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Brown at 60: Excerpt from "Devil in the Grove"

Brown at 60

Nettie and Nicki Hunt at Supreme Court

  • Welcome to the Brown at 60 observance
  • Learn more about Brown v. Board of Education.
    • Brown v. Board history with links to legal documents
    • National Archives educational documents about the case
    • Brown v. Board of Education timeline
    • Interesting facts about the case and the plaintiffs
  • Meet the legal minds behind Brown v Board of Education.
  • Listen to Jack Greenberg and Dean Erwin Chemerinsky in their own words.
  • Watch the impact of the Brown decision.
  • Read more on:

Exclusive Excerpt from Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, by Gilbert King, winner of the 2013 Pulitzer Prize for nonfiction.

Gilbert King’s Devil in the Grove is a richly detailed chronicle of racial injustice in the Florida town of Groveland in 1949, involving four black men falsely accused of rape and drawing a civil rights crusader, and eventual Supreme Court justice, into the legal battle.

Throughout the summer and fall of 1952, legal setbacks would continue to forestall LDF progress on Walter Irvin’s case; his situation would become more desperate. Thurgood Marshall had counted more than twenty errors in the prosecution of the second Groveland trial, and he had retained Alex Akerman and Paul Perkins to handle the appeals. Marshall and his team of lawyers had decided first to ask an established, well-connected Jacksonville lawyer to file an amicus or friend-of-the-court petition to explore the legality of procedure when a law enforcement officer kills a witness for a defendant in a capital case. In November 1952, the Florida Supreme Court denied the petition. Jack Greenberg continued preparing the appeals while at the same time writing the first draft of the Brown brief.

Gilbert King's "Devil in the Grove" book coverAfter the Thanksgiving weekend, Marshall checked into Washington’s Statler Hotel; it was the first time that he had visited the nation’s capital and not been required by law to stay in Jim Crow accommodations. He turned his suite into a war room in advance of his sixteenth appearance before the Supreme Court. Over the next ten days the most prominent black lawyers in the nation would be marching in and out of Marshall’s suite as they helped him prepare for battle in Briggs v. Elliott. He was edgy, irritable; he had been for months. “He’s aged so in the past five years,” his wife Buster had noted around the time he was working on the retrial in the Groveland Boys case. “His disposition’s changed—he’s nervous now where he used to be calm. This work is taking its toll of him. You know, it’s a discouraging job he’s set himself.” William Hastie, who had hosted the Marshalls in the Virgin Islands when Thurgood was recovering from his mysterious “Virus X” in 1946, noticed that the lawyer, once again, appeared to be exhausted “beyond the limits of the human anatomy.” 

On December 9, Marshall argued Briggs v Elliott before the U.S. Supreme Court. Near the end of his argument—to Greenberg’s surprise, for in Florida he had seen Groveland prosecutor Jesse Hunter put to use the same ploy—Marshall flashed the secret Masonic distress signal to his fellow Mason, Justice Robert Jackson, who responded in kind. Marshall returned to his seat with a grin.

The defense team in New York was otherwise swamped the following summer. The justices of the U.S. Supreme Court were requiring more clarity in the five school segregation cases now included in Brown v. Board, and had ordered all five of them to be reargued in terms of the authors’ intent when drafting the Equal Protection Clause in the Fourteenth Amendment, so as to determine whether the abolishment of segregation in public schools fell under the powers of Congress or indeed of any federal agency. To build the case, Marshall enlisted more than two hundred lawyers and historians nationwide. He traveled up, down, and across the country to consult with them in marathon conferences, and when he returned to New York, where he met in seminar-style discussions with his LDF team of lawyers, prominent associates, and scholarly experts, he strove to keep the out-of-town attorneys and historians abreast of developments by telephone and telegraph. No one on Marshall’s legal staff took a vacation day that summer, or fall; secretaries not only worked double shifts but worked them six and seven days a week—everyone in the LDF offices was busy making history. Marshall himself seemed never to leave his desk. Disheveled, his tie loosened and top shirt buttons undone, a cigarette dangling from his lips, he might suggest, come the middle of the night, “Why don’t we take a fifteen minute break.” So the scholar John Hope Franklin, then of Howard University, remembered on one occasion when they had worked into the hours of the early morning, except that Franklin had left Marshall to his fifteen minutes in the office while he stole back to his room at the Algonquin Hotel and slept through what was left of the night. He found Marshall still at his desk the next morning. 

Marshall was relying upon historians like John Hope Franklin and C. Vann Woodward of Johns Hopkins University to address the Supreme Court’s concerns about desegregation and congressional powers by placing the rationale for Brown convincingly in a social and political context. The task, Marshall repeatedly reminded the historians, who were sometimes given to academic speculation vis-à-vis possible Court opinions, was solely to “present a case so persuasive that the Court would be compelled to rule in our favor.” To that end, Marshall had his LDF team introduce research from psychologist Kenneth Clark’s study of the effects of segregation on the mental attitudes of black children, as in his “doll test,” into the Brown v. Board of Education brief and summation. (Clark’s research confirmed what Marshall had himself concluded from conversations with black children, as when he’d ask boys what they wanted to be when they grew up and—heartbreakingly, to Marshall—even the brightest among them would reply, “I’m going to be a good butler” or “I hope I might be able to get in the post office.”) For months Marshall’s team worked and reworked the Brown brief. They incorporated the results of their legal research with those of the historians’ examination of political and social issues germane to the case; they supported arguments with sociological data and the evidence of Clark’s psychological studies. They produced, in 235 pages, a manifesto for equality, its language, depth, and persuasiveness exceeding all expectations, said Franklin. Another historian noted, “It deserves a place in the literature of advocacy.” 

Hours before day dawned on December 7, 1953, blacks were lining up outside the Supreme Court in the hope of witnessing history being made. The morning had broken cold when Thurgood Marshall arrived with his wife and mother, Buster and Norma, who were escorted to their reserved seats. Marshall sat in the well of the court. Before oral arguments began, he glanced over the team of NAACP lawyers who for months, for years, had worked assiduously on the five education cases in Brown v. Board of Education, and: “I realized there wasn’t a single one of them who hadn’t been touched by Charlie Houston. Either taught by him, or friendly with him, or guided in their careers by him. Every one of them, including me.” To Charlie Houston, his mentor and friend, Marshall might have dedicated this day—their day—in court.

For three days Marshall and his lawyers argued Brown. The Supreme Court, Marshall knew better than most, could be wildly unpredictable, especially in criminal cases. He had argued thirty-two cases before the Court, and though he had lost only three decisions over his career, two of them had been death penalty cases. The third had been the 1944 Lyons v. Oklahoma case in which the black sharecropper W. D. Lyons confessed to murder after being repeatedly beaten and then presented with a pan of the infant victim’s charred bones.  Marshall had prepared the brief for the case with William Hastie, and Marshall himself had established the precedent regarding coerced confessions in criminal trials four years earlier, when he had argued Chambers v. Florida before the Supreme Court. He had every reason to believe he stood on solid ground for a reversal. Yet the Court had upheld the Lyons conviction. There was speculation that Justice William O. Douglas, who had till then consistently voted to reverse in coerced confession cases, might have cast his vote to let the conviction stand because it was possible that he might be chosen to be Franklin D. Roosevelt’s vice-presidential running mate and he wanted, therefore, not to offend the Southern wing of the Democratic Party. Or, as the Supreme Court had done in cases before Lyons, it might have upheld the Oklahoma court’s decision to credit the state for the progress in had made in the conduct of criminal trials involving race. After all, the defendant had not been rushed to trial, he had not been sentenced to death, and he had certainly been represented by competent counsel. Nonetheless, Marshall found the Court’s decision to be wrongheaded. Over the next decade, he continued to pressure the state for Lyons’s early parole. He also corresponded with Lyons in prison and sent Lyons money from his own wallet. 

On May 17, 1954, the Supreme Court announced its unanimous decision in the most important civil rights case of the twentieth century. The Court had found, just as Charles Hamilton Houston and Thurgood Marshall had observed on their tour of the South twenty years earlier, that “separate educational facilities are inherently unequal.”  State laws that established separate public schools for blacks and whites were thus ruled unconstitutional, in violation of the Equal Protection Clause in the Fourteenth Amendment.

The ruling was just cause for celebration in the LDF’s New York offices. Champagne flowed. The staff was boisterous; the din was laughter. Marshall playfully chided Walter White for taking the credit for the abolishment of segregation in public schools. The party moved on to the Blue Ribbon, where lawyers and staff and consultants toasted each other and Marshall with dark beer as they shared platters of pigs’ knuckles with their director-counsel.  The victory, however, was not celebrated in the South. The Brown ruling triggered a resurgence of Ku Klux Klan activity and White Citizen Council activism, whereby “respectable citizens” joined together to exert economic pressures against local individuals and organizations that either supported desegregation or did not openly oppose it.  In many ways, the battle for Marshall and the LDF attorneys had only just begun.