Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961
reviewed by Scott Baker - 1995
Title: Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961
Author(s): Mary V. Tushnet
Publisher: Oxford University Press, Oxford
ISBN: 0195104684, Pages: , Year: 1995
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A half-century ago, Gunnar Myrdal argued that America was moving toward a resolution of its racial dilemma--the contradiction between the creed of equality and the practice of racial discrimination. For many, the legal victories of the National Association for the Advancement of Colored People (NAACP) in Brown v. Board of Education and other cases offered important support for Myrdal's contention. Influenced by Myrdal's conception of the racial issue as a moral one, Richard Kluger's history of the NAACP's legal campaign against segregation, Simple Justice, portrayed the Supreme Court as the conscience of the nation, and concluded that NAACP litigation resolved the American dilemma by establishing "equality in fact as well as law."
While Kluger argued that the legal campaign was an "unproblematic success," Mark V. Tushnet contends that "the course of civil rights litigation in the 1940's and 1950's was not smooth" (p. 3). Tushnet's analysis of Thurgood Marshall's work as the NAACP's chief strategist and litigator between 1936 and 1961 recasts the American dilemma in legal terms, seeing it as a conflict between "power and reason" (p. 315). Using Marshall's career "to explore the ambiguities that characterized the effort to transform civil rights through litigation," Tushnet argues that the results of Marshall's work were uncertain because legal action transformed power "but only within limits" (pp. vii, 315).
The most persistent challenge to white supremacy and power in the South came in education. Tushnet shows that Marshall and his colleagues at the NAACP saw schools as "the central symbol of African-American subordination" (p. 116). After Marshall joined the NAACP's legal staff in October 1936, he launched a systematic attack on the constitutional foundations of segregation. During the late 1930s and early 1940s, Marshall won scores of legal victories that forced southern school boards to eliminate separate and unequal salary schedules for white and black teachers, but whites responded by adopting so-called merit schemes that limited the extent to which salaries were in fact equalized. Realizing that the campaign needed "new directions," in the late 1940s, Marshall began experimenting with legal arguments that directly challenged the constitutionality of racial segregation (p. 123). In a series of cases that focused on the exclusion of African-American students from graduate and professional schools, Marshall and his colleagues convinced the Supreme Court that there could be no separate equality. While Marshall established important precedents in the higher education cases that paved the way for Brown, resistance to these constitutional principles persisted into the 1960s. The legal victories in education cases, like those in housing and voting rights, were problematic, Tushnet contends, because whites continued to exercise power in ways that "the legal challenge could not reach" (p. 99).
The limitations of Marshall's legal approach and the conflict between power and reason are even more apparent in the events surrounding the Supreme Court's decision in Brown. The justices commitment to gradualism, Tushnet argues, did much to encourage southern resistance to school desegregation. Once again, reason prevailed in court, but power won out in practice. Tushnet contends that the "brilliance of Marshall's strategy was that he forced the justices to a choice believing . . . that once he forced them to choose they could make only one decision" (p. 216). Yet the Court's ruling in Brown was not, Tushnet shows, a clear victory. The decision to overturn the doctrine of separate but equal was based in large part on the view, expressed most consistently by Felix Frankfurter, that the Court could "avoid difficulty by allowing desegregation to occur gradually" (p. 229). Tushnet's exhaustive analysis of the Court's deliberations indicates that most of the justices were as concerned with the response of white southerners as they were with rights of African Americans. Instead of minimizing southern resistance, gradualism encouraged it. During the 1950s and early 1960s, Tushnet concludes, the Court "failed to act as forthrightly as it could have," and, as a result, Marshall and the NAACP could not "clarify the meaning of Brown" or force "implementation of clearly established rights" (pp. 271, 238). As a generation of southern African Americans turned to new tactics to realize the rights expressed in Brown, Marshall came to feel that "I'd kind of outlived my usefulness in original ideas" (p. 301).
Tushnet's account suggests that instead of resolving the American dilemma, the legal campaign led by Thurgood Marshall forced those who wielded power in the South to dress up discrimination in more legally defensible forms. If the most durable resistance to the challenges posed by the NAACP came not in the courts or in politics but within educational institutions, then we need to know more about how southern elites evaded the constitutional command of equality. Tushnet does examine southern opposition to school desegregation, but one wishes that he had devoted more attention and analysis to southern white resistance before 1954. By exploring the ambiguities of Marshall's work, Tushnet reminds us that we need to know more about the educational and institutional effects of NAACP legal action before we can fully understand the meaning and significance of the law that Marshall made in the Supreme Court.
1 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper & Row, 1944), p. 1xi; and Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Random House, 1975), p. 748.
SCOTT BAKER is assistant professor of education, Wake Forest University.