Cruel and Unusual: The Supreme Court and Capital Punishment

Cruel and Unusual

The Supreme Court and Capital Punishment

Michael Meltsner

Quid Pro Books

New Orleans, Louisiana

"Preferring to present the legal landscape as it was during the years described, the author has made no attempt to update changes in law and practice following publication of the first edition."

CRUEL AND UNUSUAL

Copyright © 1973, 2011 by Michael Meltsner. All rights reserved. Foreword copyright © 2011 by Evan J. Mandery.

Previously published in 1973 by Random House, Inc., New York, New York.

Published in 2011 by Quid Pro Books, at Smashwords.

Quid Pro, LLC

5860 Citrus Blvd. D-101

New Orleans, LA 70123

www.quidprobooks.com

Publisher’s Cataloging-in-Publication

Meltsner, Michael.

Cruel and unusual: the Supreme Court and capital punishment / Michael Meltsner.

p. cm.

Includes bibliographical references and index.

Series: Legal History & Biography.

ISBN: 1610270975 (ePub)

ISBN-13: 9781610270977 (ePub)

1. Capital punishment—United States. 2. United States. Supreme Court. I. Title. II. Series.

KF227.C2M4 2011

345'-2011'077 2011-3990

Excerpt from On Violence and Legitimacy, by Wilson Carey McWilliams, reprinted by permission of The Yale Law School Journal Company and Fred B. Rothman & Company from The Yale Law Journal, Vol. 79, p. 627.

Excerpt from the article Death by Degrees, by Robert Lee Massie, reprinted by permission of Esquire magazine. Copyright © 1971 by Esquire, Inc.

Cover image adapted from a photograph by Scott Langley , reproduced under license with www.deathpenaltyphoto.org and the Death Penalty Photography Project. It depicts Old Sparky, a common electric chair previously used in Texas and now on display at the Texas Prison Museum in Huntsville. Copyright by Scott Langley.

License Notes, Smashwords edition: This ebook is licensed for your personal use only. This ebook may not be resold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each person. Thank you for respecting the hard work of the author.

To Heli

But faced collectively and in action,

death changes its countenance; now

nothing seems more likely to intensify

our vitality than its proximity.

— Hannah Arendt, On Violence

Contents

Foreword, 2011

Preface, 2011

Preface

1 The Fund

2 The Court

3 The Facts of Death

4 The Strategy Unfolds

5 The Race Factor

6 Moratorium

7 Simon’s Frolic

8 Maxwell

9 Boykin

10 Haynsworth, Carswell, and Blackmun

11 Maxwell (Continued)

12 Taking Stock

13 If the Death Penalty Is to Be Retained at All

14 Powell and Rehnquist

15 Closing In

16 Cruel and Unusual

Acknowledgments

Notes

Index

About the author

FOREWORD

On May 25, 1961, President John Kennedy asked a special joint session of Congress to commit itself to landing a man on the moon by the end of the decade. It was an expensive and audacious proposal. Kennedy estimated that the project would cost between $7 and $9 billion, or almost $50 billion in current dollars. (In fact it cost three times that.) Money aside, people didn’t think America could do it. Four years after Sputnik, NASA still lagged far behind its Soviet counterpart. The first two Project Vanguard launch attempts had been spectacular, highly publicized failures. Many politicians ridiculed Kennedy’s proposal as a huge, wasteful spending scheme. Of course, on July 20, 1969, Kennedy’s supporters in the space program had the last laugh.

In early 1963, lawyers for the NAACP Legal Defense Fund advanced their own audacious proposal. On a fine spring day, Michael Meltsner and two of his LDF colleagues, Frank Heffron and Leroy Clark, sat on the lawn of Central Park, and over take-out deli sandwiches decided to end the death penalty in America. Less fanfare attended this event than did President Kennedy’s speech, but Meltsner and his colleagues’ proposal was in many respects more ambitious. Prior to Justice Arthur Goldberg’s dissent from the denial of certiorari in a case called Rudolph v. Alabama, no lawyer had seriously advanced the idea that the death penalty was unconstitutional. This would be an uphill battle.

Meltsner’s proposal embraced a vision of a race-blind and humane society, and harkened to the same aspirational spirit as did President Kennedy. And, like Kennedy, Meltsner would succeed. On June 29, 1972, the Supreme Court ruled capital punishment as then practiced unconstitutional under the Eighth Amendment. The decision would be emblazoned across the front page of The New York Times in a six-column headline, the boldest since man landed on the moon. The similarities between these ventures cannot be ignored. Even their timetables were similar. Kennedy’s vision took eight years and two months to reach fruition. Meltsner’s took almost exactly one year longer.

In these pages you will read the riveting story of how Professor Meltsner’s daring and subversive idea advanced from a picnic blanket to the highest court in the land. It is an extraordinary tale, with appropriately extraordinary characters, including Anthony Amsterdam, debatably the most important lawyer of the twentieth century, but undeniably its most colorful. It is Meltsner’s vision to go to the moon, but it is Amsterdam who gets them there by his supreme intelligence and superhuman work ethic. He is a character you will not forget. And whatever your views on capital punishment, you will share his and his colleagues’ joy, as they danced through the night following the Court’s announcement in Furman v. Georgia of the end of the death penalty.

While this book has a happy ending, the postscript is more of a mixed bag. In the three years following Furman, 35 states and the federal government reauthorized the death penalty either by making it mandatory or by creating standards to govern jury deliberations. In 1976, the issue returned to the Supreme Court, which upheld the constitutionality of the new guided-discretion statutes in Gregg v. Georgia. This was a huge setback for the abolition movement and for LDF, which represented Troy Gregg.

On the same day, however, LDF prevailed in Woodson v. North Carolina, in which the Court struck down mandatory death penalty statutes because they failed to treat defendants as individuals. The following year, LDF won again in Coker v. Georgia, ruling unconstitutional the death penalty for adult rapists. These victories became the basis for the next four decades of death penalty litigation successes. Woodson led the Supreme Court to substantially expand the right of a defendant facing execution to offer mitigating evidence on his or her own behalf. Coker led the Court to strike down the death penalty for other classes of crimes and criminals, including certain felony-murderers, juveniles, the retarded, and the insane.

Because of the unfavorable decision in Gregg, some observers have criticized LDF’s efforts. It seems impossible to question the response that defendants facing the death penalty are far better off than they would have been had LDF not become involved in 1963. But even for those less charitably inclined to LDF’s work, what a gift Cruel and Unusual is. In these pages, Meltsner lays bare every aspect of his and his colleagues’ thinking. You will read how they handicapped their chances, which arguments they thought would work (you may be surprised), and what they thought of the Supreme Court justices who would decide the crucial cases. You will come to understand what they perceived to be the basis for support for the death penalty, and, with Meltsner’s unflinching honesty, what they perceived to be the inconsistencies in their position.

It is my odd lot in life to have read almost every major book ever written about the death penalty in America. This is the best and the most important. Every serious scholar who wants to advance an argument about capital punishment in the United States – whether it is abolitionist or in favor of the death penalty, or merely a tactical assessment – cites this book. It is open and supremely accessible.

Most importantly, this book captures the true flavor of litigation. Whether one supports space exploration or not, he or she can admire the technical accomplishment of the Apollo program. So too, whatever your view may be on the death penalty, you will come to admire how hard this all was. At one point, Michael Meltsner and Tony Amsterdam resolved to impose a moratorium, to stop all executions in the United States so as to put maximum pressure on the Supreme Court. This required LDF to litigate in every forum and every state. It was like a war with a thousand fronts. As they plugged their finger in one hole, another sprung in the dike. Yet somehow, impossibly, they stopped legal executions in the United States for nine years.

It has been my special pleasure to get to know Professor Meltsner over the past several years through writing my own book on this history. You won’t be surprised after reading this memoir to know that he is a brilliant, thoughtful man with a playful mind, diverse interests, and a heart of gold. I have thought to myself countless times how thrilling it would have been to work with him. His constitutional vision was years ahead of its time. His book is timeless.

Evan J. Mandery

Associate Professor,

John Jay College of Criminal Justice

New York, New York, March 2011

PREFACE, 2011

Sometime in 1963, without thinking much about it, I started tossing papers into a desk drawer at my office. They were barely legible scribbles on the end papers of yellow legal pads, duplicate court papers, blues pages torn from my slim Smythson (of Bond Street) diaries, even an occasional aide memoire flawlessly typed by my secretary, Marcella Franklin. In the early years, the mess that grew was often forgotten, rarely inspected, but when remembered consistently thought a treasure one day to be mined.

As capital cases came to occupy a vast amount of my work life, I found reasons to explain what I was doing. One was a growing awareness of the role litigating lawyers were playing in making what during the civil rights era was plainly new law and a desire to explore just what this novel role was all about. This might sound obvious. Lawyers take the claims of clients and frame them in legal forms. These in turn become the building blocks of what judges and often legislators make into legal rules and processes. But we were not engaged in traditional litigation settling disputes between private parties over private rights but were consistently putting forward, as legal scholar Abram Chayes put it, grievances…about the operation of public policy. The results of our cases often stimulated and at times totally changed national behavior. Sometimes the results functioned more like legislation than narrow court judgments. I found myself in the middle of this emergence of a new way of thinking about law and lawyering in the first major case that was mine alone to win or foul up—an ultimately successful challenge to the Hill Burton Act, a huge federal grant program that allowed racial segregation of hospitals and patients and discrimination against black medical professionals across the South. When capital punishment cases became a major focus at LDF, I wanted to learn more about how it affected the way lawyers like us—public interest lawyers—did our work. Throwing paper in the drawer—now actually two drawers—was a way of convincing myself that despite a crazy present schedule that allowed very little time for anything but litigation, one day I’d have the raw materials I needed at hand.

And then there was the madness. I can’t think of anything more demanding of a lawyer, more stressful, and more capable of distorting a professional relationship into a twisted emotional morass than representing a single capital defendant. Yet at the high point our small group probably represented fully or in close concert with others some 300, and we also felt a certain responsibility for anyone on death row or apparently moving toward that destination. This was both easier than having one client—because it allowed a certain distance from the pain of dealing with a single condemned human being and his often heinous acts—and much rougher because we felt the lives of all those subject to the death penalty in our hands. Sending my occasional notes, copies of memos and draft briefs to the drawer was one tactic for grabbing a small sense of order and control—reminding me I could be an observer as well as participant—especially as years went by, the client and case numbers rose, and the odds against success seemingly lengthened.

When this book came out it received far more attention than I could have ever imagined. Our surprising victory in Furman v Georgia had ironically made the death penalty far more controversial than it had been for some time. Proponents of capital punishment persuaded many Americans that their personal security required it. The controversies would grow as the U.S. Supreme Court approved new death penalty statutes in 1976 and then set to regulating—tinkering, as Justice Harry Blackmun would years later unflatteringly put it—capital punishment across the board. Today we have a largely incoherent continuum of do’s and don’ts, making the practice of law in death cases as tangled and murky as sorting out the Internal Revenue Code, and the results seemingly contingent and capricious. Another result of this almost 40 years of constant litigation is a vast scholarly outpouring, much of which goes back to first principles and attempts to make better sense of Furman, its origins and implications. Hence my great pleasure at the publication of this new edition which makes the story of the legal moves and legal movers available to a new generation of readers.

Michael Meltsner

Matthews Distinguished University Professor

Northeastern University School of Law

Cambridge, Massachusetts, May 2010

Preface, 1973

Most writing about the law tends to ignore the critical role of lawyers and instead focuses attention on the judges who grant or deny legal claims, the rules of law themselves, or the clients who are hurt or helped. When the literature deals with the practice of law, the advocate is often so romanticized—the earnest professional, always at the ready—or abused—hostile, egomaniacal, greedy—as to make him unrecognizable. Although lawyers can do little without grieving clients and willing judges, their role as workers deserves more attention.

In 1961 I began a long association with the NAACP Legal Defense and Educational Fund, Inc., an organization whose staff has developed public interest advocacy to a fine art. During my nine-year tenure as a staff attorney, and after 1970 when I served as a consultant, Fund attorneys held the executioner at bay until the Supreme Court was ready and willing to abolish the death penalty. This book tells much about the operation of the Court and the law of capital punishment, but its primary purpose is to convey the craft and cunning of the lawyers who orchestrated a stunning legal victory; of the means they employed to right a deeply felt, historic wrong.

The reader is forewarned that I saw the events that are the subject of this book as both lawyer and reporter. Although I have attempted to identify and state fairly points of view at odds with my own, distortion is inevitable. Secondly, where the reader encounters speculation about the motives of judges or the inner workings of courts, he should be aware that the truth will yield, if at all, only upon the eventual publication of data that are at present confidential—memoranda, draft opinions, and correspondence. Fortunately, the death penalty draws swarms of writers and researchers. I have no doubt that historians will straighten the record where I have left it crooked.

A third difficulty complements these two. A lawyer is not at liberty to reveal certain aspects of cases in which he served as counsel. Here matters of taste mingle with the professional obligation emanating from the lawyer-client privilege of confidentiality. In this respect, I have sought to balance the reader’s interest in grit with the professional’s need for privacy. If I have erred in such calculations, my repentance will be long and painful.

Because this book is not aimed exclusively at lawyers, excerpts from Supreme Court arguments have been summarized and rephrased to permit a more ready grasp of the colloquy; quotation marks designate language used by the Justices and the lawyers appearing before them. Chapter notes are provided to assist independent inquiry, but in order to avoid crowding the text with distracting notation marks, I have not attempted to document every reference or to acknowledge each of my numerous debts to the scholarship of others.

Michael Meltsner

New York, 1973

1 The Fund

Typically, Americans have dealt with their complex feelings about capital punishment by one of those intricate compromises with which our culture manages conflict too powerful to resolve. Though the morality and effectiveness of execution was the subject of long and often bitter controversy, before the early 1960’s no one questioned the legality of the premeditated killing of human beings by government. Capital punishment was justified as a deterrent to crime, yet the killing was done infrequently and in privacy; its victims were reportedly the most depraved of criminals, but they were rarely considered so beastly as to be insane. Jurors, judges, and governors ensured that the death penalty could be imposed in only a small proportion of the cases where it was an available punishment but opinion polls, referenda, and legislative votes evidenced substantial support for retention of capital punishment as a potential sanction. Despite repeated claims of racial and economic discrimination in the selection of the men who were killed, reform of the legal procedures used in death penalty cases was of the lowest priority. Politicians avoided the issue, for abolition of capital punishment attracted no natural constituency. As any serious interest in the subject required confrontation with unpleasant details of death and dying, the {page 4 follows in other editions:} public ignored it. Those few who condemned the horrors of gassing and electrocution were treated with the indifference which a secular and pragmatic society reserved for its zealots and true believers.

No one could have predicted that within a few years gas chambers and electric chairs would be dismantled; that the Supreme Court would rule the death penalty had been administered in so random, illogical, and discriminatory a fashion that it was unconstitutional; or that the issue before the public would not be whether to heed the abolitionists but what to do about pleas that the machinery of death be restored. We still have not sorted out the reasons why these events occurred, but there can be no doubt that they grew out of a rare conjunction of vigorous men and ripe ideas. While energy and scholarship were necessary, they were not sufficient. The actors in this drama needed a structure to give their efforts shape.

Only recently have lawyers associated in numbers to bring court cases in a systematic attempt to change the character of American institutions. The ranks of defense funds, public interest law firms, community law offices, and legal centers which now readily challenge corporate and governmental conduct—from air pollution to prison conditions, selective service to exclusionary zoning—were almost empty ten years ago. Two institutions of any size made law reform the organized and planned objective of a full-time staff of attorneys.

One was the American Civil Liberties Union (ACLU), founded in 1920 by a nonpartisan group, including Clarence Darrow, Eugene V. Debs, Felix Frankfurter, and Roger Baldwin, to defend the Bill of Rights. Today the Union has 170,000 members, 48 state affiliates, and 350 local chapters, but for most of its existence it subsisted on a shoestring with only several thousand dues payers. The Union legal program was primarily defensive, aimed at beating back incursions on personal liberty rather than systematically enlarging the scope of constitutional rights. {5} ACLU’s few staff lawyers had their hands full litigating free speech and assembly cases, dealing with the havoc produced by McCarthyism, and coordinating the activities of scattered affiliates, contentious members, and volunteer attorneys; they had little time and money to spend on test cases brought to change the law.

The other organization was the Legal Defense Fund (LDF), a group of lawyers who originally banded together in order to prod Americans to repay an old debt to the black man but who ultimately found that justice was a chain inescapably linking black and white. Structured differently from the ACLU, LDF had a board of directors and a legal staff but no affiliates or members. Unlike the Civil Liberties Union, whose first mission was to protect the citizenry from an intrusive state, the Legal Defense Fund had no great fear of big government—so long as it acted in the interests of black people. By now, the civil rights story is familiar to everyone, but I must begin by retelling a chapter. There is simply no other way to appreciate why and how the death penalty came to collide with the Constitution.

In 1939 influential members of the National Association for the Advancement of Colored People had formed a corporation known formally as the NAACP Legal Defense and Educational Fund, Inc., but soon dubbed the Legal Defense Fund, the Inc. Fund, or simply the Fund, in an attempt to distinguish it from the parent NAACP. The Fund quickly obtained approval from New York State courts to provide legal assistance to the poor despite a state law prohibiting the practice of law by a corporation, but its goals were not local but national: to pursue equality for blacks by bringing test cases in the courts challenging the laws and customs on which racial segregation rested. This was a course the NAACP itself had embarked upon some years earlier, under the leadership of a brilliant Washington black lawyer and Howard Law School vice-dean, Charles Houston, and soon to be appointed Howard Law School {6} Dean (later federal judge) William H. Hastie. The proposed legal program was not severed from NAACP for reasons of policy, but rather to attract the tax-deductible donations which the Internal Revenue Code denies to organizations that devote a substantial part of their time, as did the Association, to lobbying and propaganda.

Today, the Fund is a well-known instrument of American liberalism—a professional resource available to the loosely connected efforts of those who seek to forge a powerful tool of institutional reform from the politics of race and poverty. LDF has a yearly income raised entirely from private sources of almost four million dollars; a staff of some twenty civil rights lawyers stationed in New York City; field offices in California and in four Southern states; and a network of about two hundred, mostly black, cooperating lawyers. Attached to the Fund by ties of various lengths and strengths are social scientists, educators, commercial lawyers, law professors, foundation executives, liberal politicians, corporation and government administrators, community workers, a Mexican-American legal defense fund, a law reform unit that specializes in cases involving discrimination against the poor, and a scholarship program.1

The Fund, however, like the ACLU, grew to national prominence from humble origins. In 1940, its full-time legal staff consisted of a young Maryland lawyer named Thurgood Marshall. LDF’s income of $10,000 paid Marshall’s salary as well as expenses; he worked out of the NAACP’s modest New York offices. Some twenty years later, the budget had climbed to $500,000; the full-time legal staff to five. After Southern Senators obtained an Internal Revenue Service ruling that the two organizations could not have common directors, the Fund became totally independent of the policies and leadership of the NAACP.

In 1954 it was Fund staff lawyers and their academic consultants who—capping a twenty-year effort—finally broke the iron grip of segregation on the Constitution by persuading the Supreme Court of the United States to reject {7} the separate but equal doctrine of an 1896 decision, Plessy v. Ferguson.2 The Court held that the system of dual public schools, then operated by seventeen states and the District of Columbia, violated the Due Process Clause of the Fifth Amendment and Equal Protection Clause of the Fourteenth Amendment.

Following decision of The School Desegregation Cases, known as Brown v. Board of Education,3 LDFs small New York legal staff devoted its energies to challenging in the federal courts every form of state-required, supported, or sanctioned racial discrimination: in schools, courtrooms, public facilities, employment, hospitals, housing, voting. Staff lawyers fought a war of attrition against recalcitrant Southern school officials, and defended those who were charged with crime in the early 1960’s when they took the civil rights movement to the streets: freedom riders, sit-inners, and protest marchers. Top priority went to protecting workers in Dr. Martin Luther King, Jr.’s campaigns in St. Augustine, Florida; back-country Mississippi; Montgomery, Selma and Birmingham, Alabama.

The Fund paid the legal bill for local protest movements across the South, in places like Danville, Virginia; Americus and Albany, Georgia; Jackson and Belzoni, Mississippi. LDF lawyers represented King, James Meredith, Medgar and Charles Evers, Ralph Abernathy, Stokely Carmichael, Floyd McKissick, James Foreman, Father James Edmund Groppi, James Farmer, Bob Moses, Dick Gregory, as well as hundreds of their followers. They counseled NAACP branches, the Southern Christian Leadership Conference (SCLC), the Student Non-Violent Coordinating Committee (SNCC), and the Congress of Racial Equality (CORE). Those sued by the Fund were as impressive a list—Orvil Faubus, George Wallace, Ross Barnett, Bull Conner, Lester Maddox, Jim Clark, and countless rural sheriffs, school boards, and state public officials.

During these years, few Southern lawyers would represent the civil rights movement. They were spread out like {8} frontier outposts, whose presence was the movement’s only protection against constant harassment. Although the Department of Justice dispatched more lawyers and FBI agents to the South after its jurisdiction to do so was clarified by the Civil Rights Acts of 1964, 1965, and 1968, Department intervention cannot even now be realistically expected in any but the more serious or violent racial confrontations. In the early 1960’s, the Department’s civil rights program was a sick joke told by haggard, circuit-riding attorneys and scarred civil rights workers. But even if Justice Department lawyers and FBI agents, almost all of whom were white, had been stationed in every town in the South, there still would have been an enormous gap of trust and communication between them (ultimately responsible to the Administration in power and its concept of political necessity) and the men and women whose civil rights it was their duty to protect.

Other legal organizations—the National Lawyers’ Guild, the Lawyers’ Constitutional Defense Committee, the Lawyers’ Committee for Civil Rights under Law, and the ACLU—were too poor or understaffed on the front lines to account for more than a fraction of the steadily increasing legal needs of the civil rights movement. By choice as well as necessity, all factions in the black community came to the black attorney in times of stress, but there were few available and fewer still who were able to manage significant civil rights litigation by themselves. They were in the right place at the right time, but were helpless without outside money and manpower and new ideas.

The success of the Fund’s legal program was in large measure related to its ability to connect these isolated attorneys to the lawyers and institutions which serviced the New York and Washington liberal leadership. Because the Fund linked the two, it looked in both directions: its legal staff and board of directors were interracial and national; its contributors mostly white and Northern; its clients at first Southerners, although eventually blacks from every {9} region. Due to its relationship with Southern black lawyers, LDF maintained a virtual monopoly over civil rights litigation.

At the high-water mark of civil rights activity, lawyering for the Fund was like being a member of one of those highly trained, specially assembled raider groups which are occasionally deployed in wartime but regularly portrayed in films. These were years when each day brought news of another confrontation between peaceful blacks and outraged segregationists in places that most Americans had never heard of—like Gadsden, Alabama, Orangeburg, South Carolina, and Clinton, Louisiana; when many readers greedily opened The New York Times to the race page—a concentration of civil rights stories usually located somewhere near the middle of the paper’s first section—to learn the results of the previous day’s protests much as a baseball fan turns to the sports page to check box scores and batting averages.

Practicing attorneys rarely have worked so close to the front lines. A staff lawyer might be awakened late at night, called upon to travel to a small Southern city, pass through the hostile white section, and establish himself in the often decrepit offices of a local black attorney or, when there were no such offices, in the back room of a local mortuary or the vestry of a church. He would grind out the legal papers, affidavits, complaints for injunction, and briefs of law which often, but certainly not always, sufficiently restrained Southern white communities until cooler heads—usually those that thought of new industry and image—realized that, unless their cities were to be torn apart, they must reach an accommodation with angry blacks.

Mapping legal strategy under battlefield conditions, the movement lawyer might be arrested, threatened with injury, or forced to watch his clients suffer intolerable perversions of law—phony charges, high bail, perjured testimony, excessive sentences. But following the fateful 1955 arrest of black seamstress Rosa Parks, for failure to give up her seat {10} on a Montgomery, Alabama, bus to a white man, the lawyers stood between the race-mixers, as they were then called, and the barely suppressed fury of the Southern legal system. If today many lawyers find themselves as closely identified with their clients’ causes as their cases, it is only because this Southern experience radicalized a portion of the profession. William Kunstler, for example, had a humdrum commercial practice before he went South.

Whatever glory may attach to those civil rights lawyers must be kept in perspective. Change was largely the work of courageous Southern blacks, SNCC and SCLC community workers, and their student helpers. The lawyers’ work was auxiliary. Material deprivations are unworthy of mention when one considers the existence scratched out by civil rights movement organizers. The physical dangers were small compared to those experienced by any black, especially those who challenged the status quo. Although the hours were long and the work hard, LDF lawyers did not often offer their bodies to night raiders, church burners, dynamite-mad klansmen, or hefty rural sheriffs who preyed viciously on those who had no one watching from New York.

Thurgood Marshall presided over the affairs of the Fund with a steady hand until his appointment in 1961 to the United States Court of Appeals for the Second Circuit by John F. Kennedy. A tireless traveler in the days of long-distance trains and erratic air travel, Marshall was not only a sharp reader of the judicial mind, a successful fund raiser for the cause, and a seasoned advocate who had been to the well in many a hostile Southern town, but a folk hero with a reputation that inspired many to hopes for a courtroom revolution. Marshall’s personal record of success was enviable. He argued scores of cases before the Supreme Court of the United States and won all but a handful. His appointments in 1965 as Solicitor General of the United States—the man who argues before the Supreme Court on behalf of {11} the federal government—and later as the first black Associate Justice of the Court were surely fitting. Marshall was as familiar with the mechanics of constitutional litigation as most lawyers were with drawing up a deed or a will.

The Fund’s success in turning around the constitutional law of race relations spoke of more than Marshall’s legendary courtroom accomplishments: influential friends, skillful money raising, and a talented staff made possible his personal recognition. When he selected as his successor Jack Greenberg, a white man who had received his law degree from Columbia Law School, Greenberg inherited not only a litigation program regularly blessed by the Supreme Court, but surprising power, good will, and friendships.

On the surface, the two men were very different. The older man was long-limbed, the younger compact. Marshall usually was relaxed, though his temper could sting like fire; Greenberg was a bundle of energy. Marshall spun yarns in a folksy drawl that suggested the amiable country boy, though he was raised in Baltimore. Greenberg was more the abrupt, businesslike, city boy. But both shared a twenty-four-hour-a-day passion for the Fund’s work. They were single-minded, tough leaders who knew how