'A Neg-What?'!

On this day in 1967, the U.S. Senate confirmed legendary NAACP lawyer Thurgood Marshall's appointment to a seat on the Supreme Court. As the nation’s first black justice, Marshall brought the American judiciary closer to resembling the American people it served. This change was easier for some members of the legal community to absorb than for others, to say the least.

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Marshall's tenure on the Court has spawned endless anecdotes, but one that sticks out for me is a little-known exchange between Marshall and North Carolina deputy attorney general Jean Benoy during oral arguments in Fowler v. North Carolina in 1975. I first discovered it in Evan Mandery’s indispensable book on the campaign to abolish the death penalty in the early 1970s, A Wild Justice. (A transcript of Fowler isn’t available online, so I've relied on Mandery’s recitation below.)

First, some quick background. The Supreme Court struck down death-penalty statutes nationwide in Furman v. Georgia in 1972. Foremost among the justices’ criticisms of the death penalty was its arbitrary application; Justice Potter Stewart called it cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” To remedy this, North Carolina made the death penalty mandatory for certain crimes. Fowler would determine whether this also violated the Eighth Amendment.

The justices’ questions at oral arguments meandered towards racial bias, a perennial issue with capital cases. This led to the following exchange between the first black justice and a Southern deputy attorney general:

“General Benoy, do you know of any time in the history of North Carolina that a Negro's death sentence had been commuted?” Marshall asked.

“No sir.”

“What’s the percentage of Negroes in North Carolina?”

“I believe it’s about 20 or 30 percent.”

“And what’s the percentage on death row?”

“It’s about 50/50, as I understand it.”

“It gives you no problem?”

“No, sir. It doesn’t give me a bit of a problem, Your Honor. There are things far more important in the State of North Carolina—”

“Than race,” said Marshall.

“—than the race of a man who kills and rapes,” said Benoy. “There’s not one aspect of racial overtones in the system of justice in the State of North Carolina.”

This Thurgood Marshall could not bear. Having spent the majority of his life combating southern racism, he couldn’t allow Benoy’s claim to pass unchallenged. The subsequent exchange is unforgettable.

“How many Negroes do you have on your judicial system?” Marshall asked.

“Let’s see,” the deputy attorney general replied. “I believe there—I don’t know if the last Negress, there was a Negro woman who was a judge.”

“A neg-what?”

If there were audio recordings available, I imagine you would hear a sharp, collective intake of breath from most of the courtroom at this point. But I digress.

“A Negress,” Benoy repeated. “A Negro woman who was a judge in Guilford County.”

“You’re still using ‘Negress’ down there?”

“Well, Your Honor, I’m a Caucasian, and I see nothing wrong with using the word ‘Negro.’ That’s the name of a race of people.”

“All right. In what are those…trial courts…like magistrates or something?”

“No sir. We have district court judges who are blacks.”

“Name them!” cried Marshall.

“I don’t know, Your Honor,” Benoy replied. “I don’t know them, and I’m not on intimate terms with them.”

“You have Negro solicitors?”

“Yes, sir.”

“I’d like you to name just one of those.”

“You mean the elected solicitor?”

“Yes, sir.”

“I don’t believe there is an elected solicitor himself.”

“I don’t either,” said Marshall.

Black judges were still relatively rare in 1974, and black women judges even rarer. But Judge Elreta Melton Alexander had already been on the bench for six years at the time. In 1968, voters in Guilford County, North Carolina, made her the second black woman in the nation to be elected to a judgeship. The day after Benoy’s remarks had made national news, a local lawyer recalled Alexander’s demeanor in court:

When court opened, we stood and made ready to start, but Judge Alexander had some things she wanted to say before we began. Ostensibly, the Judge was addressing the prosecutor and me when she spoke but we quickly understood that no responses from us were needed or wanted. She was speaking to a wider audience. She began with a learned disquisition on the word that had been used in the Supreme Court and explained why it is offensive. She said with considerable dignity that to be referred to by that term was an insult and not acceptable.

[Alexander said] that when Justice Marshall had asked his question from the bench of the United States Supreme Court and before the national media, she knew it was merely a rhetorical question. She knew that, Judge A[lexander] said, looking down from her own bench at those of us assembled in Guilford County traffic court that morning, because Justice Marshall didn’t need the information. He already knew the answer. “Thurgood,” she said, “knows me.” She and Mr. Justice Marshall had been friends, she told us, since Judge Alexander’s time at Columbia Law School.

Benoy, for his part, did not win the case. Nor did he lose it. Unbeknownst to him or the American public at the time, eight of the Supreme Court justices had secretly colluded during the 1974-75 term to nullify their ninth colleague’s vote. Justice William O. Douglas suffered a stroke that year and his mental faculties were failing. Despite his incapacity, or perhaps because of it, Douglas refused to leave the bench. With no way to oust him except the public ordeal of impeachment, the other eight justices secretly agreed to delay all 5-4 cases until the next term. This ensured Douglas’s compromised vote would not decide any outcomes.

Eventually, Douglas relented and stepped down during the 1975-76 term. President Gerald Ford appointed John Paul Stevens to replace him. Rather than reargue the case, the justices dismissed Fowler and selected five new capital cases to test the death penalty's constitutionality. Fowler (and the Benoy-Marshall exchange) quickly fell into obscurity without an opinion to attach to it; even legal websites like Oyez that compile oral argument transcripts from that era don’t include it.