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Supreme Court justice and civil rights advocate

The Equality Speech

The following is a speech Marshall gave at the instillation of Wiley Branton to be dean of Howard Law School. Marshall and Branton had been friends for years, since the two had worked side-by-side on the integration of Central High in Little Rock during the late 1950s. Much of the speech shows the humorous side of Justice Marshall and centers on the history of Howard, which Marshall attended for his law degree in the 1930s. However, the address made national news because of Marshall’s remarks regarding whether or not black Americans had achieved equality. Unlike earlier speeches, where Marshall stressed hard work and diligence, there are undertones of resignation to this speech, and warning against the “traps” that are still being laid for black Americans.

Speech of
Associate Justice, The United States
Supreme Court

Saturday, November 18, 1978

Mr. Chief Justice, Mr. President, My friends… It is a great day. We are all here because it is a great day. I am particularly happy that people like the Chief Justice of the United States is here; and other Chief Judges. (Applause). I want to confess, I begged him not to come; because I know how much work he has to do. By statute, he has jurisdiction over I don’t know how many different outfits in this country, which he has to go to. And then he has to preside over some five hundred Federal Judges, each of whom is an individual prima donna. (Laughter ). And with all of that, he shouldn’t find time to come something like this. But, he insisted. To him, it was that important; and to me that truly demonstrates how important it is.

I would like to start off by having a couple of true stories on the record. I do not have a written speech. I have gotten away from written speeches since I heard about that legislator who had a speech committee in his off ice…and they would write up these speeches for him. He wouldn’t even look at them before he delivered them. He just read them off. And this day he said, “Look! Next Monday night I am speaking for Senator Johnson; and I want a speech, twenty minutes (long); and I want it on energy.” And they said, “What are…?” And he said, “That’s it. Just go do it.” And they did. And on Monday they gave him the speech and he went out, got in his car, got in the place, got there, got in another car, went there. When he was called on to speak, he opened up his speech, and on the first page he went on telling stories like this…. ( Laughter from the audience). Except mine is true. (Laughter). Then he went on talking in general about the energy problem. And then he said, ‘he has an airtight program for taking care of the entire energy program. It was very elaborate; and it was set up in five different phases, all five of which, I shall set forth before you tonight.’ And he turned over the page and to his utter surprise, he saw “Now, you sucker, you are on your own.” (Laughter and Applause). I have given up that idea …. (Laughter).

…When I decided to come. (Laughter) … I am not too much in the line of notes. But the one that really is what I am going to talk about today is a Las Vegas story.

This guy went out from California to Las Vegas and did what all others do. He lost his money. (Laughter). All of it including his fare home. And he was commiserating with himself; and as sometimes happens, he had to go. And when he got to the toilet room (bathroom)…. (Laughter), he found out, that they had not nickel or dime: they had quarter ones (Laughter). And he didn’t have a nickel. So he was in pretty bad shape. (Laughter). And just then a gentleman came by and he told the gentleman his problem … The guy said, “I will give you a quarter.” And the guy said, “Well look, you don’t know me…. I don’t care if you give it back to me or not. You are no problem. Here’s a quarter.” He took the quarter and went in the room there, and just as he was about to put the quarter in the slot to open the door, the door had been left open for somebody. So he put the quarter in his pocket. He went on in; and when he finished, he went upstairs. A quarter wasn’t going to get him back to Los Angeles. A quarter wasn’t even going to feed him. So, he put the quarter in the slot machine. And it wouldn’t be any story if he didn’t hit the jackpot. ( Laughter). Then he hit the bigger jackpot… and he went to the crap table; he went to the roulette table. He ended up with about ten or fifteen thousand dollars worth.

He went back to Los Angeles invested in the right stock. He got the right business together. And in pretty short order, about fifteen years, he became the second wealthiest man in the world. And on television, they asked him about it; and he said he would like to tell his story. And he told the story. And he said, “I am so indebted to that benefactor of mine. That man who made all of this possible. And if he comes forth and proves it; that he was the man. I will give him half of my wealth in cash. (Laughter). So a man came forth…. They had all the elaborate … private detective investigation; and sure enough, “That was the man.” …The guy said, “Well look. Are you sure you are the one I am looking for?” He said, “Why certainly.” He said, “Who are you?” He said, “I am the man that gave you that quarter.” He said, “Heck, I’m not looking for him. I am looking for the man who left the door opened.” (Applause and Laughter). Because you see, if he hadn’t left the door open, I would have had to put the quarter in the slot.” (Laughter).

I figure at a stage I like this in our development of our law school, we have to be sure we know just what we are after.

Why do we have occasions like this? Well, I will tell you why. Everything in any question of education depends on the reputation of the school. And a part of the reputation of the school, is the reputation of the dean. And being so old as I am, you almost scared me to death, Wiley, talking about the oldest graduate was here. (Laughter).

…In order to find out just where we stand, and to be in a room like this, and on a campus I like this, I had to go back…. But you know it’s an awful long way from 25th Street; which incidentally, I went by not too long ago. These of you that hadn’t been by, it’s gone. They have torn it down. It was a marvelous place when it was there.

But today, you know, we have reached the place where people say, “We’ve come a long way.” But so (have) other people come a long way. And so have other schools come a long way. Has the gap been getting smaller? It’s getting bigger. Everybody’s been doing better.

And so, as you took at the law school today, and that’s what you have to look at. You look back, and people say we are better off today. Better than what?

You know, I used to be amazed at people who would say that, “The poorest Negro kid in the South was better off than the kid in South Africa.” So what! We are not in South Africa. (Applause). We are here. ( Applause). “You ought to go around the country and show yourself to Negroes; and give them inspiration.” “For what? These Negro kids are not fools. They know to tell them there is a possibility that someday you’ll have a chance to be the o-n-I-y Negro on the Supreme Court, those odds aren’t too good.” (Applause).;

When I do get around the country like recently, I have been to places like … unfortunately for funerals; like New Orleans, Houston, Dallas, etc. When I get out and talk with the people in the street, I still get the same problems. “You know, like years ago, you told us things were going to get better. But they are not a darn bit better for me. I am still having trouble getting to work. I have trouble eating.” And guess what I am getting now? “…You not only told me that; you told my father that. And he’s no better off; and neither am 1. And can you tell me my children will be better off.” Well, all I am trying to tell you…there’s a lot more to be done. Now, think of those good old days. We started at Howard with Charlie Houston as dean…. (Charles H. Houston, Dean of Howard University Law School, 1930-1935). …The school had several things that they did not have would be more important. They did not have a reputation, and they did not have any accreditation; and they did not have anything, ‘it looked to me.’

Charlie Houston took over and in two or three years got full accreditation: American Bar Association, Association of American Law School, etc. He did it the hard way.

And for any students that might be interested, for these of you who came to this school later, and had complaints, ‘you should have been there when I was there.’

We named Charlie the only repeatable names I could give him as ‘Iron Shoes and Cement Pants.’ (Laughter). We had a lot of others but… (Laughter).

He even installed the cutback system that would keep you on the books all the time. And that was that, a professor could take five points off your mark for no reason at all. So the only way you could really make it is to get around 95….

He gave an examination in Evidence in our second year that started at nine o’clock in the morning and ended at five in the afternoon. One subject.

In our first year he told us, “Look at the man on your right, took at the man on your left, and at this time next year, two of you won’t be here.” (Laughter)….

I know my class started, as I remember, it was around thirty; and it ended up with six…. He brought in people not on the faculty; but who were coming by Washington. And because of his reputation and background he could get them.

And the people I would list. Every time they came to Washington, they would come by; and we would close up the school and listen to them, in our moot courtroom, which held about fifteen.

For example, a man by the name of Roscoe Pound who just happened to be Dean of Harvard Law School, would talk and lecture to us on the Common Law.

And it just so happened that at that time he was the greatest authority in the world…. …Then we had Bill Lewis, a Negro lawyer from Boston, Massachusetts who had the distinction of being Assistant Attorney General, a little while back, under Theodore Roosevelt. He would tell us about how to try a lawsuit; and how to argue with the Judges; because he was a master of it. And we would run to the Supreme Court and hear him argue.

Then Garfield Hayes would drop by from the American Civil Liberties Union. The first time, I was very impressed with the fact, he was en route from Birmingham, Alabama where he had defended a poor Negro. He was then en route to Boston, Massachusetts to defend the Ku Klux Klan…. He explained to me about the constitution being colorblind.

Then you had people like Clarence Darrow who told us the importance of sociology and other studies rather than law – which he considered to be unimportant. As witness one time, he was trying a case in North Carolina. A Negro beating up a white man. And his whole argument…to the jury was (he had never touched the facts of the case), …that this was a waste of time for him to stand up there and argue to this all white Southern prejudiced jury; that no way in the world they could give this Negro a chance. They just couldn’t do it because they were too prejudiced. And he argued that for two and a half-hours; and the jury went out and came back and proved to him that they weren’t prejudiced. (Laughter ). And they turned the man loose. (Laughter).

We had Vaughn S. Cooke, a great expert on Conflict Law. People like that because the emphasis was not theory. The emphasis in this school was on practice. How to get it done.

Harvard was training people to join big Wall Street firms. Howard was teaching lawyers to go out and go in court. Charlie’s phrase was Social Engineer. To be a part of the community. And have the lawyer to take over the leadership in the community.

And we used to hold fort in our little library down there, after school, at night. And start out on research problems sometimes sponsored by him and sometimes on our own.

Indeed, I remember one time, one night. One guy, I believe it was Oliver Hill. …He got to work on something, we all joined in. And we found out that in codifying the Code of the District of Columbia, they had just left out the Civil Rights Statute. So, since it didn’t apply to anybody but us, they left it out. We eventually got through in court and got that straightened out. And we got to work on segregation. What are we going to do about that?

I for one was very interested in it because I couldn’t go to the University of Maryland. I had to ride the train everyday, twice a day. Back and forth. I didn’t like that….

Well, it ended up Bill Hastie (William H. Hastie, Dean of Howard University Law School, 19391946), went down to North Carolina and filed our first University case which we lost on a technicality. But Hastie laid the groundwork for the future.

Then we had a criminal case dealing with a man named Crawford. We did more litigating, I guess, than any school I ever did.

But I emphasize that it was aimed at working in the community. The other thing that Charlie beat in our heads… I think that is very important. He says, “You know when a doctor makes a mistake, he buries his mistake. When a lawyer makes a mistake, he makes it in front of God and everybody else.” (Laughter).

When you get in the courtroom you can’t say please Mr. Court have mercy on me because I am a Negro. You are in competition with a welltrained white lawyer and you better be at least as good as he, and if you expect to win, you better be better. (Applause). If I give you five cases to read overnight, you read eight. And when I say eight, you read ten. You go that step further; and you might make it. And then you had all these other people, Charles H. Houston, William H. Hastie, George E.C. Hayes, Leon A. Ransom, Edward P. Lovett, James Nabrit, Spottswood W. Robinson, Ill.

Then later you had Robert L. Carter, Constance Baker Motley, A.T. Walden in Atlanta, Arthur Shores in Birmingham, A.P. Tureaud, Sr., in New Orleans.

Then on the other side you had a very good group of professors from other schools. Charles Black…. and others.

Then we had a certain wild guy over there in Arkansas. (Laughter). I would just like to mention it at this point, because it is very important, I think, to realize that in those days, “it was rough.” And I think Wiley (Wiley A. Branton, Dean of Howard University School of Law) is an example of one part of it. I got the credit mostly. But I would go to those places, and I would get out on the fastest damn thing that moved. (Laughter). I couldn’t wait for the plane. And then I couldn’t wait for the jet. (Laughter). I am talking about … He stayed there. He didn’t go. He stayed right there. He had not once, but crosses were burned on his lawn. He had everything they could try. He laughed at them. He stayed there, and made them take it and like it. I mentioned that because it seems to me, that while we had this whole movement going along, we were beginning to touch it.

Then we had those Damon (Damon J. Keith, Judge, U.S. Court of Appeals for the Sixth Circuit) was talking about. Those dry runs. We would have both of the Lawyers who were going to argue tomorrow’s case before the Supreme Court, to come before a panel of judges in our old moot courtroom, when we were in the library down there on the campus. This went on all during the 1940’s. The faculty members who set as members of the Court were deliberately urged to be rougher and excuse me, “nastier than the judges would be.” And you know, it worked well; I because once you got through with that slugging match with them, you didn’t worry about anything the next day. It was like going to an ice cream party … because the members of the court were so polite and nice to you. Well, I keep reminding you that this was done at Howard; all of it. How much it was necessary to the success of those cases, is left to anybody. And finally on that point, I want you to know, that starting with that research in the library of finding the Civil Rights Statute, through oil these cases in the Supreme Court, clean up to the present time, in the Bakke case, I will tell anybody, and I will dispute anybody who does not agree, that the brief filed by Herb Reid (Herbert 0. Reid, Sr., Charles Hamilton Houston, Distinguish Professor of Law at Howard University) was one of the best briefs. (Standing ovation.) He didn’t pay me a nickel for it. (Laughter).

Now, you know, Wiley integrated the University of Arkansas. He went back down in there; and cases that were mentioned, I know several other criminal cases that were just unbelievable. He went from there to Atlanta; and up here to Washington. I hate to get down into the gutter; but “Wiley” stands for, “brains and guts.” I know both of them; I have seen him in action. It seems to me, that what are we going to do now, other than, all of us to give our blessings to what I consider a perfect marriage; Branton and the Howard Law School. (Applause).

That’s not enough because we have got to look to the future. They are still laying traps for us.

I have just requested a book which I heard about. Believe it or not, somebody found out the Klan (Ku Klux Klan) is still around. I could have told them that. (Laughter). The Klan never died. They just stopped wearing the sheets, because the sheets cost too much. (Laughter). When I say they, I think we all know who they would include. We have them in every phase of American life. And as we dedicate this courtroom, as we launch Wiley on his road, we just have to continue that basic theory of practice; and not just theory. With these clinics that have been set up, you note we can give the poor people in the ghettoes for peanuts better legal protection than the millionaires get. If, we could just get them to bring their legal problems to the lawyer, before they sign them. That’s how to stay out of trouble. And that can be done with clinics. And I think this law school I has to insist on that. And here I have a note which says all of this has to be done and it has to be done together.

There are people that tell us today, and there are movements that tell us, tell Negroes, “Take it easy man. You made it. No more to worry about. Everything is easy.” Again, I remind you about what Charlie Houston said, “You have got to be better, boy. You better move better.”

Be careful of these people who say, “You have made it. Take it easy; you don’t need any more help.” …I would like to read … for these people who tell you, ‘to take it easy. Don’t worry, etc.’

“The great enemy of truth very often is not the lie; deliberate, contrived and dishonest; but the myth persistent, persuasive, and unrealistic.”
John F. Kennedy;

Be aware of that myth, that everything is going to be all right. Don’t give in. I add that, because it seems to me, that what we need to do today is to refocus. Back in the 30’s and 40’s, we could go no place but to court. We knew then, the court was not the final solution. Many of us knew the final solution would have to be politics, if for no other reason, politics is cheaper than lawsuits. So now we have both. We have our legal arm, and we have our political arm. Let’s use them both. And don’t listen to this myth that it can be solved by either or that it has already been solved. Take it from me, it has not been solved.

I will conclude if I may with a conclusion from another great American. The late Chief Justice Warren in his one book. And this is the conclusion of his book. And more important and as we move more in what I consider to be ‘his new phase. He says,

“Those who won our independence believed that the greatest menace to freedom is an inert people. That, public discussion is a political duty. That this should be a fundamental principle of the American government. They eschewed silence coerced by law;

And then again, Chief Justice Warren,

“No., the democratic way of life is not easy. It conveys great privileges with constant vigilance needed to preserve them. This vigilance must be maintained by those responsible for the government. And in our country those responsible are, we the people, no one else. Responsible citizenship is therefore the … anchor of our republic. With it we can withstand the storm. Without it, we are helplessly at sea;

It is beyond question…

…Benjamin Franklin had it in mind when he said;

“A republic if you can keep it.”

To me, that means much. It’s not a republic if we keep it. With me, “It’s a democracy, if we can keep it. And in order to keep it, you can’t stand still. You must move, and if you don’t move, they will run over you.”

This law school has been in the front. It’s been the bellwether. It’s been the fulcrum of pressure.

In driving on, I am just as certain as I have ever been in my life, that under the leadership of Wiley Branton, it will not only continue: it will broaden, increase and continue to be the bulwark that we all can be proud of.

This is a great day. We are entering a great era. And let’s do as many of us did back home. You know some people have been going home with the Roots business and all that. (Laughter). I have been going over these since the late 50’s. When Kenya got its independence in 1963, and to see all those hundreds of thousands of people. When freedom was declared, …in unison yelled, “Harambee.” (Meaning) “Pull Together.”

We could, and with Wiley and this school, we will continue to do it. Anything I can do to help, I will do, ‘that is except raise money.’ Because there are a couple of committees of the Judiciary that say, “No.” (Standing Ovation).

Howard University School of Law
Denise V. Rolark, Editor inChief

Lee Roy Clemons, CR/SR
Stenographic Reporter