Thurgood Marhshall was, of course, a Justice of the Supreme Court. But before that, he was an absolutely incredible litigator; he was the primary strategist behind the NAACP’s litigation campaign to desegregate public institutions. In the wake of his victory in Brown v. Board of Education, he published The Rise & Collapse of the "White Democratic Primary," 26 J. Negro Educ. 249 (1957).
The "white primary system" was a system of rules and tacit agreements in Jim Crow South that effectively disenfranchised African-Americans. At the time, the Democratic Party held a virtual monopoly on public office in the region. The party was not explicitly regulated by the Constitution, and so could make its own rules, including prohibiting certain class of people (like African-Americans) from voting. If you couldn’t vote in a Democratic primary, you were essentially excluded from the real election.
Marshall’s article details the background behind four cases–Nixon v. Herndon (1927), Nixon v. Condon (1932), Grovey v. Townsend (1935), and Smith v. Allwright (1944)–that spelled the end of the white primary system. It’s remarkable for a number of reasons. First, because of Marhsall’s keen sense of historical irony, since the system essentially collapsed because of white politicians who were seeking temporary tactical advantages:
It is even more ironical that a petty squabble between the candidates for a minor political officein Texas ended in the enactment of a statute which declared Negroes ineligible to vote in a Democratic primary and touched off the series of law suits which brought about the collapse of the white primary system.
But Marshall’s retelling is even more important for its sense of strategy. Unlike many legal scholars, who may consider a given ruling to be the end of a given debate, Marshall details the moves and countermoves required before the white primary system was effectively dead. In response to the first statute, an African-American doctor sued for money damages; his case was dismissed. The Supreme Court (in a unanimous opinion authored by Justice Oliver Wendell Holmes) reversed, calling the statute a "direct and obvious infringement of the Fourteenth Amendment." At this point, Marshall teaches his primary strategic lesson:
Most people, including Justice Holmes, felt that this decision laid the white primary to rest;’ but succeed- ing events showed them up as far too optimistic. For the Texas legislature promptly tried again. In 1928 it repealed the 1924 law and enacted another which empowered the state executive committees of political parties to determine the qualifications of voters in primary elections.
This move-and-countermove continued throughout the four cases. For each decision the Supreme Court handed down, the losing party would revise its strategy. In other words, when one has a determined adversary, no victory (and no defeat) is final.
This lesson served Marshall well in his own campaign for desegregation. Few other litigators have been as effective at building a litigation strategy around a series of carefully-calculated losses in front of hostile courts. But it’s an important lesson to any litigator: when the stakes are high enough, you should not expect the other side to take defeat lying down, and you should be prepared for those inevitable adverse rulings you’ll receive as well.