Certain stories about lawyers excite us, stories that go beyond
technical brilliance and reach into the stuff out of which human
drama emerges. The following story moves the ideal of moral discourse
outside the law office and courtroom and into the community.
Richard Kluger, Simple Justice 295-304, 366 (1975):
Julius Waties Waring had been the lean, long-legged, long-faced
embodiment of Charleston's aristocratic faith for the first sixty-one
years of his not particularly eventful life. He breathed establishment
values from every pore. His lineage in the stately little port
city ran back through at least eight generations of Episcopalians
to the seventeenth century, when Charleston was a prosperous,
colorful clearinghouse for the whole lower South. Among his ancestors,
he said, were many "fine, decent slaveholders" including
his father, a railroad-company man, and uncles who fought for
the Confederacy. Born in 1880, Waring was nursed through childhood
by an ex-slave toward whom the family was kindly disposed. "Most
of the Negroes I knew were ex-slaves," he would recall toward
the end of his life, "and you loved them and were good to
them. We didn't give them any rights, but they never asked for
any rights, and I didn't question it. I was raised in the atmosphere
that we ought to take care of these people."
The ascent of Negro-baiting Ben Tillman during Waties Waring's
formative years had poisoned the murky racial atmosphere of South
Carolina. It also caused the sharp shift of power from Charleston,
which had never really recovered from the Civil War, and the
sleepy low country it commanded to the increasingly industrialized
upcountry in the western sector of the state. Its former luster
now threadbare, its gentility strained but still recognizable,
the Charleston in which Waring came of age lived largely--as
its residents themselves would quip -- on rice and recollections.
Proud of its role in the making of the Confederacy, it was neither
addled by its secessionist ambitions of yore nor seriously infected
by the racism that had swept the state beginning with the restoration
of white supremacy after the 1877 Compromise. Always a cosmopolitan
enclave amid the xenophobic tropical provinces of the nation,
the city seemed a singularly comforting womb to young Waties
Waring, who showed no eagerness to discover the world beyond
it. He went to a private school there and graduated from the
College of Charleston, where the top loftiest of the fraternities
reigned over the social life, a reproduction in miniature of
the exclusivism that shaped the thinking of the adult community.
"Pretty nice if you belong to it," Waring would say
in his seventy-sixth year, "but it's really a terrible social
system." Charleston never bothered its pretty little head
brooding on such matters. "It has a charm, a fashion,"
Waring noted, "but it doesn't think much, and it doesn't
think outside of its pattern."
He read law and clerked with upper-crust firms on the Broad
Street main stem, got a nice little practice going, made the
right political connections, and found himself named Assistant
United States Attorney for the Eastern District of South Carolina
by the Wilson administration. His superior, preferring the salary
and fame to the work, stayed home in Columbia, the state capital,
and gave Waring a free hand to run the office as he chose. Soon
he was a big man politically as well as socially in Charleston,
and on the strength of his unexceptionable record as a government
lawyer, he was able to build a private practice in the Twenties
around corporate and criminal matters. But he never amassed a
great deal of money from his lawyering, perhaps because he lacked
drive, perhaps because he was generally judged to be an amiable,
competent, but basically rather plodding lawyer.
More deeply than ever now, he settled into the magnolia-scented
society life of cliquish Charleston. He married a hometown belle
of Episcopalian upbringing no less impeccable than his own. He
moved into one of the lovely old landmark homes south of Broad
Street in the most picturesque section of town--a two-story,
gray-white house with a distinctive fan-shaped window over the
big arched front doorway at 61 Meeting Street, just a block and
a half from the municipal crossroads of Broad and Meeting. Four
blocks to the south was the Battery with its promenade overlooking
the historic harbor. There was no more convenient and stylish
address in Charleston, though there were many more imposing homes.
He was a member in good standing of the Charleston Light Dragoons,
a sort of silver-spoon American Legion that traced its origins
back to well before the American Revolution, and the yet more
elitist St. Cecilia Society, whose principal function was to
give one or at most two formal, ultra-exclusive cotillions a
year at the Hibernian Hall a few doors from the Waring home on
Meeting. The St. Cecilia bashes, to which admission was by hand-delivered
engraved invitation only, featured dance "cards" in
the old fluttering-fan style, a strict prohibition on smoking
and divorced persons, and breakfast by dawn's pearly light.
In the Thirties, Waties Waring dirtied his hands just a bit
in municipal politics and became the corporation counsel -- that
is, the city attorney -- for Charleston under eight-year Mayor
Burnet Rhett Maybank, who turned the county Democratic Party
into a Tammany Hall with palmettos out front. Maybank's ambitions
were big and his reach for power undisguised. He had inherited
a nearly bankrupt city when he came to Charleston city hall,
and Waring pushed for the adoption of scrip to tide the treasury
over the crisis; the debt-moratorium scheme worked. Soon the
city's credit rating was fully restored, and both Maybank and
Waring were well regarded. Waring became a fixture at all-white
Democratic Party functions and once served as campaign manager
for veteran United States Senator "Cotton Ed" Smith,
whose racist rhetoric made Klan kleagles sound like Boy Scouts
by comparison. A party regular, a solid citizen, and authentic
aristocrat as such things were measured in Charleston, Waties
Waring got his reward in 1941 when Senator Smith and his new
junior colleague in Washington, Burnet Maybank, agreed that Waring
should fill the vacancy as United States judge for the Eastern
District of South Carolina. He was sixty-one. His chambers and
courtroom were just a few hundred yards from his home. He seemed
about as safe and unthreatening a figure as the white- supremacist
county-courthouse rings that ruled the state could have hoped
for in that position of potential federal encroachment upon their
sovereignty.
Waring's conversion came gradually. It began with a peonage
case. Many South Carolina farmers winked at the practice of detaining
Negroes against their will by force or dire threats, to work
for nothing or close to it. Sometimes the colored man would be
held just overnight or perhaps a few days; sometimes it would
be for weeks or even months. The practice went on unchecked because
white man's justice paid it little heed. If occasionally a case
came to court, the worst that might happen was that the perpetrator
was ordered to cease and desist. But when a case came before
him in the United Stated District Court in Charleston, Waties
Waring did not let it pass. A young Negro had been held in a
cabin overnight against his will, and Waring ordered his tormentor
sent to jail for violating the Thirteenth Amendment. There was
more shock than rumbling as word fanned out across the low country
that the abusive practice was no longer being countenanced.
Then Waring started changing a few things in his own courtroom.
The list of potential jurors who might be seated in his court
had traditionally carried the designation "(c)" beside
the names of the two or three colored people who were generally
put on it in token obedience to the due-process clause. Thus
distinguished, they were easily avoided by the clerks and lawyers
selecting the juries. Waring ended the practice, and Negroes
occasionally began to appear on the federal jury in Charleston.
By custom, the public seating area of his courtroom had been
segregated. Waring ordered that ended. He named a Negro, John
Fleming, as his court bailiff--John the Bailiff, as he quickly
became known in black legal circles across the country, for there
were few black court officers anywhere in America and probably
none elsewhere in the South.
In 1945, Waties Waring's conversion quickened. In May, he
handed down a decision favoring a black teacher from Columbia
who had sued to win a salary equal to what white teachers received.
The legal issue in the case had been resolved in the Alston decision
five years earlier, but South Carolina was not precisely falling
over itself to improve the condition of its black residents.
The salary case had fed Judge Waring's growing discomfort with
the racial situation "because every time you looked into
one of these things, the less reason you [could] see for resistance
to what we commonly call the American creed of equality of all
citizens of this country. . . . The whole thing worried me a
great deal, and I knew the thing was coming in my state. The
question arose as to whether I should dodge it or meet."
The question was answered by another decision Waring made
the month after the salary case. He divorced his wife of thirty-two
years and married a twice- previously-wed native of Detroit two
weeks later. The first Mrs. Waring moved to New York. The second
Mrs. Waring moved right into 61 Meeting Street. Polite Charleston
was stunned. So unthinkable was the idea of shedding marriage
partners that South Carolina had no divorce law at the time;
Mrs. Waring had gone to Florida to obtain the decree. Outside
Charleston, Judge Waring was still cordially received, but at
home the doors began to close on him and his new beloved. There
would be no more St. Cecilia's balls for the eminent judge. And
it was just as well, the Warings decided, because the social
climate of the town was suffocating and bigoted. They began to
read--books like Myrdal's An American Dilemma and Cash's The
Mind of the South. For sixty-five years, Waties Waring had known
all these things he read now, but the sight of them in print
proved an overwhelming indictment of the life he had so enjoyed
and the ways of injustice he had unblinkingly condoned. He condoned
them no longer. He started to travel more, sitting in federal
courts with overcrowded dockets in places as far away as New
York and California. His rage grew.
In 1946, he presided in a case that chilled the nation. Isaac
Woodward, a black soldier returning from three years in the Army,
including fifteen months fighting in the jungles of the South
Pacific, had been discharged at a camp in Georgia and boarded
a bus for reunion with his North Carolina family. En route, Woodward
asked the bus driver to stop so he might go to the toilet. Returning
to the bus, the war veteran was cursed out for taking too long;
the bus driver summoned the police chief of the small South Carolina
town and had Woodward arrested for allegedly being drunk and
disorderly. Woodward vehemently denied the charges, but the constable
took him off anyway and in an alley beat him with a blackjack
and drove the end of his nightstick into the Negro's eyes. Woodward
was kept in jail overnight without medical treatment. In the
morning, he could not see. They let him wash up and paraded him
before the local judge, who promptly found him guilty and fined
him fifty dollars. By the time Woodward reached the Army hospital
in Spartanburg, both his corneas were found to have been damaged
beyond repair.
When the blind ex-soldier told his story in the federal court
presided over by Waring in Columbia, the police official denied
it. Woodward had grabbed his gun, he said, and threatened to
kill him, so he had swung his nightstick mightily at the Negro
to subdue him. The jury nodded. The United States Attorney charged
with arguing the case against the law-enforcement official had
failed to obtain any witnesses to Woodward's conduct or condition
on the bus other than the bus driver -- a remarkable dereliction
of duty, Waring believed. "I was shocked by the hypocrisy
of my government . . . in submitting that disgraceful case,"
he said privately afterward. When the defense lawyer began to
utter racist remarks, Waring shut him off at once. But the jury
needed no goading. The police chief was promptly found not guilty.
The courtroom cheered.
Isaac Woodward's case was publicized throughout America by
the NAACP. It was one of the cases of brutality that Walter White
called to the attention of Harry Truman and thereby helped spur
the President's appeal for sweeping civil-rights reforms. For
Judge Waties Waring, the Woodward case moved his philosophical
conversion to the point of no return. In 1947, he collided head-on
with the prevailing racial attitudes of his native place.
There were town racial cases, and he heard them back to back.
The first was relatively unexplosive. A Negro represented by
the NAACP had sued the state because no public college offered
him a law degree. The Sweatt case was still at the trial stage
in Texas, and there had been no Supreme Court decision on the
question since Gaines in 1938. Waring ruled, in Wrighten v. Board
of Trustees of University of South Carolina, that the state had
either to offer the plaintiff a decent law education at the State
College for Negroes at Orangeburg or to admit him to the white
law school or, if it did neither, to close down the white law
school. The state chose the first alternative, claiming it would
allocate $200,000 to open a law program for blacks at Orangeburg.
[In fact, all the state did in that era was to establish a single
professorship of law, not a program of legal education.]
The Wrighten decision was quietly received. It affected, after
all, only a handful of colored. But the decision Waring delivered
right after it raised the roof. Negroes in South Carolina had
been effectively disenfranchised for more than half a century.
A key tool in that denial of basic American rights was the white
primary election. When Thurgood Marshall prevailed before the
Supreme Court in Smith v. Allwright, striking down the Texas
white primary in 1944, South Carolina was jolted and then defiant.
Governor (later Senator) Olin Johnston summoned a special session
of the state legislature, which thought it could foil the intent
of the Court's holding by carefully stripping away every law
that had anything to do with primary elections. The South Carolina
lawmakers repealed some 15 statutes on the theory that no court
could thereafter hold that a primary election was "state
action" if there were no state laws on the books that said
a word about primaries. But aside from the massive erasure, nothing
changed. The Democrats said they were a private club, and they
went right on holding their primaries as they had before. Only
those free, white, and over twenty-one were permitted to vote
in the primary. George Elmore, a colored resident of Columbia,
challenged the new allegedly state- free primary in the United
States District Court.
Thurgood Marshall argued Elmore's case. Waties Waring did
not take much convincing. In his decision, he invoked Smith v.
Allwright as governing and struck down South Carolina's transparent
white-primary subterfuge, declaring:
It is time for South Carolina to rejoin the Union. It is time
to fall in step with the other states and to adopt the American
way of conducting elections. . . . Racial distinctions cannot
exist in the machinery that selects the officers and lawmakers
of the United States.
Furious white South Carolinians, led by the venomously hissing
Charleston crowd that Waties Waring had run with all his life,
said of their turncoat judge, "He's got a union he should
rejoin" -- meaning, of course, his first wife. It did not
matter that Waring's decision to open the primary to Negroes
was firmly upheld by the Court of Appeals in a ringing opinion
by none other than North Carolina's John J. Parker, who had lost
his place on the Supreme Court seventeen years earlier for a
campaign speech he had once made urging that the Negro be kept
out of politics. It did not matter that the Supreme Court of
the United States declined to hear an appeal of the Elmore decision.
All South Carolina knew was that J. Waties Waring was now "the
guy who let the nigger vote."
The state's Democrats convened in 1948 in a last-gasp resistance
effort. It would be all right for Negroes to vote in the primary,
the convention decided, provided each of them first took the
following oath:
I . . .solemnly swear that I believe in and will support the
principles of the Democratic Party of South Carolina, and that
I believe in and will support the social and educational separation
of the races.
I further solemnly swear that I believe in the principles of
States' Rights, and that I am opposed to the proposed so-called
FEPC law.
It would be democracy by thought control.
The whole mess landed back in Waring's lap in mid-1948 as
the registration deadline neared. He not only did not back off
from his original decision indicting his state as a relic of
the Dark Ages; he lashed out now with all the vigor and outrage
at his command. The majesty of the federal judiciary was not
going to be spurned, he said. In Elmore, "the law is clearly
and succinctly stated and anyone who can read the English language
must have known what it meant. . . . It's a disgrace and a shame
that you have to come into court and ask a judge to tell you
to be American citizens. The law of the land is supposed to be
obeyed." And then, leveling a finger at the Democratic county
chairmen who had been named co- defendants in the case, Waring
told them that the oath they proposed was illegal and that they
were to register qualified Negroes just as they registered whites
and if they did not do that, he would hold them personally in
contempt of court and punish them by fine or imprisonment. He
would sit in his courtroom all day on primary day, he added,
and make good his threat at once.
Thirty thousand Negroes voted that primary day. It was the
best news black South Carolina had had since Reconstruction.
"I've done lots of things in life that were careless and
poor and dull and bad," Judge Waring said eight years later,
"but I had one opportunity, and I think it was a great stroke
of fortune that came down my alley."
Other things came down his alley, too, now. Like vicious mail.
Like obscene phone calls. Like threats of impeachment proceedings
by the South Carolina congressional delegation. The lower house
of the state legislature actually resolved to buy the Waring's
one-way tickets out of the state to any destination of their
choice--preferably Hell. On the street, the whites cut him dead.
Youngsters taunted his wife, and grownups would occasionally
block her passage. But pretty, exuberant Elizabeth Avey Waring
would not relent. She went down to the YMCA and told Charleston
Negroes that Southern whites were "sick, confused, decadent
people . . . full of pride and complacency, introverted, morally
weak and low. . . ." She gave out copies of her remarks
to anyone who wanted them, and requests came in from all over
the nation. The Warings began to exchange home visits with black
residents of Charleston -- a notion utterly alien and detestable
to the St. Cecilia's crowd -- and Mrs. Waring was featured on
the nationally televised interview program Meet the Press, where
she explained her views and defended her husband's judicial opinions.
Judge Waring had crossed his Rubicon on a skyrocket.
Someone planted a flaming cross on the lawn in front of the
Waring's house one evening when they were away. In early October
of 1950, though, they were home playing canasta in their living
room when three pistol shots rang through the night, a large
lump of concrete crashed through the front window just above
the Warings' heads, and another hit the front door. "You
can expect this sort of thing in South Carolina," the judge
told the wire services. "It's a state dominated by the Klan
-- a crime-committing Klan that goes unpunished." And he
flayed the Dixiecrat movement, headed by South Carolina's Governor
Thurmond, as "the dying gasp of white supremacy and slavocracy.
. . . South Carolina and aristocratic Charleston show savage
sentiments against not only the American creed but the creed
of true religion."
Old-line Charlestonians shook their heads in regret. The assault
on the judge's home was reprehensible, but he had been asking
for it for some years now. Spurned socially for divorcing his
first wife, they said, the judge had seized upon the racial issue
to gain his revenge on the community. Such nuances were lost
out in the rural areas. Up in Bennettsville, the county seat
of outlying Marlboro County, the Pee Dee Advocate editorialized:
"We see by the papers that somebody in Charleston hurled
a few chunks of concrete through a window and door at the residence
of federal Judge J. Waties Waring. Unfortunately, the judge was
not hit."
It was a month after the night attack on his residence that
the NAACP came into Judge Waring's courtroom to argue the first
public-school segregation case. Thurgood Marshall knew he had
a friend on the bench and had shaped his pleadings with that
friendliness in mind. Waring, however partisan he had become
on the racial question, was still more judge than advocate, and
he did not let Marshall forget it as the pre-trial hearing on
November 17, 1950.
The judge knew all about life in Clarendon County. He had
driven through it innumerable times en route to Columbia or up
to Florence, where he held court a couple of days a year. "Rather
poor farming land," Waring called it. "A very backward
county, one of the most backward counties of the state. It's
ruled by a small white minority very limited in their viewpoint
and education." The county had "a large population
of Negroes, most of whom are dreadfully ignorant and poor, with
very little opportunities. . . . You could drive through Clarendon
County, as I often did. . . , and see these awful-looking little
wooden shacks in the country, that were the Negro schools. The
white schools were nothing to be really enthusiastic about, but
they were fairly respectable-looking. In the towns, they were
generally of brick and some of them had chimneys, running water,
and things of that kind. The Negro schools were just tumbledown,
dirty shacks with horrible outdoor toilet facilities.
To end "doghouse education" in Clarendon County,
Thurgood Marshall had a choice to make. He could bring the case
of Harry Briggs and the other harassed blacks of Clarendon County
before Waring in the United States District Court on the ground
that R.W. Elliott, the sawmill owner who was chairman of the
Board of Trustees of School District No. 22, and his adamantly
white-supremacist associates had failed to provide adequate school
facilities for the colored pupils within their jurisdiction.
That looked like an open-and-shut case. The evidence was overwhelming
that Clarendon's blacks had been denied equal protection of the
law as required by the Plessy doctrine. And in view of Waring's
earlier rulings on equalization of teachers' salaries, peonage,
the law-school case, and the white primary, it seemed unthinkable
that the judge would turn down the backs' plea to replace what
Waring knew to be their "pretty dreadful schools."
But Thurgood Marshall had just finished successfully pushing
the NAACP hierarchy to discard the equalization approach in all
future litigation. Plessy, even honored to the letter, would
no longer do. Segregation itself was the target now. The change
of tactics had been made with much fanfare and, in Marshall's
case, with deep but unpronounced concern. Briggs v. Elliott was
a good example of why he was uneasy. It would be relatively easy
to win an equalization suit in front of a friendly judge such
as Waring or perhaps before any of a number of not rabidly bigoted
Southern jurists. But to attack segregation itself was almost
to insure negative decisions in every lower court until the Supreme
Court itself faced the question directly. Nor was it clear whether
Waring was jurisdictionally permitted to hear a suit attacking
segregation itself. To bring such action, Marshall would have
to direct it not only against the handful of stonehearted crackers
who ran the Clarendon schools but also against the laws of South
Carolina that required segregation of the schools. Under the
Judiciary Act of 1937, cases challenging the constitutionality
of state laws were to be heard by special three-judge District
Courts that the NAACP had first used in McLaurin. The intention
of the procedure had been both to speed up final adjudication
of such important questions of law and to relieve an individual
District Court judge of the sole responsibility of pronouncing
that a state statute was in conflict with the Constitution.
Thus, if Marshall were to draw up the Briggs case pleadings
to challenge the very practice of segregation in South Carolina
and not merely the gross inequities in how it was practiced in
Clarendon County, he would probably have to come before a three-judge
District Court, of whom the black man's friend, J. Waties Waring,
would be but one member. A second member would automatically
be another District Court judge for South Carolina named George
Bell Timmerman, a Bible- quoting fundamentalist and an outspoken
advocate of white supremacy. The third member of the three-judge
court would be the chief judge of the Fourth Circuit of the Court
of Appeals--the eminent John J. Parker. Even Walter White, who
twenty years earlier had led the NAACP assault on Parker's nomination
to the Supreme Court, acknowledged that John Parker had proven
as fair-minded and generous- spirited a Southerner as had ever
sat on the federal bench, Justice John Marshall Harlan of Kentucky
excepted. Twice before, Thurgood Marshall had won major appeals
before Parker--the Alston decision, reversing the District Court
in Virginia on equal salaries for Negro teachers, and the Elmore
decision, upholding Waring's ruling on the South Carolina white
primary. And both decisions had in effect been affirmed by the
Supreme Court, which chose not to hear them on appeal. Though
Parker had written these and other decisions favorable to black
litigation, none of his opinions had broken new ground in defining
or redefining the civil rights of colored Americans. He was a
hard-headed, clear-thinking, relatively enlightened grandson
of the Confederacy unafflicted by the regional fever that so
often produced hallucinations over the outcome of the Civil War.
Yet, for all John Parker's uprightness, it did not seem plausible
to Thurgood Marshall that the judge would have the judicial temerity
to overrule Plessy when anyone at all sensitive to the question
knew that the Supreme Court itself was taking a hyper-cautious
approach. It was likely, then, that a three-judge District Court
of Parker, Waring, and Timmerman would refuse to rule school
segregation in South Carolina unconstitutional; at best, Marshall
might get a spirited dissent out of Waring.
There was the even stickier question of how the Clarendon
case would look to the Supreme Court if Marshall appealed the
defeat he would likely suffer in the three- judge court. He would
be coming before the Justices not merely to ask that separate
schools in Clarendon County be declared unlawful. He would be
asking not that a relatively few Negroes be admitted to the all-white
schools of a predominantly white community, but that the white
children be mingled among the predominantly black enrollment
in a county that was more than 70 percent Negro. It would have
been hard to find a more perilous test case. How much wiser it
would have been to launch the attack on segregation in a border
state, a Southern city, or any community where the white reaction
would be less dire than in the old plantation country of rural
Clarendon County in the Carolina black belt. But the colored
people around Summerton, under the leadership of Reverend J.A.
DeLaine, had shown too much courage for Marshall to turn his
back on them now. DeLaine had been dismissed as a teacher. Levi
Pearson's crops had rotted in the field because he could not
get credit for machines to harvest them. Harry Briggs had been
fired as a gas-station attendant, his wife had been fired as
a motel maid, and many other blacks in the Summerton area were
feeling the lash of white resentment. Their case had to be fought
now. Marshall weighed all these factors and chose the cautious
legal course, though it meant skirting the new strategy he himself
had asked the NAACP to sanction. He would not directly challenge
the state segregation law.
Judge Waring was fully aware of Marshall's dilemma. Marshall's
restless lieutenant in the Fund office, Franklin Williams, had
represented Isaac Woodward, the blinded war veteran, in the 1946
case presided over by Waring, who was heartsick over the outcome.
Williams, who ushered Woodward around the country to fund- raising
rallies, helped fertilize a friendship between Waring and Walter
White during the judge's periodic trips north. Williams's impatience
with Marshall's wariness in assaulting Plessy was communicated
to White, his patron now at NAACP headquarters, and White was
not hesitant about confiding to the judge that he feared Marshall
was indecisive about taking the plunge. Having taken his own
private plunge by now, Waring was not overly tolerant of Marshall's
chosen strategy when he appeared before the judge at the start
of the Briggs proceedings.
At the pre-trial hearing, Marshall gambited. He was indeed
attacking the state's segregation laws themselves, he said. Waring
was not biting. "Well, I pointed out to him," he recalled
a few years later, "right there from the bench, that in
my opinion the pleadings didn't raise the issue. I said, 'You've
partially raised the issue, but of course can and may do what
has been done so very, very often heretofore: decide a case on
equal facilities. . . . It's very easy to decide this case on
that issue.'"
Marshall, as the judge recalled the moment, again said he
thought the issue of segregation itself had been raised clearly
enough in his pleadings, and Waring told him flatly that it had
not been. Then he would like to amend his pleadings, Marshall
conceded. That would only complicate the whole proceeding, said
Waring, who suggested that the case be dismissed without prejudice
and a new case filed, directly charging that the South Carolina
segregation laws "are unconstitutional, and that'll raise
the issue for all time as to whether a state can segregate by
race in its schools. He [Marshall] looked rather astonished,
but said, 'Yes.' I said, 'Very good. I'll sign an order dismissing
without prejudice, and I'll expect you to file a suit bringing
that issue clearly before the court.'"
The confrontation had made Marshall look either incompetent
or craven. He was neither. He had simply tried to maneuver through
very difficult terrain and found one of his routes cut off. Briggs
would have to be heard now by a three-judge court. Marshall's
right-hand man, Robert Carter, dutifully explained away the matter
to the expert witnesses he had lined up for the now postponed
Briggs trial by putting the onus for the delay on Waring.
* * * *
Back in Charleston, the three judges met in chambers. "It
was a long talk," Judge Waring recalled five years afterward,
"but hardly much discussion. Judge Timmerman is a rigid
segregationist. I was and am an equally rigid anti- segregationist.
And Judge Parker is an extremely able judge who knows the law,
and follows the law, but quite unwillingly, in the Southern country.
He just set his feet on Plessy v. Ferguson and said, 'We can't
overrule'. . . . Of course my position was . . . we didn't have
to overrule Plessy."
On June 21, three weeks after the two-day trial in Charleston
ended, Judge Parker's opinion was handed down, Judge Timmerman
concurring.
"The problem of segregation at the common school level
is a very different one" from that presented in Sweatt and
McLaurin, the most recent instances in which the Supreme Court
had spoken on the question, said Parker. At the public-school
level, "as good education can be afforded in Negro schools
as in white schools and the thought of establishing professional
contacts does not enter into the picture."
* * * *
The plaintiffs' plea for injunction abolishing segregation
of the races in the schools of South Carolina was therefore denied.
But the defendants were directed "promptly" to furnish
equal educational facilities to the Negro pupils within their
district and to report back to the court "within six months"
on the progress that had been made toward that end.
Judge J. Waties Waring filed a twenty-page dissent, his last
important opinion as a sitting judge. Plessy v. Ferguson was
irrelevant to Briggs, he wrote, since the 1896 case had dealt
with segregation on railroads. Schools were an entirely different
matter, as recent decisions of the Supreme Court, such as Sweatt
and McLaurin, had made clear. The only real issue before the
court was whether there was a rational basis for segregation,
which was undeniably founded on prejudice.
. . . . There is absolutely no reasonable explanation for
racial prejudice. It is all caused by unreasoning emotional reactions
and these are gained in early childhood. Let the little child's
mind be poisoned by prejudice of this kind and it is practically
impossible to remove these impressions, however many years he
may have of teaching of philosophers, religious leaders or patriotic
citizens. If segregation is wrong, then the place to stop it
is in the first grade and not in graduate colleges.
. . . . [S]egregation in education can never produce equality
and...is an evil that must be eradicated. This case presents
the matter clearly for adjudication, and I am of the opinion
that all of the legal guideposts, expert testimony, common sense
and reason point unerringly to the conclusion that the system
of segregation in education adopted and practiced in the state
of South Carolina must go and must go now.
Segregation is per se inequality.
Waties Waring moved out of South Carolina not long after writing
those words. He made his home in New York for the next seventeen
years. At his death in 1968, the Charleston News and Courier,
then edited by his nephew Thomas, who disagreed sharply with
his uncle's racial views, wrote: "He was a judge of uncommon
ability that was recognized and admired by all regardless of
opinion. On retirement...he chose to leave the land of his forefathers
in a self-imposed exile from which he now returns to be buried."
Fewer than a dozen white people attended the graveside service
at Magnolia Cemetery on the northern outskirts of Charleston.
But on hand were more than 200 Negroes who had formed a motorcade
from St. Matthew's Baptist Church, where the NAACP conducted
a memorial service.
"He's dead," says James Gibson, the black farmer
from Clarendon County, "but living in the minds of the people
here still."
Atticus
Finch