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Enforcing the Court's Order
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161 twenty-three Enforcing the Court’s Order The Federal Constitution will be upheld by me by every legal means at my command —President Dwight D. Eisenhower A telephone call from Thurgood Marshall during the summer of 1958 ended any hope I had of an August vacation with my family in South Pomfret, Vermont. The federal district court in Arkansas had ordered that nine Negro plaintiffs be admitted to Central High School in Little Rock beginning the day after Labor Day in 1957. During a visit with President Eisenhower at his summer vacation spot in Newport, Rhode Island, Arkansas governor Orval Faubus had pledged yet again to cooperate with the courts and the federal government. But when the nine school children of color attempted to enter the high school on September 4, 1957, the governor ordered the Arkansas National Guard forcibly to prevent the students from entering the school. As the school week began on September 23, the brave black students returned. A mob of fifteen hundred angry white parents threatened to block their entrance to the school, spitting on them and hurling epithets.“Lynch her, lynch her,” cried one foolish woman. Ostensibly to protect their safety, the governor ordered the children kept out of school. The federal district judge again ordered the Negro plaintiffs admitted. The obstinate governor then decided to close Central High School for a year. President Eisenhower was asked whether he agreed with the Brown decision . He said it didn’t matter what he believed, it was the law of the land. Critics have suggested that Eisenhower’s comment reflected a lack of commitment to school desegregation. The facts belie such a contention. Eisenhower made clear that it was his sworn constitutional duty as president to enforce the district court order. He stated emphatically, “The only assurance I can give you is that the Federal Constitution will be upheld by me by every legal means at my command.”1 And he meant what he said. Eisenhower federalized the Arkansas National Guard, removing it from the governor’s control. He also sent the elite 101st Airborne Division to Little 04-0488-1 part4.indd 161 9/9/10 8:28 PM 162 / a philadelphia lawyer Rock to keep order.2 In the face of the military presence the protestors backed down quickly, and the Negro students attended the integrated school for the rest of the year until the summer break in June 1958. On February 20, however , the school board petitioned the district court to postpone the desegregation program because of extreme public hostility. After a hearing the seventyfour -year-old federal district court judge Harry J. Lemley granted the relief requested by the school board, barring the Negro students from attending Central High School in September 1958. The judge approved a two-and-ahalf -year moratorium on the desegregation of the Little Rock school system. The court of appeals reversed but stayed the effective date of its judgment of reversal for thirty days to allow an appeal to the Supreme Court. Marshall and I discussed how we could induce the Supreme Court, then in summer recess, to come back in a special term in early September to hear the case before school opened. We moved into action. We were most fortunate to have as local counsel Wiley A. Branton, who later became dean of Howard Law School, a commissioner of the Federal Communications Commission, and a partner in the leading national law firm of Sidley, Austin, Brown, and Wood. Branton understood that the Supreme Court could do nothing until it had a record of the case before it. Branton moved mountains to get the record from the district court to the Eighth Circuit Court of Appeals and then on to the Supreme Court. Like many of us who practiced civil rights law during those days, Branton was adept at dealing with the tactics used by southern judges and their clerks to delay moving the record up the chain when race issues were involved. Our next challenge was to locate the Supreme Court justice assigned to the Eighth Circuit Court, Charles Evans Whittaker. I could not track him down. “Gosh, Coleman,” Marshall exclaimed, “every justice has a Negro valet. If we can find his valet, he will know where the justice is.” “With the chambers closed for the summer, how am I going to find the valet?” I asked. Marshall patiently replied, “Ask around and find out what church the valet goes to. Then we can find...