(8 of 9)
This, and Marshall's social-scientist approach, paid off. In his opinion for the whole court, Chief Justice Earl Warren in sentence after sentence reflected the conviction that under present conditions of U.S. life, education could not be separate and equal. When he heard the decision read, says Thurgood Marshall: "I was so happy, I was numb."
Unchanging Instrument. He has a profound respect for the federal judiciary. He has tried case after case before Southern federal judges, whose convictions on the subject of segregation he knows to be diametrically opposed to his own. "And they believe what they believe just as hard as I believe what I believe." In all those cases, before all those judges, Marshall remembers only one judge who was, in his opinion, unfair and discourteous.
Marshall knows that he and the South ern federal judges he respects are checked by the same steely framework of the Anglo-American legal tradition and, especially, the U.S. Constitution. He says: "The difference between the Constitution and the law is something a lot of people don't seem to appreciate. The law can fluctuate because of the changing whims of the people and their legislators. But the whole purpose of the Constitution is to serve as an instrument which cannot be changed overnight, which does not change when mores and customs change."
Southerners charge that Marshall was instrumental in "changing the Constitution" in the Supreme Court's desegregation decision. But from his point of view —and from the court's—he merely produced new evidence to show that the old rule of separate-but-equal (Plessy v. Ferguson, 1896) did not really give the equality before the law which the 14th Amendment guarantees.
Hard to Procrastinate. Achieving desegregation, county by county, school district by school district, throws upon Marshall a tremendous load of responsibility and decision. The present picture from state to state varies over a wide range (see Report Card). Oklahoma is. from N.A.A.C.P.'s standpoint, surprisingly good, North Carolina surprisingly bad. In some areas, Marshall may not want, for tactical reasons, to bring suit now—but when local N.A.A.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 to proceed more vigorously, but clients, because of fear, do not come forward. Marshall does not blame them. He remembers the time when he scroonched down in his B. & O. pants, and the time on the Mississippi railroad platform when he wrapped his constitutional rights in Cellophane.
Generally speaking, segregation is ending in areas where Negro population is less than 10%. Where it ranges between 10% and 25%, the fight may not be too hard.
Where it approaches or exceeds 50%, the end can hardly be imagined. Yet Marshall will not accept a theoretical solution that the only chance for desegregation in Mississippi and other parts of the Deep South is a mass migration of Negroes that will drastically change population percentages (see map). Perhaps he remembers his ancestor from the Congo, who would not leave the state even for his manumission.