Editor’s note: For those who are wondering about the retro title of this black-history series, please take a moment to learn about historian Joel A. Rogers, author of the 1934 book 100 Amazing Facts About the Negro With Complete Proof, to whom these “amazing facts” are an homage.
Amazing Fact About the Negro No. 93: How did black justices break the color barrier at the federal court level?
The U.S. Supreme Court opens its fall term today with a conference soon to give way to another round of cases steeped in intense national debate. For the past 22 years and 11 months, Clarence Thomas has been the court’s sole African-American justice, having missed by three weeks the only other African American to occupy the top bench, Thurgood Marshall. Marshall, of course, had been the hero of Brown vs. Board of Education and went on to serve on the court from Oct. 2, 1967, until he retired on Oct. 1, 1991. Since 1790, 112 justices have served on the Supreme Court. These are its only two black members.
But here’s what you may not know: Thurgood Marshall was not the first African-American judge to sit on a federal court. And, awesome as his career was (I mean, his nickname was “Mr. Civil Rights,” and he served as a judge on the U.S. Court of Appeals for the Second Circuit and as solicitor general), Marshall wasn’t the only black judge of his generation qualified to accede to the highest court. He may have been the best of the best, but after him there was a cadre of brilliant African-American legal minds who could have answered the call—if it had come. After all, each was a judge, a federal judge at that, and having overcome the long odds against any African-American man or woman aspiring to a legal career in the Jim Crow era, each cherished every right under the U.S. Constitution and took none of its 4,543 words for granted.
Let me tell you about four: William Henry Hastie, Constance Baker Motley, A. Leon Higginbotham Jr. and Spottswood W. Robinson III, all pioneering federal judges who deserve an exalted place in our history for upholding the rule of law after it had held them and our people down.
Judge William Henry Hastie (1904-1976)
In 1937, William Henry Hastie became the first black federal district court judge. In 1950, he was confirmed as the first black federal appellate judge. And he was a top contender for the Supreme Court when President John F. Kennedy took office in 1961. Although that vacancy would fall to Byron White, Hastie was, without a doubt, one of the most respected jurists of the 20th century.
Born in Knoxville, Tenn., and raised in Washington, D.C., Hastie graduated magna cum laude from Amherst College in 1925. After teaching for two years at the Manual Training and Industrial School for Colored Youth in New Jersey, Hastie punched his ticket to Harvard Law School, where, following in the footsteps of civil-rights crusader Charles Hamilton Houston, he became the second black law student to serve on the Harvard Law Review. Hastie graduated with a bachelor of laws degree in 1930 and earned a research doctorate in law in 1933, both from Harvard.
Later, balancing professorial duties at Howard University Law School with his work at Houston’s firm, Hastie helped architect the pro-integration legal strategies that would culminate in the Brown vs. Board of Education decision. Specifically, Hastie galvanized the NAACP’s legal struggle for equal pay for black teachers in North Carolina, including hiring one of his former law students at Howard, Thurgood Marshall, to assist on the case.
It was while serving as solicitor for the U.S. Interior Department during the New Deal administration of President Franklin D. Roosevelt that Hastie was nominated and confirmed, on March 19, 1937, to a federal district court judgeship in the U.S. Virgin Islands. “Roosevelt II [FDR] made the most outstanding appointment of any President last week,” Adam Clayton Powell Jr. wrote in the “Soap Box” column in the New York Amsterdam News on Feb. 20, 1937.
“ ‘While there are, or have been, Negro municipal judges in Chicago, New York City and the District of Columbia, no Negro has ever before sat on the Federal bench,’ ” Powell quoted Time magazine as saying. “ ‘No mere political gesture to colored constituents was this appointment, however, for William Hastie, Knoxville born, is rated one of the ablest Negro lawyers in the U.S.’ ” (As Powell indicated, the federal court system generally refers to federal district courts, federal appellate courts, up to the U.S. Supreme Court. Hence, Hastie was the first black federal court judge. For those keeping track of other milestones, Robert H. Terrell was the first black municipal court judge in Washington, D.C.; he was nominated by President William H. Taft and served from 1910 to 1925. Irvin C. Mollison is remembered for his appointment to the Court of Customs in 1945, which made him the first African American to obtain a federal court judgeship within the continental United States.)
Hastie gave up the judgeship to become dean of Howard Law School in 1939. A year later, during World War II, he was called upon by Roosevelt to act as a civilian aide to Secretary of War Henry L. Stimson. In this role, Hastie studied—and lobbied against—segregation in the nation’s armed forces. The road to integration was long, but thanks to Hastie, African-American pilots were deployed and the Red Cross agreed to accept blood donations from blacks.
In 1946, President Harry S. Truman tapped Hastie to become the first black governor of the U.S. Virgin Islands, a position to which Hastie was reelected three years later. Then, in 1949, just one year after announcing the integration of America’s armed forces, Truman again made history by promoting Hastie to a judgeship on the U.S. Court of Appeals for the Third Circuit, based in Philadelphia with jurisdiction over Pennsylvania, Delaware and New Jersey. Judge Hastie was confirmed by the U.S. Senate on July 19, 1950. “The time may come—and we devoutly hope it will—when the fact that such an appointee belongs to a certain race will not be news,” the New York Times reported two days later. “Unhappily it is news today.”
In his role as a federal appellate judge, Hastie was lauded for his commitment to free speech during the Cold War, privacy rights and a strict wall between church and state. “The effectiveness of courts must always depend in large measure upon the respect which their processes command by reason of the integrity they reveal,” Hastie wrote in the 1958 decision Hanna vs. U.S. “[T]he courts of the United States [are] the ultimate guardians of the Constitution.” In 1968, Hastie acceded to chief judge of the Third Circuit. He retired in 1971 and died at age 72 in 1976.
Speaking at Hastie’s funeral, then Supreme Court Chief Justice Warren Burger remarked, “In a court that has always included some of the outstanding members of the American judiciary, he was second to none.” In a retrospective for the Howard Law Journal in 1981, Judge A. Leon Higginbotham Jr. hailed Hastie as the “one who changed the immutable.”
Judge Constance Baker Motley (1921-2005)
Constance Baker Motley shattered so many ceilings in her career that she seemed superhuman: first female lawyer for the NAACP Legal Defense and Educational Fund (1948); first black woman elected to the New York State Senate (1964); first woman selected as Manhattan borough president (1965). In 1966, Motley was nominated by President Lyndon B. Johnson to become the first black woman to hold the lifetime position of federal court judge. Fulfilling that charge, Motley served on the U.S. District Court for the Southern District of New York until her death in 2005.
Born in New Haven, Conn., to immigrant parents from Nevis, West Indies, Motley had early exposure to civil rights work: Her mother founded the New Haven chapter of the NAACP. As a student, she first enrolled at Fisk University in Nashville, Tenn., then transferred to New York University, where she graduated in 1943. Three years later, she had a law degree from Columbia University.
At the NAACP Legal Defense and Educational Fund, Motley was mentored by Thurgood Marshall and ultimately became associate counsel and lead trial lawyer. It was Marshall who sent Motley to Georgia to direct the landmark desegregation case against the University of Georgia, which had refused to admit Hamilton Holmes and Charlayne Hunter. Motley led a team that included the young lawyer Vernon Jordan, and together they exposed the university’s admission policies as fictions designed to keep out qualified black students. Jordan wrote of Motley in his 2001 autobiography, Vernon Can Read!, “[W]atching [her] was a lesson in lawyering itself.” The University of Georgia admitted Holmes and Hunter in 1961.
On Oct. 17, 1961, Motley argued her first case before the Supreme Court, Hamilton vs. Alabama, winning an important 9-to-0 decision guaranteeing the right of criminal defendants to counsel at their arraignments (you can listen to Motley’s historic argument here). Supreme Court Justice William O. Douglas wrote of Motley that she “was equal to [Charles Hamilton] Houston in advocacy of cases” and that “the quality of [her] arguments would place her in the top ten of any group of advocates at the appellate level in this country” (as quoted in Motley’s memoir, Equal Justice Under Law).
According to a congressional resolution recognizing her in 2007, Motley “was the only female attorney on the legal team that won the landmark desegregation case, Brown v. Board of Education,” and “she argued 10 major civil rights cases before the Supreme Court, winning all but one … Swain v. Alabama, a case in which the Court refused to proscribe race-based peremptory challenges in cases involving African-American defendants … which was later reversed in Batson v. Kentucky on grounds that had been largely asserted by Constance Baker Motley in the Swain case.”
As a federal judge in New York, Motley refused to recuse herself from a Title VII gender-discrimination case in 1970 when defense counsel argued that she would be biased because she had been a female lawyer before becoming a judge. “[l]f background or sex or race of each judge were, by definition, sufficient ground for removal,” Motley explained, “no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firms or public service backgrounds.” Motley became chief judge of her district court in 1982 and reached senior status in 1986.
Reflecting on her own legacy in 2005, current Supreme Court Justice Ruth Bader Ginsburg wrote, “I count it my great good fortune to be among the legion whose lives Judge Motley touched. She taught me and others of my generation that law and courts could become positive forces in achieving our nation’s high aspirations—as carved above the entrance to the U.S. Supreme Court—Equal Justice under Law. May the history she helped to create prove inspiring to law students and lawyers just entering the profession. And may her achievements stand as basic building blocks for the work that remains to be done.”
Judge A. Leon Higginbotham Jr. (1928-1998)
My beloved colleague and friend Aloyisus Leon Higginbotham was one of the most influential—and inspiring—lawyers, judges and teachers anyone could ever hope to meet. He was born in 1928 to a maid and a factory worker in Trenton, N.J. Brushed off by the president of Purdue University when, as an engineering student, he challenged the school’s practice of housing black students in an unheated attic, Higginbotham transferred to Antioch College. Hearing Thurgood Marshall argue before the Supreme Court against segregation at the University of Texas School of Law school in Sweatt vs. Painter (1950) only reinforced Higginbotham’s decision to go to law school. He graduated from Yale Law School with high honors in 1952, then moved to Philadelphia, where he become a partner in that city’s first African-American firm and served as an assistant district attorney and local NAACP chapter president.
Appointed by President Kennedy to the Federal Trade Commission in 1962, Higginbotham became the first African American to serve on any regulatory commission. After Kennedy’s assassination, Higginbotham served President Johnson as an adviser on race relations, and in 1964 Johnson appointed him as the first African-American judge to the U.S. District Court for the Eastern District of Pennsylvania. At 36, Higginbotham was the youngest federal judge in more than 30 years. In 1977, President Jimmy Carter promoted Higginbotham to the Third Circuit U.S. Court of Appeals—Judge Hastie’s old court. There Higginbotham served as chief judge from 1990 to 1991 before retiring in 1993.
An international mediator during the first free South African election in 1994, Higginbotham helped the newly elected government, headed by Nelson Mandela, draft its constitution, and he was appointed by President Bill Clinton to the U.S. Commission on Civil Rights. (Clinton also awarded him the Presidential Medal of Freedom in 1995). Higginbotham wrote two leading books on legal history, In the Matter of Color: Race and the American Legal Process (1978) and Shades of Freedom: Racial Politics and Presumptions of the American Legal Process (1996), and he taught at several top universities, including Harvard, Yale, Stanford and NYU. (A proud confession: I helped recruit Judge Higginbotham and his dear wife and my close friend, the distinguished historian Evelyn Brooks Higginbotham, to Harvard in 1993).
During Higginbotham’s time as a federal judge, as Charles Ogletree recalled in his memorial of Higginbotham in the June 1999 issue of the Harvard Law Review, “he wrote over 650 supremely crafted opinions, many of which were landmark decisions” on subjects as vast as civil rights and complex, international commercial litigation. Supreme Court Justice William Brennan hailed Higginbotham as the “conscience of the legal profession.” Higginbotham was especially passionate about remedying crowding in the nation’s jails, protecting children and families, and promoting diversity in higher education and the legal profession.
In a 1987 speech at Harvard Law, Higginbotham urged the next generation of lawyers and judges to “consciously and constantly assess [their] values and goals in forging rules of law for the future" and to “commit themselves to pursuing their moral visions.” Mourning Higginbotham’s passing in 1998, Ismail Mahomed, chief justice of the Supreme Court of South Africa, valorized him for possessing what he called the eight most important qualities of a judge: courage, integrity, sensitivity, passion, energy, nobility, articulation and personality. And in memorializing him, congresswoman Eleanor Holmes Norton wrote, “Leon Higginbotham came to the bench with both a black man’s racial identity and a judge’s understanding of equality as a universal principle beyond race.” I remember that whatever room Higginbotham entered, students and colleagues alike reverently called him “The Judge.” At Harvard, we still do.
Judge Spottswood W. Robinson III (1916-1998)
Spottswood Robinson III was one of America’s most sparkling legal minds, known especially for that rare combination of fastidiousness, courage and painstaking attention to detail. A native of Richmond, Va., Robinson took after his father, Spottswood W. Robinson Jr., a lawyer, professor and real estate broker. At age 20, Robinson left his studies at Virginia Union University for Howard Law School, where, in 1939, he graduated with the highest grade point average in school history. While a teacher at Howard, Robinson joined forces with civil rights crusaders Charles Hamilton Houston had trained. Among them were Oliver Hill and Martin Martin who, with Robinson, made up the dream team known as the NAACP’s Virginia State Conference.
Recalled Hill in 1999: “In his first case of great consequence in 1943, more than a decade before Rosa Parks, Spot[ts] defended a woman, Irene Morgan, who refused to move to the ‘colored’ seats at the back of an interstate bus. This case, Morgan v. Virginia, ultimately ended with the U.S. Supreme Court declaring segregation laws in interstate transportation unconstitutional.”
In 1947, the year that ballplayer Jackie Robinson broke into the big leagues, this Robinson, at Thurgood Marshall’s behest, concentrated his swing on ending segregation in Virginia’s public schools. Under threat of lynching, he crossed the state, meeting with black community groups and, with the Virginia NAACP, launching actions in 75 locations. Place by place, change was coming. By 1950, Robinson had become the NAACP’s southeastern regional counsel, and in 1951, he and Hill filed suit against school segregation in Prince Edward County, Va. They were swinging for the fences now. At the Supreme Court, their case was joined with four other school cases to form Brown vs. Board of Education, and Robinson, as part of that legendary legal dream team, argued brilliantly that segregation violated the equal protection clause of the 14th Amendment of the U.S. Constitution.
Robinson went on to serve as dean of Howard Law and accepted President Kennedy’s invitation to join the U.S. Commission on Civil Rights. In 1964, he answered another president’s call, LBJ’s, becoming the first black judge on the U.S. District Court for the District of Columbia. Highlighting the news, the Journal of Negro History reported that Robinson was “the ‘really first colored judge’ in the District of Columbia,” though there had been “ ‘municipal and juvenile judges’ … known in many jurisdictions as ‘magistrates or justices of the peace.’ ” Two years later, Robinson broke ground again under LBJ as the first black justice to serve on the esteemed U.S. Court of Appeals for the District of Columbia Circuit. From 1981 to 1986, Robinson led the Circuit as chief judge, before taking senior status in 1989.
After Robinson’s death in 1998, Chief Judge Patricia Wald of the D.C. Court of Appeals memorialized him in the Harvard BlackLetter Law Journal: “During his twenty-five years on the court of appeals, [Judge Robinson] authored 411 opinions, each one both a beginning and an end to the issues discussed therein. Spotts had no room in his judicial arsenal for shortcuts. One of his opinions contained 676 footnotes, a fact that his colleagues often kidded him about. Yet, in truth, those who wanted a one-stop dissertation on the law in a particular area—past, present, and future—looked for the Robinson opinion.”
Adding to the outpouring was Judge Robinson's former clerk Stephen Carter, now a professor at Yale Law School: “One of the many things my generation (and those younger than I) fail to understand about that great team of lawyers who argued and won Brown and the other cases is that, in order to do what they did, they had to believe that reasonable people would obey reasonable court orders. Thus, they had to believe that the nation was not so implacably racist that its anti-black bias would trump every other competing consideration: public order, fairness, the rule of law.”
Legacies
Next year, the nation will commemorate the 150th anniversary of the close of the Civil War and the 50th anniversary of the high water mark of what scholar Peniel Joseph calls “the heroic phase” of the civil rights movement, which, with the passage of the 1965 Voting Rights Act, transformed a nation of laws into one of laws and justice. American jurisprudence finally had cast aside what many, including Supreme Court Chief Justice Roger B. Taney, author of the reviled 1857 Dred Scott opinion, presumed about race under the Constitution. At the time of the country’s founding, every sensible white person, Taney argued, recognized that African Americans were “regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”
To me, no single group of men or women symbolizes America’s redemptive triumph over Dred Scott more than the pioneering generation of black federal judges empowered to interpret the meaning and extent of rights for every citizen under the Constitution. Growing up in the era of Jim Crow, without the benefits of blind justice, Judges Hastie, Motley, Higginbotham and Robinson, like Thurgood Marshall, applied justice in every case that crossed their benches with opinions shaped by hard experience and a profound commitment to learning. May the current Supreme Court do the same when it meets this—and every—morning this term.
As always, you can find more “Amazing Facts About the Negro” on The Root, and check back each week as we count to 100.
Henry Louis Gates Jr. is the Alphonse Fletcher University Professor and founding director of the Hutchins Center for African and African American Research at Harvard University. He is also editor-in-chief of The Root. Follow him on Twitter and Facebook.
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