South Carolina Vendetta

By Marion Wright

Vol. 1, No. 4, 1979, pp. 4-7

Editor's Note: "In recent years scholars have increasingly been turning their attention to Southern history. Tome after tome offers learned discourse on the profitability of slavery, the nature of the Black family, the causes and consequences of the Civil War, the reality of the New South, or the history of race relations in Dixie. Of growing interest is the story of the Southern White liberal. Who were the remarkable men and women who braved insults, suffered ostracism, risked losing their jobs and, in some cases, faced mobs to promote equal justice for all? Who sought to foster the climate of tolerance that would hasten the day when Dixie truly rejoined the Union? One such man is Marion Allen Wright, author of the speeches compiled in this book."

This is the opening paragraph in the book Human Rights Odyssey by Wright and Arnold Shankman. Wright was the president of the Southern Regional Council during some of the most turbulent years of the 1950s. His speeches often received very cool receptions. The speech excerpted here is about Federal Judge J. Waties Waring, a White Southern liberal like Wright, but who, unlike Wright, was ostracized because of his rulings on controversial issues. In many instances, these issues are still sources of controversy today.

Introduction

Probably no Southerner was more vilified because of his liberal racial stand than was J. Waties Waring of Charleston, South Carolina, federal judge for the Eastern District of South Carolina. It fell to Judge Waring's lot to write decisions equalizing teachers' salaries; requiring South Carolina to admit Negro students to the University of South Carolina law school unless a separate but completely equal law school was established; opening the Democratic primary to Negro voters, and, in dissent, striking down segregation in the public schools.

Waring's decisions aroused hostility among a great majority of White South Carolinians, whose reaction was vocal, bitter and, in many instances, obscene. Unruly mobs vandalized their house and verbally abused the judge and his wife.

Sadly, Wright was one of very few South Carolinians to speak out in behalf of the Warings. Charleston society ostracized the couple. Evidently the so-called better elements of the city could not forgive the apostasy of a native Charlestonian of distinguished ancestry. Waring, however, would not modify his views. He once explained to a reporter that "by being a judge I have gradually acquired a passion for justice."

While the school desegregation case was pending before the United States Supreme Court Marion Wright visited the Waring home and wrote this impressionistic report of J. Waties Waring, man and judge. One year later, on November 6, 1954, Wright was the principal speaker at a testimonial dinner given by the state NAACP for the then expatriated judge and his wife.

"It is time for South Carolina to rejoin the Union."

So wrote United States District Judge J. Waties Waring of Charleston, S.C., in an opinion filed July 12, 1947. These words, directed at one phase of South Carolina's segregation policy, touched the state upon an exposed nerve. The decision struck down the system the state had set up to deprive its Negro citizens of any effective participation in politics, and, hence, in government, a system devised by "the best legal brains in the state." The judicial condemnation of the morals behind this effort was apparently not so much resented as was the reflection upon the lack of shrewdness of its authors.

Some years ago Governor Olin D. Johnston, now senator, purpled upon reading a decision of the United States Supreme Court in a case from Texas. That decision held that the plaintiff, a Negro, was entitled to vote in a Democratic primary even though for


Page 5

bidden by the party rules. Negroes were so forbidden by party rules in South Carolina. In Texas there were statutes regulating conduct of primaries. There were such statutes in South Carolina. There was language in the decision which aroused belief in Governor Johnston that a different result might have been achieved in Texas if the state had had no such statutes but had left political parties entirely free to make their own rules. That seemed the way out for South Carolina. Certainly, if the situation in South Carolina could not be distinguished from the situation in Texas, Negroes of the Palmetto state would, upon a proper case, be granted the right of participation in primaries. In that state, of course, this means the Democratic primary.

Governor Johnston thereupon convened an extraordinary session of the legislature. There was nothing Oriental or disingenuous about the call for the session. "It now becomes absolutely necessary that we repeal all laws pertaining to primaries in order to maintain White supremacy . . . White supremacy will be maintained in our primaries. Let the chips fall where they may."

So the legislature ripped approximately 150 statutes out of the books. The state convention of the party eliminated from its rules all references to statutes. When George Elmore, Negro, stood before Judge Waring, asking that he be permitted to enroll in the Democratic party and to vote despite its rules against Negro participation, the party was able to say with engaging innocence that its status was exactly the same as a private social club. Judge Waring was unimpressed. "Racial distinction," he wrote, "cannot exist in the machinery that selects the officers and lawmakers of the United States; and all citizens of this state and country are entitled to cast a free and untrammeled ballot in our elections. If the only material and realistic elections are clothed with the name 'primary,' they are equally entitled to vote there ... The primary held by it (the Democratic party) is the only practical place where one can express a choice in selecting federal and other officials."

And so, the Negroes voted in South Carolina ....

It might have been naively assumed by those who did not know the masters of the Democratic party in South Carolina that the decision in the Elmore v. Rice case, unanimously affirmed by the Circuit Court of Appeals (composed, by the way, of three White Southern judges) and the Supreme Court of the United States, would have put an end to efforts to exclude the Negro from the Democratic primary. Not so. Like John Paul Jones in a worthier cause, the party had just begun to light. The Democratic convention on May 19, 1948, almost a year after Judge Waring's decision in the Elmore case, adopted new rules. These limited membership in the Democratic clubs to Whit persons and required of all those seeking to vote in the primary an oath which provided, among other things, that the prospective voter believes in and will support the "social, religious and educational separation of races," in "the principle of States Rights" and "is opposed to proposed federal so-called F.E.P.C. law." A rather neat little device for rendering completely nugatory the former decision of Judge Waring.

David Brown, a Negro from Beaufort, brought suit against officials of the party, seeking an order granting him membership in one of the Democratic clubs and enjoining the requirement of the oath as a prerequisite to voting in the primary. In addition to the permanent injunction, a temporary injunction was sought relating to the then imminent primary.

Judge Waring, native born and lifelong resident of Charleston, with eight generations of Southern ancestry behind him, with Confederate and slave owning antecedents, always a Democrat, heard the motion for the temporary injunction.

"It is important," his order read, "that once and for all the members of this party be made to understand and that is the purpose of this opinion - that they will be required to obey and carry out the orders of this court, not only in the technical respects but in the true spirit and meaning of the same . It is time that either the present officials of the party, or such as may be in the future chosen, realize that the people of the United States expect them to follow the American way of elections ... It becomes the duty of this court to say to the party officials that they will have to obey the true intent of the law ... and that no excuse or evasion in the future will be tolerated ... Any violation of the terms of the order, or of the law as set forth in this opinion ... will be considered a contempt and will be proceeded against and punished." From the bench he announced that punishment would not be a mere line but would be imprisonment.

Under the aegis of this order 35,000 South Carolina Negroes voted in the Democratic primary of 1948 without disorder or incident.

Later, on November 26, 1948, the injunction was made permanent. The Circuit Court of Appeals again unanimously sustained the action of the lower court. The appellate court was asked to hold that Judge Waring should have disqualified himself because of "personal bias" against the defendants. This contention was overruled with the observation, "A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence."

While Judge Waring had one of the election cases under consideration, a defender of public morals dropped a suggestion into the mails:

"You must realize the fearful racial hatred that will follow any adverse


Page 6

decision that you may render in the present case under your consideration against the White people of your own state.

"We again trust that we will have your co-operation in a favorable decision for the White people which will in the end do more justice to the Negroes themselves than the past decisions that you have been making."

The signature -Knights of the Ku Klux Klan - was in red ink.

In a case from Clarendon County, South Carolina, the Judge on June 21, 1951, wrote a dissenting opinion repudiating the doctrine that a state acts within the 14th Amendment to the Constitution of the United States when it provides separate but equal school facilities for Negro and White pupils. The case is the first to attack segregation per se on the elementary school level. After reviewing the testimony of certain witnesses for plaintiffs, Judge Waring wrote:

"From their testimony it was clearly apparent, as it should he to any thoughtful person, irrespective of having such expert testimony, that segregation in education can never produce equality and that it is an evil that must he eradicated ... I am of the opinion that all of the legal guideposts, expert testimony, common sense and reason point unerringly to the conclusion that the system of segregation in education adopted and practiced in the state of South Carolina must go and must go now."

"Segregation is per se inequality."

The other two judges of the three judge court, John J. Parker and George Bell Timmerman, upheld the separate but equal doctrine. An appeal from their decision is now before the Supreme Court.

This would be a badly distorted picture if the impression should be created that hatred of Judge Waring approaches being unanimous in South Carolina. Far from it. The press of the state generally has not taken up the hue and cry regarding his decisions as being inevitable and correct statements of the law. Outside of ancient Charleston and environs, if one may judge from the letters and telegrams (these not wearing the mask of anonymity) there is a substantial body of White opinion which applauds the judge's course. From outside the state there have come literally thousands of commendatory messages.

The Negro people, of course, both at home and abroad, have elevated him to sainthood, a role for which he is ill-adapted and which gives him acute discomfort.

"After all, I have done nothing except perform very plain duties. For merely doing his duty a man is not entitled to anything approaching adulation."

But wherever he goes throughout the country Negro men and women - bell hops, red caps, college students, teachers - come forward to press his hand and voice the gratitude of their race.

"Of course," the judge admitted, "it does appeal to the ego which I guess we all have. And a few words like theirs make up for a lot of those anonymous letters," pointing to the drawer which contains that literary collection.

I asked Judge Waring if any White Charlestonian had publicly given him support.

"Not a one."

"What about the Churches?"

"You know," he replied with evident feelings. "that has been the most disappointing feature of the whole matter. I am unable to understand how ministers who Sunday after Sunday utter the ancient cliches about brotherhood never translate them into action, apply them to specific local situations. untouchahility in India and the Ghetto in Germany draw fire but segregation here at home does not.

I asked the judge about the penalties he had endured, he replied:

"For merely thinking and talking differently from your fellows, you are marked as being queer and unfriendly. For putting those thoughts into action, as I have tried to do, you are put down as a traitor to your class and state.

"As a result I have been completely abandoned by many friends and acquaintances. Probably the most serious phase of this abandonment is loss of contact with lawyers. They physically evade me and dodge around corners in order to avoid the business, political or other consequences if the impression should be created that they were friendly to me.

"I knew some pleasant and amusing people whose very frivolity was attractive. They left me.

"Then there is the discomfort of living in an atmosphere of tenseness and ill will. There is a feeling of being on guard. I do not mean physically, though threats of violence are not uncommon, but rather, of watching every word and act to be sure that they are not subject to misconstruction.

"All of those things, of course, detract from normal and happy living." What was the other side of the ledger, what compensations to offset these penalties?

"There have been plenty of compensations," he began. "They more than off-set the penalties.

"Of course the first great gain is the complete knowledge that one's actions have been right, not only right because, in the matter of court decisions, there have been affirmances and complete approval nationally, but right because the conscience of the world approves of these actions, and right because one's own conscience says so, and that is the greatest gain there is ....

"Another gain has been the outside contacts. We both (wife) have a considerable correspondence with people all around the country and even some outside, and when we go away, we now have the opportunity of meeting people throughout this country who are worthwhile, not because of achievements of prominence, but because they have inquiring minds. We have met literally hundreds of people with whom we would have never had any contact and whom we would have never had any contact and whom we never would have met and many we never would have heard of but for the fact that South Carolina has chosen to advertise its :i Americans and humanitarians and opposed to oppression. Too, it


Page 7

came as agreat surprise to find out ho many individual thinkers there were who wanted to know more about these things.

"I feel that this ostracism here has allowed me to take part in what might be termed a true crusading movement in which many hundreds and thousands of good people in this country are enlisted and performing various parts. But for this alignment, I would never have had such an opportunity.

"Some day the civil rights battle will be won. I hope I may be pardoned a sense of pride in the thought that I shall have had some small part in the victory."

Since the Judge was in this selfrevealing mood and there was still a quarter-hour before dinner, I asked if he felt that Charleston would ever soften its attitude toward him, come to think a little more kindly of the work he had done. There was a long pause. Finally:

"In my lifetime, no."

A native South Carolinian, my mind turned to the career of James Louis Pettigru, brilliant and courageous lawyer of Charleston, who opposed nullification and secession when those fevers ran high. As a result he was Charleston's loneliest man in the decades before Fort Sumter was shelled and during the war which that shelling announced until his death in 1863. He lies buried in St. Michael's churchyard in Charleston. As a boy Waties Waring absorbed the epitaph, from which the following extract may be pertinent:

"In the great Civil War he withstood his People for his Country but his People did homage to the Man who held his conscience higher than their praise and his Country heaped her honors on the grave of the Patriot, to whom living his own righteous self-respect sufficed alike for Motive and Reward."

Charleston may do it again.

Aftermath of the Decision

No one development more signified and quickened the pace of the New Reconstruction than did the Supreme Court's unanimous decision of May 17, 1954, against segregation in the public schools. The separate-but-equal doctrine, which dated from the decision in 1896 in Plessv v. Ferguson, had been under steady attack for two decades before 1954; a number of the Supreme Court's decisions from 1938 on, largely in the realm of state-supported higher education, had sharply limited and nibbled away at the PIessy formula. But the Court in 1954 met the issue head-on and, speaking with an impressive unanimity and moral authority, buried the legal fiction of separate-but-equal once and for all.

Marion Wright had correctly anticipated this momentous development. Yet, as he admitted in later years, he and many other liberal observers underestimated the depth and amount of Southern opposition to desegregation. This aspect of the New Reconstruction became manifest only gradually and after White extremist groups and politicians had moved into action.

The Supreme Court's decision in 1954, and its decree a year later implementing the decision, forced Southern whites to decide: would they actively assist, passively accept, or bitterly oppose the greatest tide of racial change since the years immediately after the Civil War? The gradualists, Southerns who looked to changes at some far-off, unspecified date, were especially confronted with the dilemma of deciding. In his speeches and written essays, Wright often dealt with the fallacies of gradualism and the obligations of the Southerner.

It was Wright's goal to transform Southern society into one that did not dwarf its men but rather encouraged their growth into giants. The ability to grow, he realized, could come only with a truly new South, one that came to grips with the Confederacy realistically, recognizing that the Civil War in the South had been waged to defend an ignoble institution. Dixie had fought gallantly for a cause that should have been lost, and now one hundred years later it was time to turn away from the past and to educate the young, Black and White, to treat one another as brothers and sisters.

Wright was aware that the process of integrating the schools would be hard for both races and would reveal hidden antagonisms. When addressing Southerners sometimes Wright told of an elderly Negro woman in New Orleans, her hands bleached from the washtub. Shortly after school riots in that city she sadly confided, "I washed for those people for thirty years and I wouldn't have believed if I hadn't seen it that they would run in the house and pull down the shades while that crowd threw rocks at my grandchild."

It was precisely because such incidents did occur, Wright argued, that integration of schools was necessary, for this would foster democracy and would prove more beneficial to Whites than to Blacks. In February 1971, he noted:

It is as damaging to the personality to be shut in as to be shut out. Whites create ghettos for themselves. It is more important that the White Southerner know the black than that he know the European. Whites and blacks here are neighbors and neighbors must know each other if they are to get along and build a better society. Such knowledge begins in the schools.

Delay, gradualism would not work, for all the world, even the peoples of Latin America, Africa and Asia, were "aware of the shabby and fradulent tricks used to deny rights to people of color in the South, aware of burnings, boycotts, and bombings."

You know a man can secure a reputation for wisdom merely by saying, Lets not move too rapidly. He can secure a reputation for goodness merely by saying, This thing is wrong and some day we must get rid of it.' Such men are the meanly wise, the feebly good. Bigotry takes many forms. In none is it more detestable than in the assertion that mere procrastination will accomplish the results which all good men seek.

These words, spoken by Wright before the Men's Club of Trinity Episcopal Church in Buffalo, New York, on May 6, 1952, set forth a theme to which he often recurred. That theme was in response to the plea for gradualism in re-adjusting Southern race relations. Gradualism was another term for non-action.

Human Rights Odyssey was published by Moore Publishing Company in 1978, Price $9.95.