Thurgood Marshall (20 page)

Texas was a completely Democratic state. The Union Army’s occupation of Texas after the Civil War led to white resentment that fueled support for the Democratic Party. Blacks were allowed to vote in general elections, but those contests had little meaning because the Democratic nominees always won. And blacks had no power in the selection of Democratic candidates because Texas Democrats did not allow them in the party. At the NAACP’s annual conference in Philadelphia during June 1940, Marshall gave a speech asking for financial support for an attack on the white primary system. “I do not believe we will ever be in a better position politically than we are at the present time,” he said. “Take Texas, where there are a million Negroes. If we get a million Negroes voting in a bloc we are going to have some fun.”
¹¹

Walter White, too, saw a great political opportunity in attacking discrimination against black voters in Texas. During the 1940 presidential and congressional elections, several powerful Texans in Washington had been blocking the NAACP’s effort to get antilynching laws passed in Congress. Sen. Tom Connolly had been involved in the successful filibuster against the antilynching bill. Rep. Martin Dies headed a House committee to investigate Communists and other anti-American subversives, but he refused to investigate the Ku Klux Klan and other racist groups. And Vice President John Garner, a Texan who was less than sympathetic to the NAACP, was a leading contender to run for president if Roosevelt decided against trying for a third term.

Marshall’s trip to Texas for the Porter case put him in touch with local black leaders, including the real estate power broker and Texas NAACP leader Maceo Smith. A commanding man who smoked big, pungent cigars, Smith wanted to bring a new lawsuit against the white primary. But the Texas NAACP had already brought three suits against the white system. As early as 1927 the NAACP had gone to court to fight for blacks to be allowed to vote in the primary, but every time the Democrats had found a way to keep the primaries limited to whites. Smith got angry with the association because he was pouring his money and the association’s energy into fighting the white primaries and nothing had changed.

Marshall, over drinks and dinners with Smith and his wife, Fannie, persuaded the local leader that now was the time to take one more swing at the white primary system. By January of 1941, with the help of W. J. Durham, a black lawyer from Sherman, Texas, Marshall had brought the fourth NAACP suit in fifteen years against Texas Democrats for not allowing blacks to vote in their primary. He found a plaintiff in Sidney Hasgett, a Houston man who had unsuccessfully tried to vote in the Democrats’ August 1940 runoff and was willing to stand up to criticism that he was a pawn for the NAACP and northern agitators.

To get the case into a Houston courtroom, Marshall had to struggle not only with the facts of Texas law but with simply getting the brief typed. “Sometimes he wrote it out in longhand, and then he would get it typed to the best of his ability, by some public stenographer, if she was colored,” remembered his friend Monroe Dowling. “He never went to a white public stenographer ’cause they wouldn’t write—they were not honest.”

Despite the obstacles in his path, Marshall kept pushing and working and winning support from the local NAACP. The case got to federal district court in Houston in April 1941. Marshall and Durham argued that the white primary violated the fifteenth Amendment, which gave all eligible Americans, without regard to race, the right to vote. Lawyers for the Democrats responded that the primary was held by a private club, the Democratic Party, and they were free to select the club’s membership.

Unfortunately for Marshall, it turned out that his client had not tried to vote in a primary but only in a runoff election. Marshall had not realized that Hasgett had failed to even try to vote in the primary. The judge swiftly ruled that since Hasgett had not tried to vote in a primary, the suit had no standing and the NAACP had no case.

Maceo Smith and the black civil rights leaders in Texas were devastated. Marshall wanted to appeal immediately, but he was stuck. Even if he won on appeal, the case would have only limited impact because Hasgett had not been denied the right to vote in a normal primary race. However, starting all over again, with a new plaintiff and a new case, would require more money and more political support.

That support was not forthcoming. There was sharp criticism of his handling of the
Hasgett
case in the black press in Texas. Marshall wrote a funny note to NAACP officials in New York about the rising frustration among black Texans: “All agreed that if we did not get another case started all of us would have to leave the U.S. and go live with Hitler or
some other peace loving individual who would be less difficult than the Negroes in Texas who had put up the money for the case.”
¹²

Despite the added pressure, Marshall, with help from Durham and Smith, was finally able to get the NAACP in Texas to put up the money for one more try. Marshall was sure he could win, he told everyone, because of a recent Supreme Court decision,
U.S. v. Classic
. In that case the high court had ruled that fraud in a Louisiana primary election was not a private matter among members of the Democratic Party but a federal offense. Marshall argued that he could use
Classic
to contend that racial discrimination, like fraud, corrupted the entire election system.

With lukewarm support from Texas NAACP leaders, Marshall began traveling to let other people know about his fight against the all-white primary. In speeches in both the North and the South, he wrapped his cause in the American flag. He said the country was preparing to go to war against Hitler and the idea of white racial superiority. Marshall made Hitler the target of his speeches and a friend to racists in Texas as well as Germany. The NAACP lawyer appealed for an America that was fully democratic at home.

In late 1941 Marshall returned to Texas to continue trying to overturn the white primary. He became a whirlwind fund-raiser, giving pep rally speeches before fraternal groups and civil rights organizations, and even from the pulpits of black churches. At a Houston church they passed around a plate until one woman joked that she needed to borrow a quarter if she was going to contribute her last dollar. Those trips into churches introduced Marshall to some memorable characters. One local minister, for example, was not about to turn the other cheek to white lynch mobs. “In the glove compartment of his car, he had two items—a Bible and a .45, and his answer was very simple: ‘I’ll try the Bible first,’ ” Marshall gleefully told friends.
¹³

When he had raised enough money for his case, Marshall found a plaintiff in Lonnie Smith, a doctor from Houston who had been denied the chance to vote in a straight primary contest. A year after losing the
Hasgett
case, Marshall and Durham started
Smith v. Allwright
. S. E. Allwright was the Houston election judge who had denied Smith the right to vote in the primary.

Marshall’s case attracted quite a bit of attention throughout Texas. Even the debonair Duke Ellington, world renowned for his jazz and swing orchestra, got pulled into the drama. “Duke Ellington happened to be in town, and about half a dozen of us played poker and he wanted to
know what I was doing down there,” Marshall reminisced later. “And I explained the case to him, and he said, ‘Man, that’s interesting. When is it coming up?’ I said tomorrow. He said, ‘Well, that’ll be no trouble. I’m free until tomorrow night.’ So he arranged to go to court the next day, and it was postponed. And it was postponed at least two times, and he kept the whole band waiting, at his expense. You can’t imagine what it cost him. But he finally heard that case.”

Even with Ellington’s magnetic and dapper presence, Marshall and the NAACP lost again. This time, however, Marshall was ready to appeal until the
Smith
case and the issue of the white primary was in front of the Supreme Court. He got the ACLU and the National Lawyers Guild to file amicus briefs with the Supreme Court supporting the NAACP’s position. Marshall also asked the Justice Department, which had brought the
Classic
case, to support the NAACP’s claim that fraud in the Louisiana primaries amounted to the same result as racial discrimination in the Texas primary.

However, Justice Department officials turned Marshall down, explaining that southerners in the Senate would be angry if Justice entered the fight on the NAACP’s side. “When I told Thurgood the answer would be no,” said Herbert Wechsler, assistant to the solicitor general, “he said, ‘I’m sorry, we’d like to have you with us but we’ll just have to go it alone. I see your position.’ That was one of his great virtues, seeing things from the other guy’s side. He was a good tough advocate who functioned without having to feel that his opponents were either knaves or fools.”
¹⁴

In October of 1943 the Supreme Court heard arguments in the white primary case. “
OFAY PRIMARY CASE BEFORE SUPREME COURT
,” read the
Baltimore Afro-American
’s banner front-page headline on October 16. Marshall and Bill Hastie, his former law school professor who was now dean of Howard Law, made the NAACP’s case before the high court. Hastie was a crack lawyer, and he was famous for his unflappable manner, even under intense fire.

In April 1944 the Court ruled that white primaries were unconstitutional. If Texas allowed the political parties to limit their nominees and voters to whites, the Court said, “it endorses, adopts and enforces the discrimination against Negroes.”
¹⁵

The decision made national headlines. Both the black and the white press put the high court’s ruling—and young Mr. Marshall—on their front pages. The
Norfolk Journal and Guide
wrote that with its victory in
the white primary case the NAACP had to be given new respect. The association, it wrote, “has often had to bear the wrongfully imposed stigma of ‘agitator,’ but it has done more to translate the U.S. Constitution and laws of this country in their proper perspective for minorities than any other organization in the field.”
¹⁶

Walter White, Charles Houston, and the national membership of the NAACP were thrilled with the Supreme Court ruling. Even at the end of his life, Marshall still bubbled that the victory in the white primary case stood as “the greatest one” of his career.
¹⁷

When news of the high court’s ruling on the case reached Marshall in New York, a grand party swept through the NAACP’s offices. As the phones rang with calls from lawyers, reporters, and NAACP supporters, Marshall began playing a game in which he had callers passed from one secretary to another while he sat back laughing and drinking. The next day Marshall, still woozy from his partying, got a call from Supreme Court Justice Frank Murphy. The justice said he had called the day before but could not “pierce the wall of secretaries.”

“I apologized profusely,” Marshall said later, “and Murphy agreed that a guy had the right to get drunk at a time like that. Then he invited me to lunch.”
¹⁸

Justice Murphy was not the only one who suddenly wanted to get to know the NAACP lawyer who had made magic and history in Texas. Among black Americans Marshall’s name suddenly was celebrated. Everyone wanted him to come to town to speak. Everyone wanted him to handle a case. And Marshall was expected to confront the most racist southern politicians, lawyers, and judges. To prove he was really a legal wizard, Marshall would have to make magic again. This time a dark, politically driven murder case awaited him.

Pan of Bones

T
HE
NAACP
WAS GETTING DOZENS OF CALLS
and letters from around the country in which black defendants complained that they were being railroaded from jail cell to the electric chair with barely a stop for a trial. In his office in New York, Marshall kept files of letters from local NAACP leaders, news stories, and occasionally long, sad letters in barely legible writing from the jailed men themselves.

Working by himself and with a limited budget, there was no way Marshall could agree to represent suspects in every case. Sometimes he would call the local branch’s attorney and discuss the case, offering ideas for building a defense. Just as often he would have to find an attorney in the area who was willing to get involved for a minimal fee from the NAACP. But in some cases Marshall would feel compelled, by an insistent branch leader or by the horror of a case, to get on a train and handle the matter himself.

In the spring of 1940, Marshall began getting alarming letters from one of the most powerful NAACP leaders in the South, Roscoe Dunjee. The fiery Dunjee was the editor of the largest southern black newspaper, Oklahoma City’s
Black Dispatch
. Dunjee pleaded with Marshall to help a simpleminded black farmhand who was accused of killing three members of a white family.

On New Year’s Eve 1939, Mr. and Mrs. Elmer Rogers and one of their children were shot and their throats were slit in the rural town of Hugo. To destroy evidence of the crime, their house was set on fire. During
the barbaric attack, the couple’s son, nine-year-old Glen, hid in a closet holding back his screams. Once the murderer left, Glen miraculously escaped the burning house.