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— one. Next day, it turned out to be one of the first questions Justice Frankfurter asked. Marshall look evasive action and Frankfurter, the record indicates, was di- verted if not salished, "| Was So Happy.” In the Supreme Court arguments, Marshall was facing the man who for 30 years had been the most presligicus U.S. constitutional lawyer: John W. Davis. For weeks Marshall had been overworked, nervous, irritable. In court he was, as always, calm. polite. quick lo grasp the inferences of a question, never loud, never oratorical. At one point he managed to get into a few potent sen- tences his analysis of the South’s attilude: “IT got the feeling on hearing the dis- cussion yesterday.” he said, “that when you pul a while child in a school with a whole lot of colored children, the child would fall apart or something. Everybody knows that jis not true. Those same kids in Virginia and South Carolina—and I have secn them do it—thes play in the streets together. they play on their farms {ogether, they go down the road together, they separate Lo go to school. they come out of school] and play ball together. They have to be separated in school... Why. ol all the multitudinous groups of people in This_country, [do] you e to single out the Negrocs and give them this. scp- arate trea(menl? It can't he_because of slavery in the past, Because there are very few groups in this country (that. haven't had slavery some place hack in the history of thir groups. Tt can't be color, because Ciiere are’ Negros as white as the xiriited segregated as the colored men. The only thing it can be 1s an inherent determina- tien Lhat the people who were formerly in slavery, regardless of anything else, shall be kept as near Lhat stage as is pos- sible. And now is the lime, we submit, that this court should make it clear that that is nol what our Constitulion stands for.” This, and Marshall's social-scientist ap- proach, paid_olt. In his opinion Tor the whole court, Chief Justice Earl Warren in sentence afier sentence reflecied the con- viction that under present conditions of U.S. life. education could not be separate and equal. When he heard the decision resd, says Thurgood Marshall: “I was so happy. [was numb.” Unchanging Instrument. He has a pro- found respect 4: the federal judiciary. He has tried case afler Sasehehs sre Southern federal judges, whose convictions on the subject of segregation he knows lo he diametrically opposed to his own. “And they believe what they believe jusl as hard as I believe what I helieve.” In all those cases, before all those judges, Mar- shall remembers only one judge who was, in his opinion, unfair and discourteous. Marshall knows that he and the South- erm federa! judges he respects are checked by the same steely framework of the Anglo-American legal tradition and, espe- cially, the U.S. Constitution. He says: “The difference between the Constilution and the law is something a lot af people TIME, SEPTEMBER 19, 1955 don't seem to appreciate. The law can ftuc- tuale because of the changing whims of the people and their legislators. But the whole purpose of the Constitution is lo serve as an instrument which cannot be changed overnight. which docs not change when mores and customs change.” Southerners charge that Marshall was instrumental in “changing the Constitu- lion in the Supreme Court's desegrega- tion decision, But from his point of view —and from the court’s—he merely pro- duced new evidence to show that the old rule of separate-but-equal { Plessy v. Fer r: Where it approaches or exceeds sof, (he P49 end can hardly he imagined. Vet Marshall will nat accept a thearclical solution that the only chance for desegregation in Mis- sixsippi and other parts of the Deep Sauth is a mass Tnigration aT Negroes That will drastically change population percentages iser pap). Perhaps he remembers hi- ancestor Jrom the Congo, who would not leave the state even for his manunission. Last week. after vacation. Thurgood Marshall was hack in Manhattan. dealing briskly with scores of tactical decisions ip riers raring ngreasinee ees C. Atco: ApPOINTMES T IN ELAVANA A delicate balance of furmoils. ruson, 1894) did not really give the equal- ity before the flaw which the rgth Amend- ment guarantees. Hard to Procrastinate. Achieving de- segregation, county by counly, school dis- trict by school district, throws upon Mar- shall a tremendous foad of responsibility and decision. The present picture from slate to slate varies over a wide range (see Report Card}. Oklahoma is, from N.A.A.C.P.’s standpoint, surprisingly good. North Carolina surprisingly bad. [n some areas. Marshall may not want, for tactical reasons, lo bring suil now—bul when local NLAA.C.P. people urge him. he finds it bitterly hard to procrastinate, lest those men and women who sign the petitions feel that the N.A.A.C.P. has let them down, In other areas. he might want lo proceed more vigorously, but clients, be- cause of fear, do not come forward. Mar- shall does not blame them. He remembers the time when he scroonched down in bis B. & QO. panis. and the time on the Missis- sippt railroad platform when he wrapped his constitutional rights in Cellophane. Generally, speaking segregation is ea i ing inareas where Negro population is less than To’. Where it’ ranges hetween 1o% and 257. the fight may not be too hard. | the desegregation fight. Acrass the land. he guided and coordinated the wark of scores of lawyers in one of the biggest le- gal operations in U.S. hislory. He seemed fresh and rested, though the vacation. bis first In cight years, had been a mockery. Work caught up with hin at Minami. and al the end of the joh his nerve ends were raw. He owas in a moad of acute awareness of how fur he and his cause had come. and at the same Ume, he fell a strong sense of how hard and long was the road ahead. He did net want merely Ce win, but to win in the way that woul cause Jeust pain to Negro and while and reflect the most eredit on the US, Can- sUtution, Stretched on the rack of one of the tensest and most excHing careers in the U.S, today, Thurgood Marshall in Ntiami said: “I'm gonna take a two-day vacation ta rest from my vacation. Pin gains ta Havana. Never heen there: hear they Creat aman fine.” The ghost of an anttcipatary “smile iitted over his faces (hen the pained look came back. “Dont know why Um going lo Havana,” he said slowly. “Trouble is when [ get there, you know who ['m gonna find there. toa” “Me.” 27