| Randall Kennedy,
Martin Luther King's Constitution: a Legal History of the Montgomery Bus
Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes
Omitted)
A. The Trial of Martin Luther King
As the boycott wore on, courts became a central locus of struggle.
Increasing their pressure, authorities prosecuted King for violating a
state law that criminalized conspiring 'without a just cause or legal
excuse' to hinder a business. Eighty-nine MIA dissidents were also
indicted, but King was the only one tried.
Intended to suppress the Negro rebellion, the prosecution had
precisely the opposite effect. It spurred the black community to further
displays of unity, confidence, and self-sacrifice. Defendants joyously
turned themselves in to the police. As King put it, ' t hose who had
previously trembled before the law were now proud to be arrested for the
cause of freedom.' Being arrested or jailed pursuant to the protest had
become a badge of honor. The day the boycott leaders were arraigned,
most of Montgomery's blacks shunned all motor transportation as a
gesture of respect and solidarity.
The prosecution also advanced the cause of the boycott by elevating
it to a major item of national and international news. For the first
time, King and the boycott movement appeared on the front page of the
New York Times and received notice by network television. The heady
feeling of being at the center of the world's attention further
encouraged Montgomery's rebellious black population.
The trial took place in the Circuit Court of Montgomery, Alabama,
lasted four days--March 19-22, 1955--and was presided over by Judge
Eugene W. Carter, who also served as the finder of fact since both
parties consented to a non-jury trial. Judge Carter was familiar with
the case; he had, on his own motion, brought to the attention of the
grand jury the question of whether the boycott violated state law. He
was familiar with the case in a broader sense as well. After Rosa Parks'
conviction in the city Recorder's Court, she had appealed to the Circuit
Curt, where Judge Carter again found her guilty of violating state and
municipal law. His decision involved more than simply following
precedent. He was himself an ardent segregationist who once sponsored a
resolution at his church barring Negroes from the premises unless they
were performing janitorial services.
The prosecutor, County Solicitor William Thetford, recalls having
disfavored bringing criminal actions against the boycott leaders. His
reluctance was not based on any qualms regarding the legalities of the
matter. He simply believed that criminal prosecution would prove to be
inadequately repressive since conviction would probably result in only
small fines or brief jail sentences, a price the boycott leaders were
gladly willing to pay. He therefore counselled the bus company to take
action itself against the MIA.
Crenshaw vetoed Thetford's recommendation. He declined to seek an
injunction because doing so would have entailed, in his view, abandoning
the Company's position as an innocent, neutral party. It is difficult to
fathom what he had in mind. Bringing the suit that Thetford suggested
would not have necessitated directly taking sides with respect to the
primary substantive issue in question--state-mandated racial
segregation. All the Company needed to argue was that it was being
irreparably injured by a boycott that violated state law and that its
rights could only be secured by equitable relief. For the reasons
Thetford outlined, obtaining injunctive relief would have been a more
effective avenue of attack against the boycott. Inexplicably, Thetford
waited several months (by which time, it was too late to matter) before
he followed a variant of his own advice and sought an injunction in the
name of the City against the MIA. That delay played a crucial role in
the outcome of events.
The attorneys for the defense--Fred Gray, Arthur Shores, Peter Hall,
and Orzell Billingsley--were the leading black attorneys in the state.
The NAACP volunteered its General Counsel, Robert Carter, to help with
the defense, but Judge Carter would not allow him to participate in the
examination of witnesses. The judge justified his decision on the
grounds that the case involved only a misdemeanor, that Carter was not a
member of the Alabama Bar, and that the defendant was adequately
represented by local counsel.
1. The Prosecution's Case-In-Chief
The prosecution's case-in-chief consisted of testimony that was
apparently intended to show that the MIA was founded for the sole
purpose of sustaining the boycott, that it was well-organized and
funded, that King controlled the organization, that the MIA had rejected
compromises offered by the Company and the City, and, finally, that
Negroes stayed off the buses largely because of physical intimidation by
the MIA. To establish the most damning of these allegations--the charge
of intimidation--the prosecution first called ten whites as witnesses,
each of whom testified that he was driving or riding on a bus in early
December 1955 when it was struck by stones or gunfire. None of these
witnesses offered testimony identifying or even describing the alleged
assailants. They merely noted that the attacks occurred in black
neighborhoods. Because no testimony linked either the MIA or King to the
violence, the defense persistently objected to this testimony on the
grounds that it lacked any reasonable evidentiary relationship to the
indictment. Their objections, however, were typically overruled.
The prosecution also called as witnesses three blacks who claimed to
have been harassed by boycotters. The first, Willie Carter, claimed that
he was told that he would be beaten if he rode on a bus. Judge Carter
sustained an objection to his testimony on the grounds that it failed to
reveal a link between the person who allegedly threatened Carter and
either King or the MIA.
Quickly thereafter, however, Judge Carter abandoned conventional
evidentiary standards. Ernest Smith testified that a week after the
boycott began, a man tried forcibly (albeit unsuccessfully) to prevent
him from boarding a bus. This testimony should have met the same fate as
Willie Carter's, for again no connection was established between the
alleged altercation and King or the MIA. Judge Carter, however,
overruled defense objections to Smith's testimony.
The third witness, Beatrice Jackson, testified that in February 1956,
she was attacked by a man (presumably black) who allegedly hit her, cut
her finger, and threatened that if he caught her riding a bus again he
was going 'to cut [her] damn throat.' Her testimony, too, was devoid of
anything that linked her alleged assailant to either King or the MIA.
But, over objections, Judge Carter admitted it into evidence as well.
2. The Defense
The case-in-chief of the defense consisted primarily of putting the
Montgomery City Lines on trial. First, the defense elicited testimony
indicating that for several years prior to the boycott, the Negro
community had expressed its dissatisfaction to the Company and the city
commissioners. Next, it brought to the stand witnesses who testified
about racially motivated mistreatment they had seen or suffered on the
buses. During Sadie Brook's examination, for instance, the following
exchange occurred:
Q: Have you heard the drivers call the negroes any names?
A: I have.
Q: What are some names you heard?
A: 'Black bastard,' and 'back up nigger, you ain't got on damn
business up here, get back where you belong.'
Memories of verbal insults emerge repeatedly in the testimony of
other defense witnesses as well:
Q: Have you heard the bus drivers call the negroes any names?
A: Yes, sir, I have.
Q: What do they call them?
A: They call them niggers.
Q: What else do they call them, have you heard any other expressions?
A: Yes, sir, . . . 'Apes.'
In addition to verbal insults, witnesses recounted other bitter
memories. Richard Jordan spoke of the time that he and his obviously
pregnant wife were forced to vacate two otherwise unoccupied seats in
the white section of the bus. Martha Walker recalled an occasion on
which she and her husband, a blind veteran who was on his way to obtain
treatment at a Veterans Administration hospital, left a bus because the
driver had rudely ordered them to the rear of the vehicle. Joseph Alford
testified that a bus driver directed him to enter a bus by the rear
after he had paid in the front; the bus then pulled off before he had a
chance to reach the back door.
The second aspect of King's defense received far less elaboration
than the first. It was based upon testimony regarding King's and the
MIA's commitment to moral suasion rather than physical intimidation.
Reverend Robert Graetz, one of the few white Montgomerians to support
the boycott publicly, testified that he had never heard King or any
other member of the MIA threaten anyone who decided to ride the buses.
King himself stated that he neither practiced nor encouraged violence,
and that, with respect to influencing other blacks' commuter habits, his
only advice had been 'let your conscience be your guide.'
3. The Benefits of the Trial Despite the Verdict
Although the verdict, as expected, went against King, his
constituents derived significant benefits from the trial, just as they
had benefitted from the mass indictments. Trials presented one of the
few arenas in the South where black professionals could meet their white
counterparts in open competition. The tenacious defense offered by
King's attorneys bolstered their own confidence and, by extension, the
self-esteem of the black community as a whole. His lawyers provided a
substantial psychological victory when they matched, or frequently
outshined, their white counterparts, and when they succeeded in
eliciting respect even from hardline segregationists. Silent applause
erupted from the blacks in the courtroom when Mayor Gayle answered 'No,
sir,' to a question propounded by one of 'their' attorneys.
The trial also facilitated the public airing of two aspects of
southern race relations which, according to segregationists, did not
even exist: the systematic mistreatment of Negro citizens and widespread
opposition among Negroes to the segregation regime. Solicitor Thetford
called to the stand as rebuttal witnesses bus drivers who swore that
they had never called blacks 'niggers' nor encountered any racial
difficulties. One recounted that he had even been accused by whites of
showing undue favoritism to blacks. Others testified that they had
applied the customs and rules of segregation even-handedly, ousting
whites from seats in the black section of the bus just as blacks been
ousted from seats in the white section. These efforts of rebuttal,
however, were no match for the testimony given by the black
Montgomerians who related the outrages committed against them. Their
testimony further eroded the myth of symmetry that had long sustained
the separate but equal doctrine. It belied the comforting assertion of
the white power structure that, except for the agitation of a few
troublemakers, segregation was acceptable to both whites and blacks.
This testimony helped to create the image that, more than any other,
publicized the iniquity of segregation: the image of a bus driver
ordering a person to the back of the bus on account of nothing more than
the color of her skin.
4. Problems in the Defense
The conduct of the defense was not without its problems. The first
was rather straightforward: the transcript of the trial reveals that in
several instances defense attorney Orzell Billingsley wholly neglected
to familiarize himself with his own witnesses. On one occasion, for
instance, he called to the stand for purposes of illustrating recent
driver misconduct a woman who testified, to his evident surprise, that
she had not ridden a bus since 1946.
The second problem is more complicated. It stems from the ambivalence
of a defense torn between a strategy of putting the Company on trial and
a strategy of evading the prosecution's charges by denying the
allegation that King and the MIA had organized a boycott. Throughout the
trial, witnesses friendly to the defense claimed that they were unable
to recall what King had stated at MIA mass meetings or even whether he
had spoken at all at meetings they had attended. Some witnesses
suggested, moreover, that the boycott was not really a boycott at all
but rather a concatenation of individual decisions that happened to have
been made at around the same time.
The most striking example of this strategy of evasion was King's own
testimony. He claimed, for instance, that he had not urged Montgomerians
to refrain from riding the buses. But, as the prosecution pointed out,
the founding resolution of the MIA expressly called upon 'every citizen
in Montgomery, regardless of race, color or creed, to refrain from
riding buses' until a suitable understanding had been established with
the Company.
The problem with the strategy of evasion was that it rested upon an
obvious falsity. This raises the thorny question whether, or to what
extent, King and his allies owed a moral obligation of truthfulness to
institutions that oppressed them. Lying would seem to pose something of
a quandary for a protest that derived much of its inner and outer
strength from its sense of moral purity. Furthermore, given that King's
conviction was virtually certain no matter how he portrayed his role in
the protest, the question arises why he adopted a position at trial so
at odds with the candid defiance and plain-spoken eloquence that had
helped to make the boycott the extraordinary event it had become.
Perhaps he deemed evasion necessary to protect participants in the
protest; to have been open and forthright on the witness stand might
have risked exposing vulnerable people to extra-legal retribution.
Perhaps, if pressed, King would also have noted that he was being tried,
after all, in a court that lacked basic elements of justice. Although
the nature of King's testimony raises an interesting philosphical
problem, I shall not pursue it here. At this point, I simply want to
establish that this aspect of King's defense is problematic and that the
eventual victory of King and the MIA in the battle of Montgomery does
not mean that everything they did was necessarily proper or efficacious;
victors sometimes triumph despite themselves.
The law under which King was convicted exemplified the long-standing
antipathy of the Alabama state government to dissident mass movements.
It was enacted in 1921 as part of a package of anti-union statutes, one
of which--a law that completely prohibited picketing--was invalidated in
1940 by the United States Supreme Court in Thornhill v. Alabama. Had
King's attorneys succeeded in having the conviction of their client
reviewed in a federal forum, the case might have become Thornhill II.
They raised a variety of constitutional objections to his prosecution,
the most persuasive of which included the following: (1) the
anti-boycotting statute deprived King of due process of law by failing
to appraise him precisely of the wrong he was charged with committing;
(2) because King was 'selectively' prosecuted, the application of the
law denied him due process and equal protection; and (3) the statute on
its face and as applied abridged rights protected by the First
Amendment.
By the time of King's trial, it was well-established as a matter of
federal constitutional law that due process required a statute to be
sufficiently clear to provide fair warning to the citizenry and guidance
to judicial personnel charged with determining whether a violation had,
in fact, occurred. Twenty years before King's prosecution, the president
of a labor union in Alabama was charged and convicted of picketing a
business 'without just cause or legal excuse.' In the course of
invalidating that statute, the Supreme Court stated in Thornhill v.
Alabama that ' t he phrase 'without just cause or legal excuse' does not
in any effective manner restrict the breadth of the regulation; the
words themselves have no ascertainable meaning either inherent or
historical.' Three years later, the Supreme Court of Alabama faced the
argument that this very infirmity afflicted the state's anti-boycotting
law; after all, it too conditioned the application of criminal law on
whether the activity in question was undertaken without 'just cause.'
Citing Thornhill, the Court of Appeals of Alabama invalidated the
statute. The court of appeals was reversed, however, by the state
supreme court. In an opinion that did not add specific content to the
statute's amorphous language, the Supreme Court of Alabama simply
declared that the statute's prohibition against interfering with
another's business 'without just cause' was the same as prohibiting
'unlawful interference'--as if the mere invocation of the word
'unlawful' solved the problem of vagueness. The difficulty with the
statute was its indefiniteness. The Supreme Court of Alabama failed to
resolve that difficulty but simply papered over it with a term as
amorphous as the one it purported to clarify.
The second objection raised by King's attorneys was that their client
had been singled out for prosecution in a manner that was fundamentally
unfair. This claim is related to the earlier point regarding vagueness.
Because the statute was so indefinite, it greatly enhanced the risk that
officials would use the law to target political rivals or enemies.
Justice Frank Murphy had anticipated this problem in Thornhill when he
decried '[t]he existence of . . . a statute, which readily lends itself
to harsh and discriminatory enforcement by local prosecuting officials,
against particular groups deemed to merit their displeasure. . . .' That
state officials were 'out to get' King and the MIA for constitutionally
dubious purposes is, in one sense, rather obvious. The White Citizens
Councils systematically and openly boycotted those who resisted
segregation. Needless to say, however, the Councils had no reason to
fear state prosecution. For King and the MIA the situation was
different. Announcing King's indictment, the grand jury declared: 'We
are committed to segregation by custom and by law,' and 'we intend to
maintain it.'
A court willing to act upon the obvious might have invalidated King's
conviction on the grounds that, whatever the underlying merits of the
case, Montgomery officials prosecuted King not to effectuate the state's
antiboycotting statute, but rather to 'get tough' with
anti-segregationist dissidents. But where officials are charged with
selective prosecution, courts have rarely been willing to recognize the
obvious. Beset by difficult problems involving institutional competence
and community safety, judges have condemned invidious prosecution in the
abstract but have generally declined to use judicial remedies against
such wrongs.
Any knowledgeable observer of the crisis in Montgomery would have
recognized that the primary motivation behind King's prosecution had
little or nothing to do with the state's antipathy to boycotts. But it
would have been difficult to prove in a legal sense that the prosecution
had improperly focused on King while allowing others to violate the law.
A small number of prosecutions had been brought (albeit a decade
earlier) against persons other than black anti-segregationists.
Furthermore, it could truthfully be said with respect to King and his
co-defendants that no other group in Alabama history had ever staged
such a large and well-publicized boycott. Finally, the grand jury's
affirmation of segregation simply reflected a conclusion implicit in the
indictment itself; insofar as segregation constituted a lawful policy of
the state, opposition to it provided no 'just cause' for a boycott.
The third objection raised by the defense was that the prosecution
violated King's First Amendment rights. Whether, or to what extent, a
state may properly regulate consumer boycotts poses difficult legal
questions. Boycotting, like any other political tool, can be used for
both bad and good causes; wielded by the MIA, it aided desegregation,
but wielded by White Citizens Councils, it aided the old order.
Politically-motivated boycotts implicate weighty values, including
freedom of association, expression, and political participation. But
they also can impose heavy, perhaps even crippling, economic losses upon
society and coerce individuals into speech or silence, action or
inaction that they would otherwise avoid. Thus, no ahistorical,
noncontextual, normative judgment can properly be made about a political
boycott per se; its legitimacy depends upon the circumstances in which
it occurs.
King was taken aback initially by criticism which equated the MIA's
boycott with those sponsored by the White Citizens Councils. He was
forced, he later recalled,
to think seriously on the nature of the boycott. Up to this time I
had uncritically accepted this method as our course of action. Now
certain doubts began to bother me. Were we following an ethical course
of action? . . . Is it true that we would be following the course of
some of the White Citizens Councils? Even if lasting practical results
came from such a boycott, would immoral means justify moral ends? Each
of these questions demanded honest answers.
King eventually concluded that the substantive differences between
the two organizations constituted the most relevant line of distinction.
'Our purposes,' King declared, 'were altogether different':
We would use [the boycott] to give birth to justice and freedom, and
also to urge men to comply with the law of the land; the White Citizens
Councils used it to perpetuate the reign of injustice and human
servitude, and urged men to defy the law of the land.
Had King's attorneys argued the issue, they would probably have
insisted that, in this particular case, the organized, peaceful
withdrawal of patronage, effected without picketing or any other sort of
confrontational activity, constituted a form of speech entitled to First
Amendment protection. Whether they would have prevailed in a federal
forum is a close question, an examination of which reveals another facet
of the ambiguous legal and moral climate that King confronted. On the
one hand, in a series of cases involving efforts to suppress civil
rights protests, the Supreme Court repeatedly invoked the First
Amendment to rule in favor of besieged dissidents. In 1963, for example,
in a decision that finally cleared the way for the NAACP to operate in
Alabama after being shut down by the state for seven years, Justice
Harlan characterized as a 'doubtful assumption' the proposition that 'an
organized refusal to ride on Montgomery's buses in protest against a
policy of racial segregation might, without more, in some circumstances
violate a valid state law . . .' On the other hand, with respect to
Negroes' resort to anti-discrimination consumer boycotts, judges in the
1950's--including some Supreme Court Justices--'appear ed inclined to
apply the same rigid limitations on economic coercion that stifled labor
boycotts in the first decades of the century.' Courts issued injunctions
and awarded damages on the basis of findings that without 'just cause'
the instigators of a given boycott had interfered with the legitimate
expectations of a targeted enterprise. What was deemed to constitute
'just cause' was notably vague and on that ground alone raised (or
should have raised) constitutional problems. The concept was defined
more by the absence of certain prescribed features than by the presence
of a given characteristic. Three elements commonly viewed as
incompatible with just cause were (1) violence, (2) actions against
secondary parties, and (3) attempts to obtain goals that contravened
public policy. Viewing King's prosecution through the prism of these
elements casts light on certain of the boycott's neglected dimensions.
The issue of violence can be dealt with quickly. We have already seen
that, fairly considered, none of the prosecution's evidence linked King
or the MIA with any violent actions. Nearly all of the violence that did
take place was directed against the boycott and not in support of it.
A bit more complicated is whether the boycott was a secondary
boycott, a widely outlawed genre of concerted activity in which one
party boycotts a neutral party for the purpose of forcing the neutral
party into supporting the boycotters' demands against the primary target
of their action. To some extent, the boycott of the buses in Montgomery
resembles a secondary boycott, for the MIA boycotted the Company even
though its ultimate complaint was with the City and the state; after
all, these were the entities that enacted the segregation laws, not the
Company. On the other hand, on matters besides desegregation, what
precludes the protest from properly being deemed a secondary boycott is
that the MIA and the Company were directly at odds with one another.
After all, the MIA demanded two things that were wholly within the
Company's own power to provide: courteous treatment by drivers and the
employment of Negro drivers on predominantly black routes. The
Montgomery protest, in other words, was not one in which a boycott was
imposed upon an 'innocent,' neutral party; the Company was as much a
target of black anger as the city government.
The third analytical wrinkle implicating the 'just cause' test
involves determining whether the MIA's demands conflicted with public
policy. The demand for desegregated seating clearly contradicted
Alabama's expressed commitment to racial separation. Federal courts
would soon find that commitment to be a violation of the Constitution.
But by boycotting in advance of that decision, the MIA put the bus
company to a difficult choice between: (1) enforcing segregation and
thereby incurring the heavy financial losses caused by the boycott, or
(2) disregarding state law and thereby risking criminal sanctions and
the loss of its franchise in the event segregation was upheld. Some
judges may have considered the imposition of that choice as itself a
form of illicit coercion. After all, the MIA marshalled the black
community's economic power in a way that damaged a utility important to
the entire community and did so although a judicial forum was available
to resolve the controversy. On the other hand, it is difficult to
generate much sympathy for the Company. It has neglected to discipline
its own offensive drivers. It had helped to back itself into a corner by
stubbornly insisting via Jack Crenshaw that the MIA's initial demands on
seating were incompatible with existing segregation laws. It conducted
itself for much of the boycott as an active arm of the state.
There is little doubt that if the prosecution were re-enacted today
the federal judiciary would reverse King's conviction. One basis for
this proposition is NAACP v. Claiborne Hardware Co., a 1982 decision in
which the Supreme Court reversed a million-dollar judgment against the
NAACP that resulted from a suit by white businessmen in Port Gibson,
Mississippi, who accused the local affiliate of the NAACP and its parent
organization of maliciously interfering with their businesses by
sponsoring a boycott. The Court held that the First Amendment protected
the non-violent aspects of the NAACP's boycott. The seven-year boycott
in Port Gibson began in 1966 to protest injustices similar to those
underlying the rebellion in Montgomery a decade before. The contexts are
certainly distinguishable. The case against King involved a criminal
prosecution; the case against the NAACP, a civil action. The case
against King was predicated on nothing more specific than that he had
led a political boycott lacking 'just cause.' The case against the NAACP
was far more clearly based on findings that the boycott had been
enforced, in part, by physical intimidation and violence directed by
protesters against blacks who continued to patronize white-owned
establishments. Each of these distinctions would favor King. If the
civil suit against the NAACP in Claiborne Hardware violated the First
Amendment, the same would be true a fortiori with respect to Alabama's
criminal prosecution of Martin Luther King. Although elements in the
prosecution of King may have enabled federal appellate courts to turn it
into a vehicle for broadening Thornhill or anticipating Claiborne
Hardware, the case actually amounted to nothing in terms for clarifying
or creating federal constitutional doctrine. The case never made it to a
federal forum; King lost his right to appeal because his attorneys filed
the required papers tardily. In addition, there were no follow-up
prosecutions, a consequence, according to King, of a deal in which the
state dismissed charges against whites accused of perpetrating acts of
racial violence.
B. City of Montgomery v. Montgomery City Lines
After King's trial, three other court cases significantly affected
the course of the boycott. The first, City of Montgomery v. Montgomery
City Lines, displayed a deep fissure in the white power structure. At
the beginning of the boycott, the Company and the city commissioners
responded in concert to the MIA's challenge. As the economic pressure on
the Company increased, however, that unity deteriorated. Because blacks
constituted at least seventy percent of the Company's riders, their
withdrawal of patronage constituted a potentially crippling loss of
revenues. To stem its losses, the Company suspended service over the
Christmas holidays in 1955, reduced service thereafter, and obtained an
increase in fares. As the financial pinch intensified, the Company
distanced itself from its earlier embrace of segregationism. 'We would
be tickled if the law were changed,' the Company's president declared
early in April 1956. 'We are simply trying to do a transportation job,
no matter what the color of the rider.' Later that same month, the
Company attempted to avoid further financial losses by publicly
directing its drivers to discontinue enforcing segregation. One
consequence of the Company's action was the resignation of its counsel
Jack Crenshaw, the lawyer whose advice had helped create the impasse
from which Montgomery City Lines sought to extricate itself.
City and state authorities reacted strongly. Commissioner Sellers
announced that police would arrest bus drivers who permitted
desegregation and passengers who sat with passengers of another race.
The President of the Alabama Public Service Commission informed the
parent company of Montgomery City Lines that its subsidiary must adhere
to state policy regarding segregation in transportation 'or suffer the
consequences.' Finally, when Montgomery City Lines refused to rescind
its new policy, the City sought an injunction in the county court to
prohibit the Company from disregarding city and state segregation
requirements.
Montgomery City Lines claimed that it had 'no choice' but to
disregard state and local law because of a ruling--Flemming v. South
Carolina Electric & Gas Co.--in which a federal court of appeals had
held that South Carolina's requirement of segregation on buses violated
the Constitution. As part of its decision, the court of appeals
reinstated the complaint of a Negro woman who had sued the local bus
company for damages because its agents had compelled her to change seats
pursuant to the unconstitutional state law. The Supreme Court summarily
dismissed the bus company's appeal. Montgomery City Lines interpreted
the Supreme Court's action as a ruling invalidating segregation in
intrastate transportation. The Company claimed that Flemming meant that
it too would be legally vulnerable to suits for damages if it continued
to enforce segregation.
Perhaps fear of damage awards did really motivate the Company's
action. At the hearing on the City's application for an injunction, the
Company lawyer stated that if Montgomery City Lines continued to enforce
segregation, it risked being subjected 'to damage suits [that] could be
multiplied almost beyond belief.' Even if authentic, however, that fear
was probably unwarranted. Lily-white juries would have posed an imposing
obstacle to any campaign aimed at reforming racially discriminatory
corporate conduct by threat of litigation. In any event, lawsuits
seeking individual damage awards do not appear to have been seriously
considered as an option by the MIA. What would have constituted (and
perhaps did, in fact, constitute) a more realistic fear was the
financial burden the boycott imposed; faced with the prospect of
indefinite rebellion by its Negro customers, the Company may well have
been seeking some face-saving way to capitulate.
The Company, however, received no support from the Circuit Court of
Montgomery County, for Judge P. J. Jones ordered it to continue
enforcing state and local segregation laws. Judge Jones rejected
Flemming, contending that it was 'not well reasoned [and] not sound
law.' It was, he maintained, 'simply the guess of the Fourth Circuit
Court of what the United States Supreme Court will hold.' Quoting the
language of an 1899 Alabama Supreme Court decision, he asserted that ' i
t is not an unreasonable regulation to seat passengers so as to preserve
order and decorum, and to prevent contacts and collisions arising from
natural or well known customary repugnances which are likely to breed
disturbances by a promiscuous sitting.' He did acknowledge the existence
of Brown v. Board of Education--but only barely. Far more relevant to
him were the limitations imposed upon the federal government by the
Tenth Amendment:
The Circuit Court of Montgomery County, Alabama, mindful of its
obligation to support and maintain the United States Constitution, must
declare that under the Tenth Amendment . . . the power to regulate the
intra-state carriage of passengers on buses in Alabama is a power
reserved to the State of Alabama. It has never surrendered this power to
the United States government nor given it to the Supreme Court at
Washington, and this Court will not be a party to filching the power
from the State.
Judge Jones' injunction remained in effect until the Supreme Court
itself decided whether Jim Crow seating aboard intrastate buses remained
constitutionally permissible.
C. City of Montgomery v. Montgomery Improvement Association
The second case involved the City's belated attempt to obtain an
injunction against the operation of the MIA's transportation system. The
City argued that the MIA lacked a license and other requirements for
operating a transportation system. There was little doubt that, absent
some sort of unusual intervention, the City would obtain the relief it
sought; after all, the case would be adjudicated by Judge Carter. The
MIA attempted to elicit intervention by applying to federal court for an
injunction restraining the City from taking legal action in state court
against the car pool operation. But Federal District Judge Frank Johnson
rejected the MIA's motion, concluding that the boycotters were not being
'threatened with any injury other than that incidental to the
enforcement of city ordinances' and that their rights could adequately
be protected by the normal course of litigation.
In the wake of Judge Johnson's abstention, Judge Carter granted, as
expected, the injunction requested by the City. The Negro community
would probably have been unable to carry on its boycott much longer
without an alternative transportation system. However, on November 13,
1956--the very day that Judge Carter enjoined the MIA from continuing to
operate its car pools-- the Supreme Court of the United States, in Gayle
v. Browder, vindicated the boycotters' legal theory that de jure
segregation on the buses violated the federal constitution.
D. Gayle v. Browder
Gayle v. Browder was the most significant of the suits that arose
from the Montgomery Bus Boycott. Fred Gray filed it February 1, 1956,
two days after King's home was bombed for the first time. Gray had
previously asserted the unconstitutionality of bus segregation as a
defense to the prosecution of Mrs. Parks, but had lost the right to
appeal that issue because of a procedural mishap. In Gayle, Gray
reasserted the claim but this time in a federal, as opposed to a state,
court and on behalf of a plaintiff instead of a defendant.
Why did the MIA wait almost two months after Mrs. Parks' conviction
before again challenging the constitutionality of bus segregation? King,
Gray, and other MIA leaders were certainly aware of the opportunity for
legal attack via motions for declaratory judgment and injunctive relief.
Clifford Durr, a progressive white lawyer in Montgomery, urged this
course of action, as did Robert Carter and other NAACP activists.
Indeed, the NAACP refrained from providing financial support to the
boycott in its early stages precisely because the MIA refused initially
to include within its demands the abolition of segregation. King later
expressed a preference for handling racial conflict through negotiation
or mass action rather than litigation. At the time of the boycott,
however, neither he nor any of the other leaders of the MIA articulated
clearly the strategic calculations that led them to delay initiating the
court proceedings which ultimately destroyed the legal basis of the
City's recalcitrance.
One consideration that helps to explain the protesters' initial
reluctance to sue is that they actually believed that the white power
structure would strike some sort of compromise with them once it
perceived the depth of their dissatisfaction with the situation on the
buses. A concomitant part of that expectation and strategy involved
requesting something that the local authorities could deliver
legally--the amelioration, as distinct from the abolition, of segregated
seating. It took time for King and his associates to realize that even
that modest reform would appear imprudent and threatening in the eyes of
many whites insofar as it represented a public demand that had been
buttressed by black collective action.
Another consideration involved the social meaning of lawsuits. In
Montgomery in 1955, filing a lawsuit challenging the constitutionality
of state and local segregation statutes was a radical act. Many
observers now tend to regard the legalistic attack on segregation as a
rather conservative tactic. But at that time, the lawsuit was equally,
if not more, provocative as the mass boycott. The boycott simply
involved, after all, a mass withdrawal from the color line. It involved
doing on a mass basis what individual blacks who owned cars had long
done. In contrast, the suit attacking the constitutionality of
segregation actually envisioned erasing and crossing the color line. The
reason that King and the MIA resisted the NAACP's offer to help in such
a suit is that they sought to avoid the reputation that made the NAACP
'enemy number one' to segregationists throughout the Deep South. They
knew, as Taylor Branch observes, 'that white Alabama would react to the
filing of a suit as the social equivalent of atomic warfare.' They
therefore reserved their judicial option until all other avenues of
relief failed.
Gayle was brought as a class action on behalf of four named
plaintiffs and 'all other Negroes similarly situated.' Each of the named
plaintiffs had either been asked by a driver or police officer to comply
with the targeted segregation laws or had actually been arrested. It may
appear in retrospect that Gayle should have been an easy case. After
all, the Supreme Court had already decided Brown v. Board of Education.
Brown, however, meant something far different in 1956 than it does now.
Presently, it looms as a grand transformative decision, 'not only a
major event in the history of race relations . . . but also a
significant moment in American jurisprudence.' In 1956, however, its
scope was uncertain.
In Brown, Chief Justice Earl Warren declared for a unanimous Court
that 'in the field of public education the doctrine of 'separate but
equal' has no place.' Clearly, the Court could have condemned all
statutes requiring racial segregation, but that is not what it chose to
do. Rather, the Court left open the possibility that de jure segregation
might still 'have a place' in fields other than education.
Several federal district judges refused to extend Brown outside the
context of public schooling. In Lonesome v. Maxwell, for example, a
federal district judge denied relief to white and black plaintiffs who
sought to enjoin Maryland and the City of Baltimore from segregating
blacks at beaches, bath houses, and swimming pools. The opinion bears
none of the hallmarks of segregationist defiance. It reflects a careful
effort to understand Brown, that is, to determine whether the Justices
meant to erase de jure segregation altogether or only in public
schooling. Nothing that the Justices in Brown had repudiated the
separate but equal doctrine in only one particular context, the district
court decided that, at least with respect to recreational facilities,
Plessy was still good law.
By the time that the three-judge panel in Gayle was ready to announce
its decision, the district court in Lonesome had already been reversed
by a court of appeals that was subsequently affirmed by the Supreme
Court. By that time, the Court had reversed a district court's refusal
to extend Brown to public golf courses. Yet despite the tilt of Supreme
Court precedent, disposing of Gayle proved to be a difficult and
controversial undertaking.
Judges Richard T. Rives and Frank Johnson forged the majority that
invalidated the city ordinance and state statute compelling segregation
in intrastate transportation. They believed that in light of Brown and
subsequent decisions extending Brown to other settings, they could no
longer 'in good conscience perform their duty as judges by blindly
following Plessy .' They concluded that Plessy had been impliedly
overruled and that there existed 'no rational basis upon which the
separate but equal doctrine can be validly applied to public carrier
transportation within the City of Montgomery. . . .' The third member of
the panel, Judge Seybourn Lynne wrote a passionate dissent. He noted
that the Supreme Court had not seen fit to repudiate Plessy explicitly
and complained that the willingness of lower court judges to disregard
Supreme Court precedent in the absence of express directions from the
Justices constituted ' a comparatively new principle of pernicious
implications.' He acknowledged that 'the trend of the Court's opinions
was to the effect that segregation is not to be permitted in public
facilities furnished by the state itself. . . .' But he insisted that
'it does not follow that segregation may not be permitted in public
utilities holding non-exclusive franchises.'
A strong allegiance to stare decisis and hierarchical authority
within the federal judiciary would seem to counsel allowing only the
Justices themselves to overrule Supreme Court precedent. Furthermore, as
noted above, the Brown opinion itself invited a rather narrow reading.
Judge Lynne, however, should have been put on notice by the Court's
subsequent decisions that the Court meant for Brown to extend beyond the
schoolhouse. Moreover, his attempt to distinguish Gayle on the basis of
the bus company's non-exclusive franchise was wholly specious; the
nature of a given carrier's franchise was irrelevant since the city and
state laws in question compelled all carriers to segregate passengers on
the basis of race.
The district court rendered its decision on June 5, 1956. But the
ruling led to no concrete change in the conduct of the parties, for the
panel stayed its judgment and award of relief during the pendency of the
City's appeal to the Supreme Court. For five months after the district
court's decision, the boycott dragged on. Then, finally, on November 13,
1956, the Supreme Court issued a per curiam opinion affirming the
district court: Per Curiam: The motion to affirm is granted and the
judgment is affirmed. Brown v. Board of Education . . . Mayor and City
Council of Baltimore v. Dawson . . . Holmes v. Atlanta.'
The Court's summary disposition of Gayle represented the continuation
of a strategy the Justices informally formulated immediately after
Brown: policing Brown's enforcement and enlarging its ambit in as
low-key and uncontroversial a manner as possible. The Court's injunction
that Brown be implemented 'with all deliberate speed' was one facet of
this strategy. Another facet was total avoidance. The Court simply
refused, for instance, to consider a case involving the
constitutionality of a state anti-miscegenation statute even though it
had to torture jurisdictional rules to do so. A third element of this
strategy was summary treatment of cases involving the validity of
segregation statutes outside the context of public schooling. Between
1955 and 1960, the Court was forced, on occasion, to confront in a
direct and plenary manner the political story that Brown precipitated.
In 1958, for instance, in a dramatic special session, the Court denied a
request from a local school board to further delay desegregation even
though the board accurately warned that enforcing Brown would risk
violence. By and large, however, the Justices strove to avoid public
prominence.
The Court's resort to summary dispositions entailed certain costs.
Summary dispositions nourished accusations that the Justices were
conducting themselves in an unprincipled and high-handed manner.
Moreover, the failure to explain the basis for their decision retarded
public understanding--and perhaps the Justices' own
self-understanding--of just what it was about de jure segregation that
made it in all circumstances incompatible with the Constitution. One can
also understand how, from a certain perspective, the Court's judgment is
disturbingly bare in light of the grandiloquent protest that gave rise
to the case; Gayle fails even to mention that it was effectively
overruling Plessy v. Ferguson.
Ultimately, though, a united Court armed the boycotters with the
legal backing that they desperately sought and needed. Whatever costs
were associated with the form of the judgment were probably worth paying
if the alternative would have been a substantial crack in the Court's
unanimity. Moreover, to some, the very muteness of Gayle spoke volumes
insofar as it indicated that, at least for the Justices, the
constitutional question of de jure segregation was no longer open to
real debate.
The Supreme Court's decision did not immediately end the boycott. The
City petitioned the Court to reconsider their ruling and indicated that
it would demand the enforcement of segregation on the buses until all of
its legal avenues for relief has been exhausted. The commissioners were
determined to sustain the life of Jim Crow seating to the bitter end. In
contrast, upon learning of the ruling, the MIA immediately decided to
suspend the boycott, though it requested boycotters to delay an actual
return to the buses until all legal resistance by city officials had
been overcome. In the meantime, the MIA prepared the black community for
the imminent prospect of desegregated seating, emphasizing in speeches
and leaflets the desirability of peace and good-will. The time had come,
King declared, to 'move from protest to reconciliation.' On December 17,
the Court rejected the City's petition, and on December 20, the official
papers announcing the Court's action were delivered to city officials.
Early the next morning, Martin Luther King, Jr., and other leaders of
the boycott boarded a bus and without incident occupied seats near the
front in the section that had previously been reserved for whites only.
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