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.
