Motley, Constance Baker

English

Yale Law School Legal Scholarship Repository

My Personal Debt to Thurgood Marshall
Constance Baker Motleyt
Now that Thurgood Marshall has announced his decision to retire as a
Justice of the Supreme Court, assessments of his life and contributions to the
development of American constitutional law are beginning to pour in and, even
in this conservative climate, they are all favorable. When viewed against the
background of American history over the past half century, the totality of his
contributions to the restructuring of American society has rendered him larger
than life. However, I fear that his personal, unique contributions to the advance-
ment of women in the law-a profession once totally dominated by men-may
be lost in the review of the multitude of events and judicial opinions which now
compose his life. My tribute acknowledges my personal debt to Thurgood
Marshall for aiding my career at a time when nobody was hiring women
lawyers.
My first job interview was an accurate sign of the times. It was October
1945. World War II had abruptly ended a few months earlier, and I was in my
final year at Columbia Law School. The women in my class had high hopes
but few offers. I learned from my classmates that a small midtown firm was
looking to hire a recent graduate. When I appeared for my interview, a balding,
middle-aged white male appeared at a door leading to the reception room where
I was standing. The receptionist had not even asked me to have a seat. Even
after the door to the reception room quickly closed, she still did not invite me
to sit down. She knew as well as I that the interview was over.
When I returned to school, another classmate, an African-American male
from North Carolina, Herman Taylor, told me about a law clerk vacancy at the
NAACP Legal Defense and Educational Fund, Inc. (the Inc. Fund). I hurried
down to the Inc. Fund offices on lower Fifth Avenue for an interview, and
Thurgood Marshall hired me on the spot. Marshall told me about his admiration
for African-American women who had the courage to enter the legal profession.
He also told me about Florence Lucas, an African-American woman who was
practicing in Queens and who had put herself through law school by working
in a laundry at night. When I finished Columbia Law School in June 1946,
Marshall received Board approval to hire a woman lawyer. I was a member of
the Inc. Fund staff until 1965.
t Senior Judge, United States District Court for the Southern District of New York.
19
The Yale Law Journal
Thurgood Marshall had no qualms about women being given equal employ-
ment opportunities. His mother was a school teacher and his father was a dining
car steward. Over the years, he told me about every successful African-Ameri-
can woman he encountered. Marshall was born and grew up in America at a
time when nobody had to tell him that African-American males were on the
bottom rung of the ladder in every conceivable professional endeavor and that
African-American women were not even on the ladder.
When I joined the staff of the Inc. Fund as a clerk in 1945 it was a fledg-
ling public interest law firm with two full-time lawyers in addition to Marshall,
one part-time lawyer, and three secretaries. The annual budget was about
$30,000. The law library consisted of a single set of Supreme Court Reports.
Since my main responsibilities included research and writing, and we had no
library facilities, Marshall suggested that I join the New York City Bar Associa-
tion (the Association) so that I could use its law library. After securing mem-
bership, I presented myself at the front door of the Association on 44th Street
in Manhattan. When I got there I saw the "gate keeper" standing at his desk
immediately inside the door. He was an elderly white man with snow-white hair
who appeared to be one year older than God. He was talking with an Associa-
tion lawyer. When I approached the desk, the "gate keeper" continued his
conversation and never even looked at me. The "gate keeper" obviously as-
sumed that I was a mere messenger. The one or two other women members
of the Association at that time had joined so recently that a women's rest room
had not yet been provided. When the "gate keeper" finally addressed me an
embarrassing two minutes or so later, he said politely, "May I help you," with
a quick motion of his head in my direction. When I replied that I wanted to
use the library, the "gate keeper," again without looking in my direction, said,
"You must be a member." When I assured him that I was a member, he finally
ceased his conversation and turned his head fully in my direction for the first
time. As if he had seen a ghost, he shouted in disbelief, "You a member of this
Association." "Yes," I replied. "What is your name," was his retort. "Mrs.
Motley," I said, guarding against what all African-American women guarded
against in those days. When he found my name on the membership list, he
exclaimed, "Oh, right this way, Constance." This story is one of the many
stories in Marshall's "Stories Repertoire." The Association, forty years later,
now has its first African-American president.
Around 1948, Marshall sent me to Baltimore to sit in on a case that was
being tried by the founder of the Inc. Fund and Thurgood Marshall's mentor,
the great Charles Hamilton Houston. Houston was the Dean of Howard Law
School when Thurgood Marshall studied there. In the case I was watching,
Houston was representing a black woman against the University of Maryland's
School of Nursing. Marshall wanted me to learn from the master. To this day
I have never seen a better prepared trial lawyer. Houston had a notebook in
which every question he was going to ask was written out. His advice to me
[Vol. 10 1: 19
Thurgood Marshall
was: "Never ask a question which you have not previously considered." Every
exhibit he was going to introduce was carefully laid out on a table. He allowed
me to sit next to him at the counsel's table so that I could see and hear every
move he made.
As part of my early training, Thurgood Marshall accompanied me to two
trials. One of these trials, which was before the Commissioner of Education
for the State of New York, involved segregated schools in Hempstead in 1949.
(Hempstead now has an African-American mayor.) The other trial was a
contempt hearing against the Board of Trustees of the University of Alabama.
During the course of that hearing, we stayed in the Birmingham home of local
attorney Arthur Shores. His home had been bombed on at least fifteen occa-
sions. (Birmingham now has an African-American mayor.) At night we were
guarded by African-American men with machine guns, and during the day
others carrying handguns escorted us to and from court.
Among the better known cases that I personally tried were those against
the Universities of Mississippi, Georgia, and Alabama, and Clemson College
in South Carolina. As a result, James Meredith, the plaintiff in the University
of Mississippi case, became a national hero in 1962. Charlene Hunter Gault and
Hamilton Holmes, the plaintiffs in the University of Georgia case, brought
Georgia kicking and screaming into the twentieth century in 1961. George
Wallace and Alabama finally gave up massive resistance to desegregation in
1963. And now South Carolina brags about Harvey Gantt, the plaintiff in the
Clemson College case in 1962, who became mayor of Charlotte and recently
ran unsuccessfully against Jesse Helms for the United States Senate. During
my career with the Inc. Fund, I participated in civil rights cases in federal
courts in eleven states and the District of Columbia. Out of the ten cases I
argued .before the United States Supreme Court, I won nine. One particularly
busy day in 1962, I argued four cases on appeal in the Fifth Circuit.
By the time I left the Inc. Fund in February 1965 to become the first
woman President of the Borough of Manhattan, I was one of the best known
civil rights lawyers in the country. A year earlier I became the first African-
American woman and the second woman ever elected to the New York State
Senate. In 1965, there were still not very many women who had actually tried
cases as the chief counsel. You could count on one hand the number of women
who had argued a case before the United States Supreme Court. When I first
joined the Marshall team in 1945, women lawyers were a rarity in most court-
houses and virtually unheard of outside New York City. I remember that when
Thurgood Marshall sent me to Jackson, Mississippi, in 1949 to assist Robert
Carter with a case involving the equalization of "Negro" teachers' salaries, the
whole town turned out to see the "Nigra" lawyers from New York-one of
whom was a woman.
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The Yale Law Journal
Beginning in 1946, when Thurgood Marshall argued the case striking down
segregation on interstate buses, Morgan v. Virginia,' he allowed me to accom-
pany him to virtually every case he argued, including Brown v. Board of
Education,' the School Desegregation Cases. Since the Nation's Capital was
a racially segregated town, I usually ended up staying at a so-called "Negro"
hotel, which was no more than a private rooming house in a "Negro" residen-
tial area. We stayed in such hotels until 1964 when the Congress reenacted the
Civil Rights Act of 1875, making it possible for us to stay in white hotels and
eat in white restaurants. The Restrictive Covenant Cases3 were argued in 1947.
The following year, Sipuel v. Board of Regents,4 which involved the admission
of a "Negro" woman to the law school of the University of Oklahoma, was
argued. In 1949, Sweatt v. Painter- resulted in the admission of Heman Sweatt
to the University of Texas Law School. Finally, in 1952, when the School
Desegregation Cases were argued in the Supreme Court for the first time,
Marshall moved for my admission to the Supreme Court Bar.
My son was born in May 1952. Although the policy at the NAACP-of
which the Inc. Fund was part in those days-was to have women take a leave
of absence after six months of pregnancy, Marshall simply ignored the pressure
brought on him to have me go on leave after six months. I worked until one
week before my son arrived. I was the only professional woman employed by
the NAACP or the Inc. Fund at that time. All the other women were clerical
or semi-professionals and, if pregnant, had left long before the ninth month.
I set a new standard for women with Marshall's tacit approval. Thus, there was
a big smile on my face when I read Marshall's opinion for the court on preg-
nancy leaves and Title VII in California Federal Savings and Loan v. Guerra.6
During his career with the Inc. Fund, Thurgood Marshall argued or partici-
pated in about thirty-two cases before the Supreme Court. He was involved in
a much greater number of lower court cases. Marshall also had an invaluable
training program for lawyers who worked for him. Prior to each Supreme Court
argument, he invariably practiced before a panel of Howard Law School faculty
members. Not only did Marshall's staff members attend these moot court
sessions, but on occasion we participated as well. In addition, we were included
in the preparation of cases. All of Marshall's major cases before the Supreme
Court benefitted from weeks of discussions with experts and academics in
constitutional law. For the School Desegregation Cases, these conferences took
place over a two-year period and included historians, sociologists, and psychol-
ogists.
1. 328 U.S. 373 (1946).
2. 347 U.S. 483 (1954).
3. Shelley v. Kraemer, 334 U.S. 1 (1948): Hurd v. Hodge, 334 U.S. 24 (1948).
4. 332 U.S. 631 (1948).
5. 339 U.S. 629 (1950).
6. 479 U.S. 272 (1987).
[Vol. 101: 19
Thurgood Marshall
In January 1966, President Johnson submitted my name to the United States
Senate for its "Advice and Consent" to my nomination as a United States
District Judge. At the time, only two other women were federal district judges:
Sarah Hughes in Texas, who swore in Johnson after Kennedy was assassinated
in 1963, and Bonita Matthews in the District of Columbia. Florence Allen, the
first woman federal judge, was then on the Court of Appeals for the Sixth
Circuit. President Johnson had initially submitted my name for a seat on the
Court of Appeals for the Second Circuit, but the opposition to my appointment
was so great, apparently because I was a woman, that Johnson had to withdraw
my name. I remember how stunned both Johnson and Marshall were by the
strength and intensity of the opposition. When I went to Washington for the
announcement of my appointment, Johnson told me that the first opening in
the Supreme Court would go to Thurgood Marshall. At the time, Marshall was
the Solicitor General of the United States. Johnson stepped down in 1968, but
not before appointing Thurgood Marshall to the Supreme Court.
President Johnson also told me that Ramsey Clark, who was then the
Attorney General of the United States, was the first person to bring me to his
attention. He said that Clark was in the Supreme Court one day when I argued
a case. After the argument Clark went directly to the White House and urged
Johnson to appoint me to the bench. Thurgood Marshall held my hand during
the entire process. When my name finally reached the Senate floor in August
1966, Senator Eastland of Mississippi, who headed the Judiciary Committee,
led the opposition. He had held up my nomination as well as the nomination
of every other African-American appointed to the federal bench during the
sixties, including Marshall's nomination to the Second Circuit in 1962 and his
nomination to the Supreme Court in 1968. I was finally confirmed by the
Senate in August 1966 and became the first African-American woman appoint-
ed to the federal bench. Marshall came to my swearing in as a district court
judge.
When Marshall was appointed to the Second Circuit, there was not a single
African-American employee in the United States Courthouse in Manhattan
except for the elevator operators. Thurgood Marshall served as the only Afri-
can-American judge in that courthouse from 1961 to 1965. Before his appoint-
ment to the bench, Thurgood Marshall had spent his entire life in the African-
American Community, so to speak, so he knew how lonely I would be, with
the double handicap of being a woman and black. At the time of my appoint-
ment, there were only about seven other African-Americans who had been
appointed to the federal bench. It was not until 1970 that the United States
Attorney's Office for the Southern District of New York decided that women
were as capable as men at handling federal criminal prosecutions. Shira
Neiman, who was hired in 1970, was the first woman in the Criminal Division.
Before that, Patricia Hynes, who worked in the Civil Division, was the only
woman in the United States Attorney's Office in the Southern District.
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The Yale Law Journal
When I was introduced as a new judge at a Second Circuit Judicial Confer-
ence, the master of ceremonies said, "And now I want to introduce Connie
Motley who is doing such a good job on the District Court." In contrast,
everyone else was introduced with a full blown curriculum vitae. Similarly, in
1968 when I was introduced by the chairman of the Seminar for New Federal
Judges, my introduction went as follows: "Judge Motley has served on the
Board of United Church Women and the Board of Trustees of the Y.W.C.A."
Former Supreme Court Justice Tom Clark, who was helping to chair the
meeting, was so astounded by this introduction that he asked the master of
ceremonies to let him have the microphone. Clark then told the assembled new
judges about the ten cases I had argued before him when he was still on the
bench. Later Justice Clark told me about the disparagement of Shirley
Hofstedler, who had just been named by President Carter to the Ninth Circuit,
by a group of men at the golf course. The thing which amazed him was that
none of the judges had ever met Shirley Hofstedler. One of the most critical
lessons I learned from my mentor, Thurgood Marshall, was to laugh off these
ludicrous antifeminist affronts which were regularly hurled in my direction.
Eventually, they all ended up in Marshall's "Stories Repertoire."
After his appointment to the Supreme Court, I saw Thurgood Marshall at
least once a year at the Second Circuit Judicial Conference, since he was our
Circuit Justice. He pushed unsuccessfully for my appointment to Second Circuit
Court Committees. He had a great big smile on his face when I became the
Chief Judge of our court and thus appointed the members of all of our twenty-
four court committees at the district court level.
Now I am a Senior United States District Judge, having taken senior status
on October 1, 1986. I was the Chief Judge of our court, the largest federal trial
court in the country, from June 1, 1982 until October 1, 1986. Our full comple-
ment was twenty-seven judges. Only one other woman had ever served as a
chief judge of a federal district court prior to myself. I was the only woman
on our court until June 1978, when Mary Johnson Lowe, another African-
American woman, was appointed by President Carter. Carter appointed about
forty women to the federal bench during his term. One of Thurgood Marshall's
biggest disappointments is that I never was elevated to the Court of Appeals.
The opposition to me as a woman and a "liberal" has remained. As Gabe
Pressman said when I was sworn in to the District Court: "She just made it,
because now the tide has turned."
If it had not been for Thurgood Marshall, no one would ever have heard
of Constance Baker Motley.
[Vol. 10 1: 19


My Personal Debt to Thurgood Marshall

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My Personal Debt to Thurgood Marshall

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