The first of several hours I spent with Richard Kluger’s SIMPLE JUSTICE (Knopf‚ $15.95) was given over mostly to wonder at the sheer ambition of this sizable (786 pages of small type) and excellent book. Simple Justice recounts the history of the 1954 Supreme Court decision‚ Brown v. Board of Education, that desegregated the schools and altered the history of the Court and the country. There is much more to admire in this study than the evident labor it involved, but it’s worth saving that Kluger came to the project as novelist and editor, not as historian, without the support of a university or (apparently) a foundation; that the book was‚ as he acknowledges, an act of self-education. In seven years, he produced a work so readable and authoritative that it seems unlikely that it will be supplanted.
Kluger explores the smallest tributaries of the Brown decision, stretching back to slavery years. There are affecting descriptions of the places where the five school cases began—Clarendon County, South Carolina; Prince Edward County, Virginia; Topeka‚ Kansas; Wilmington‚ Delaware; and Washington‚ D.C.—and of the plaintiffs who braved violence and economic reprisal to be heard in court. But this is essentially a story about law; its heroes are lawyers. Simple Justice opens to view a small society that has been insufficiently described‚ a circle of black intellectuals, centering chiefly upon the law, and upon Howard University. In a sense, the most important figure here is a man who never achieved much fame: Charles Houston. Houston was a 1915 graduate of Harvard Law School and the first Negro to be elected to the Law Review. After a short time in private practice he was invited by Howard to take over its law school. In what would now be called an elitist way, he brought the school to life, toughened its standards‚ drilled his students mercilessly, and made the school the training ground for the cadre of lawyers who prosecuted the many cases leading up to Brown: Thurgood Marshall‚ William Hastie‚ Robert Carter, James Nabrit‚ and others.
In Kluger’s biographies of these men you can find a glimpse of the early rise of the black middle class, and of the fierceness of the values that it imparted to its sons. Charles Houston, born before the turn of the century, was the grandson of a slave, son of a man who had become one of the country’s 600 or 700 black lawyers. Thurgood Marshall (named “Thoroughgood” by his parents‚ who had made it to mildly prosperous Druid Hill in Baltimore) was filled with ambition by his mother and with combativeness by his father (“Anyone calls you nigger . . . you got my orders to fight him”). Robert Carter was middleclass in values only: his widowed mother was a cleaning woman, but determined that he would succeed. Ridiculed by a teacher for misspelling “college‚” he was told by his mother‚ “You go back and tell her your mama said you’re goin’ to college.”
They were proud and gifted, and soon they were accomplished men. They believed passionately in the law‚ which had been the agent of their success‚ and Which, paradoxically, oppressed them along with the rest of their race. A while supporter of thencause‚ Alfred Kelly, a historian who did research for the NAACP, noticed a peculiar combination of qualities in Marshall and his men.
“‘Without exception, they were razorkeen‚ deadly at argumentation, and‚ as far as a layman who knew some law could tell, thoroughly competent in their profession.’ But there was that other quality that frankly surprised Kelly: ‘In a sense, these men were profoundly naïve. They really felt that once the legal barriers fell, the whole blackwhite situation would change. . . . There was a very conservative element in these men then in the sense that they really believed in the American dream and that it could be made to work for black men‚ too. Thurgood Marshall was—and is—an American patriot. He truly believed in the United States and the Constitution, but that the whole system was tragically flawed by the segregation laws. Wipe away those laws and the whole picture would change. Marshall and his colleagues were no rebels. They felt that the social order was fundamentally good. What they wanted was the chance to share in it like men.’ ”
Kluger is at pains to reveal the informal side of his subjects, particularly of Marshall. Despite his claims about Marshall’s easy, affable, joking manner, the jokes that survive the years of his desegregation efforts are rather pale and unconvincing. However unearthly it might seem, the dedication of Marshall and his colleagues insists itself on the reader. For some of them the school desegregation cases were the preoccupation of two decades of their lives.
By 1954‚ the Supreme Court’s verdict in Broun was not only the result of the hard work of the NAACP lawyers; it was, as Kluger remarks, “the gathering verdict of mankind.” For all that, it was a precarious thing. Kluger has interviewed the two surviving Justices who would see him (William Douglas would not), and former clerks of the ‘54 Court, and he has examined what papers were available, including some fragmentary but revealing notes by Chief Justice Fred Vinson. We watch this drama from both sides of the stage. Kluger can make you feel the awfulness of standing before the Supreme Court bench, gazing up at small, fearsome Felix Frankfurter, and hearing yourself trapped in an argument from which there seems no escape. At the same time he renders the hidden agitation of the Justices, most of whom fell both emotion and reason pulling them in a direction forbidden by legal precedent.
Only a year before the decision was made, the verdict might have gone the other way. The death of conservative Chief Justice Vinson, who almost certainly would have voted to uphold segregation, made the first crucial difference. It moved Frankfurter to remark, “This is the first indication I have ever had that there is a God.” But the Justices were still in disarray, and when Earl Warren came to the Court, the immediate prospect was split decision laden with individual opinions. It was Warren’s genius to construct the plainspoken (but none too specific) compromise that permitted a unanimous decision.
The essence of the compromise was Warren’s choice to confront only obliquely the most troublesome precedent standing in the way of desegregation‚ the 1896 decision in Plessy v. Fer-guson, which held that “separate but equal” facilities for the races were consistent with equal protection under the law provided by the Fourteenth Amendment. The Warren decision simply asserted that “modern authority” contradicted the idea of “separate but equal.” As Kluger points out‚ there were stronger arguments to make against Plessy; it rested, for one thing, on the disingenuous reasoning that if Negroes took offense at segregation, the problem was in the minds of Negroes. But the price of a thoroughgoing argument against Plessy would have been a divided court.
The compromise led of course to a residual controversy. Some constitutional scholars were distressed over the Court’s apparent reliance on social science. “Modern authority,” as a footnote made plain, referred to sociological findings presented at various times by the NAACP. It was soft data. The most famous piece of evidence was psychologist Kenneth Clark’s “doll test‚” in which Negro children, shown a black doll and a white doll, tended to associate positive qualities with the white doll. The Clark study was vulnerable because of the smallness of its sample, the vagueness of its terms, and the possibility for inadvertent manipulation on the part of the researcher. Kluger’s important contribution to clarifying the controversy over the sociological nature of the Court’s decision is to demonstrate that no one—neither judges nor lawyers—relied on this evidence; indeed, that the NAACP lawyers had thought seriously of not using it at all. Kluger, however. has much less to say to those who raise larger questions about the Brown decision—to those who argue that it gave impetus to a dangerous period in which the Court in effect assumed legislative powers. In an epilogue that mars the book. Kluger deals inadequately with the twenty years of law and of racial turmoil and progress that have followed Brown, and here, perhaps because of the vastness of the subject, sentiment is allowed to take the place of complexity.
But forgive this book some passion. Simple Justice is a remarkable act of scholarship by a gifted amateur, and beyond that it is a book about values. Its reader should be prepared to be moved, not just by the moral force of the Brown decision, but by Kluger’s dramatization of such out-of-fashion virtues as self-control, patience, courage.
—Richard Todd