* United States Circuit Judge, United States Court of Appeals for the Second Circuit.
** Senior Counsel, Cadwalader, Wickersham & Taft LLP.
In 1961, James Meredith applied for admission to the University of Mississippi. Although he was eminently qualified, he was rejected. The University had never admitted a black student, and Meredith was black.
See Meredith v. Fair, 305 F.2d 343, 345–46 (5th Cir. 1962) (setting forth facts); Meredith v. Fair, 298 F.2d 696, 697–99 (5th Cir. 1962) (same). The terms “black” and “African American” were not widely used at the time the Meredith case was litigated. Although the phrase “African American” was used as early as 1782, see Jennifer Schuessler, The Term “African-American” Appears Earlier than Thought: Reporter’s Notebook, N.Y. Times: Times Insider (Apr. 21, 2015), http://www.nytimes.com/times-insider/2015/04/21/
the-term-african-american-appears-earlier-than-thought-reporters-notebook/ (on file with the Columbia Law Review); Jennifer Schuessler, Use of ‘African-American’ Dates To Nation’s Earliest Days, N.Y. Times (Apr. 20, 2015), http://www.nytimes.com/2015/04/21/arts/use-of-african-american-dates-to-nations-early-days.html?smid=tw-share (on file with the Columbia Law Review), and the term “black American” appeared as early as 1818, id., the phrase was not commonly used until the 1980s when the Reverend Jesse Jackson led a movement to call blacks in America “African Americans,” see Isabel Wilkerson, “African-American” Favored by Many of America’s Blacks, N.Y. Times (Jan. 31, 1989), http://www.nytimes.com/1989/01/
31/us/african-american-favored-by-many-of-america-s-blacks.html (on file with the Columbia Law Review). Historically, black Americans were referred to as “colored” until the term “Negro” was advocated by W.E.B. DuBois in the 1920s. See Brian Palmer, When Did the Word Negro Become Taboo?, Slate (Jan. 11, 2010), http://www.slate.com/articles/news_and_politics/
explainer/2010/01/when_did_the_word_negro_become_taboo.html [http://perma.cc/7CQW-ASE9]. Starting in 1966, when Stokely Carmichael used the phrase “black power,” the usage of “Negro” declined, and by the 1970s, the term “black” became the preferred term. Id. The transcripts of the court proceedings show that the participants in the Meredith case employed “Negro” and not “black” or “African American.” In this Essay, we likewise employ the term “Negro” when the context makes clear that we are discussing events as they were viewed in the 1960s by the participants in the case.
Represented by Constance Baker Motley and the NAACP Legal Defense and Educational Fund (LDF), Meredith brought suit in the United States District Court for the Southern District of Mississippi, alleging that the university had rejected him because of his race. 2 See Meredith v. Fair, 199 F. Supp. 754, 754–55 (S.D. Miss. 1961). Although seven years had passed since the Supreme Court’s ruling in Brown v. Board of Education, 3 347 U.S. 483 (1954). many in the South—politicians, the media, educators, attorneys, and even judges—refused to accept the principle that segregation in public education was unconstitutional. The litigation was difficult and hard fought. Meredith later described the case as “the last battle of the Civil War.” 4 James Meredith with William Doyle, A Mission from God: A Memoir and Challenge for America 117 (2012). Eventually, Motley and Meredith prevailed, pushing open the door to integration in higher education in the Deep South.
In this Essay, we will tell the story of Constance Baker Motley, James Meredith, and their battle with the University of Mississippi, based on records of the court proceedings, other contemporaneous documents, and their memoirs. Transcripts of depositions and hearings 5 We are grateful to the Library Staff of the United States Court of Appeals for the Second Circuit for helping us locate transcripts and other court documents. show the many challenges that Motley and Meredith faced. Judge John Minor Wisdom of the Fifth Circuit would later observe that the case was tried and argued “in the eerie atmosphere of never-never land.” 6 Meredith, 298 F.2d at 701.
The case raises a number of issues, including: the role of lawyers and judges in bringing about societal change; the interplay between popular and cultural views and judicial decisionmaking; the implementation of court decisions and execution of court orders; and the importance of fair admission policies to educational institutions. These issues still resonate today, but close study of a case like this also provides a glimpse into the lives of the participants, the witnesses, the litigants, lawyers, and judges, who together create the kind of human drama that plays out in the courtrooms of this country every day. Individuals like these can make a difference, and the transcripts and court decisions tell their story in their own words.
Just the Beginning Foundation—A Pipeline Organization (JTB) is dedicated to developing and nurturing interest in the law among young persons underrepresented in the legal profession.
See generally Just the Beginning—A Pipeline Org., http://jtb.org/ [http://perma.cc/
VU55-K9E9] (on file with the Columbia Law Review). At the request of JTB, and with the assistance of the young attorneys of Cadwalader’s Black and Latino Association and other Affinity Networks, 8 See generally Black & Latino Ass’n, Cadwalader, http://www.cadwalader.com/about/
diversity/cadwaladers-black-and-latino-association [http://perma.cc/FB3L-E9AD] (last visited July 31, 2017). Joel Motley provided special inspiration to the Cadwalader team as they started this project by sharing with the group a personal showing of his documentary about his mother, The Trials of Constance Baker Motley. The twenty-five-minute documentary premiered at the Tribeca Film Festival in 2015. See Dale Meghan Healey, Constance Baker Motley Is the Civil Rights Movement’s Unsung Heroine, Vice (Apr. 17, 2015), http://www.vice.com/
Z2PP-F5KV]. the authors of this Essay developed a reenactment of the Meredith case that was presented for the first time at JTB’s national conference in New York City in September 2016 celebrating the legacy of Constance Baker Motley. The program was presented “on stage” at the Thurgood Marshall United States Courthouse in New York City, on September 15, 2016, by a cast of “actors” that included federal judges and lawyers using the words spoken in Mississippi and Louisiana courthouses decades ago. 9 The cast included Judge Ann C. Williams of the Seventh Circuit; Judges Robert A. Katzmann, Denny Chin, and Raymond J. Lohier, Jr., of the Second Circuit; Judges Margo K. Brodie, Pamela K. Chen, William F. Kuntz, Sterling Johnson, Jr., and Kiyo A. Matsumoto of the Eastern District of New York; Judges George B. Daniels and Laura Taylor Swain of the Southern District of New York; Robert L. Capers, United States Attorney for the Eastern District of New York; Catherine O’Hagan Wolfe, Clerk of the Court, and Sally Pritchard, Director of Legal Affairs, of the Second Circuit; attorneys Kathy Hirata Chin, Natalie Lamarque, Heather Murray, Kelly D. Newsome, William Zaki Robbins, Zakiyyah T. Salim-Williams, John S. Siffert, and William J. Snipes; and Judge Motley’s son, Joel Motley, Jr. Historic photographs were included in the presentation, developed into PowerPoint slides by David Weinberg of JuryGroup. The program was presented again at Cadwalader in February 2017 as part of the firm’s celebration of Black History Month. 10 The Cadwalader presentation was recorded, and the video is available for viewing on the Cadwalader website. See Constance Baker Motley, James Meredith and the University of Mississippi, Cadwalader (Mar. 23, 2017), http://www.cadwalader.com/resources/videos/
constance-baker-motley-james-meredith-and-the-university-of-mississippi (on file with the Columbia Law Review). This Essay draws on the reenactment to summarize the story of Constance Baker Motley, James Meredith, and their effort to integrate the University of Mississippi.
Constance Baker Motley started working at LDF in 1945 while she was still a law student at Columbia University.
See Motley, Constance Baker, Fed. Judicial. Ctr., http://www.fjc.gov/history/judges/
motley-constance-baker [http://perma.cc/6N3Z-QX2B] (last visited Aug. 1, 2017) (indicating that Motley began working at LDF a year before she received her law degree from Columbia) [hereinafter Fed. Judicial Ctr., Constance Baker Motley]. As the ninth of twelve children born to parents who came from Nevis to settle in New Haven, Connecticut, Constance Baker did not have the funds necessary for a college education until a white businessman heard her speak at a local African American social center that he sponsored. Clarence Blakeslee offered to finance her education, enabling her to go to college and eventually law school. Douglas Martin, Constance Baker Motley, Civil Rights Trailblazer, Dies at 84, N.Y. Times (Sept. 29, 2005), http://www.nytimes.com/2005/09/29/nyregion/
constance-baker-motley-civil-rights-trailblazer-dies-at-84.html (on file with the Columbia Law Review). As an LDF lawyer, she worked on all the major school desegregation cases supported by LDF, including Brown v. Board of Education, the landmark ruling in which the Supreme Court struck down segregation in public schools, ruling separate but equal schools unconstitutional. 12 347 U.S. 483, 495 (1954). With its small office and limited funds, implementing Brown was a major undertaking for LDF. Nevertheless, by 1961, Mrs. Motley had already worked on cases to desegregate higher education in Florida, Louisiana, and Alabama. 13 See, e.g., La. State Bd. of Educ. v. Allen, 287 F.2d 32, 32–33 (5th Cir. 1961) (challenging Louisiana’s refusal to admit African Americans to public trade schools); Hawkins v. Bd. of Control, 253 F.2d 752, 752–53 (5th Cir. 1958) (per curiam) (challenging denial of admission to University of Florida Law School solely because plaintiff was of “the Negro race”); Adams v. Lucy, 228 F.2d 619, 620–21 (5th Cir. 1955) (per curiam) (affirming the district court’s judgment holding the Dean of Admissions of the University of Alabama had denied African American plaintiffs equal protection of the law by refusing to admit them solely on account of their race and color). Motley and her colleagues from LDF brought numerous other challenges as well, including challenges to: racial restrictions in public housing, see, e.g., Heyward v. Pub. Hous. Admin., 238 F.2d 689, 691 (5th Cir. 1956) (challenging an alleged practice of racial segregation in public low-rent housing in Savannah, Georgia); Detroit Hous. Comm’n v. Lewis, 226 F.2d 180, 181 (6th Cir. 1955) (challenging defendants’ alleged practice of racial discrimination in public housing in Detroit); racially based salaries for teachers, see, e.g., Bates v. Batte, 187 F.2d 142, 143 (5th Cir. 1951) (per curiam) (challenging lower teacher-salary schedules for “negro, than for white, teachers”); racially restricted membership in political parties, see, e.g., Baskin v. Brown, 174 F.2d 391, 393 (4th Cir. 1949) (challenging a rule limiting membership in the Democratic Party of South Carolina to “white persons,” in an effort to exclude African American citizens from participating in elections); racially restricted eligibility to take competitive examinations for public employment, see, e.g., Davis v. Arn, 199 F.2d 424, 424–25 (5th Cir. 1952) (challenging the refusal of the Personnel Board of Mobile County, Alabama, “to permit the named plaintiffs, who are negroes, to take competitive examinations for policemen and firemen”); and racially restricted access to public swimming pools, see, e.g., Tonkins v. City of Greensboro, 276 F.2d 890, 891 (4th Cir. 1960) (per curiam) (challenging the City of Greensboro’s sale of its municipal public swimming pool after African American residents demanded admission). Derrick Bell, who later became the first tenured African American professor at Harvard Law School, 14 Fred A. Bernstein, Derrick Bell, Law Professor and Rights Advocate, Dies at 80, N.Y. Times (Oct. 6, 2011), http://www.nytimes.com/2011/10/06/us/derrick-bell-pioneering-harvard-law-professor-dies-at-80.html (on file with the Columbia Law Review). was one of the young LDF lawyers who assisted Mrs. Motley on the Meredith case. As he described it, when Mrs. Motley argued, courtrooms became “places of rich racial drama.” 15 Melissa Fay Greene, Pride and Prejudice, N.Y. Times Mag. (Dec. 25, 2005) (internal quotation marks omitted) (quoting Derrick Bell), http://www.nytimes.com/2005/12/
25/magazine/pride-and-prejudice.html (on file with the Columbia Law Review); see also Martin, supra note 11 (“As a black woman practicing law in the South, she endured gawking and more than a few physical threats.”).
Whites on one side, exhibiting silent hostility, and blacks on the other side, barely able to restrain their pride. Here was a black woman, obviously better prepared than her white opponents, speaking firmly and with full knowledge of her case. The judge . . . usually ruled against her, but no matter! For these black people, many of whom had spent their lives in involuntary deference to whites, these hearings were priceless scenes . . . embellished at the barbershops and beauty parlors for weeks to come. 16 Greene, supra note 15 (first alteration in original) (internal quotation marks omitted) (quoting Derrick Bell).
In Mississippi, newspapers and politicians openly decried the decision in Brown. The Clarion-Ledger, a newspaper in Jackson, Mississippi, called May 17, 1954, the date Brown v. Board was decided, a “black day of tragedy.” 17 Charles W. Eagles, The Price of Defiance: James Meredith and the Integration of Ole Miss 74 (2009) (internal quotation marks omitted). State Senator Edwin White complained that Brown meant that “in a few centuries the races would become amalgamated. Thus to put the Supreme Court’s decision into effect would operate to violate God’s creation and Law, and when any court decision violates His Law it is sinful, unholy and unworthy of obedience.” 18 Id. at 75 (internal quotation marks omitted). And U.S. Senator James Eastland 19 Years later, Senator Eastland would unsuccessfully oppose Mrs. Motley’s confirmation as a federal judge. Martin, supra note 11. issued a call to arms to whites to fight the decision, stating that the Court’s “campaign against segregation is based upon illegality” 20 Eagles, supra note 17, at 74–75 (internal quotation marks omitted). and that the Court had been “brainwashed by left-wing pressure groups.” 21 William Doyle, An American Insurrection: The Battle of Oxford, Mississippi, 1962, at 54 (2001) (internal quotation marks omitted).
Determined to resist integration, the State of Mississippi required all members of its executive branch to prevent implementation of Brown v. Board.
Meredith v. Fair, 298 F.2d 696, 701 n.5 (5th Cir. 1962).
A “Sovereignty Commission” was established “to protect the sovereignty of the State of Mississippi and her sister states from encroachment thereon by the Federal Government.”
Doyle, supra note 21, at 55 (internal quotation marks omitted).
And at the University of Mississippi, the trustees quietly changed the entrance requirements to include at least five letters of recommendation from alumni.
Eagles, supra note 17, at 77–78.
Given the racial composition of the Ole Miss alumni population, the trustees thereby created a requirement that would be close to impossible to satisfy for an applicant who was not white. Myrlie Evers, Medgar Evers’s wife,
Medgar Evers was a civil rights leader who was serving as field secretary for the NAACP when he was assassinated in the driveway of his home in Jackson, Mississippi, in 1963. See infra note 174; see also Ashley Southall, Paying Tribute to a Seeker of Justice, 50 Years After His Assassination, N.Y. Times (June 5, 2013), http://www.nytimes.com/2013/
06/06/us/paying-tribute-to-a-seeker-of-justice-50-years-after-his-assassination.html (on file with the Columbia Law Review). “[H]e organized voter registration drives, economic boycotts, demonstrations and investigations to draw attention to discrimination.” Id. Evers had served in Europe in World War II and was a graduate of Alcorn A&M College. Eagles, supra note 17, at 72. In January 1954 (before the Supreme Court’s decision in Brown), he applied to the University of Mississippi Law School. After an extended review process, the Board of Trustees of the University declared that Evers had not complied with law school requirements regarding recommendation letters. Eagles, supra note 17, at 72–78. Myrlie Evers is a civil rights leader in her own right, and she eventually became chair of the national NAACP Board of Directors. Constance Baker Motley, Equal Justice Under Law 189 (1998) [hereinafter Motley, Equal Justice]. later commented on the new requirement as follows:
It accomplished two important goals at one and the same time: it informed white people that it was really quite simple to outwit ignorant Negroes who didn’t know their place and it let the Negroes know there wasn’t a chance that such an application would ever be considered on its merits. 26 Eagles, supra note 17, at 78.
It was in the face of this segregationist strategy of so-called “massive resistance” to integration 27 See Doyle, supra note 21, at 61–63; Motley, Equal Justice, supra note 25, at 112–32. that James H. Meredith determined to apply to the University of Mississippi. In January 1961, he wrote a letter to LDF in New York City. 28 Motley, Equal Justice, supra note 25, at 132. As Constance Baker Motley recalled years later, Thurgood Marshall assigned the case to her in his own “highly informal” way. 29 See id. at 162–63. He walked into her office and threw the letter down on her desk, stating that “[t]his man has got to be crazy.” 30 Id. at 162 (internal quotation marks omitted). The letter, in relevant part, read as follows:
I am submitting an application for admission to the University of Mississippi. I am seeking entrance for the second semester which begins the 8th of February 1961. I am anticipating encountering some type of difficulty with the various agencies here in the State which are against my gaining entrance into the school.
I discussed this matter with Mr. Evers, the Mississippi Field Secretary for the NAACP, and he suggested that I contact you and request legal assistance from your organization in the event it is needed for I am not financially able to fight a legal battle against the State of Mississippi. I hope your decision on this request will be favorable. . . .
I am a native Mississippian. All of my elementary and secondary education was received in this state, except my first year of high school which was completed in Florida. I spent nine years in the United States Air Force (1951–60) all of which were Honorable. I have always been a “conscientious objector” to my “oppressed status” as long as I can remember. My long preserved ambition has been to break the monopoly on rights and privileges held by the Whites of the State of Mississippi.
My academic qualifications, I believe, are adequate. While in the Air Force, I successfully complete[d] [six] courses at four different schools conducting night classes. As an example, I completed 34 semester hours of work with the University of Maryland’s Overseas Program. Of the twelve courses completed I made three A’s and nine B’s. I am presently enrolled at Jackson State College here in Jackson. I have completed one quarter of work and am now enrolled in a second quarter at Jackson. For the work completed, I received one A, three B’s, and one C.
Finally, I am making this move in, what I consider, the interest of and for the benefit of: (1) my country, (2) my race, (3) my family, and (4) myself. I am familiar with the probabl[e] difficulties involved in such a move as I am undertaking and I am fully prepared to pursue it all the way to a degree from the University of Mississippi. 31 Id. at 162–63.
Once Mrs. Motley had finished reading the letter, Marshall said to her, “That’s your case,” noting that she would be less subject to attack in the Deep South than a black man because, as he put it, in the Deep South “all white men had black Mammies.” 32 Id. at 163 (internal quotation marks omitted).
Mrs. Motley began corresponding with Meredith, and when he was denied admission, she traveled to Mississippi to launch his lawsuit, making the first of many dangerous trips to courthouses in the state. 33 Id. at 163–64. On May 31, 1961, just six days after the registrar formally advised Meredith that his application had been denied, Meredith filed a class action in the U.S. District Court for the Southern District of Mississippi seeking to enjoin the University of Mississippi and other state institutions of higher learning from limiting admission to white persons. 34 See Docket Sheet at 1, Meredith v. Fair, 202 F. Supp. 224 (S.D. Miss. 1962) (No. 3130) (on file with the Columbia Law Review); Motley, Equal Justice, supra note 25, at 162–63. The suit named as defendants university trustees and officials, including the registrar. 35 See Docket Sheet, supra note 34, at 1. Meredith also filed motions seeking to enjoin the registrar from denying Meredith’s admission because of his race and color and asking for relief with respect to the summer term beginning June 8. 36 Meredith v. Fair, 199 F. Supp. 754, 754–55 (S.D. Miss. 1961); Docket Sheet, supra note 34, at 2. The request for a temporary restraining order was denied, and the hearing on the preliminary injunction motion was set for June 12, 1961. 37 Meredith, 199 F. Supp. at 754–55.
II. The Initial District Court Proceedings
Discovery commenced immediately, at least for defendants. The court refused plaintiff’s request to depose the registrar 38 Docket Sheet, supra note 34, at 2 (denying plaintiff’s motion to depose Robert B. Ellis at the second entry for 6-8-61). but granted defendants’ request to depose Meredith. 39 Id. at 2 (allowing defendants to depose plaintiff at the third entry for 6-8-61). Meredith’s deposition was taken on June 8 at the Federal Building in Meridian, Mississippi. 40 Deposition of James H. Meredith on June 8, 1961, at 45–46 (using page numbers at bottom of page), Meredith, 199 F. Supp. 754 (No. 3130) (on file with the Columbia Law Review). Meredith was represented by Mrs. Motley and Derrick Bell of LDF and by Jesse Brown of Vicksburg, Mississippi, one of the few black lawyers in the state, as local counsel. 41 Brown opened a law office in Vicksburg, when there were no black lawyers there. Motley, Equal Justice, supra note 25, at 172. The deposition was taken by Dugas Shands, first assistant to the Attorney General of Mississippi, known as the state’s civil rights expert. 42 Eagles, supra note 17, at 241. James Meredith later described him as a “master of the ‘Nigger Treatment’ tactic,” aiming “to provoke the Negro, to frighten him, and then to break him down and cross him up. The aim is to imply that the Negro is dishonest, immoral, a thief by nature, and generally unworthy of being considered fully human.” 43 Id. at 242; see also Meredith, supra note 4, at 69. Excerpts from the deposition transcripts show the tactic at work, and Mrs. Motley’s and Meredith’s efforts to combat it.
SHANDS: James, are you James H. Meredith? 44 For the questions and answers, the transcripts use designations of “Q.” and “A.” We have inserted the names of the individuals speaking.
MEREDITH: That is right.
SHANDS: Speak loud enough, James, so they can hear you. What was your answer?
SHANDS: Are you the plaintiff in this lawsuit?
MEREDITH: That is right, sir.
SHANDS: James, do you understand what your function as a witness is in this lawsuit, as a party plaintiff?
MEREDITH: Probably I don’t; I don’t understand the question.
SHANDS: Do you understand that it is your duty as a witness to answer the questions that are asked you? Do you understand that?
MEREDITH: Yes, sir.
SHANDS: Do you understand that your answers are to be responsive to the questions that I ask you?
MEREDITH: Right, sir.
SHANDS: What is that?
MEREDITH: Yes, sir.
SHANDS: What is your understanding of what “responsive” is?
MEREDITH: That is to be a direct answer to the question asked.
SHANDS: Without rambling around?
MEREDITH: That is right.
SHANDS: Or making speeches?
MEREDITH: That is right, sir.
SHANDS: Do you understand that you are here under oath to tell the truth, the whole truth and nothing but the truth?
MEREDITH: Yes, sir . . . . 45 Deposition of James H. Meredith on June 8, 1961, supra note 40, at 56–57 (using page numbers at bottom of page).
SHANDS: Do you own a typewriter?
MEREDITH: Yes, sir.
SHANDS: Where did you get it?
MOTLEY: We object to that on the ground it is not relevant and we instruct him not to answer.
MEREDITH: I won’t answer that question.
SHANDS: You won’t answer where you got your typewriter? Is that the typewriter you used to type these recommendations on?
MOTLEY: We object to that and instruct him not to answer on the ground it is not relevant.
MEREDITH: I won’t answer that question.
SHANDS: Did you type these recommendations?
MEREDITH: Yes, sir.
MEREDITH: At my home.
SHANDS: On whose typewriter?
MEREDITH: My typewriter.
SHANDS: Where did you get it?
MOTLEY: We object to that and instruct him not to answer.
MEREDITH: I won’t answer that question.
SHANDS: Where did you get the paper you typed it on?
MOTLEY: We object to that on the ground that it is not relevant.
SHANDS: Where did you get your paper?
MOTLEY: And instruct him not to answer. 46 Id. at 87–88 (using page numbers at bottom of page).
Later in the same deposition, Shands noticed the envelope Meredith used to keep his copies of correspondence and launched a new series of questions:
SHANDS: Where did you get it?
MEREDITH: I don’t particularly recall but I imagine I got it somewhere during my time in the service.
SHANDS: Did you buy it from the government?
MEREDITH: I might have. They have a local purchase store; I have bought many items. I don’t–
SHANDS: –Are those for sale?
MEREDITH: I don’t know.
SHANDS: Army equipment for sale?
MEREDITH: I don’t know. I don’t know where I got it exactly.
SHANDS: Would Counsel have any objection to my seeing it?
MOTLEY: Yes. I think what you are trying to do is get something on this man by implying that he has stolen it from the government–
SHANDS: –I am not implying any such–
MOTLEY: –And I think that is not proper examination. You are now fishing and trying to get this man implicated in some kind of crime. I think that is very serious.
SHANDS: I merely asked him where he got it.
MOTLEY: You are trying to entrap this man and trying to show that he stole goods. You have asked him several times about this kind of things, and we object to that.
MEREDITH: I have never stolen anything in my life.
MOTLEY: If you have evidence he stole something–
SHANDS: –I didn’t say he did; I asked him where he got it. I didn’t say he did; you used the word.
MOTLEY: If you have any evidence he has stolen anything, the United States Attorney is probably right downstairs and you can give it to him. 47 Id. at 141–42 (using page numbers at bottom of page). The transcript refers to the envelope as a “jacket” in which papers were kept. Id. at 140 (same).
Shands did not go downstairs to the U.S. Attorney. 48 See id. at 142–44, 156 (using page numbers at bottom of page). Mrs. Motley and Shands did agree earlier in the day to seek rulings from the court with respect to objections, and the Honorable Sidney Mize, U.S. District Court for the Southern District of Mississippi, interrupted the deposition to hear the arguments of counsel. 49 Id. at 65, 88–105 (using page numbers at bottom of page). Judge Mize was a 1911 graduate of the University of Mississippi School of Law and had served as a District Judge since 1937. 50 Mize, Sidney Carr, Fed. Judicial Ctr., http://www.fjc.gov/history/judges/mize-sidney-carr [http://perma.cc/6XHU-4P9E] (last visited July 31, 2017). Judge Mize “fit the mold of southern federal judges who were bent on resistance” to desegregation. Fred L. Banks, Jr., The United States Court of Appeals for the Fifth Circuit: A Personal Perspective, 16 Miss. C.L. Rev. 275, 278 n.15 (1996). Despite Mrs. Motley’s precise and patient citation to and analysis of Supreme Court cases addressing the relevance of questions like those posed by Shands, Judge Mize overruled her objections and gave Shands license to continue with his questions:
JUDGE MIZE: Upon the merits of the case I don’t think the motive or his good faith would be material, but upon the question of citizenship, as to whether he is a bona fide citizen of this state, I think it would be competent to inquire into anything that would throw any light on that. 51 Deposition of James H. Meredith on June 8, 1961, supra note 40, at 93 (using page numbers at bottom of page).
. . . .
. . . If he is a man of good moral character, then the answers to these questions are not going to hurt him and I will exclude them for consideration certainly on the merits, upon motion, unless they are shown either in the record or at some future proceeding in the record, why they would be excluded on motion at the time. So I think this is a case wherein a wide cross-examination is allowed . . . . 52 Id. at 102–03 (using page numbers at bottom of page).
If you have any more problems to come up, I will be right down the hall. 53 Id. at 105 (using page numbers at bottom of page).
The deposition concluded at 4:30 p.m.
Id. at 156 (using page numbers at bottom of page).
Earlier in the day, when the lawyers and Meredith recessed for lunch, Mrs. Motley inquired about places to eat.
Eagles, supra note 17, at 241.
Defense counsel mentioned some popular local restaurants, but Mrs. Motley and her team chose not to go to any of those whites-only restaurants, where they would have been required to take their lunches out the back door.
They looked instead for a so-called “colored” café.
Id. Of course, it was difficult for African Americans traveling in the South in the 1960s to find places to eat and stay. In 1936, a New York company published a travel guide “to give the Negro traveler information that will keep him from running into difficulties, embarrassments and to make his trips more enjoyable.” The Negro Motorist Green Book 1 (Victor H. Green & Co. 1949), http://www.autolife.umd.umich.edu/Race/R_Casestudy/
87_135_1736_GreenBk.pdf [http://perma.cc/V92B-D6BT]. With the passage of Title II of the Civil Rights Act of 1964, Congress banned discrimination in places of public accommodation on the basis of race, color, religion, or national origin. In Katzenbach v. McClung, a case involving a restaurant in Birmingham, Alabama that “refused to serve Negroes in its dining accommodations,” the Supreme Court held that Congress acted within its power in enacting Title II, concluding that Congress “had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce.” 379 U.S. 294, 296, 304 (1964).
Throughout the deposition, and indeed throughout the proceedings of this case, Mrs. Motley and Meredith were unfailingly courteous and respectful when addressing the State’s counsel. Mrs. Motley referred to opposing counsel as “Mr. Shands,” even when objecting to his conduct; 58 E.g., Deposition of James H. Meredith on June 8, 1961, supra note 40, at 48, 54, 60, 75 (using page numbers at bottom of page); see also Transcript of Proceedings of Jan. 16, 1962, at 284–85, 290–91, 306, Meredith v. Fair, 202 F. Supp. 224 (S.D. Miss. 1962) (No. 3130) (on file with the Columbia Law Review). Meredith addressed him as “sir.” 59 See, e.g., Deposition of James H. Meredith on June 8, 1961, supra note 40, at 56–59, 61, 66–67 (using page numbers at bottom of page). Shands, on the other hand, addressed Meredith repeatedly as “James.” 60 See, e.g., id. at 56–57, 60, 66, 69, 79–80, 83, 106, 110, 121, 125, 129, 131–32, 135 (using page numbers at bottom of page). Similarly, Shands addressed attorney Jesse Brown as “Jess” or “Jesse,” even in open court. 61 See, e.g., id. at 51 (using page numbers at bottom of page). At a hearing before Judge Mize on August 1, 1961, Shands referred to Brown repeatedly as “Jesse,” never once referring to him as “Mr. Brown.” Transcript of Proceedings of Aug. 1, 1961, on Ruling upon Motion to Require Defendants to Produce Certain Records and upon Notice to Take the Deposition of Robert B. Ellis, Registrar of University of Mississippi, at 196, 201, 203, 205, Meredith v. Fair, 199 F. Supp. 754 (S.D. Miss. 1961) (No. 3130) (on file with the Columbia Law Review). Shands seemed to avoid calling Mrs. Motley by name at all, referring to her occasionally as “she,” “her,” “counsel,” “plaintiff’s counsel,” or “counsel for plaintiff.” 62 See, e.g., Deposition of James H. Meredith on June 8, 1961, supra note 40, at 47–48, 52–53, 58–59, 65, 92, 104–05, 134, 141, 154 (using page numbers at bottom of page); see also Transcript of Proceedings of Jan. 16, 1962, supra note 58, at 276, 281, 283, 289– 290; Transcript of Testimony of Robert E. Ellis on Aug. 11, 1961, at 9, 15, 16 (using page numbers in upper right corner of page and noting that Robert B. Ellis and Robert E. Ellis are most likely the same individual), Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). At one point during the January 16, 1962, hearing, Shands spoke directly to Mrs. Motley, asking her a question: “As to her remarks, do I understand you, counsel for the plaintiff, that as to Mr. L.D. Ferguson, . . . do you concede that subpoena is subject to being quashed, or is not [efficacious]?” Transcript of Proceedings of Jan. 16, 1962, supra note 58, at 290. At one hearing at which Mrs. Motley was not present, Shands referred to her as “Constance Motley” while referring at the same time to his colleagues as “Mr. Patterson,” “Mr. Cates,” and “Mr. Stockett.” Transcript of Proceedings of June 27, 1961, on Defendants’ Motions for Additional Time, at 65, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). At least one local newspaper referred to Mrs. Motley as the “Motley woman.” 63 Eagles, supra note 17, at 243 n.13. Mrs. Motley did not object to the lack of courtesy displayed by counsel on the record; she responded only with meticulous professionalism. 64 Id. at 243.
- The Preliminary Injunction Hearing
The preliminary injunction hearing commenced four days later, on June 12, 1961. 65 Motley, Equal Justice, supra note 25, at 166–67. The wide latitude given defendants at the deposition continued, while strictures placed on Mrs. Motley’s presentation of her client’s case were so narrow that even she was surprised. Mrs. Motley’s first witness was the registrar of the University of Mississippi, Robert Ellis. Her request to depose him in advance of the hearing had been denied, but she had determined to put him on the stand nevertheless. As soon as Ellis took the stand, however, Shands objected to Motley’s question on the ground that proper predicate had not been laid:
MOTLEY: Did you receive a letter from Mr. Meredith early in January of 1961 requesting [an] application form for admission to the University of Mississippi?
SHANDS: For the record purposes, this is one of the questions we anticipated for which proper predicate should be laid. Who J. H. Meredith is, this record is utterly silent about. Whether he is the man that wrote that letter or not, I don’t know whether Mr. Ellis knows that or not . . . .
JUDGE MIZE: I think I would have to sustain that objection until you prove Meredith wrote such a letter, and then I would require it to be proven. I think that objection is well taken. 66 Transcript of (Adverse) Cross-Examination of Robert B. Ellis on June 12, 1961, at 9 (using page numbers in upper right corner of page), Meredith, 199 F. Supp. 754 (No. 3130) (on file with the Columbia Law Review).
When every effort to reframe the question was met with the same objection, she had no choice but to ask the registrar to step down and proceed with Meredith as her next witness. 67 Id. at 9–12 (using page numbers in upper right corner of page). Shands objected throughout the testimony, and once given the opportunity to cross-examine, returned to the tactics used at Meredith’s deposition:
SHANDS: Now, James, do you consider you have had a good Army record?
SHANDS: You are proud of your record?
MEREDITH: Yes, sir.
SHANDS: You think your papers show that you had a good record?
MEREDITH: Yes, sir.
SHANDS: Would you have any objection to authorizing the defendants in this case to examine your Army record . . . ? You are proud of it. What objection could you have? Do you have any? You probably don’t. You don’t have any?
MEREDITH: I’m not giving that right, but I don’t have any.
SHANDS: You don’t have any objection?
MEREDITH: However, if I have the authority to give that right, I’m not giving that right, but I have no objection. I have records myself.
SHANDS: Why won’t you give that right if you have no objection to it?
MEREDITH: Because I don’t want to set – if I’m successful in getting in the University of Mississippi, I don’t want to set a bad precedent to Negroes where they have to go through a special procedure to get that; that is, by showing all of these things I don’t believe [are] required from a normal applicant.
SHANDS: Are you here as a bonafide applicant or are you here as something else?
MEREDITH: I am here as a bonafide applicant.
SHANDS: You have no objection to our seeing your Army record?
MEREDITH: No, sir.
SHANDS: But you’re not–
MEREDITH: –But if I have the authority I’m not–
SHANDS: –But you are not going to authorize that to be done?
MEREDITH: No, sir. As far as I know, you can do it anyhow, but I have no objection. If I have the authority, I don’t see any reason, if it’s called for. I have no objection.
SHANDS: And as far as you are concerned, we can examine it?
MEREDITH: I’m not saying that.
SHANDS: You don’t have an objection, but–
MEREDITH: Yes, sir.
MOTLEY: We object to this pressure on the witness in trying to get him to admit that he said something he hasn’t said, and that he is trying to pressure him into authorizing the State to look into his Army record. We object to that and don’t think it proper examination.
JUDGE MIZE: Overrule the objection.
SHANDS: James, you have nothing to hide in this matter, do you?
MEREDITH: No, sir. I was just fixing to answer.
MOTLEY: We object to that question; also, to that kind of tone of examination as if this man is hiding something. There is an attempt, I think, to entrap the man into saying something he does not intend to say. He said three times he would not authorize the State to have his record. He has no objection, but he would not authorize it unless it is required by the rules of the University.
JUDGE MIZE: I will overrule the objection on this theory: I want him to have a full opportunity. He has answered, I think, fairly clearly; however, there is a rule of law that if a person has something in his possession and over which he has control and he declines to authorize that, then an unfavorable inference could be drawn that if he were to give permission an unfavorable inference can be drawn if it was examined it would be unfavorable. So I think it competent in cross-examination to question him fully, and I overrule the objection
SHANDS: Upon reflection, James, do you still stick to that?
MEREDITH: I will say that you have my permission to examine all my military records. 68 Transcript of Cross-Examination of James Meredith on June 12, 1961, at 93–95 (using page numbers in upper right corner of page), Meredith, 199 F. Supp. 754 (No. 3130) (on file with the Columbia Law Review).
Shands also returned to the topic of typewriters and paper:
SHANDS: James, the paper that you wrote the letters of recommendation that are in evidence, you got that, according to the deposition, from what place? That is Army issue, isn’t it?
MEREDITH: What paper are you talking about?
MOTLEY: Your Honor, there is no testimony in the record as to what paper he has. He hasn’t testified that that is Army issue.
SHANDS: I’ll ask him where it is from.
JUDGE MIZE: If that is an objection, I’ll overrule the objection. He is entitled to ask about it. As I understand, he is asking about the letters you introduced this morning, Exhibits 13, 14, 15, 16, and 17.
MOTLEY: And there was nothing on examination as to where the paper was from. He can’t go on cross-examination on something which wasn’t brought out on direct examination.
JUDGE MIZE: On trial he can. This is not taking a deposition. You’re on a trial now for application for temporary injunction, and you put him on as a witness. He can cross-examine about anything relevant to the case.
MOTLEY: Yes, but he has to cross-examine him on something which has been brought out on direct testimony.
JUDGE MIZE: No, not on trial of the case. When you put a witness on the witness stand and ask him just one question, then opposing counsel can cross-examine him about anything that is relevant to the case.
MOTLEY: Then we object on the ground it is not relevant to this case what type of paper the letter was typed on, not relevant to the question of whether he was excluded because of his race.
JUDGE MIZE: Overrule the objection. I will state to you, the Rules of Civil Procedure provide that evidence shall be received under two rules: one is where made admissible under civil rules of federal law; another is if it is admissible under state law, and the Court shall follow that rule most favorable to the introduction of testimony. Well, I think the federal rule 69 Judge Mize was mistaken, at least as to the federal rule at the time. Historically, the general rule in the federal courts was that the scope of cross-examination was limited to matters the witness testified to on direct examination. See generally Robert Van Pelt, The Background of Federal Rules 611(b) and 607, 57 Neb. L. Rev. 898, 899 (1978) (citing, inter alia, Houghton v. Jones, 68 U.S. 702, 706 (1863) (“The rule has been long settled, that the cross-examination of a witness must be limited to the matters stated in his direct examination. [For] other matters, [the adverse party] must . . . call the witness to the stand in the subsequent progress of the cause.”)). In time, the view that cross-examination should not be so limited became popular. See id. at 901–02; see also Fed. R. Evid. 611(b) advisory committee’s notes to the 1972 proposed rules. In its present version, Rule 611(b) of the Federal Rules of Evidence gives the trial judge discretion, as the Rule provides: “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” Fed. R. Evid. 611(b). is the same in this, but I know the rule in Mississippi is that when you put a witness on the witness stand, he is put on for all purposes and may be cross-examined about anything relevant to the issue. So under that rule of civil procedure, I will overrule the objection.
SHANDS: James, I show you Plaintiff’s Exhibit 9. Where did you get the paper that was written on?
MEREDITH: I’m not sure. If this paper is military size paper, it could be military paper.
SHANDS: Well, in fact, you know it is military paper? . . .
MEREDITH: Yes, sir . . . .
SHANDS: Did you buy it from the government?
MEREDITH: No, sir.
SHANDS: You knew it was government property?
MEREDITH: Yes, sir, it was government—the government discarded this paper.
MEREDITH: The government or its people had discarded this paper.
SHANDS: Discarded it?
MEREDITH: Yes, thrown it out, to be thrown away.
SHANDS: Oh, they did?
MEREDITH: Yes, sir . . . .
SHANDS: You mean to charge the government with throwing away perfectly good paper?
MEREDITH: Yes, sir . . . .
SHANDS: Did they know they were throwing away good paper?
MEREDITH: Yes, sir.
SHANDS: You knew it was good paper, didn’t you?
MEREDITH: Yes, sir.
SHANDS: Why didn’t you return it to the government and say, “Here, here’s some good paper that you all are throwing away?”
MEREDITH: I did that on occasions before, but this was just a minor matter . . . .
JUDGE MIZE: Very well, Gentlemen: It’s 4:30, so I believe at this time I will recess this case until 10:00 A.M., July 10th . . . . 70 Transcript of Cross-Examination of James Meredith on June 12, 1961, supra note 68, at 128–32 (using page numbers in upper right corner of page), Meredith, 199 F. Supp. 754 (No. 3130) (on file with the Columbia Law Review).
Mrs. Motley had objected to this adjournment when it was first proposed by Judge Mize earlier in the day, pointing out that Meredith was seeking admission to the summer term and that by July, the summer session would be half over. 71 Id. at 106–08 (using page numbers in upper right corner of page). She reminded the court that the hearing was on his application for a preliminary injunction and that “his irreparable injury [was] abundantly clear.” 72 Id. at 107 (using page numbers in upper right corner of page). Judge Mize indicated that continuing the hearing sooner was impossible, and the hearing was duly adjourned to the next month. 73 Id. at 108, 132–33 (using page numbers in upper right corner of page).
With hopes for the summer session fading, Mrs. Motley and her team pressed forward, making another preliminary injunction application and repeatedly seeking without success to take the registrar’s deposition. 74 Docket Sheet, supra note 32, at 3 (entries for 6-23-61, 6-27-61), 4 (entry for 7-15-61), 5 (entries for 7-25-61, 7-31-61, 8-1-61); see also Transcript of Proceedings of Aug. 1, 1961, supra note 61, at 181–85; Transcript of Proceedings of June 27, 1961, on Defendants’ Motions for Additional Time, supra note 62, at 61–78. In the meantime, however, new obstacles arose. On June 27, Shands appeared before Judge Mize to request additional time to answer the complaint and adjournment of the registrar’s deposition on the basis of his ill health. 75 ranscript of Proceedings of June 27, 1961, on Defendants’ Motions for Additional Time, supra note 62, at 62–64, 73. Both requests were granted immediately. 76 Id. Further delays followed. Mrs. Motley appeared before Judge Mize on July 10, determined to press forward. 77 Transcript of Proceedings of July 10, 1961, on Dates for Filing of Answer and Argument of Motions at 79 (using page numbers in upper right corner of page), Meredith v. Fair, 199 F. Supp. 754 (S.D. Miss. 1961) (No. 3130) (on file with the Columbia Law Review). She argued that Shands’s ill health was not cause for further delay:
MOTLEY: [A] man’s constitutional rights can’t be suspended because an assistant attorney-general is stated to be ill. A man must have some rights, and it’s an immediate situation because he has already lost the opportunity to go to the February term, the first summer term; and now, because somebody is ill, his constitutional rights can’t even be heard. We don’t think that is justified at all, and that this state has enough money to hire a special attorney if necessary to hear these cases . . . .
. . . [T]hey cannot come in now in good faith and say, “We are not prepared,” because it is not a difficult and unusual case. There have been cases like this in every state in the South. They are reported; they have it available. A first year law student can try such a case, and I don’t believe that these two lawyers are incapable of defending a case involving the admission of a Negro to a  school, because the law books are filled with such cases. 78 Id. at 80, 83–84 (using page numbers in upper right corner of page).
Judge Mize nevertheless re-set the matter for August 10. 79 Id. at 88 (using page numbers in upper right corner of page). Before then, Mrs. Motley made a total of five unsuccessful attempts to depose the registrar. 80 Docket Sheet, supra note 34, at 2 (entries for 6-5-61, 6-8-61), 3 (entries for 6-23-61, 6-27-61), 4 (entries for 6-29-61, 7-15-61), 5 (entries for 7-25-61, 7-31-61, 8-1-61), 6 (entries for 8-12-61, 8-15-61). Decision on her request for documents was also delayed, and then only limited documents were granted. 81 Id. at 3 (entry for 6-20-61), 4 (entry for 7-15-61), 5 (entry for 8-1-61), 6 (entry for 8-12-61), 8 (entries for 1-16-62); Transcript of Proceedings of Aug. 1, 1961, supra note 61, at 185–91. The registrar alone among the defendants answered the complaint and denied everything, including that Ole Miss was restricted to whites and that Meredith was a legal resident of the state. 82 Eagles, supra note 17, at 247–48.
When the hearing finally resumed and Mrs. Motley finally had her opportunity to question the registrar, she was met with constant objections from Shands and responses from the registrar similar to this:
MOTLEY: Mr. Ellis, have any Negroes ever been admitted to the University of Mississippi, to your knowledge?
SHANDS: We object to that unless this witness knows the lineage of every person who has attended the University of Mississippi since the day it opened, whenever that was.
JUDGE MIZE: I’ll overrule the objection and let him answer if he knows.
ELLIS: I don’t know.
MOTLEY: Does the application ask for race?
MOTLEY: Since you have been registrar of the University of Mississippi, have you ever seen an application which indicated that a Negro was applying, in answer to the question “Race?”
SHANDS: We object as to what the application indicated if counsel for plaintiff is accepting or offering that as proof of race.
JUDGE MIZE: I will overrule the objection and let him answer if he knows.
ELLIS: I have received applications that have indicated the Negro race on the application form . . . .
MOTLEY: Since you have been registrar of the University of Mississippi, have any Negroes been actually admitted to the University?
SHANDS: We object to that, if the Court please.
JUDGE MIZE: If he confines it to transfer students, undergraduate students, I overrule the objection.
SHANDS: And the further ground is that the question does not include whether the applicants were qualified or not, and the mere fact of whether they were or were not admitted is not, we think, a full and complete and proper question, and we think a reading of the question will clarify and support this objection.
JUDGE MIZE: I’ll overrule the objection and let him answer if he knows.
ELLIS: Counsel, I don’t know all of the students who have entered the University since I have been registrar. I don’t know the answer to your question.
MOTLEY: Have you ever seen a Negro student at the University of Mississippi since you have been—
SHANDS: We object.
MOTLEY: Can I finish my question, please?
SHANDS: Certainly. You may. Indeed, you may. 83 Transcript of Proceedings of June 12, 1961, on Motion for Temporary Restraining Order and Preliminary Injunction at 280–82 (using page numbers in upper right corner of page), Meredith v. Fair, 199 F. Supp. 754 (S.D. Miss. 1961) (No. 3130) (on file with the Columbia Law Review). Ellis eventually testified that in the twelve years he had been on campus, he had seen “students with varying degrees of darkness of skin,” but that he could not “tell you whether any of them were of the Negro race or not.” Id. at 282–83.
Mrs. Motley put on the record her objection to Shands’s time-consuming objections:
MOTLEY: Excuse me, Your Honor. This is one of our objections. Now he has already said that over a fifteen minute period and we are objecting to counsel for defendants making a long-winded objection in which he repeats himself and repeats himself on the ground that it prejudices this plaintiff in this hearing because he is trying to get admitted to the next term. He has already missed three terms through delay, delay attributed to Mr. Shands, who is now up here making long-winded objections which are prejudicial to the plaintiff’s interest in getting this hearing over with promptly, and we object to that.
JUDGE MIZE: Counsel, I overrule that objection because that is for the court to determine, when he has heard enough argument. These questions are complicated and I am going to hear full arguments from you and from him, too, unless it becomes too extended and I will interrupt you when I have let each one of you complete your record, because I want the record to be complete when it is submitted . . . .
[Addressing Shands] Have you finished for the record your grounds for objection?
SHANDS: I had until she objected to something else in her last remark. 84 Transcript of Cross-Examination of Robert E. Ellis on Aug. 11, 1961, at 14–15 (using page numbers in upper right corner of page), Meredith, 199 F. Supp. 754 (No. 3130) (on file with the Columbia Law Review).
Given this opportunity, Shands elaborated further. 85 Id. at 15–17 (using page numbers in upper right corner of page). When Judge Mize announced that he would cut the day’s hearing short and resume the next week, Mrs. Motley objected again.
MOTLEY: I certainly want the record to show we object to the continuance of this hearing on the ground it has been delayed a number of times and adjourned and continued. We are trying to get through with this hearing so the court can rule in time for the application of this student with respect to the September term, and, as Mr. Shands always says, I don’t want the record to appear that we consent to this adjournment. We have been fighting and fighting and fighting to get the hearing through with, and I want the record to show we are prepared at 12:15 today to finish this case in the next few minutes . . . .
JUDGE MIZE: You don’t think the other side is entitled to be heard?
MOTLEY: Yes, Sir, but I was just trying to get the record straight that we object to these delays and continuances and all of that sort of thing on a motion for preliminary injunction. 86 Id. at 30–31 (using page numbers in upper right corner of page).
The preliminary injunction hearing finally concluded the following week. In plaintiff’s closing argument, Mrs. Motley maintained that Meredith had been denied admission solely because the university was “a segregated institution for whites only.” 87 Eagles, supra note 17, at 254–55. The defense claimed that the university did not consider race at all but denied Meredith admission for lack of “good moral character.” 88 Id. Judge Mize took the matter under advisement. The September enrollment deadline at Ole Miss passed. 89 See Transcript of Cross-Examination of Robert E. Ellis on Aug. 11, 1961, supra note 84, at 30–31 (using page numbers in upper right corner of page). Finally, almost four months later, the court ruled.
C. The District Court’s Decision
On December 12, 1961, Chief Judge Mize denied the motion for a preliminary injunction. 90 Meredith v. Fair, 199 F. Supp. 754, 758 (S.D. Miss. 1961). He rejected defendants’ argument that Meredith was not a citizen of Mississippi 91 Id. at 757. but concluded that Meredith had “utterly failed” to prove that he was denied admission to the university “because of his race or color.” 92 Id. at 758. He wrote:
There was a good deal of testimony introduced in the cause, but very little conflict, and the overwhelming weight of the testimony is that the plaintiff was not denied admission because of his color or race. The Registrar swore emphatically and unequivocal[ly] that the race of plaintiff or his color had nothing in the world to do with the action of the Registrar in denying his application. An examination of the entire testimony of the Registrar shows conclusively that he gave no consideration whatsoever to the race or the color of the plaintiff when he denied the application for admission and the Registrar is corroborated by other circumstances and witnesses in the case to this effect. 93 Id. at 757.
Of course, there was a “conflict” in the evidence, as Meredith offered evidence that he met the requirements for admission to the university as well as evidence that the university had never admitted a Negro student. 94 See Meredith v. Fair, 298 F.2d 696, 697–98 (5th Cir. 1962) (summarizing Meredith’s qualifications and noting that the university had “not yet allowed a Negro citizen to seek an education”).
III. The First Appeal
Meredith filed his notice of appeal the day the court entered its formal order
Docket Sheet, supra note 34, at 7 (entries for 12-14-61).
and on December 18 moved for an expedited appeal.
Meredith, 298 F.2d at 700–01.
In marked contrast to the dilatory treatment accorded the matter by the District Court, the Fifth Circuit granted the request and heard oral argument on January 9, 1962.
Id. at 701.
The panel consisted of Judge John Minor Wisdom, Chief Judge Elbert Tuttle, and Judge Richard Rives,
Id. at 697.
three of the four judges who became known as “The Fifth Circuit Four” or simply “The Four”—the four judges of the Fifth Circuit who implemented desegregation in the Deep South.
The fourth was Judge John R. Brown. “These four men joined forces to thwart massive resistance in the Deep South and see it meet an ignominious death in Mississippi in 1962. They were responsible, in retrospect, for averting a North–South split in the country like the one that had led to the Civil War.” Motley, Equal Justice, supra note 25, at 134; see also Joseph A. Custer, Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960s and 1970s, 16 Scholar: St. Mary’s L. Rev. Race & Soc. Just. 1, 23 & n.161 (2013) (“The Fifth Circuit Four were four staunch pro-civil rights judges . . . who helped drive desegregation through the Fifth Circuit.”). Another observer has referred to “the small band of federal judges in the South . . . who fleshed out the bare bones of Brown and transformed it into a broad mandate for racial justice.” Jack Bass, The ‘Fifth Circuit Four,’ Nation (Apr. 15, 2004), http://www.thenation.com/article/
fifth-circuit-four/ [http://perma.cc/37CE-ALR3]. The four judges were dubbed “The Four” by their colleague Ben Cameron, a derogatory reference to “the Four Horsemen of the Apocalypse.” David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev. 657, 694 (2011).
On January 12, 1962, just three days later, the circuit ruled. 100 Meredith, 298 F.2d at 696. Judge Wisdom, joined by Chief Judge Tuttle and Judge Rives, wrote as follows:
James H. Meredith is a Mississippi Negro in search of an education. Mississippi is one of three states which have not yet allowed a Negro citizen to seek an education at any of its state-supported, “white” colleges and universities . . . .
This case was tried below and argued here in the eerie atmosphere of never-never land. Counsel for appellees argue that there is no state policy of maintaining segregated institutions of higher learning and that the court can take no judicial notice of this plain fact known to everyone. The appellees’ chief counsel insists, for example, that appellant’s counsel should have examined the genealogical records of all the students and alumni of the University and should have offered these records in evidence in order to prove the University’s alleged policy of restricting admission to white students.
We take judicial notice that the state of Mississippi maintains a policy of segregation in its schools and colleges. 101 Id. at 697, 701. It is debatable whether the Fifth Circuit could indeed take judicial notice that Mississippi had maintained a policy of segregation in its schools and colleges, as the university denied this factual assertion. In its present form, Rule 201 of the Federal Rules of Evidence provides that a court “may judicially notice a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court’s territorial jurisdiction; or . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
The court nonetheless affirmed the denial of Meredith’s motion for a preliminary injunction because it concluded that “[a] full trial on the merits is needed in order to clarify the muddy record now before us.” 102 Meredith, 298 F.2d at 703. The court admonished the trial judge that:
Within proper legal bounds, the plaintiff should be afforded a fair, unfettered, and unharassed opportunity to prove his case. A man should be able to find an education by taking the broad highway. He should not have to take by-roads through the woods and follow winding trails through sharp thickets, in constant tension because of pitfalls and traps, and, after years of effort, perhaps attain the threshold of his goal when he is past caring about it. 103 Id.
The court suggested that, on remand, the district court “proceed promptly with a full trial on the merits,” particularly because a new term was to begin on February 6, 1962. 104 Id. Judge Wisdom’s “blistering rebuke” of Judge Mize’s handling of the case “sent a blunt message to Mize (and the other district judges)”; he chose “particularly acerbic language so that no one could misinterpret the appellate court’s outrage at the way in which Sidney Mize had handled this case.” Joel Wm. Friedman, John Minor Wisdom: The Noblest Tulanian of Them All, 74 Tul. L. Rev. 1, 33–35 (1999).
IV. The District Court Proceedings on Remand
On remand, although Judge Mize promptly scheduled a hearing for January 16, 105 See Transcript of Testimony Taken on Motion for Permanent Injunction on Jan. 16, 1962, at 259, Meredith v. Fair, 202 F. Supp. 224 (S.D. Miss. 1962) (No. 3130) (on file with the Columbia Law Review). the new proceedings did not differ substantially from the old. After some colloquy on January 16, the matter was adjourned to the next day, 106 Id. at 307–08. when, over Mrs. Motley’s objections, Judge Mize granted a one-week postponement, although he took the time to hear testimony from three witnesses, including Shands’s doctor, on why defendants were not able to proceed that day. 107 See Transcript of Proceedings of Jan. 17, 1962, at 309, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review); Transcript of Testimony of Charles Clarke on Jan. 17, 1962, at 310, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review); Transcript of Testimony of Edward Cates on Jan. 17, 1962, at 330, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review); Transcript of Testimony of Dr. Earl Fite on Jan. 17, 1962, at 335, 353, 360, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review).
The trial on the merits finally commenced on January 24, 1962. 108 See Transcript of Proceedings of Jan. 24, 1962, at 361, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). Dugas Shands was replaced by Charles Clark, who had graduated from Ole Miss Law School in 1948. 109 See Clark, Charles, Fed. Judicial Ctr., http://www.fjc.gov/history/judges/clark-charles [http://perma.cc/W6H2-HRNQ] (last visited Aug. 1, 2017) [hereinafter Fed. Judicial Ctr., Charles Clark]; see also infra note 183. He was hired in 1961 to help Shands with civil rights cases. 110 Clark was hired as a Special Assistant Attorney General for the State of Mississippi in 1961 to assist in the Meredith case as well as another case. See Transcript of Testimony of Charles Clark on Jan. 17, 1962, supra note 107, at 310, 314–16.
Mrs. Motley called as her first witness Catherine Rae, the Ole Miss Dean of Women. 111 See Transcript of Testimony of Catherine Rae on Jan. 24, 1962, at 370, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). Rae denied that she had ever attended any meetings or participated in any conversations with university officials at which Meredith’s application or the admission of Negroes generally was discussed. 112 Id. at 371–77. When asked about the presence of Negroes at the university or in Alumni Association meetings, she acknowledged not seeing any at any time, including when she was a graduate student. 113 Id. at 380–81.
On cross-examination, Clark’s pronunciation of the word Negro became an issue. Mrs. Motley leapt to her feet to object:
MOTLEY: May It Please The Court, I think that Mr. Clark ought to be able to pronounce the word “Negro”. It is not Negro (pronounced N-i-g-r-a); it is Negro (Pronounced N-e-g-r-o), and I think you know enough to pronounce the word “Negro” correctly.
CLARK: If It Please The Court I would like the record to show that I intend no discrimination or to impu[gn] anything at all by the pronunciation I used, and it is the pronunciation I am used to and have heard all of my life, and I object to counsel’s remark, and I will not confine my pronunciation to what she prefers unless this Court so orders me.
JUDGE MIZE: Well, I understood you to say Negro. You might not have pronounced it as emphatically as she does, but I will let you proceed. Certainly I want you to be courteous and I know you mean no insinuation to the Negro or the Negro race. 114 Id. at 385.
In fact, the Clarion-Ledger reported that Clark had used not “Nigra,” but the even more offensive word “Niguh.” 115 Eagles, supra note 17, at 257–58.
Over the course of three days, Mrs. Motley called twenty-four witnesses, primarily university administrators and trustees, who denied that there were any discussions at Board meetings of Meredith’s application or the enrollment of Negroes at the university. 116 See generally Vol. III at Index, Transcript of Record, Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962) (No. 19475) (listing the individuals who testified and the location of the transcripts for each testimony) (on file with the Columbia Law Review); Vol. IV at Index, Transcript of Record, Meredith, 305 F.2d 343 (No. 19475) (continuing the list of individuals who testified and the location of the transcripts for each testimony) (on file with the Columbia Law Review). As for the basic question of whether Negroes had ever been enrolled at the university, for the most part the witnesses were evasive. For example, when asked whether he knew of any Negroes admitted to the university since 1941, W.A. Bryant, Vice Chancellor of the University and a former Provost and Professor of English, testified: “I would say that since 1941 several thousand students have been enrolled to the University of Mississippi and I have not known the background of each one of those students sufficiently to answer your question, yes or no.” 117 Transcript of Testimony of W.A. Bryant on Jan. 24, 1962, at 426, Meredith v. Fair, 202 F. Supp. 224 (S.D. Miss. 1962) (No. 3130) (on file with the Columbia Law Review).
Tally D. Riddell, an alumnus of the university and a member of its Board of Trustees since 1956, testified as follows:
RIDDELL: The Board has never had the question of any distinction between whites and nigras at any time at any institution since I been on the Board. . . .
MOTLEY: Have you ever known any Negroes to be enrolled in the University of Mississippi?
RIDDELL: I’m not able to answer that question. If you’ll tell me what you mean by Negro, I’ll try to answer it.
MOTLEY: Well, you know Negroes when you see them, don’t you?
RIDDELL: I couldn’t say that I do always. Sometimes I think I do.
MOTLEY: In your observations of people, have you seen any who appear to be Negroes?
RIDDELL: Through the years I have seen a number of people on the University campus – I assume that is what you’re asking?
MOTLEY: That’s right.
RIDDELL: – and I’m making the answer as if you did ask it—who were all of all colorings, all—As to what their blood lines, anthropology is, I have no way of knowing.
MOTLEY: Can you name any you know of to be Negroes, of your own knowledge?
RIDDELL: I can’t answer your question. 118 Transcript of Testimony of Tally Riddell on Jan. 25, 1962, at 497, 501–02, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review).
The defense relied solely upon the registrar and upon certain new documents obtained by the attorney general two weeks earlier: Meredith had previously provided five references—not from alumni—and four of the five had been persuaded to repudiate their earlier letters. 119 After the plaintiff rested, the defendants moved to exclude all of plaintiff’s evidence and for a “directed verdict.” Transcript of Colloquy on Jan. 26, 1962, at 645–46, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). The court denied the motions. Id. at 646–47. Defendants then offered into evidence Meredith’s deposition, parts of the testimony of other witnesses, and various exhibits. Id. at 647–50. The defense then re-called Ellis, the registrar. Id. at 651. The defense then offered affidavits from four of the five individuals who had written letters on behalf of Meredith. Id. at 657–69. There was a fifth affidavit—from Meredith’s cousin—which was not signed. Id. at 669. Judge Mize overruled Mrs. Motley’s objection to this belated modification of Meredith’s admission file. 120 Id. at 657–61; see also Eagles, supra note 17, at 259.
Closing arguments were delivered in a special Saturday session, on January 27, 1962. 121 Transcript of Colloquy on Jan. 27, 1962, at 720, Meredith, 202 F. Supp. 224 (No. 3130) (on file with the Columbia Law Review). Judge Mize issued his decision on February 3rd:
The proof shows on this trial, and I find as a fact, that there is no custom or policy now, nor was there any at the time Plaintiff’s application was rejected, which excluded qualified Negroes from entering the University. The proof shows, and I find as a fact, that the University is not a racially segregated institution. . . . The proof in the instant case on this hearing fails to show that the application of any Negro or Chinaman or anyone of any other race has been rejected because of his race or color . . . .
. . . I have weighed the testimony carefully in the light of the decision of the Court of Appeals and have rejected, in weighing it, the evidence to the effect that he had failed to furnish certificates of the alumni, and have taken judicial notice of the statutes affecting the custom of segregation, and am of the opinion, and find as a fact, that he was not denied admission because of his race. 122 Meredith, 202 F. Supp. at 227.
V. The Second Appeal
Two days later, on February 5, 1962, Judge Mize entered an order dismissing the complaint. 123 Docket Sheet, supra note 34, at 9 (entry for 2-5-62). The same day, Mrs. Motley filed a notice of appeal 124 Id. and petitioned the Fifth Circuit for an injunction to prohibit the University of Mississippi from refusing to admit James Meredith. 125 See Meredith v. Fair, 305 F.2d 343, 351 (5th Cir. 1962); Meredith v. Fair, 305 F.2d 341 (5th Cir. 1962) (per curiam). The Supreme Court denied certiorari on October 8, 1962. See Fair v. Meredith, 371 U.S. 828 (1962). A panel consisting of Judges Richard Rives, Elbert Tuttle, and John Minor Wisdom heard argument on Saturday, February 10. 126 Meredith, 305 F.2d at 341. They rejected the request for an injunction but ordered an expedited appeal. 127 Id. at 342. Chief Judge Tuttle dissented from the denial of an injunction, concluding: “I think the record already submitted, without the benefit of the record in the trial on the merits, calls for our granting the injunction pending appeal.” Id. Oral argument on the merits appeal was heard on April 20 by Judge Wisdom, Judge John R. Brown (another member of “The Four”), and District Judge Dozier DeVane. 128 See Eagles, supra note 17, at 263; see also Meredith, 305 F.2d at 343. On June 25, 1962, Meredith’s birthday, the court ruled for Meredith, in a 2-1 decision. 129 See Eagles, supra note 17, at 265–67. Judge Wisdom wrote for the majority:
A full review of the record leads the Court inescapably to the conclusion that from the moment the defendants discovered Meredith was a Negro they engaged in a carefully calculated campaign of delay, harassment, and masterly inactivity. It was a defense designed to discourage and to defeat by evasive tactics which would have been a credit to Quintus Fabius Maximus. 130 Quintus Fabius Maximus, also known as Quintus Fabius Maximus Verrucosus, was a Roman military commander and statesman who was known for his cautious delaying tactics. “Fabianism or Fabian strategy has come to mean a gradual or cautious policy.” Patrick Hunt, Quintus Fabius Maximus Verrucosus: Roman Statesman and Commander, Encyclopedia Britannica, http://www.britannica.com/biography/Quintus-Fabius-Maximus-Verrucosus [http://
perma.cc/BXH3-2QVR] (last visited July 31, 2017).
. . . .
There are cases when discrimination is purposeless but unlawful because of its effect. In this case the essence of the complaint is purposeful discrimination against Negroes as a class. The inquiry into purpose makes it especially appropriate for the Court:
(1) to study the case as a whole, weighing all of the evidence and rational inferences in order to reach a net result;
(2) to consider the immediate facts in the light of the institution’s past and present policy on segregation, as reflected not only in the evidence but in statutes and regulations, history and common knowledge;
(3) to measure sincerity of purpose against unreasonable delays and insubstantial reasons asserted for the institution’s actions;
(4) to compare the actions taken with regard to the plaintiff with actions taken with regard to others in the same category;
(5) to pierce the veil of innocuity when a statute, regulation, or policy necessarily discriminates unlawfully or is applied unlawfully to accomplish discrimination.
The defendants fail the test. There are none so blind as those that will not see. 131 Meredith, 305 F.2d at 344, 360.
Judge DeVane dissented:
The one defense that leads me to dissent is the fear expressed by the appellees that Meredith would be a troublemaker if permitted to enter the University of Mississippi . . . .
. . . .
In my opinion Judge Mize was correct in finding and holding that appellant bore all the characteristics of becoming a troublemaker if permitted to enter the University of Mississippi and his entry therein may be nothing short of a catastrophe. 132 Id. at 361–62 (DeVane, J., dissenting).
The Fifth Circuit thus granted an injunction requiring the university to admit Meredith. His actual enrollment at Ole Miss, however, came only after prolonged and remarkable disputes between the federal government and the State of Mississippi and among the judges of the Fifth Circuit. Judge Benjamin F. Cameron of the Fifth Circuit had never accepted Brown and believed that the Tenth Amendment reserved powers to the states to reject the Supreme Court’s decisions.
Judge Cameron was “a force for the segregation cause and a thorn in the side of the ‘Fifth Circuit Four.’” Custer, supra note 99, at 23. He
“considered states’ rights “the bedrock of our constitutional system” and believed his fellow judges were destroying the social order of the world he knew. Many white Southerners felt the same way about “The Four.” Friends shunned them. Their wives received threatening phone calls at home. But the judges never complained.”
Bass, supra note 99; see also Sharp v. Lucky, 252 F.2d 910, 915–16, 919 (5th Cir. 1958) (Cameron, J., dissenting) (referring to the Civil Rights Statutes as “the so-called Civil Rights Statutes”). When the state’s lawyers asked him to intervene, Judge Cameron issued a series of extraordinary stays of the injunction, each promptly vacated by the panel that had decided Meredith’s appeal, including Judge DeVane. 134 Judge Cameron issued his first stay on July 18, 1962. Docket Sheet, supra note 34, at 11 (entry for 7-19-62). Cf. Note, The Powers of the Supreme Court Justice Acting in an Individual Capacity, 112 U. Pa. L. Rev. 981, 1003 (1964) (“Meredith, a Negro, sued for admission to the University of Mississippi, and the Fifth Circuit held that he was entitled to the relief which he sought. A merry-go-round of contrary orders ensued.” (footnote omitted)). A clearly exasperated Judge Wisdom wrote for the now unanimous panel on July 27, 1962:
In this case time is now of the quintessence. Time has been of the essence since January 1961 when James Meredith, in the middle of his junior year at Jackson State College (for Negroes), applied for admission to the University of Mississippi . . . .
Chronology highlights this case. June 25, 1962, this Court reversed the district court and remanded the case with instructions that the district court grant the injunction prayed for in the complaint . . . .
. . . July 17 the mandate went down. Bright and early July 18, the attorney for the defendant presented to the Clerk for filing an order staying “the execution and enforcement of the mandate.” The order, dated July 18 at Meridian, Mississippi, was signed by the Honorable Ben F. Cameron, United States Circuit Judge. Judge Cameron was not a member of the Court which heard any of Meredith’s appeals . . . .
. . . [I]t is unthinkable that a judge who was not a member of the panel should be allowed to frustrate the mandate of the Court . . . .
This is not a Chessman case. 135 Caryl W. Chessman was convicted of seventeen counts of robbery, kidnapping, and rape in California in 1948 and sentenced to death. The case and the imposition of the death penalty generated extensive publicity, but he was executed nevertheless on May 2, 1960. See Lawrence E. Davies, Chessman Loses 2 Crucial Pleas, N.Y. Times, Feb. 18, 1960, at 20 (on file with the Columbia Law Review); UPI, Execution Stirs Anti-U.S. Rallies, N.Y. Times, May 3, 1960, at 23 (on file with the Columbia Law Review); see also Chessman v. Teets, 354 U.S. 156, 165–66 (1957) (reversing and remanding with instructions to the lower court on a writ of habeas corpus). It is not a Rosenberg case. 136 Julius and Ethel Rosenberg were convicted of espionage in New York in 1951. They were executed in 1953. See United States v. Rosenberg, 195 F.2d 583, 609 (2d Cir. 1952) (affirming convictions and death sentences); Jake Kobrick, Fed. Judicial Ctr., The Rosenberg Trial 1–10 (2013), http://www.fjc.gov/sites/default/files/trials/Rosenberg_Trial.pdf [http://perma.cc/7AZG-NJJU]. It is not a matter of life or death to the University of Mississippi. Texas University, the University of Georgia, Louisiana State University, the University of Virginia, other Southern universities are not shriveling up because of the admission of Negroes. 137 As Judge Motley would later recall:
“[D]esegregation of the Deep South continued from one federal courthouse door to the next. All of the public universities in the Deep South (except in Alabama), including the University of Virginia and Clemson College in South Carolina (the state school), were open to blacks by late 1962 or early 1963.”
Motley, Equal Justice, supra note 25, at 140. There was no emergency requiring prompt action by a single judge. 138 Meredith v. Fair, 306 F.2d 374, 375–76 (5th Cir. 1962).
Judge Wisdom went on to recall and clarify the court’s earlier mandate, striving to make the order more explicit and including the Fifth Circuit’s own preliminary injunction requiring defendants to admit Meredith and allow his continued attendance. 139 Id. at 378. A certified copy of the Fifth Circuit’s judgment was filed in the district court on July 28, 1962. See Docket Sheet, supra note 34, at 12 (entry for 7-28-62). When Judge Cameron promptly issued a second stay, which was immediately vacated, and then a third and finally a fourth stay, 140 See Docket Sheet, supra note 34, at 12 (stay issued 7-28-62), 16 (stay issued 7-31-62), 18 (stay issued 8-6-62). Mrs. Motley asked Justice Hugo Black of the Supreme Court to set aside all the stays. 141 See id. at 19 (entry for 9-12-62); Eagles, supra note 17, at 273. Justice Black asked the Department of Justice for its views, the Department filed an amicus brief in its first official action in the matter, and Justice Black vacated the stays on September 10, upholding the Fifth Circuit’s mandate. 142 Doyle, supra note 21, at 35–36; Eagles, supra note 17, at 272–75.
On September 14, as directed by Justice Black, Judge Mize filed an order prohibiting university officials from doing anything to hinder Meredith’s admission. 143 Docket Sheet, supra note 34, at 19–20 (entry for 9-14-62). At 7:30 that evening, Governor Ross Barnett spoke in a live radio and television broadcast:
[N]o school in our state will be integrated while I am your Governor . . . . [T]here is no sacrifice which I will shrink from making to preserve the racial integrity of our people and institutions . . . . [W]e will not surrender to the evil and illegal forces of tyranny! 144 . Eagles, supra note 17, at 283 (internal quotation marks omitted).
The next night, Meredith was hanged in effigy in front of the student union. 145 Id. at 284. The sign on the figure read: “Hail Barnett. Our Governor will not betray Mississippi . . . . We are proud that our Governor stands for constitutional sovereignty.” 146 d.
Mrs. Motley later recalled that shortly after the Governor’s proclamation, she prepared papers to hold defendants in contempt. 147 Motley, Equal Justice, supra note 25, at 180. Medgar Evers picked her up in his car in Jackson to drive her to Meridian, Mississippi, where Judge Mize was sitting at the time. 148 Id. Suddenly, he warned her to stop working and hide her legal pad in the newspaper. 149 Id. They were being followed by the state police. 150 Id. They arrived at their destination without incident, and the trooper drove on. 151 Id. Mrs. Motley did not sleep that night. 152 Id.
When Mrs. Motley appeared before Judge Mize the following morning, sitting beside him was newly appointed Judge William Harold Cox, set to succeed Judge Mize as the full-time district judge for the Southern District of Mississippi.
Id. at 180–81. Judge Cox was a graduate of the University of Mississippi as well as its law school. See Cox, William Harold, Fed. Judicial Ctr., http://www.fjc.gov/history/judges/
cox-william-harold [http://perma.cc/FH62-89D4] (last visited Aug. 1, 2017). When a lawyer from the Department of Justice tried to take the lead on the contempt application, Judge Mize refused to listen to him and turned to Mrs. Motley. 154 Motley, Equal Justice, supra note 25, at 180–81. In her autobiography, she described what happened:
I told Judge Mize that I had a motion to hold the university officials in contempt and handed it to him. Judge Cox grabbed the papers before Judge Mize could take them. In a split second, he threw them across the table at me and said, “Look at this. It says ‘Order.’” My secretary inadvertently had typed the word “Order” instead of “Motion.” We also had prepared a proposed order. At this point, Judge Mize, who was sitting right next to Judge Cox at the head of his table, put his hand on Cox’s hand and said, “Judge Cox, it’s all over.” Judge Cox never got the message. We filed the motion. 155 Id. at 181. “In other words, [Judge Mize] was telling Judge Cox, blacks are going to the University of Mississippi, don’t carry on, you can’t treat them like this, they’ve won.” Constance Baker Motley, Reflections on Justice Before and After Brown, 32 Fordham Urb. L.J. 101, 106 (2004) [hereinafter Motley, Reflections].
Shortly thereafter, the Fifth Circuit ordered that the motions for contempt be heard before the court of appeals. By that time, Meredith had already tried and failed to register, despite an escort of Justice Department lawyers and U.S. Marshals. 156 Meredith testified in a hearing before the Fifth Circuit on September 29, 1962, that he went to the university on September 26, 1962, to enroll as a student pursuant to the orders of the court and was refused admission. Transcript of Testimony of James Meredith on Sept. 29, 1962, at 21–23, United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) (No. 20240) (on file with the Columbia Law Review). He had also attempted to register on September 20, 1962, and was refused admission. Id. at 24. He tried to register, unsuccessfully, four times in late September 1962. Eagles, supra note 17, at 299. A remarkable series of hearings followed before the full circuit court, sitting en banc and making findings of fact. 157 During the course of the hearing on September 28, 1962, Chief Judge Tuttle remarked: “I think all parties will recognize that the Court in this rather unprecedented act of holding two en banc hearings in connection with this already, has given every indication that we are aware of the gravity of the litigation.” Transcript of Proceedings of September 28, 1962, on Hearing on Order to Show Cause Why Governor Ross R. Barnett Should Not Be Cited for Civil Contempt at 85–86, Barnett, 330 F.2d 369 (No. 20240) (on file with the Columbia Law Review). On Friday, September 28, with eight judges participating, 158 The judges were: Chief Judge Elbert P. Tuttle and Circuit Judges Joseph C. Hutcheson, Jr., Richard T. Rives, Warren L. Jones, John R. Brown, John Minor Wisdom, Walter P. Gewin, and Griffin B. Bell. Id. at 1–2. the court conducted an evidentiary hearing on the Justice Department’s motion to hold Governor Barnett in contempt. 159 See generally Transcript of Proceedings of September 28, 1962, on Hearing on Order to Show Cause Why Governor Ross R. Barnett Should Not Be Cited for Civil Contempt, supra note 157. Instead of remanding to the district court to conduct a hearing or appointing a special master to take evidence, the court heard testimony itself from three witnesses. 160 Id. at 10–43. It then heard from Mrs. Motley.
MRS. MOTLEY: May it please the Court, the Appellant respectfully suggests to this Court that there is nothing further that this Court can do to enforce the orders in this case against the Governor of Mississippi. The Appellant believes that, in view of this, this Court should advise the President of the United States of the inability to get its orders enforced against the Governor of Mississippi in this case, in order that the President may use whatever power is necessary.
[CHIEF] JUDGE TUTTLE: Mrs. Motley, the Court calls on the Marshal to enforce the orders and on the United States Attorney. We don’t call on the President. The Court looks to the Department of Justice to enforce its orders. I suppose you mean through channels for us to report where we normally report.
MRS. MOTLEY: Yes, you would.
CHIEF JUDGE TUTTLE: To ask that the Court’s orders be enforced.
MRS. MOTLEY: Yes. What I want to make clear is that the Appellant does not believe that the Court can take any further action itself.
JUDGE BROWN: Well, now, is that exactly true? At the present stage, defiance by Barnett would not permit, would it, a Marshal to take Barnett into custody as such? He might push him out of the way but he couldn’t put him in custody, could he? . . .
MRS. MOTLEY: Well, if I understand the question, at the present stage of the proceedings the Marshal could not go out and get him, no, because the Court has not adjudged him in contempt . . . .
. . . I don’t think that any further orders directed to the Governor to do this, that or the other before this Court adjudges him in contempt and imposes a sanction–
JUDGE RIVES: If I understand the Department of Justice, they haven’t asked that, haven’t asked that we adjudge him in contempt and impose the sanctions, but say that they are imposed upon condition, that if he purges himself by Monday night or Tuesday morning, that the sanctions will not apply.
MRS. MOTLEY: Well, this is what we disagree with, I believe.
JUDGE BELL: You take a different position from the Department of Justice?
MRS. MOTLEY: On this issue, yes.
JUDGE BROWN: On contempt you have to give him a chance to purge himself before the sanctions apply.
JUDGE BELL: She is not taking the same position that they are taking.
MRS. MOTLEY: What I am saying, Your Honor, is that I think every reasonable effort has been made to get the Governor to comply with the order of this Court, and what he seeks to avoid–maybe we are not saying exactly how it should be done, but what we seek to avoid in either event is any further delay in the admission of Mr. Meredith to the University of Mississippi, and that is all I am trying to get across to this Court . . . .
JUDGE HUTCHESON: You mean we ought to quit going through this play business of directing Meredith to go up there somewhere to be registered, to meet the Governor? I think you are right. I don’t think we should do that again.
MRS. MOTLEY: Yes, sir, yes, sir. I think that Mr. Meredith has gone there four times or he has attempted to go four times. That fourth attempt was not brought out here, his attempt of yesterday . . . .
. . . [W]hat I am trying to get at is that I think this Court ought to advise whoever is required to be advised that that order admitting him must go forward immediately and not await the purging or the opportunity given to the Governor to purge himself, because Mr. Meredith already lost a week of school. If we wait until after that time, after the Governor has been given that opportunity, it will be next Friday before you can bring him in again, if he should refuse to purge himself, and he will have lost two weeks of schooling, so that–
JUDGE BELL: What more orders could we get out than have been gotten out?
MRS. MOTLEY: I say you should not get any further orders out. You should only say to the Marshal or the Department of Justice that this Court feels that further orders would be useless.
JUDGE JONES: How can we speak, except through lawyers and decrees and judges? What other voice does the Court have?
MRS. MOTLEY: Well, I think or at least my understanding is that this Court could say to the Marshal by some direction–
JUDGE JONES: Say it out loud?
MRS. MOTLEY: No, sir, in writing, if necessary, by some direction from this Court that it appears from the evidence today that it is impossible to get this Court’s order enforced, and, therefore, the Marshal should see that the order is enforced by the use of whatever force may be necessary to presently secure the admission of the Appellant . . . . 161 Id. at 90–95.
At the end of the hearing, the court found Governor Barnett in contempt and levied a $10,000-a-day fine but gave him until 11 am on Tuesday to clear the charge and avoid jail by admitting Meredith.
Meredith v. Fair, 313 F.2d 532, 533 (5th Cir. 1962).
Over the weekend, Meredith arrived on campus with U.S. Marshals.
Eagles, supra note 17, at 352; Motley, Equal Justice, supra note 25, at 183.
He was in his dorm room when a mob of students and campus visitors attacked the Marshals standing in front of the Lyceum,
The Lyceum, the construction of which was completed in 1848, is the principal administration building at the University of Mississippi. Its front columns still bear bullet marks from the violence in 1962 when Meredith enrolled. Oxford Campus and University Buildings, Univ. of Miss., http://catalog.olemiss.edu/university/buildings [http://perma.cc/
Z3YD-27PT] (last visited Aug. 1, 2017). triggering a call for federal troops to quell the violence. 165 Eagles, supra note 17, at 352–70. Before peace was restored, a journalist and a local civilian had been shot and killed. 166 Id. at 360, 364–65. Meredith registered and attended his first class on Monday, October 1, 1962, only a few hours later. 167 Id. at 371.
VII. The Aftermath
James Meredith graduated from the University of Mississippi on August 18, 1963.
Meredith, supra note 4, at 188–94; Motley, Equal Justice, supra note 25, at 185.
During the year he spent at Ole Miss, federal marshals had to sleep in his room, and he could not go anywhere on campus without marshals.
See Motley, Reflections, supra note 155, at 102.
A few years later, on June 6, 1966, on a highway south of Hernando, Mississippi, he was shot while leading a march.
Motley, Equal Justice, supra note 25, at 186.
He survived and went on to earn a law degree from Columbia University and became an entrepreneur, speaker, and political activist.
Id. at 185–87; see also Eagles, supra note 17, at 434–35.
He still lives in Jackson, Mississippi.
See James Meredith: Civil Rights Activist (1933–), Biography.com, http://
www.biography.com/people/james-meredith-9406314 [http://perma.cc/KQL3-HNXC] (last updated Mar. 31, 2016).
Mrs. Motley once called the day Meredith graduated from Ole Miss the most thrilling in her life. 173 Martin, supra note 11. Sadly, Medgar Evers, who had provided critical support to both Mrs. Motley and James Meredith, did not live to see Meredith graduate. He was assassinated by a sniper hiding in bushes near his home in June 1963. 174 In 1994, more than three decades later, Byron De La Beckwith, an ardent segregationist, was convicted of murdering Evers and sentenced to life imprisonment. See David Stout, Byron De La Beckwith Dies; Killer of Medgar Evers Was 80, N.Y. Times (Jan. 23, 2001), http://www.nytimes.com/2001/01/23/us/byron-de-la-beckwith-dies-killer-of-medgar-evers-was-80.html (on file with the Columbia Law Review). Beckwith was charged after the shooting and went to trial twice in 1964, but both times all-male and all-white juries failed to reach a verdict. Id. It was only after new evidence was uncovered that the case was reopened and Beckwith was convicted in 1994. Id. The third prosecution was spurred in part by the disclosure in 1989 that officials of the Mississippi Sovereignty Commission, which had been created to resist desegregation, see Doyle, supra note 21, at 55, had helped screen potential jurors in Beckwith’s two trials. The revelations led to the discovery of new witnesses who had heard Beckwith boasting over the years about killing Evers. See Ronald Smothers, 30 Years Later, 3d Trial Begins in Evers Killing, N.Y. Times (Jan. 28, 1994), http://www.nytimes.com/1994/01/28/us/30-years-later-3d-trial-begins-in-evers-killing.html (on file with the Columbia Law Review). Mrs. Motley was devastated by his death. She had made twenty-two dangerous trips to Mississippi herself for the Meredith case, always accompanied by Evers and often staying overnight across the street from his home. 175 Motley, Equal Justice, supra note 25, at 166, 188; see also Motley, Reflections, supra note 155, at 101. She understood the risks, and had once even warned Evers of the danger posed by the bushes, 176 Motley, Equal Justice, supra note 25, at 171. but his death made her wonder whether the price was too high. 177 Id. at 189. She did not return to Mississippi until 1983, when she attended a conference held by the university to commemorate the twentieth anniversary of Meredith’s graduation. 178 Id. at 190. Judge Motley returned in 1989, when Ole Miss held its first civil rights conference. Id. She was joined there by Judges Wisdom and Tuttle in what she later called a “thrilling reunion for those of us who had participated in the long legal battle to open the university.” Id.
As noted above, Judge Wisdom became known as one of “The Four”—four judges who implemented desegregation in the Deep South.
“The Four” heard cases that went beyond the initial, limited scope of Brown:
“The Four recognized that the courts alone could not get the job done, that it would take a commitment by all three branches of government. In applying the due process and equal protection clauses of the Fourteenth Amendment to unprecedented circumstances, however, they developed principles that Congress would incorporate into the landmark 1964 Civil Rights Act and 1965 Voting Rights Act, legislation that granted enforcement power to the executive branch and had a lasting social, economic and political impact on the American South.”
“Bass, supra note 99; see also Custer, supra note 99, at 23. The other members of “The Four” also played important roles in the Meredith case: Judges Tuttle, Brown, and Rives. 180 Motley, Equal Justice, supra note 25, at 190. Judge Wisdom received boxes of hate mail, two of his dogs were poisoned, and a rattlesnake was thrown in his courtyard. 181 See Rupert Cornwell, Obituary: John Minor Wisdom, Independent (June 3, 1999), http://www.independent.co.uk/arts-entertainment/obituary-john-minor-wisdom-1097913.html [http://perma.cc/P2GH-3ZBM]. The Fifth Circuit building was renamed after him in 1994. 182 See Tracy O. Joseph et al., Louisiana’s Historic Courthouses: A Look at the Past and the Present, 64 La. B.J. 28, 31 (2016) (discussing the history of the John Minor Wisdom courthouse and its name). Judge Wisdom has been described as follows:
“A man of towering intellect, steadfast conviction, and unwavering integrity, Wisdom’s multilayered career as attorney, soldier, political activist, scholar, teacher, legislative draftsman, and, most notably, judge, produced a wide-ranging, and, in many regards, revolutionary impact on the American political and legal landscape. Though born to a family of privilege and social position, John Wisdom had a keen awareness of the obstacles faced by those who, unlike him, did not inherit or otherwise have unfettered access to the bounties of life. Instead of blindly following convention and selfishly promoting personal advantage, Wisdom courageously pursued his sincerely and deeply felt commitment to the principles of fair play and equality under the law. And, in doing so, he dramatically and permanently altered the lives of millions of Americans, a feat made more remarkable when considered in relation to the normal expectations of someone of his breeding and background. For these reasons, history will recognize this New Orleans born-and-bred son of the Old South as one of the primary architects of the New South.”
Friedman, supra note 104, at 1–2. Charles Clark, who clashed with Mrs. Motley over his pronunciation of the word Negro, became a judge on the Fifth Circuit in 1969, ultimately serving as Chief Judge. 183 See Fed. Judicial Ctr., Charles Clark, supra note 109. Clark was nominated by President Nixon and confirmed by the Senate in 1969, and he served as Chief Judge from 1981 to 1992. Id.
Ole Miss continues to struggle with the issues that led to the deadly riot on its campus in Oxford, Mississippi. The university erected a statue of James Meredith, but in February 2014, under cover of darkness, three University of Mississippi students tied a noose and a Confederate flag around its neck.
Eagles, supra note 17, at 440–41; (Jackson, Miss.) Clarion-Ledger, Ex-Ole Miss Student Sentenced for Noose on Statue, USA Today (Sept. 17, 2015), http://www.usatoday.com/
perma.cc/Y8ML-VNHD]. After they were identified, all three withdrew from school, their fraternity closed its chapter, and two of the students pleaded guilty to federal civil rights crimes. 185 One was sentenced to six months in prison and the other to twelve months’ probation. Erin Edgemon, Second Ex-Ole Miss Student Sentenced for Tying Noose on James Meredith Statue, Ala. Media Group (July 22, 2016), http://www.al.com/news/index.ssf/
2016/07/second_ex-ole_miss_student_sen.html [http://perma.cc/WG6Q-FUWH]. Ole Miss issued a statement declaring that the “university does not tolerate hateful behavior.” 186 Susan Svrluga, Former Ole Miss Student Pleads Guilty to Hanging Noose Around Statue Honoring the First Black Student, Wash. Post (Mar. 24, 2016), http://
www.washingtonpost.com/news/grade-point/wp/2016/03/24/former-ole-miss-student-pleads-guilty-to-hanging-noose-around-statue-honoring-the-first-black-student/ (on file with the Columbia Law Review).
After the Meredith case, Mrs. Motley went on to become a New York State Senator, Manhattan Borough President, and, when she was confirmed as a United States District Judge in the Southern District of New York in 1966, the first African American woman and the first woman of color to serve as a federal judge in the country. 187 Motley, Equal Justice, supra note 25, at 214 (“I was the first black woman appointed to the federal bench.”); Jonathan K. Stubbs, A Demographic History of Federal Judicial Appointments by Sex and Race: 1789–2016, 26 Berkeley La Raza L.J. 92, 104 (2016) (“Johnson nominated the first woman of color, Constance Baker Motley, to the federal bench on January 26, 1966, and the Senate confirmed her on August 30, 1966.”). At the time, only four other women were federal judges. Motley, Equal Justice, supra note 25, at 214. She became the Chief Judge for the Southern District in 1982, the first woman to serve in that capacity, and assumed senior status in 1986. 188 See Fed. Judicial Ctr., Constance Baker Motley, supra note 11. She died at the age of eighty-four on September 28, 2005, while still serving as a Senior Judge. 189 Id.
The battles Judge Motley fought as a young lawyer may not be over, but the importance of the legal proceedings she brought on behalf of James Meredith and their aftermath on the campus of Ole Miss should not be underestimated. As Meredith had recognized, in many respects this was “the last battle of the Civil War,” 190 Meredith, supra note 4, at 117. and Judge Motley agreed that “[t]he Meredith case effectively put an end to massive resistance in the Deep South.” 191 Motley, Equal Justice, supra note 25, at 187. Against all odds, Constance Baker Motley and James Meredith integrated Ole Miss.
Derrick Bell’s comments about Judge Motley’s autobiography provided a fitting conclusion to the first presentation of the case reenactment on which this Essay is based, especially as they were spoken by Judge Motley’s son, Joel Motley:
[Her story] reminds us how one courageous and persistent individual can make a difference. Her belief in the law and in the ability of people to overcome their fears and move toward action [was] unshakable. Hers [was] a voice of reason, compassion, and uncompromising commitment to justice and equality. 192 Derrick Bell, Book Jacket to Motley, Equal Justice, supra note 25.
The same words provide a fitting conclusion to this Essay. Individuals can make a difference. Individuals engineer social change, and individuals who participate in the legal system, whether as lawyers or judges or parties, are uniquely situated to make a difference. As Judge Mize demonstrated, a trial judge’s power over his calendar can place an effective damper on the exercise of civil rights.
As Judge Wisdom observed in commenting on the delays in the trial court:
“The net effect of all these delays was that the February 1961 term, the two summer terms of 1961, and the two regular terms of 1961–62 slipped by before the parties litigant actually came to a showdown fight. Some of these delays, as in any litigation, were inevitable. Some are attributable to continuances of doubtful propriety and to unreasonably long delays by the trial judge. . . . We draw the inference that not a few of the continuances and the requests for time in which to write briefs were part of the defendants’ delaying action designed to defeat the plaintiff by discouragingly high obstacles that would result in the case carrying through his senior year. It almost worked.”
Meredith v. Fair, 305 F.2d 343, 351–52 (5th Cir. 1962). A single circuit judge’s refusal to recognize Supreme Court precedent can have the same impact. To work, the judicial system needs resourceful and determined counsel and litigants, and judges willing to follow the law wherever it may lead. 194 In a sense, Judges Mize and Cameron and “The Four” were activist judges in that they seemed to have an agenda. The Four’s agenda, however, was to implement the law, as determined by the Supreme Court in Brown, while Judges Mize and Cameron were apparently determined to thwart it. “The last battle of the Civil War” was fought and won in courthouses in the Deep South by courageous individuals such as James Meredith, Constance Baker Motley, and the judges known as “The Four.” 195 Judge Motley made note of the “critical role played by the Fifth Circuit Court of Appeals in implementing Brown in the Deep South,” making particular mention of Chief Judge Tuttle, Judge Wisdom, Judge Rives, and Judge Brown. Motley, Equal Justice, supra note 25, at 190–91. As she put it, “The task before them, particularly from 1960 to 1968, was one the federal Courts of Appeal had never anticipated. They never expected to be on the front line of the last battle of the Civil War.” Id.