Booknotes

HUNTER CLARK, CO-AUTHOR, "THURGOOD MARSHALL: WARRIOR AT THE BAR, REBEL ON THE BENCH": Well, Justice Marshall's life and career: He's been someone I've admired all my life, certainly from the time that I worked with him in high school as a page on the Supreme Court, and this has been my great ambition.

MICHAEL DAVIS, CO-AUTHOR, "THURGOOD MARSHALL: WARRIOR AT THE BAR, REBEL ON THE BENCH": I've been a journalist for some 25 years, covering the civil rights movement. Thurgood Marshall and my father, John P. Davis, were very close friends. I grew up in an activist family that was very involved in civil rights. Interestingly enough, we had the idea of writing Thurgood Marshall's biography about a month before he officially announced his retirement. And I thought after many, many years of covering the civil rights movement and writing hundreds and hundreds of newspaper articles, it was time for me to sit down, maybe, and put it all in a book.

DAVIS: Yes.

DAVIS: That was my father.

DAVIS: He was an attorney and a very close friend and colleague of Thurgood Marshall's.

DAVIS: My father was a graduate of Harvard Law School and was in Washington, DC, during the '30s and the '40s and the '50s, a time when the NAACP -- and Thurgood Marshall had joined the NAACP -- had started their activism during those days.

CLARK: Well, John W. Davis was Thurgood Marshall's adversary in the famous case of Brown vs. Board of Education. John W. Davis was one of the most distinguished advocates of his day. He was the Democratic nominee for president in 1924 against Calvin Coolidge. He later was US ambassador to Great Britain. Few men have had as distinguished a career in law and politics as John W. Davis. He was also the founder of the Wall Street firm of Davis, Polk & Wardwell, which is still one of the most prominent firms in America. And earlier in his career he was the United States solicitor general, representing the United States in cases that came before the Supreme Court. And it was during that time that Thurgood Marshall actually became a great admirer of John W. Davis. When Thurgood was in law school at Howard University, he used to cut classes during the afternoon to watch the great John W. Davis at work before the United States Supreme Court.

DAVIS: Oh, Brian, I think about the fact that on our way to your studios today, coming through Union Station, that Hunter and I could use any restroom in the station, stop and have coffee at any restaurant that was open. I think about the fact of the thousands of -- millions of black children who now can go to adequate schools. The very fact that right here in Washington, DC, unlike in Thurgood Marshall's time, a woman who can go into Woodward & Lothrup department store. In the old days she could go in and buy a $200 dress, but could not sit down and drink a 10-cent cup of coffee in the store's cafeteria. All that and much more has changed because of Thurgood Marshall and men like him.

CLARK: Actually, I think a lot of that was before my time -- segregation. Certainly, it was something that affected my father and my mother and my grandparents. What I think about these days is the visionary quality that he had, the impact that his opinions are going to have on the court and the way that his judicial philosophy will influence today's judges and tomorrow's judges long into the next century.

DAVIS: Thurgood Marshall, despite the many landmarks of his career -- the chief counsel for the NAACP, later under President Kennedy solicitor general, on the federal bench at the circuit level and later on the Supreme Court -- Thurgood Marshall is the kind of a guy who never took himself too seriously. He never lost his ability to laugh at himself. He never lost the desire to give credit to other people who were part of the massive and large number of accomplishments and victories that he won on behalf of -- not just black Americans, remember, he won these for all Americans. But Thurgood Marshall was always a guy that could, you know, go to the back room and take out a deck of cards, take out a fifth of bourbon -- which he made no secret about -- and really be one of the boys. He just never became, you know, overly pretentious about his accomplishments.

CLARK: He served, I believe, 26 years from ...

DAVIS: Twenty-four years on the Supreme Court.

CLARK: Twenty-four years on the Supreme Court, all told.

CLARK: Before that he was solicitor general, who is the lawyer who represents the United States in cases that come before the Supreme Court.

CLARK: Before that he was on the Second Circuit Court of Appeals, which covers a number of New England states. That was his first judicial appointment.

DAVIS: Of course, like I said, when I was a journalist, I probably started on the book about 25 years ago. Hunter and I have been friends for a long time. Hunter is a former journalist with Time magazine. Our families have been friends. We're both fourth-generation Washingtonians. And we had thought about this book for some time. And then there just came a time when the time was right, the process, and we decided we would, you know, sit down and write the book.

DAVIS: Right now I'm writing books.

DAVIS: Yes.

CLARK: I'm a writer for a living currently right now. I'm working on a biography of Justice William Brennan.

CLARK: No. Well, it isn't an unauthorized biography. When we approached Justice Marshall about our project, he informed us that at that particular point in time he had "completely abandoned the idea of cooperating with anyone on a biography about me." That was the line that he used. And we think that he's reached a point in his career and age and health where he's perfectly content, as well he should be, to let history judge his accomplishments and achievements. I don't think he feels the need to put any particular gloss on anything one way or another.

DAVIS: I have interviewed him as a journalist through the years, Brian, but not specifically for this book.

DAVIS: Oh, yes. And as I said, he gave us a very polite response that is summed up, I think, in the final chapter of the book, where he says, "I have given 50 years to it -- let the people decide."

CLARK: That's right.

DAVIS: Juanita Jackson Mitchell is a Baltimore attorney and, of course, Thurgood Marshall was from Baltimore. She was the widow of Clarence Mitchell II, who was a lobbyist for the NAACP in the '50s and in the '60s. He was often referred to as the 101st senator, but the Mitchell family in Baltimore has long been active in civil rights. It was Dr. Lily Jackson, Juanita Mitchell's mother, who had worked with Thurgood Marshall in the '30s. She was the president of the NAACP and she was really one of Thurgood Marshall's mentors. She got Thurgood Marshall to organize pickets to integrate stores in Baltimore. And, of course, she is also the mother of former Maryland Senator Clarence Mitchell and former Maryland Representative Michael Mitchell.

CLARK: Ed has been very helpful to us. He was our agent, of course, and arranged the deal with Carol Publishing Company. But what we tried to do, what we set out to do was write a commercial biography, a popular biography, something that would be easily accessible to the general public. We deal with some concepts and theories that are very legalistic. Certainly the politics is very complex. You're talking about men and women who consciously planned over the course of years to bring about a social revolution in America, which they, in fact, did. Yet we wanted to write about these things in a very simple, easygoing, readable and articulate way, without crossing the line into something that was so much in the popular vein that it didn't do justice to the complexity of this man's thoughts and contributions. Ed reminded us where to find that line. He said, "Write as if -- write for my daughters. Let me be able to hand this book to my daughters and say, 'This is the history of race relations. This is the history of African-Americans and their efforts to enter in the mainstream of American society.'" And that inspired us. That inspired us to write what we hope or would like to think is history -- true history, great history.

DAVIS: Brian, that's one of the anecdotes that I think is very emblematic of Thurgood Marshall's life. At the Supreme Court there is an elevator reserved just for the justices. And on the particular occasion that you refer to, Thurgood Marshall had walked through the corridors of the Supreme Court without his robes -- a regular business suit, much as anyone else. And a family of white tourists -- we don't know where they were from -- were spending a day at the Supreme Court and mistakenly entered the elevator where Thurgood Marshall had already stepped onto the elevator, and they assumed that he was the elevator operator, though it was an automatic elevator.

Well, the family stepped to the rear of the elevator car, announced their floor. Thurgood Marshall looked at them, and he had a great ability to use black dialect, which he used to his great advantage many times, and he said, "Yessir, yessir." He pushed the floor. When the elevator arrived, he, you know, stepped back, ushered the family out. And then very slowly, as they walked down the hall, it dawned on them that this was Thurgood Marshall, and Thurgood Marshall said he just sat there -- or stood there and just enjoyed it to no end as they slowly realized, you know, who he was. But this was the kind of man that Thurgood Marshall was. He said early on, "I intend to wear life like a loose garment."

CLARK: Sure. Most justices -- all the justices, in fact...

CLARK: Right. All the justices, in fact, have messengers who perform a number of clerical and housekeeping functions, also -- serve almost personal valets in some instances. And Justice Marshall's chauffeur or messenger, whenever he drove him, said that Marshall was unlike the other justices, in that he was really -- engaged him in conversation, genuinely was interested in what he thought, not just about the Redskins or the sports column, but how he felt about politics, I mean, how he felt about social issues. And in that regard, seemed to have a little higher respect for the little man; you know, the messenger, the clerk, the guy who's a little lower on the totem pole.

DAVIS: Well, I think when he's referring to Rehnquist, said Rehnquist would talk about football, about the weather, and just the things that you might have, assuming that a person doesn't have the erudition to be involved in more lofty conversations. But the driver's namewas Lloyd Roberts, who is now a Baptist minister -- and said that Justice Powell was also quite different. He said Powell talked to him about religion during the time he was a student at Howard University School of Divinity, and then when he graduated, Powell gave him a $100 graduation present. But Marshall seemed to be -- as I said, all of his life he could -- there was a barbershop in a black neighborhood in Washington, DC, called U Street and a famous restaurant there called the Florida Avenue grill, where they serve so-called soul food. And Thurgood Marshall was a frequent visitor to the Florida Avenue grill. He would hang around in the barbershop. We talked with his barber shortly before his death and said that after the haircut, Marshall would sit around and he'd play poker, talk about civil rights, drink bourbon and eat pigs' feet.

DAVIS: And poker.

CLARK: I think the point is just that he was a man who had a real -- a zest, a zeal for life. He once described himself in an interview with Sidney Zion of The New York Times as a hedonist with no time for pleasure. So he was a sensualist and a gregarious man, but very busy.

DAVIS: Went to the racetrack right in lower Maryland. He was a frequent railbird. And one of the people he went to the racetrack with, Brian, was bandleader Cab Calloway, who had been his classmate at Lincoln University. And I talked to Calloway, who said, "Yeah, he followed Maryland-bred horses and was kind of just a $2 bettor. He just enjoyed going there." But I imagine that he had these pursuits because of the tremendous pressure under which Thurgood Marshall operated. These were just, you know, avocations, maybe, that made life a little easier and made his work a little easier for him.

CLARK: I was a staff writer for Time magazine from 1981 to 1986, based in New York.

CLARK: Why did I leave Time? Time has gone through a number of changes, as you know. Right now it's Time Warner. In fact, Time doesn't even exist anymore. But I think the company was in the process of moving over into media -- into a different area -- cable and entertainment media, and I decided it was time to make a switch.

CLARK: Yes. I was born and raised in Washington.

CLARK: I attended Capitol Page School, for high school, and then I attended Harvard College, and after that Harvard Law School.

CLARK: Oh, W.E.B. Du Bois was the first African-American to receive a graduate degree from Harvard University. He received his PhD there. Du Bois was one of the founders of the NAACP, a very prominent black writer and thinker. He wrote, among other things, a book called "The Souls of Black Folk," which is probably his most famous work.

CLARK: Harvard provided -- in addition to its prestige and the wonderful education I got there, Harvard was looking for multicultural diversity in its student body. It encouraged students to mix across racial and cultural and economic lines. It presented an opportunity for a very broad-based liberal arts education. Certainly my years at Harvard College were some of the most enjoyable years of my life.

DAVIS: I went to Morehouse College in Atlanta, and that also is an interesting story. I had gone to private prep schools, like New Lincoln and Fieldston, and was raised in a society perhaps that was much different, you know, from most blacks or other affluent family. And there came a time, when it was time to go to college, that I wanted to go South. I had never -- you know, I had read about the South, but I had lived in a rather protective environment. And when I made the decision, I talked to my father about it, and at that time Benjamin Mays, who had been my father's classmate at Bates College in Lewiston, Maine, in 1926, was president of Morehouse. And I went South to Morehouse, and it, too, was one of the most rewarding periods of my life. I became involved in the civil rights movement. I was a close associate of Dr. Martin Luther King. In fact, I was arrested with Dr. King on five occasions at sit-ins in Atlanta and throughout the South. And it was there, of course, after college that I started my newspaper career on the Atlanta Constitution under the tutelage of Ralph McGill.

CLARK: I'm 37 years old.

DAVIS: I am 53.

CLARK: About 16 years.

CLARK: I don't remember, offhand. I believe it was in the 1920s.

CLARK: Around 1926, I believe.

DAVIS: Well, I'll tell you quite frankly, I have seen pictures like that all of my life. As I said, my father was an activist. I can remember going down and looking through some books that my father had from the Second World War, and it was one of the most disturbing pictures I'd ever seen in my life. It was a picture of dead Jews stacked like cordwood, and a basket on the side, holding gold that had been plucked from their teeth. And I saw that picture at about the age of 8 years old. I was aware, you know, of the Second World War and of the atrocities that were happening in Europe. And later, when I became aware that similar things were happening to black people in America, it became disturbing. And that picture in that book is a story in itself. Because before I submitted that photograph to Khalil Black, our editor in New York, I had to do some really deep soul-searching about whether that picture belonged in the book. We had about five lynching pictures, and I called Khalil -- Hunter and I talked about it, "Is this the kind of picture we need in the book?" And Khalil said, "Well, we'll think about it." And about two weeks later he said, "Well, it tells the story, and people need to see, you know, exactly what happened."

CLARK: I agree. I think that's very important, because what we wanted to do was establish the history, the social context out of which Thurgood Marshall emerged, what it was exactly that African-Americans confronted, the kind of virulent violence, where violent acts against blacks were common and commonly went unpunished. This was the world in which he lived. This was the world that he changed. There's a great deal in the book about the early days of the NAACP, the red summer of 1919, following World War I, where there 25 major race riots in the United States, including the deaths of hundreds of blacks. There was even an attempt, here in Washington, by marauding whites, to enter the black residential section and burn it to the ground.

DAVIS: As a journalist, I saw the body of Emmett Till, a youngster who had been lynched because he whistled at a white woman. His body had been recovered from the river after it had been in the river for about three months.

DAVIS: Oh, I imagine this must have been -- what? 1960, '61 -- forget the exact year of Emmett Till.

CLARK: I believe it was before that. It was around -- in the late '50 -- mid-50s.

DAVIS: It was a little -- but the one thing I remember is his mother insisted that the casket remain open, though the funeral director had suggested there be a closed-casket funeral.

CLARK: His body was mutilated, right, or something ...

DAVIS: Well, and it suffered, you know, from the immersion. I had also -- was on the campus of Orangeburg, South Carolina, in 1968. I was covering a demonstration there, and we were standing on a knoll. The students had been demonstrating over the opening of a bowling alley near the campus in Orangeburg, South Carolina, when SLED, the South -- it was an acronym for their law enforcement division -- South Carolina Law Enforcement Division -- opened fire on a group of students and it was almost a Kent State. A hundred and fifty-one children were shot and five of them died. It's referred to as the Orangeburg Massacre, and that was probably even worse than my days in Vietnam as a war correspondent.

CLARK: It's very interesting that Mike spoke of wanting to go to the South to college. It was very much in my father's mind that I should attend school in the North because he wanted to remove me from the culture that still had the vestiges of segregation and racism, which he regarded -- which he associated with the South more than with New England. The other irony of that is that when I went to Harvard, I arrived there in the middle of the busing crisis that came in the 1970s and -- early 1970s, on into the late '70s, and caused a lot of violence between the black and white communities there. A couple of incidents stand out in my mind during my time in Boston. I remember working at a very prestigious law firm one summer, doing a summer internship after my first year of law school, at Palmer & Dodge, on One Beacon Street, which is the very heart of the financial district, and coming out for lunch and seeing a black man beaten by a group of rowdy whites in front of the state Capitol. He was beaten with an American flag by a group of people from South Boston who were opposed to the busing order. I remember other things as well. I remember the retaliation. I remember a white woman in a Volkswagen whose car ran out of gas in Roxbury, the black section of Boston, and she went to get gas to fill her tank, and she was stopped on the way back to her car and dragged in an alley, and the gas was poured on her and she was set ablaze. She was a German exchange student.

DAVIS: Yes. That picture was taken in 19 -- I believe it was in the '40s. For some reason, I think maybe 1947. Thurgood Marshall grew up in Baltimore, Maryland. He was born in 1908, and he grew up in area which, for the time, was one of the better areas of Baltimore, off of Druid Hill Avenue. His father had worked on the railroad for a time, which was not a bad job in those days for a black man. Many black fathers ran on the railroad to put their sons through school. His mother, an educated woman, was a schoolteacher. In fact, she was a second-generation schoolteacher. His maternal and paternal grandparents owned neighborhood grocery stores. So Thurgood Marshall grew up in a rather comfortable home in Baltimore. He had, you know, perhaps more of the amenities of life than most of his black contemporaries had at the time. His father, an uneducated man, read very widely and was very interested in the courts. And as a hobby, he would go down to the Baltimore courthouse and just watch cases, and often took young Thurgood with him. His father was also one of the first black men to serve on a grand jury in Baltimore, and when he noticed that they always considered the race of a prospective defendant before coming out with an indictment, he challenged that. And the white foreman of the grand jury agreed with Thurgood Marshall's father, and from that time on that particular grand jury never considered the race of the suspect first before making that determination.

CLARK: The most important thing, I think, is just that the color of your skin determined everything about your life. Being black determined where you could go to school, where you could live, who you could marry comfortably, what jobs you could have. Your color was the defining factor in your life.

DAVIS: Well, Thurgood Marshall, Brian, tells an interesting story. During the early days he was working in downtown Baltimore, and he had to go to the restroom. Well, there were no -- in downtown Baltimore at that time, there were no public facilities for black people, and he said he remembered that when the urge struck him, he hopped aboard a trolley car, hoping he would make it home in time. And his quote in the book was, "I made it as far as my front door." And he said, "And I never -- I never forgot that." Of course, Thurgood Marshall had also worked at the Gibson Island Club, on Maryland's Eastern Shore, as a waiter where his father had worked. And he had been subject then, you know, to racial remarks.

But he was a proud man, and I would imagine that early on in his life these incidents, you know, laid the foundation for his life. But Baltimore was painfully proud. We refer to it as a northern city. It was painfully proud of being just south of the Mason-Dixon line, and the neighborhood he lived in at the time was integrated. And this was before the white flight to the Maryland suburbs of the '50s. And you go back to Thurgood Marshall's old neighborhood today, the neighborhood with the marble steps that are scrubbed religiously on Saturdays, the carriage mount blocks on Druid Hill Avenue and that neighborhood, and you'll see that many black churches there were formerly Jewish synagogues with the Stars of David still etched in their pediments.

CLARK: He attended high school in Baltimore.

CLARK: Oh, undergraduate school. I'm sorry.

CLARK: Lincoln University in Pennsylvania.

CLARK: Sure. One of the more interesting and ironic things about his life is that after he finished undergraduate school, he wanted to apply to law school at the University of Maryland, in his home state. He wanted to practice in Baltimore, his hometown, but was denied admission to the University of Maryland because of his color. That caused him to go to Howard University in Washington [D.C.] for law school, and at Howard at the time, Charles Houston and others in the NAACP and Ed Howard, along with the help of many other prominent liberal advocates, were setting up a law school that sought to combine the practice of law with social engineering, meaning their desire was to turn out a cadre, a generation of younger lawyers who would be committed to using the law -- their legal skills to bring about social change. After he finished Howard Law School, one of the first major cases that Thurgood Marshall was involved in was bringing suit against the University of Maryland to force the integration of the law school at Maryland.

CLARK: It was successful. The case, Murray vs. Maryland, went to the Supreme Court of the state of Maryland, and the court ordered the law school at the University of Maryland integrated.

DAVIS: That's Vivian Buster Marshall, who was a graduate from the University of Pennsylvania, and he met her while he was a student at Lincoln University. He was very close to her. She was a guiding influence in his life. They were married for 25 years before her death from cancer. But the impact of Vivian Marshall -- Thurgood Marshall tells an interesting story, that the school he went to was a religious-based institution, and the students in this undergraduate school were encouraged to attend church on Sunday. And he said, "Well, we went to Cherry Hill church in Pennsylvania," he said, "not so much for religious salvation, but that's where all the pretty chicks were."

And that's where he met Vivian Marshall, and they married his junior year. He said at first they decided not to marry until after he had finished school. Marshall's mother liked her. They came back to Baltimore after he finished his undergraduate work, and Marshall's mother and father made them very comfortable in their Baltimore home. It was from there he went to law school. And Vivian Marshall stayed by Thurgood's side, and in 1954, when they were arguing the Brown vs. Maryland case, she discovered ...

CLARK: Brown vs. Board ...

DAVIS: Brown vs. Board, yeah -- that she had terminal cancer. But she would not tell Thurgood Marshall that she was dying of cancer while he was in the midst of arguing his greatest case before the Supreme Court. She kept this a secret and didn't tell him about her impending death until after that case was won. Thurgood Marshall said, "You know, I thought the whole world was coming to an end. I just about collapsed." At this time the Marshalls were living in Harlem, New York, at 409 Edgecomb Avenue, which was a fashionable building for upcoming blacks at that time. And Thurgood Marshall withdrew from all activity. He just recused himself from everything, and he said he just went and locked himself in their apartment and spent the whole time changing bedpans and taking care of her, until her death. And she died on February the 11th ...

CLARK: Her birthday.

DAVIS: ... on her birthday.

DAVIS: Yes.

CLARK: His first wife was black.

CLARK: Yes.

CLARK: They had no children.

CLARK: She is Filipino -- a Hawaiian of Filipino descent.

CLARK: Well, there was some controversy, I think, on the part of other people. There was no controversy for Thurgood Marshall.

CLARK: I don't...

CLARK: Well, he's a light-skinned man with straight hair. He's been very -- obviously, there's lots of different kinds of blood running through his veins or the blood of many nations and many people. He's been described variously as a man who looks almost like a bedouin, but the point -- I think the controversy between, or the divisions within the African-American community -- those color divisions or complexion divisions don't really exist anymore, but earlier in the century it was thought to be better to be more white than black. It was an issue for the NAACP, a very practical political problem for them, because a number of people who were involved in the founding of the NAACP and its first leaders were very, very light-skinned African-Americans. The question was whether they could make their movement and their organization attractive to the masses of people and whether the black masses would accept a light-skinned leadership.

DAVIS: You know, Brian, it was often said that the NAACP actually was an organization of privileged, elite, light-skinned black people, and Thurgood Marshall himself often joked that the initials NAACP stood for the National Association for the Advantage of Certain People. Of course, when we talk about his Baltimore days, one of his jobs was to carry the NAACP's message to the so-called blue-collar black working class of Baltimore and to get at the broader base among people so it didn't just seem to be the elite social cocktail circuit kind of organization.

CLARK: Yes.

CLARK: Birch Lane Press is a division of the Carol Publishing Group, which is owned and operated by Steven Shragus.

CLARK: Twenty-four ninety-five.

CLARK: Well, they'll decide whether it's a commercial success or not by how many copies it sells.

DAVIS: Right.

CLARK: Oh, no.

DAVIS: No. We had -- one of the things I really enjoyed about working with Khalil Black, our editor, and this publisher -- we had complete literary freedom, you know, to call the shots and to write the book as we thought it should be written. You know, there was no attempt on the part of the editor or the publisher to make us put things or to handle things a certain way because they might have a commercial impact. We had complete academic freedom in the preparation of this book.

CLARK: Well, Brown was a very long litigation. Well, first of all, Brown is probably Thurgood Marshall's most important achievement as a lawyer. Certainly, as a case, it stands as perhaps the most significant legal opinion of the 20th century, in terms of its social impact.

CLARK: Well, actually, the case is a consolidation of five cases that were brought before the Supreme Court to challenge segregation in the public schools. The most -- one of those cases came from Kansas, Brown vs. the Topeka Board of Education. But the case that Marshall handled personally came out of South Carolina -- Clarendon County, South Carolina, involving Harry Briggs -- Harry and Liza Briggs, and their young daughter, who sought to force either the integration or the equalization of the South Carolina public schools.

DAVIS: It started in '53. But it came...

CLARK: Actually, 1950 was...

DAVIS: '50, right, but the decision came in '54, and I think we have two chapters, Brian, because we wanted to lay out -- this is an important case -- we wanted to lay out the history of this case but, of course, it didn't end with that decision. There was a reargument in Brown, which was important and, you know, I think as the first argument. And there just seemed to be logical breaking points. Wouldn't you say, Hunter?

CLARK: Well, yeah. To put it in context, the NAACP began a litigation strategy during the 1920s designed to challenge the separate but equal doctrine. The separate but equal doctrine had been established by the Supreme Court in 1896, in the case of Plessy vs. Ferguson. This is what gave the court's blessing -- the court's imprimatur -- to the system of separating people by race -- segregation in public accommodations, public education, elsewhere. It's the thing that set up the two separate societies. What the NAACP's initial goal was, was to show that African-Americans were being accorded separate treatment, but treatment that was not, in fact, equal. And the purpose of the strategy was to force equality of treatment, the idea being that most states would probably decide that it was easier just to integrate their schools or their public accommodations than to set up a wholly separate but equal school system for blacks -- or system of public accommodations for blacks.

DAVIS: Hunter, it was ...

CLARK: Yes. This was the Briggs case, in which Marshall challenged, on behalf of black schoolchildren in South Carolina -- challenged the inequalities of the South Carolina school system. The case went up to the Supreme Court of the United States, but was remanded to the South Carolina courts.

CLARK: Sent back for further consideration. Basically, the state of South Carolina argued -- well, the state of South Carolina conceded that its black school system was not as good as its white school system, that the black schools had suffered from over 100 years of neglect, but it promised the courts that if the courts did not order desegregation, the state would make up for the neglect of the past by initiating a crash program of building and recruiting better teachers and bringing the black schools up to an equal status with the white schools. The US Supreme Court at first refused to take the case to challenge segregation itself and instead remanded it -- meaning sent it back to the South Carolina courts to determine how fast South Carolina was making progress in bringing its black schools up to par. The judge in the South Carolina case -- the South Carolina Supreme Court decided that progress was, in fact, being made, that the progress was being made fast enough to satisfy the Constitution and, therefore, case dismissed. And at that point the attorney for the state of South Carolina turned to Thurgood Marshall and said what you just quoted.

CLARK: How did I find that?

CLARK: Well, we -- I don't remember exactly the source for that, but there were a tremendous number of sources that we used to research the background of this particular case. I don't recall off the top of my head where that particular quote came from, probably a newspaper article of the time or I don't remember.

DAVIS: Thurgood Marshall went to work for his mentor, Charles Hamilton Houston, who had gone to New York to head up the legal operation for the NAACP, Brian. He went there as deputy. About 1950, when Charles Hamilton Houston became ill, he returned to Washington, where he spent the final year or so of his life. And Thurgood Marshall then became the chief legal counsel to the NAACP. But there came a time a few years later where the strategy was to divorce the NAACP's legal operation from its so-called civil rights operation, and they formed a legal corporation called the Legal Defense and Educational Fund, later popularly referred to as the Inc. Fund and then just the Fund.

This became the legal arm of the NAACP. There were certain tax advantages to having the Legal Defense Fund separated from the NAACP. The Legal Defense Fund operating, you know, as the legal arm, did not have to pay certain taxes, and they had more freedom to operate than if it had remained a part of the NAACP. And Thurgood became chief counsel, and as chief counsel he normally fell into the position of being in charge of all NAACP litigation, because it was the Inc. Fund that was going into the courts of Alabama and Mississippi, and not just on schools, the school cases came much later. They were involved in efforts to remove the poll tax, voting rights and a lot of other things before they worked their way up to what we refer to as the wedge, the Brown case, which they say now with the Brown case, that Thurgood Marshall dismantled the system of American apartheid.

But Thurgood Marshall was the lawyer -- in fact, it was in the '50s that black and white media started referring to him as Mr. Civil Rights. And as the chief lawyer for the NAACP, when the headlines were written, when the newscasts went out, it wasn't the name of NAACP President Roy Wilkins that was foremost in the minds of Americans when they thought about the NAACP; it was Thurgood Marshall.

CLARK: Well, you have to remember there were five cases that were consolidated into Brown.

CLARK: Yes. They were all argued together.

CLARK: No. Well, Thurgood -- yes, actually, Thurgood Marshall argued the South Carolina case, and I believe one other case actually during the oral arguments before the court. But he had overall charge of the litigation and divided up the cases, delegating authority to certain members of his staff.

CLARK: But he was in charge of the...

CLARK: Yes.

CLARK: Right.

CLARK: That's correct.

CLARK: Right. The court decided to ask for a second round of arguments in the cases. In the meantime, the parties were supposed to present their answers to five specific questions posed by the court. Those questions, in essence, had to do with the court's power to overturn the system of segregation, and with the legislative history of the 14th Amendment's equal protection clause. The idea, we have been led to believe by our research, is that the court -- the people who favored desegregation wanted to come closer to arriving at a unanimous decision, if possible. And at the time of the first round of oral arguments in Brown, unanimity was not attainable.

CLARK: Per curiam is a simple order unaccompanied by any explanation of the logic or rationale because the legal issues are considered settled already.

CLARK: Yes.

DAVIS: Correct.

DAVIS: Well, Hunter, wouldn't you say it certainly changed the vote in the court, because he was not replaced right away?

CLARK: Right. Well, the most important thing that it did was, it brought Justice Earl -- Chief Justice Earl Warren into the picture. Earl Warren was appointed to replace Benson, and Warren was a self-professed believer in one law for all men. He had a very interesting background. He'd served as governor of California and at that time had been a member of a white supremacist organization, the Native Sons of the Golden West. He also had urged President Roosevelt to incarcerate Japanese-American citizens during World War II, which, in fact, was the policy that was implemented.

CLARK: A hundred ten thousand Japanese-American citizens were interned in California -- well, actually, all over the West Coast, at Earl Warren's prompting.

DAVIS: Well, I imagine he was very apprehensive. You have to question, you know, question the man's record, which was quite public on where the man stood. Ironically, history, I guess, was on the side of Thurgood Marshall, because we know now that Earl Warren, just like Justice Hugo Black, who was a former member of the Klan -- certainly changed during the years. And when we look at history, we might say that Black and Warren became, certainly, you know, great supporters of equal rights for minorities.

DAVIS: How did we divide this book?

CLARK: Haphazardly by chance? I don't know. What would you say?

DAVIS: I imagine that we have -- of course, Hunter is the lawyer, so as you might expect, you know, he handled most of the details dealing with the intricacies of the law. I had the experience of civil rights background, and so I handled most of the materials, you know, dealing with Thurgood Marshall's life, with his relationships with people like Malcolm X, with Martin Luther King. The chapter we write about civil disobedience vs. the old guard, where in the '60s the young students, in their impatient attitude towards neo-gradualism was challenged -- people like Roy Wilkins and Martin Luther King. And then, of course, you know, after we kind of carved it out, we got together and just polished it and ...

CLARK: Melded it.

DAVIS: ... and melded it. That's a good word.

DAVIS: That was his quote. I got that from talking to several people in New York who had been close to him. Now that quote, by the way, is a quote that he made as early as his retirement. He was asked on the day of his retirement -- and this was before the Malcolm X renaissance, so to speak. Early in his days in Harlem, Thurgood Marshall was approached one night on the streetcorner by a group of black Muslims. This was before Malcolm X had separated himself ideologically, you know, from Elijah Muhammad. And then New York Police Chief Joseph P. Kennedy was concerned for Marshall's safety, because he had gotten into an argument with the black Muslims who had called Thurgood an Uncle Tom, a white man's nigger, who had felt that integration was not the solution.

And the police chief showed up at Marshall's apartment one night with a .38-caliber pistol and offered it to him for protection. And he refused it. And then Marshall told later of another night when he met Malcolm X on the -- I think it was the corner of 125th Street and Amsterdam Avenue one night. And he says, "Yeah. We spent the whole night calling each other a bunch of SOBs." So I don't think that Thurgood Marshall has really ever embraced, you know, the separatist strategy that Malcolm X was preaching at the time.

CLARK: Eventually, the Supreme Court unanimously sided with the NAACP and ordered -- and said that segregation had no place in public education under the Constitution.

CLARK: Nine-to-nothing.

CLARK: A unanimous decision.

CLARK: Basically, Thurgood Marshall had argued in his brief that the only reason segregation had ever been imposed was because of a belief in the inferiority of African-Americans. When Earl Warren called together the justices to consider Brown, he said very simply to them, "I agree with Thurgood Marshall, that segregation was imposed out of a belief that blacks are inferior. If anyone here believes that, they should be willing to say it openly, to write it straightforwardly. And if no one is willing to do that, then I think we have a unanimous decision."

DAVIS: Thurgood Marshall was asked, on the day of his retirement, if his seat on the Supreme Court had become a so-called black seat. Thurgood Marshall refused to address that. He said, "I see, you know, a competent person. I see, you know, no reason to appoint a person to the Supreme Court just because he's a black person." Interestingly enough, on the day of his retirement the president had already formed his short list for that seat and, of course, you know, one name on that list was Clarence Thomas. But as Hunter has said, you know, continually, it is very, very difficult to judge how a Supreme Court justice will ultimately turn out. You know, we look at the Hugo Blacks, the Earl Warrens of our era, and it's, of course -- with the new Democratic administration coming in, the possibility that Mr. Clinton could have several appointments in the next few years, Clarence Thomas may not play, you know, the role that we envisioned at his appointment.

CLARK: Oh, absolutely. Positively.

CLARK: Legally at least, if not in practice, America is now truly a multiracial democracy.

CLARK: Thank you.

DAVIS: Thank you.