September 20, 2012
The following story appears in the Summer 2012 issue of the Harvard Law Bulletin.
In 1932, in a Philadelphia courtroom, a defense attorney representing a man accused of murder cross-examined a police officer. There was nothing unusual about this scene, except that the defense attorney, Raymond Pace Alexander ’23, was black, and the officer he was aggressively questioning was white.
This scene is one of many dramatic moments in the new book by HLS Professor Kenneth Mack ’91, “Representing the Race: The Creation of the Civil Rights Lawyer,” published by Harvard University Press in April. Mack has written a collective biography of a group of black lawyers who worked in the era of segregation. He explores the tension between their racial identity and their participation in the predominantly white legal profession. By straddling and challenging the racial divide, he argues, they claimed a distinctive, and sometimes problematic, role as representatives of an entire race.
Mack explores the courage that was required for black advocates to step into a courtroom and ask to be treated in the same way as white attorneys, at a time when things were very different beyond the courthouse walls. Although he was called “Sir” by the white police officer he was questioning, it’s unlikely, writes Mack, that Alexander would have been served in the restaurant across the street. Yet he gained a certain degree of acceptance among the white lawyers in the room.
Charles Hamilton Houston ’22 S.J.D. ’23, the vice-dean of Howard Law School, who would transform the school into a training ground for civil rights lawyers, took that acceptance to an even higher level. Houston’s handling of the defense of George Crawford, a black man tried in Loudoun, Va., in 1933 for murdering a white woman, is portrayed as a watershed moment. In Mack’s suspenseful account, we see Houston—a skilled orator and strategist—forge relationships with the white bar, saving his client from the death penalty and proving what a black lawyer could achieve in a Southern courtroom. But we learn that after Crawford began to voice complaints about his defense, Houston would come under sharp criticism from within the NAACP, which called into question whose interests he was representing.
Thurgood Marshall is at the center of the book, but Mack reframes the story of Marshall’s legal career, which traditionally has been formulated as a direct reaction against segregation that led him to his victory in Brown v. Board of Education. He was attacking Jim Crow, according to Mack, but like a generation of black lawyers, he was also attempting to convince both blacks and whites that he represented their particular point of view.
Mack also tells the story of lesser-known figures who influenced the civil rights movement, such as the biracial Loren Miller. A lawyer by training, he initially was drawn to Marxism and rejected the idea that law furthers racial progress. But that changed when he began to represent black clients in Los Angeles who had been dispossessed of their homes through racial restrictions on their property. He became a civil rights attorney specializing in restrictive covenant cases, which eventually took him to the Supreme Court.
Also featured is the intriguing Pauli Murray, a brilliant, light-skinned black woman, who questioned her gender and often dressed as a man. She arrived at Howard Law School in 1941, intent on becoming part of the NAACP litigation team to fight Jim Crow. But although she outshone her male classmates, she found herself, in her own words, “excluded from the fraternity of lawyers who would make civil rights history.” It’s at Howard, says Mack, that she began to articulate her theory of discriminatory sex bias, which she labeled “Jane Crow.” But it stemmed, he says, from many years of not fitting in with a society that needed to categorize her—as black or white, male or female. Mack writes that some 30 years later, “[when Ruth Bader Ginsburg finally persuaded the Supreme Court to elevate sex discrimination to a constitutional claim, she would place Murray’s name on the brief as a progenitor of her ideas.”
Although Mack’s book is a work of legal history, he says it’s clear from the questions posed about the loyalty and identity of the most established black lawyers—Justice Clarence Thomas and President Barack Obama ’91, for example—that these issues are very much alive today.