Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961

Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961

Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961

Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961

Synopsis

From the 1930s to the early 1960s civil rights law was made primarily through constitutional litigation. Before Rosa Parks could ignite a Montgomery Bus Boycott, the Supreme Court had to strike down the Alabama law which made segregated bus service required by law; before Martin Luther King could march on Selma to register voters, the Supreme Court had to find unconstitutional the Southern Democratic Party's exclusion of African-Americans; and before the March on Washington and the Civil Rights Act of 1964, the Supreme Court had to strike down the laws allowing for the segregation of public graduate schools, colleges, high schools, and grade schools. Making Civil Rights Law provides a chronological narrative history of the legal struggle, led by Thurgood Marshall and the NAACP Legal Defense Fund, that preceded the political battles for civil rights. Drawing on interviews with Thurgood Marshall and other NAACP lawyers, as well as new information about the private deliberations of the Supreme Court, Tushnet tells the dramatic story of how the NAACP Legal Defense Fund led the Court to use the Constitution as an instrument of liberty and justice for all African-Americans. He also offers new insights into how the justices argued among themselves about the historic changes they were to make in American society. Making Civil Rights Law provides an overall picture of the forces involved in civil rights litigation, bringing clarity to the legal reasoning that animated this "Constitutional revolution", and showing how the slow development of doctrine and precedent reflected the overall legal strategy of Thurgood Marshall and the NAACP.

Excerpt

The movement for civil rights from the 1930s to the early 1960s had many forms. Some were cultural: the African-American experience in World War II, the accelerating migration of African-Americans from the South, Jackie Robinson's performance in desegregating major league baseball. Others were political: Harry Truman's order desegregating the armed forces, the NAACP's efforts to secure antilynching legislation, Lyndon Johnson's support for a civil rights statute in 1957 to strengthen his chances for the Democratic presidential nomination in 1960. Still others were extrapolitical: A. Philip Randolph's threatened march on Washington in 1941, the Montgomery bus boycott of 1955-56. This book examines the most sustained and arguably the most successful of the civil rights efforts in this period: the effort to secure civil rights through litigation. Thurgood Marshall's work as a civil rights lawyer provides the main line of my discussion, but I also deal with litigation that did not involve Marshall directly. Marshall's career, though, shows what the work of civil rights litigation was, and the length and depth of his involvement in civil rights litigation provides an opportunity to explore the ambiguities that characterized the effort to transform civil rights through litigation. Marshall's departure from the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund in 1961 serves as a fitting close to the study. By the late 1950s and continuing into the 1960s civil rights activity was moving out of the courts and into the streets and the halls of Congress.

Still, Marshall and his colleagues painstakingly constructed the foundations for modern civil rights law. Because this work was legal to the core, I show how Marshall, a skilled trial lawyer and appellate advocate, went about the job of making civil rights law. Marshall's trial work was rarely the thrust-and-parry dramatized in film; much more often it was the patient compiling of facts to present to hostile juries and judges. His oral advocacy was commonsense and down to earth, capturing the heart of the moral case for transforming civil rights law.

Yet, although Marshall serves as the focus of the book, the story of how civil rights law was made must include more than Marshall alone. As the head of a law firm engaged in long-term litigation, Marshall helped the lawyers he worked with . . .

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