-law's home to get a drink of illegal whiskey hidden in the woods and on his way back met Ennis Aikens. Aikens, a witness for the State of Oklahoma, testified that he and Lyons saw several cars of police officers drive up to the home of Lyons' mother-in-law and that Lyons requested him to go down to the house and ask his wife "what the trouble was down there." Shortly thereafter Lyons returned to the house and was met by two men with drawn revolvers. Reasor Cain and Oscar Bearden made the "arrest." Reasor Cain at that time was a special officer for the Frisco Railroad but is no longer employed by the Frisco. The employment of Oscar Bearden does not appear in the record. These two men promptly seized Lyons and since they did not have handcuffs they bound his arms behind his back with his belt. The men then started toward the jail with Lyons.

About three blocks from the court house and jail Reasor Cain broke off a piece of one-inch board lying on the street and Oscar Bearden struck Lyons on the head with this board. He then kicked Lyons and threatened his life by telling him they were going to burn him and kill him by degrees unless he "confessed." About a block from the jail they bumped Lyons' head against a tree. When they reached the jail the jailor, Leonard Holmes, greeted Lyons by striking him in the mouth with the jail keys which weighed about five pounds.

Events Leading Up To The Confessions.

Bearden then told Cain and Holmes to "get some more officers, and we will drag him through `colored town' and let the rest of the Negroes learn a lesson." Harvey Hawkins returned and reported there were no more officers around at that time. The jailor and Deputy Sheriff Floyd Brown then carried Lyons to the top floor of the women's side of the jail where Floyd Brown kicked him and knocked him down with his fist. While on the floor Lyons was kicked in the stomach and ribs by Brown. Lyons was then placed in a cell.

After about five minutes Lyons was carried downstairs to a small room adjoining the sheriff's office. In this room at the time were the sheriff, two deputy sheriffs, the state ballistic expert, two highway patrolmen, and the state investigator. Roy Harmon, sheriff and state's witness, admitted there were at least three or four men in the room besides Lyons.

These officers beat Lyons again and bumped his head against the wall. One of the officers made Lyons stand against a wall with his hands stretched above his head while the officer, with cowboy boots on, kicked the skin off the shins of Lyons' legs. An investigator kicked him in the stomach and blacked Lyons' eye. The local constable also beat him and threatened him in an effort to make him confess. The sheriff questioned Lyons for about thirty minutes and then the beatings were resumed until the sheriff stopped them again and had Lyons carried upstairs to a cell.

Although the officers denied beating or threatening Lyons, one witness subpoenaed by the State, corroborates Lyons' testimony. She testified that she saw him in the jail at Hugo and noticed that his eye was blackened, his arms were bruised. She testified further that he could hardly walk.

First Confession.

Eleven days later, about six-thirty in the evening, one of the highway patrolmen and Floyd Brown took Lyons from his cell to the office of the county prosecutor. On the way the highway patrolman struck Lyons on the head with a blackjack. Cheatwood met them in the hall and told the officer not to hit Lyons on the head because "I know how to get it out of him when we get him up here." He was then carried to the county prosecutor's office in the court house.

Sheriff Roy Harmon testified the room was about 14 or 16 feet square. According to the testimony of witnesses for the State of Oklahoma, from time to time during the night there were at least twelve men in that room. They were the following:

1. Floyd Brown.

2. Roy Harmon.

3. Van Raulston.

4. Vernon Cheatwood.

5. Harvey Hawkins.

6. Other highway patrolman.

7. County Prosecutor Norman Horton.

8. Assistant Prosecutor.

9. Reasor Cain.

10. Howard Rorie.

11. "Mr. Holmes."

12. Jess Faulkner.

Lyons was handcuffed and put in a chair while Vernon Cheatwood with a blackjack in his hands sat in a chair directly in from of Lyons and about eight or ten inches from him. One of the highway patrolmen was sitting on one side of Lyons with Reasor Cain standing behind him. The County Prosecutor was asking the questions.

During the questioning Vernon Cheatwood was beating Lyons on the knees, hands, arms and legs with a blackjack. This weapon was described by Lyons as "about two inches wide and about three-fourths of an inch thick on the end, and about a foot and a half long, and every time he hit me with it something in it would rattle like buck shot or steel balls." Every now and then Reasor Cain would strike Lyons with his fist. Lyons also testified that "when Mr. Reasor Cain got tired the highway patrolmen would take it awhile, about an hour and a half to two hours each, and they beat me that way all night and yelling questions ... they would say, `You killed those people, didn't you? You goddamned black son-of-a-bitch, you are going to tell me before we turn you loose'.... He said I was going to sing a different song before forty-eight hours from now."

Cheatwood, Cain and now and then the highway patrolmen, would take Lyons out of the chair and bend him across a table while Cheatwood beat him on the back of the head with the blackjack. Then they would put Lyons back in the chair and start beating him on the legs and arms again. Cheatwood also threatened "to stick red-hot irons" to Lyons to make him confess.

About two-thirty in the morning the officers brought in a pan of bones and placed them in Lyons' lap. The use of the bones from the bodies of dead people was freely admitted by officers of the State of Oklahoma. The effect of this on Lyons was explained by him in the following testimony: "They said they was the bones of Mrs. Rogers, Mr. Rogers and the baby, and I had never seen any bones of a dead person before, had I ever seen dead people before, and was I afraid of those bones on my lap in the pan. Mr. Cheatwood would lay the bones on my hands, such as teeth and body bones, and make me hold it and look at it, wouldn't let me turn my head away, and beat me on the hands and knees." These officers continued to question and beat Lyons until about four-thirty the next morning. At about this time Lyons made a "confession" because they "beat me and beat me until I couldn't stand no more, until I gave in to them and answered the questions that they demanded." Even then he denied killing Elmer Rogers but later answered the question "yes" because "I was forced to ... I was beat with a blackjack, tortured all night long--because I feared I would get some more torture."

Then Lyons was lifted from the chair and led downstairs and over to the jail where he remained about five minutes after which time three of the officers brought him back to the sheriff's office. He was held there while the officers ate their breakfast and was then carried to the scene of the crime in Fort Towson.

In the car with Lyons were one of the highway patrolmen, Floyd Brown, the assistant prosecuting attorney and Vernon Cheatwood. During the trip to Fort Towson the highway patrolman and Cheatwood threatened Lyons. Cheatwood told Lyons they were taking him to Fort Towson to kill him and he should say his prayers.

At the scene of the crime Floyd Brown and Harvey Hawkins threatened to burn him and beat him with a pick hammer if he did not do as they told him. Lyons was standing facing a fire that had been built and with his back to the officers Brown and Hawkins. When he turned around Hawkins had an axe in his hand saying that Lyons knew something about it. They threatened to torture him again if he did not say he had had the axe.

In the meantime Cheatwood and the assistant prosecutor went to the home of the family of Mrs. Rogers. E. O. Colclasure, father of Mrs. Rogers, testified that Cheatwood showed him a blackjack and told him "I beat that boy last night for, I think, six--either six or seven hours ... I haven't even got to go to bed last night." Mrs. Vernon Colclasure, sister-in-law of Mrs. Rogers testified that Cheatwood showed her the blackjack also and stated he beat Lyons "from his knees on down."

Cheatwood and the assistant prosecutor returned to the scene of the crime with Vernon Colclasure. In the presence of these people Harvey Hawkins asked Lyons if he had not hidden the axe where it was found. Lyons denied that he knew about the axe.

Cheatwood asked Lyons to show him where he had been hunting on the day prior to the murder. Lyons took them about a half a mile southeast from the scene of the murder and showed them where he had been shooting while hunting and also showed them where he had discarded some empty shells from his shotgun.

Lyons was returned to the jail around 8:30 in the morning and he was again placed in the women's side of the jail. At this time his eye was still closed, his lip broken and his nose was bleeding. At about 2 o'clock in the same afternoon the assistant county attorney, a Mr. Haskell, with two highway patrolmen and Vernon Cheatwood brought Lyons a paper to be signed. Lyons asked what the paper was and Cheatwood said, "never mind", whereupon Lyons signed the paper. During this entire period Lyons did not have a lawyer to consult nor had any lawyer been appointed to defend him or to protect his rights.

Second Confession.

About fifteen minutes later Cheatwood and the Sheriff carried Lyons to the front of the jail where pictures were taken. Immediately thereafter, on the same day, Reasor Cain and Floyd Brown placed Lyons in an automobile and carried him to the Antlers, Oklahoma, jail where they arrived at about 4 o'clock in the afternoon.

Cheatwood, the Governor's special investigator, returned to the Webb Hotel in Hugo and in the presence of people sitting in the lobby told the porter to "go up to my room and get me my nigger beater." The porter went to the room and brought back a blackjack. Whereupon Cheatwood stated: "This is what I beat the nigger boy's head with." Cheatwood also described the blackjack to the clerk of the Webb Hotel. On the night prior to the trial in this case Cheatwood suggested to the clerk that he forget what he had said to him about the blackjack.

About sundown Deputy Sheriff Van Raulston and Roy Marshall took Lyons from the jail at Antlers and carried him to the penitentiary at McAlester, Oklahoma. During the trip Deputy Sheriff Van Raulston continued to threaten Lyons and stated "We ought to hang and bury him right here." Van Raulston also explained that they could tell the courts Lyons had attempted to run away and nobody would do anything about it.

As soon as they arrived at the penitentiary Warden Jesse Dunn was summoned and Lyons was carried to the Warden's office. This was about 10 or 10:30 the night of the same day Lyons made his "confession" at Hugo. Warden Dunn asked Van Raulston whether "that is the nigger that did the shooting." Van Raulston replied, "He has already admitted some in the confession in the jail house." When Warden Dunn asked Lyons about the murders and Lyons told him he did not know anything about them both Warden Dunn and Deputy Sheriff Van Raulston questioned Lyons for about two hours and Lyons continued to deny that he knew anything about the murders. Whereupon Deputy Sheriff Van Raulston said, "I will make him talk." Van Raulston took a blackjack out of a desk and started beating Lyons on his knees, hands, legs and shoulders. He continued to beat Lyons and threatened him for about an hour and a half or two hours.

(Continues...)

Excerpted from THURGOOD MARSHALL by . Copyright © 2001 by Mark V. Tushnet. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.