The Washington PostDemocracy Dies in Darkness

Thurgood Marshall’s unusual meeting with a judge helped end segregation

Thurgood Marshall stands outside the Supreme Court in Washington on Aug. 22, 1958. (AP)
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On Nov. 17, 1950, Thurgood Marshall, the NAACP’s chief counsel, met with federal Judge J. Waties Waring in the judge’s chambers in Charleston, S.C., to discuss a lawsuit filed on behalf of Black parents in rural Summerton. The parents wanted a bus to transport their children to school.

The school district allocated money for buses for White children but not Black children, who outnumbered Whites 3 to 1. Black children had to walk as many as nine miles each way to school. When the parents asked R.W. Elliott, chairman of the school board, for a bus, he responded, “We ain’t got no money to buy a bus for your children,” using a racist slur for Black people.

Twenty parents, including Harry Briggs, a gas station attendant, sued. Briggs v. Elliott was scheduled to begin in Waring’s courtroom on Nov. 20.

A private conference between a judge and an attorney was itself unusual. But what made this even more unusual — and even improper — was that a White judge, whose father had fought for the Confederacy in the Civil War, wanted a private discussion with a Black attorney to discuss strategy to overturn decades of school segregation. Furthermore, it was Waring, a White Southern judge, who urged Marshall to adopt a more aggressive stance in favor of integration.

Waring told Marshall, who had previously appeared multiple times in his courtroom, that he didn’t want another “separate but equal” case — he wanted a “frontal attack on segregation.”

Marshall disagreed. “We don’t think this is the case. We don’t think this is the time,” he responded, according to two recent biographies of Waring. “This is the case and this is the time,” Waring told Marshall, adding, “You’ve got to do this.”

Marshall was persuaded, and he eventually took the “frontal assault on segregation” to the U.S. Supreme Court in Brown v. Board of Education, which included four other cases, Briggs among them. On May 17, 1954, the court ruled unanimously that school segregation was unconstitutional. In doing so, it overturned the court’s 1896 decision in Plessy v. Ferguson, which established the doctrine of “separate but equal” and codified racial discrimination for more than half-a-century.

The Baltimore-born Marshall’s contribution to the Brown decision is well-known. He won the case that, according to Richard Kluger, author of the book “Simple Justice” about the landmark decision, “marked the turning point in America’s willingness to face the consequences of centuries of racial discrimination.” Thirteen years later, Marshall became the first Black justice on the Supreme Court.

Waring, who died in 1968 at age 87, passed into relative obscurity, until the federal courthouse in Charleston was renamed for him in 2015. Two biographies of Waring followed in the next few years. Brian Hicks, a columnist for the Charleston Post and Courier, wrote “In Darkest South Carolina” in 2017, and Richard Gergel, a federal judge who works in the J. Waties Waring Judicial Center in Charleston, wrote “Unexampled Courage” in 2018.

Hicks and Gergel agreed that Waring, an eighth-generation Charlestonian, abandoned his Southern attitudes to become a racial progressive relatively late in life. When Waring joined the federal bench at age 61 in 1942, he had given little thought to racial issues. He had, in fact, worked for virulent racists like Sen. Ellison “Cotton Ed” Smith (D-S.C.), who boasted that “cotton is king and White is supreme.”

But Waring’s attitudes began to change, and his lifelong appointment to the bench gave him the independence to confront racism as he became more aware of the “injustice that Black Americans faced every day,” Hicks wrote.

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In 1945, Waring divorced his socialite wife Annie to marry a liberal, twice-divorced New Yorker, Elizabeth Avery Mills Hoffman. The Warings, ostracized from Charleston high society, began educating themselves on Southern racism.

Waring’s racial awakening also affected his judicial opinions — such as when he presided over the trial of a White sheriff, Lynwood Shull, in Batesburg, S.C. Shull was accused of blinding a Black army veteran, Isaac Woodard, hours after the soldier’s discharge, by jabbing the soldier in the eyes with the blunt end of a nightstick. The nightstick gouged the eyes out of Woodard’s sockets. An all-White jury exonerated Shull.

Waring could not change the verdict, but he realized there were things he could do as a judge to address racial bigotry.

In 1944, Marshall appeared for the first time in Waring’s courtroom, arguing that Black teachers should receive the same pay as White teachers. Marshall won the case. He later recalled the impression the judge made on him. Marshall said it was “the only case I ever tried with mouth hanging open half the time” because “Waring was so fair.”

Three years later, Waring again sided with Marshall and the NAACP by ruling that South Carolina could no longer have all-White political primaries. “It’s time for South Carolina to rejoin the Union,” Waring wrote sarcastically in his decision.

Waring was now an enemy in his own city and state. A cross was burned outside his Charleston home. In October 1950, someone threw a brick through the Warings’ front window when Waties and Elizabeth were playing canasta in the living room.

A month later, Waring met with Marshall in his chambers and ordered the attorney to make a more aggressive legal argument. Waring, who was now 70, objected to Marshall’s incremental approach to overturning Plessy.

“Waring never admitted to any collusion with Marshall,” Hicks wrote, adding that he could have faced a judicial inquiry for abandoning his judicial neutrality — or perhaps something worse, a vengeful mob of South Carolinians. “But Waring knew he didn’t have much time left, and felt he was answering a higher calling.”

A reluctant Marshall told Waring he might win in the judge’s courtroom but would lose on appeal. Waring agreed. He said if Marshall challenged the constitutionality of Plessy, the case would be assigned to federal court, where Waring was one of three judges, and Marshall would likely lose 2-1, with Waring in the minority.

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But then Marshall could appeal to the U.S. Supreme Court. “That’s where you want to be,” Waring told Marshall.

Briggs would be the first lawsuit to directly challenge school segregation since Plessy had established the constitutionality of segregation more than a half-century earlier.

The judges in Briggs v. Elliott ruled against Marshall, as Waring predicted. In Waring’s dissent, he said the 14th Amendment was meant to confer full citizenship rights to Black Americans. His wording — “segregation in education can never produce equality. . . . Segregation is per se inequality” — would form the legal foundation for the Supreme Court’s decision in Brown, which said, “separate educational facilities are unequal.”

Gergel, the federal judge who wrote the book on Waring, said, “Brown v. Board of Education embraced Waring’s equal protection standard that all government-mandate segregation was per se unconstitutional.”

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