What Thurgood Marshall Taught Me

When her allotted 15 minutes had elapsed, the plaintiff returned to her seat. Judge Lumbard, who was presiding, turned to the Most Junior Junior Assistant United States attorney and invited him to respond.

The Most Junior Junior Assistant stepped to the lectern. With great confidence, the young man recited the 10 very precise words he had been instructed to say:

“May it please the court, we rest on our brief.”

With that, the Most Junior Junior Assistant sat down. He had done his job, and although he had uttered only 10 words, he could put on his résumé that he had argued a case before the United States Court of Appeals.

And what had his argument been? In the grandiloquent language of the law, the Most Junior Junior Assistant had stated that the appellant’s case was so utterly frivolous, so completely lacking in merit, that there was no need for the appellee to respond. To rest on one’s brief is tantamount to a wink and a nod: We all know you’re going to rule our way, so why bother to pretend?

Almost always, the party resting on its brief is allowed by the court to do so.

But not this time.

Lumbard glowered. He got to his feet, unheard of from a judge in the middle of argument. Lumbard was not a physically towering man, but when he stood on the raised dais and glared down at the Most Junior Junior Assistant, he seemed 10 feet tall. His voice thundered:

“Are you trying to tell me, young man, that after this woman, in the exercise of her fundamental constitutional right to petition her government for the redress of grievances, has come into this courtroom to argue her case, her own government will not even do her the dignity of a response? Get up here and argue, sir!”

And so the Most Junior Junior Assistant returned to the lectern and after a bit of fumbling began, nervously, to repeat what the government had argued in its brief. After a few minutes, Judge Lumbard told the young man that he could sit.

A couple of weeks later, the court dismissed the appeal without comment, leaving mysterious the reason the case had been placed on the calendar. But that wasn’t the end of the story. Here’s the kicker:

The woman never filed another lawsuit.

Marshall had a simple explanation: She was satisfied. She had been heard, and she had seen the chief judge of the Court of Appeals yell at the government’s lawyer on her behalf. She felt vindicated.

You might say: Oh, well, it was all just symbolic. After all, she lost the case.

That objection misses the point Marshall was trying to make. At one level, the story is a cautionary tale about access to the courts. Few rights, years of litigation had taught him, are more precious. Southern judges and legislators sought constantly for ways to toss out the N.A.A.C.P.’s lawsuits — or keep them from being filed. Not until 1963, after Marshall was appointed a federal appellate judge, did the Supreme Court strike down a particularly devious Virginia statute that manipulated the definition of improper solicitation to make it nearly impossible for civil rights lawyers to line up clients.

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