Vol. 36, Number 2—February 2004

IN DEPTH

Federal Judges Share Memories of Historic Civil Rights Victory

Fifty years ago, headlines nationwide told the dramatic story of the Supreme Court's decision in Brown V. Board of Education of Topeka (Kansas.).

On May 17, 1954, the nation's highest court ruled unanimously that America's public schools could not segregate children based on their race.

Separate but equal schools were inherently unequal and unconstitutional, the court ruled. Although the court focused on disputes from Kansas, Delaware, Virginia, South Carolina, and the District of Columbia, its decision is known by the name of the lead case from Kansas.

The ruling was an enormous victory for the civil rights movement and its legal team. That team's leader, the late Thurgood Marshall, later would himself become a Supreme Court justice. Two other future federal judges—National Association for the Advancement of Colored People (NAACP) lawyer Robert L. Carter and NAACP Legal Defense and Educational Fund lawyer Constance Baker Motley—were part of Marshall's team in the Brown case. Carter was lead counsel, his name appearing just above Marshall's on the winning side's legal briefs.

This article, based on interviews with Carter and Motley, reflects their memories of the famous case.

They greet each other in the easy manner of old friends and colleagues, these two esteemed jurists who long ago were united as advocates in the fight for racial justice.

"You're looking well Connie," Senior Judge Robert C. Carter, 86, says in a soft voice as Senior Judge Constance Baker Motley, 82, enters his chambers high up in the towering Daniel Patrick Moynihan Courthouse in Manhattan.

"Thanks Bob," she replies. "Have you done something new in here? It looks so bright and cheery. What a beautiful reading desk."

Carter has been a federal trial judge in the Southern District of New York since 1972; Motley has been a member of the same court since 1966. Each of their official resumes list decades spent as civil rights advocates. Both judges say it was time spent traveling the country in an era when blacks could not eat in many public restaurants nor stay in many hotels and motels; time spent writing legal briefs on tight deadlines and abstaining from family vacations; time spent trying to make a difference.

It was time well spent, both say—especially their association with the legal dispute etched in time as Brown v. Board.

"Color is such a priority for some people. They cannot see beyond it," Carter says. "The fight has been half won because the Brown decision disabled governments from enforcing racial discrimination. They're out of the picture. Now, discrimination and white supremacy is carried on privately. It is just as deadly but it lacks participation by the state, by governments. That lack of participation by government has given black people a lift."

Motley, like Carter, had anticipated victory in the Brown case. "I think the only thing we didn't expect was that the decision would be unanimous. That was a complete surprise to me, and an occasion for great celebration," she says. "We hoped for 5-4 at the very least, but unanimity was not what I expected. That's because several previous victories had not been unanimous. Needless to say, we were overjoyed."

Carter had been Thurgood Marshall's top lieutenant, called assistant special counsel, when he took on the task of taking the Brown case to trial.

"By the time it came around, we had won cases involving segregation in law schools and universities," Carter recalls. "The next logical step was high schools and grade schools. It was my job to come up with a strategy, a litigation theory. That turned out to be showing evidence of the psychological harm black students suffered."

After the Kansas case was tried, Carter lobbied for its being the vehicle for presenting that theory to the Supreme Court. "I told Thurgood I thought it was a better case than the South Carolina case he was very excited about," Carter says.

It was a collaborative effort. "Marshall had assembled a superb legal team, of which I was a very junior member," says Judge Jack Weinstein, now a senior federal trial judge in the Brooklyn-based Eastern District of New York.

"Marshall was really a giant, and many of the people with him—such as Judges Motley and Carter—were extraordinary," Weinstein says.

Weinstein's name appeared on the winning side's Supreme Court brief, along with those of Marshall, Carter, Motley, and another future judge, the late Spotswood W. Robinson III.

A sixth future federal judge also participated early on in the school-desegregation cases. Louis H. Pollak, now a senior judge of the Eastern District of Pennsylvania, had joined the State Department's legal staff by the time the cases reached the Supreme Court. He had provided the NAACP Legal Defense and Educational Fund with legal advice since 1950 while a New York lawyer, and resumed that service after becoming a professor at Yale Law School.


"Marshall had assembled an extraordinary array of talent on his staff," Pollak said. "And he knew how to draw the best out of everybody."

The Monday morning the Brown decision was announced, Marshall and several other members of his legal team were in the Supreme Court chamber. But Carter and Motley had remained in New York City.

"I was told by telephone, and I don't think I can say I was ecstatic . . . Thurgood and many others thought that, with the Brown decision, the civil rights fight was over. I didn't share that view. I was pretty sure there would be a whole lot of work handling the backlash," Carter says.

"After Brown was decided, things got ugly," he says. "I was concerned for the people who lived in Topeka. I didn't have to live there. Early on, I had told the parents in Topeka, in Virginia, and the other states, that they might be subject to physical violence. I told them not to join the litigation if they did not want to face the risk. Very few turned away. They displayed great courage," Carter says.

Motley says the lawyers around Marshall soon realized "we had a whole new world of litigation ahead of us."


"Shortly after that decision," she says, "we represented students who sat in at North Carolina lunch counters, an activity that eventually led to the Civil Rights Act of 1964, ending segregation in businesses that engaged in interstate commerce. That was another huge development—the ability of blacks to eat in local restaurants in the South, stay in hotels and motels."

According such dignity, says Carter, was what the Brown decision meant. "Blacks don't have to rely on the good will of whites to enjoy equal citizenship."

Motley says the greatest single result of Brown was that the decision "gave rise to the black middle class."

"We'd always had a small black middle class, but as a result of that decision, as I look back now, the black middle class in American society has greatly expanded," she says. "More blacks have an opportunity, economically speaking, because they have better education. Brown expanded the black middle class, and made economic opportunity as well as educational opportunity available to blacks."

Carter personally argued 22 civil rights cases before the Supreme Court. He won 21 of them.

Motley argued 10, and won nine. But here's how she views it: "The Court some 20 years later reversed itself in the case I had lost in 1965. That was Swain v. Alabama, involving prosecutors' use of peremptory challenges. In Batson v. Kentucky, the Supreme Court adopted my view, which had lost 6-3 in 1965, by outlawing the use of peremptory challenges to systematically exclude blacks from juries." She hesitates, smiles broadly and adds, "So, I really won 10 out of 10."

After 20 years with the NAACP LDEF, Motley served as a member of the New York State Senate and as president of the Borough of Manhattan before President Lyndon B. Johnson appointed her to the federal bench.

After 23 years with the NAACP, most of them as its general counsel, Carter was a federal prosecutor in the Southern District of New York, a fellow at the Columbia University Urban Center, and in private practice before President Richard M. Nixon named him to the federal Judiciary.

Motley wrote her autobiography in 1998. Carter hopes to finish his soon. "My publisher says there's no rush but I'm sure they'd be very happy if it is published in 2004," he says with a laugh. "I'd like to call the book 'Law and the Struggle for Equality' but I don't think they believe that's sexy enough."