This shouldn’t be a huge surprise. Marshall was the Chief Counsel for the NAACP from 1940 -1961. During that time, he argued 32 cases before the Supreme Court and won 29 of them. My dad's case Leonard D. Speed, Joseph Spagna, and Johnny Herndon v. City of Tallahassee came in 1958, but Marshall never got the chance to argue it since the high court justices refused to hear the case, citing issues of procedure and jurisdiction.
Readers of Test Ride will recall the gist of the story. My dad and five other young men – three of them black, three white - tried to test Ordinance 741, a law that gave Tallahassee bus drivers authority to assign seats based, supposedly, on passenger weight and the “maximum health and safety” of the riders.
When my dad and his friends boarded a bus called the “Sunnyland”, the driver, Emory Elkins, assigned them seats as you might suspect: whites in the front, blacks in the back. Mid-way through the ride, my dad and two of the black guys moved seats so now they sat together as interracial pairs. The three who moved seats were arrested, and they hoped to take the case to court to prove that the law violated their rights under the 14th Amendment.
They started by pleading “Not Guilty.”
According to federal appeals court judge Dozier Devane, a known segregationist, that was their big mistake. Instead of entering a plea, they should have entered an affidavit citing the unconstitutionality of the law. Since they were inarguable guilty of breaking the ordinance, there was nothing to appeal. End of story.
That’s not a complicated position. But the prose in response to the appeal, written by Tallahassee attorney Leo L. Foster, is so convoluted as to be almost unreadable. He refers repeatedly to a seating chart admitted by the bus driver as evidence, a chart which didn’t specify race. Therefore, Foster argues, race was not a factor in the seating decision. In the eyes of the court, in fact, the defendants could’ve been “six negroes” or six white men. Huh?
Thurgood Marshall’s prose, by contrast, is clear, easy to read, and to the point. He makes a thorough condemnation of Ordinance 741 not by addressing what goes unsaid – that seating will be determined based on race – but what is said. The ordinance is “so vague as to make an innocent act a criminal one.” He uses the example of a married couple. If a man gets on after his wife, and sits next to her without the express permission of the driver, he has committed a crime. How is a “reasonable man” to know what he can or cannot do?
As you read, you get a keen sense of why Thurgood Marshall won so many cases. Because he was articulate. And because he was right. It’s easier to make sense when you’re telling the truth than when you’re lying. I’m pretty sure the attorneys for the city weren’t lying, but they were going to great lengths – the whole nation was – to sidestep the truth.