Bolch Judicial Institute
Duke Law School
Sergeant Isaac Woodard had just completed a three-year tour in a segregated unit of the United States Army. He boarded a Greyhound bus in Augusta, Ga., that would take him home. But following a heated exchange with the bus driver, Woodard was forcibly removed at a stop in Batesburg, S.C., and later, beaten blind by the town’s police chief Lynwood Shull.
It was 1946. Civil rights prosecutions were nearly unheard of. But President Harry S. Truman insisted that his attorney general bring criminal charges. The police chief was tried before an all-white jury in the courtroom of United States District Judge J. Waties Waring; the evidence left little doubt of his guilt, but he was acquitted.
Judge Waring had taken for granted the segregated South, but the blinding of Woodard forced him to see clearly. He reexamined his assumptions, delved into texts, and was awakened to the vast system of inequality that surrounded him. He penned several landmark civil rights decisions in the years that followed, including a 1951 dissent in Briggs v. Elliott that declared segregation per se unconstitutional. That case would become a model for the Supreme Court’s opinion in Brown v. Board of Education.
Judge Richard Gergel assumed his seat on the same court in 2010, more than 60 years later. He soon realized that few knew of Judge Waring’s legacy — or of his journey into the civil rights movement. Judge Gergel’s new book, Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring, uncovers just that. Following are two excerpts from Unexampled Courage that explore Judge Waring’s experience as a civil rights-era judge in the South. Click here to read an interview with Judge Gergel, in which he talks about writing the book and his lasting impressions of Judge Waring.
The acquittal of Police Chief Lynwood Shull set in motion a kind of “awakening” for Judge Waring and his wife, who were forced to confront the reality of systemic racism that had long surrounded them. The passage below explores this process and the Warings’ self-education on the issues of race and equality.
The Warings returned to Charleston following the Shull trial profoundly disturbed by the “viciousness” of the assault on Isaac Woodard and the judicial system’s failure to hold the officer accountable. Elizabeth called it one of the “great shocks” of her life to “have sat in a courtroom in Columbia and see[n] a jury set free a man who beat out the eyes of Isaac Woodard.” Judge Waring viewed the trial as his personal “baptism of fire.” Both Warings struggled to find some effective response to this experience.
The Warings had certainly long been aware that they lived in a Jim Crow world. Blacks were physically segregated in all public spaces and were deprived of their right to vote and struggled at the very bottom of the economic ladder. The Warings accepted these practices as built into the fabric of southern life and did not question them. What they had not recognized, or at least acknowledged to themselves, was that this entire discriminatory system was enforced by coercion, intimidation, and, where necessary, violence. The trial of Lynwood Shull forced them to acknowledge this basic truth.
Another basic truth of Jim Crow was that no dissent or questioning of the discriminatory practices was tolerated. The random iconoclast who questioned the morality or fairness of the racial status quo immediately felt the wrath of the segregationists, who essentially treated every voice of white dissent as an existential threat to white supremacy. Judge Waring would later describe southern life of that era as akin to living behind the Iron Curtain.
Because race and justice were not topics white South Carolinians of this era openly discussed, the Warings resolved to undertake their own private study of race in America. Each evening after dinner, Elizabeth Waring would read out loud from a selected text, which allowed her husband to rest his eyes after a hard day at the office performing his judicial duties. After reading for a while, the Warings would take a drive around Charleston, one of their favorite evening activities, and discuss the text they had just read. Night after night, over many months, they undertook this ritual of reading, discussion, and reflection.
The Warings began their studies with W. J. Cash’s Mind of the South, a widely read and important book of the period. Published in 1941, the book conducted a sort of mass psychoanalysis of the white South, with a special focus on what Cash referred to as the “common white.” Cash, who died at age forty-one shortly before the book was published, had worked as a newspaper reporter for The Charlotte News. He observed that some of the “best” traits of the “common white” southerner were pride, bravery, personal generosity, and courteousness. But, he noted, there was a “darker side” of the “common white” that included “the tendency toward violence” and “mob action,” evidenced by “Negro lynching” and a murder rate in the South that greatly exceeded that of the rest of the country. In Cash’s view, the “common white” was also characterized by intolerance (“greatly absorbed . . . by fears and hates”), an incapacity of analysis, an exaggerated individualism, an attachment to fictions and false values, and a “tendency toward unreality.” These traits, Cash argued, made the “common white” unusually receptive to racial demagogues “of the more brutal sort.”
Cash characterized slavery as an “inescapably brutal and ugly” practice that placed African Americans in a “position of a mere domestic animal.” This clearly deviated from the existing popular lore that slavery was a benign and civilizing institution for African slaves. Cash argued that the absolute power of whites bred “a savage and ignoble hate for the Negro.” This hatred, he argued, produced exaggerated claims of sexual dangerousness of black men and made them “the obviously appointed scapegoat.” Cash’s candid discussion of racism and the portrayal of whites as victimizers of African Americans generated great criticism across the white South. Judge Waring, however, found The Mind of the South a liberating revelation. Cash, he observed, disclosed “the perverted and wrong method of thought of those who have carried out the persecution of the Negro.” Waring initially found the book difficult to read because it challenged so many of his unquestioned premises about southern life, but he ultimately concluded it was “medicine to do it.”
Having studied Cash’s harsh critique of southern racial customs, the Warings next tackled Gunnar Myrdal’s fourteen-hundred-page study of race in America, An American Dilemma: The Negro Problem and Modern Democracy, published in 1944. This work, funded by the Carnegie Foundation, was a “comprehensive study of the Negro in the United States, to be undertaken in a wholly objective and dispassionate way as a social phenomenon.” Myrdal, a Swedish economist and social scientist, was selected to conduct the study because of his renowned scholarship and his emotional distance from the American racial question. Eventually, forty researchers, including Ralph Bunche and Dr. Kenneth Clark, assisted in the preparation of An American Dilemma.
The study clinically analyzed some of America’s most delicate and often undiscussed racial practices and customs, including black disenfranchisement, racial mob violence, failures of the justice system, racial segregation, and the fear of interracial sexual relations and marriage. Myrdal asserted that the purpose of these racial practices was “to isolate the Negro and to assign them to a lower social status.” In one of the most insightful sections of the study, Myrdal compared the “ranked order of discriminations” held by whites and blacks, which listed the most important aspects of Jim Crow practices to whites and the most critical issues of concern to blacks. For whites, the most important or “first rank” areas of concern regarding race relations were interracial sex and marriage. This was followed by concerns regarding direct social contact with blacks, such as eating and drinking together or using the same restrooms. Less important to whites were political disenfranchisement and discrimination in employment, credit, and public relief. For blacks, as victims of racial discrimination, the “ranked order of discriminations” was the same, but in reverse. Fair access to employment, credit, and public relief was at the top of concerns for blacks, followed by the right to vote. The areas of least concern for blacks were interracial sex and marriage.
Myrdal, a future Nobel laureate with a deep faith in American democracy, observed that Americans were defined by a set of values he called the “American Creed.” These included the essential dignity of each individual, the equality of all men, and the right to freedom, justice, and fair opportunity. Myrdal contrasted this American Creed with the treatment of southern blacks, which he described as a “moral lag in the development of the nation.” He viewed America’s racial difficulties as essentially the white man’s problem that existed “in the heart of America,” and the gap between the American Creed and the nation’s treatment of its black citizens was the “American Dilemma.” He called on America to courageously confront its racial practices because, after two world wars, “mankind needed . . . the youthful moralistic optimism of America.” America’s civil rights struggle, Myrdal maintained, was a great opportunity to perfect the nation and to give it “a spiritual power many times stronger than all of her financial and military resources.”
Myrdal had a dim view of southern liberals, whom he characterized as “inclined to stress the need for patience and to exalt the cautious approach, the slow change, the organic nature of social growth.” Southern liberals, in Myrdal’s view, excessively emphasized their “local and regional patriotism” and seemed desperate to “keep respectability” by treading “most cautiously around the negro problem.” According to Myrdal, the southern liberal greatly feared “the deadly blow of being called a ‘nigger lover,’” which produced a form of paralyzing timidity that left southern racial customs effectively unchallenged.
Waring studied An American Dilemma with the same rigor and intensity with which he had first read law as an aspiring attorney more than forty years earlier. The book, which he described as “a great and monumental study,” provided him with a historical and sociological lens through which to view his native South. He was particularly moved by Myrdal’s concept of the American Creed, which soon found its way into his opinions and public statements. Waring shared Myrdal’s view that the South’s racial problems were a stain on America’s international reputation in its battle against world communism. He also adopted Myrdal’s skeptical view of southern liberals. Waring, who just years earlier proudly advocated southern gradualism, now disparaged “gradualists” as a major obstacle to meaningful social change.
The Warings followed their study of Cash and Myrdal with additional evening readings in American history, anthropology, and sociology. A reporter for The Christian Science Monitor observed that the books in the Warings’ library showed evidence of much use. Another reporter described Judge Waring’s intense study of race as producing “a long night of soul searching” that resulted in “a new sense of meaning of the judge’s function in a democratic order.”
The question of the constitutionality of segregated public schools came to Charleston in 1951, via the Briggs v. Elliott trial. Judge Waring heard the case on a three-judge panel, alongside Judge George B. Timmerman, Jr., a segregationist, and Judge John J. Parker, widely considered to be the swing vote. The following passage recounts closing arguments in the case between Thurgood Marshall and defense attorney Robert Figg, as well as Judge Waring’s landmark dissent, which would come to influence the Supreme Court in Brown v. Board of Education three years later.
The panel then heard two and a half hours of closing argument. Predictably, Marshall and Figg took fundamentally different views regarding the federal court’s role and authority concerning public school segregation. Marshall argued that the segregated school system in Clarendon County created “psychological roadblocks” to the personal development of black students, thereby violating the rights of the district’s children to equal protection of the laws. He argued that the district violated the rights of those children “every single day” and they were entitled to rights “that must be given now,” not at some undetermined time in the future. Figg argued that racial segregation of the schools was the “normal” consequence of the region’s history. He dismissed plaintiffs’ evidence, arguing that the state had no obligation to accept the scientific opinions of out-of-state experts or to adapt its educational programs for the “personality development” of any students. Figg noted that the same Congress that had adopted the Fourteenth Amendment maintained segregated schools in the District of Columbia. Figg finished by asking the court for a “reasonable time” to address the district’s inequities, which would be performed under the panel’s continuing supervision.
The three judges adjourned to Waring’s chambers to discuss their decision in the case. The judges were essentially a microcosm of the debate roiling the courts and the public on the role and responsibility of the federal courts to address government-mandated racial segregation in the nation’s public schools. Judge Timmerman voiced the widely held view in the South that the State of South Carolina had every right to segregate its schoolchildren by race “and the United States Constitution had nothing to do with it.” Waring asserted that racial segregation under the order and direction of a state government violated the Fourteenth Amendment’s guarantee of equal protection of the laws. He further argued that the Supreme Court’s decisions of the prior summer in Sweatt [v. Painter] and McLaurin [v. Oklahoma State Regents for Higher Education] “pointed the way” to the unavoidable conclusion that “segregation in education was unconstitutional.” Parker took the middle ground, insisting that the separate but equal doctrine be enforced. He urged his colleagues to give Byrnes time to fix the inequalities in the district, expressing confidence in the governor’s capacity to equalize school facilities. Clearly, Figg had read Parker correctly, and his costly defense of public school segregation won him the one vote he absolutely had to have to prevail before the Briggs panel.
After protracted discussions, Parker proposed that he prepare an order finding that the facilities and resources provided to the district’s black children were not substantially equal to those provided to white children, violating the plaintiffs’ rights under the Fourteenth Amendment. He further proposed that the order recognize that Plessy v. Ferguson remained the law of the land and that the school district be given a reasonable time to equalize the presently unequal schools through the state’s new school bonds. Timmerman agreed to join Parker’s proposed order. Parker attempted to persuade Waring to join the order as well, but Waring made it clear he was not willing to travel that path. The judges then adjourned, with Parker and Waring planning to prepare orders setting forth their respective positions.
Waring returned home that evening exhausted and dejected. Despite his anticipation of this very result, a 2–1 split in the panel, he had privately held out some small hope that he could move Parker to his position. But Parker and Waring’s formerly close relationship had been strained in recent months, likely caused by Waring’s outspoken advocacy on the speaker’s circuit and Elizabeth’s public pronouncements. Further, it was clear from the judges’ discussion in conference that Parker would not abandon the separate but equal doctrine until the Supreme Court explicitly overruled Plessy.
The panel issued its majority opinion and Judge Waring’s dissent on June 23, 1951. Parker, writing for the majority, found that Clarendon School District Number 22 had violated the constitutional rights of its black students by providing them with inferior educational services and opportunities and directed the district to remediate these constitutional violations. The majority’s decision rejected the plaintiffs’ argument that the Fourteenth Amendment prohibited government-
mandated segregated school systems, noting that Plessy continued to control the question and the decision to maintain racially segregated schools was a matter reserved to state policy makers, with “which the federal courts are powerless to interfere.”
Waring appreciated the significance of his dissent, which he had thought about, researched, and brooded over for years. He knew this was his moment. The dissent opened with his declaring that the time had now arrived for the federal judiciary to “face, without evasion or equivocation, the question as to whether segregation in education in our schools is legal.” He praised the “unexampled courage” of the plaintiffs in bringing the suit and recognized the right of their children to relief now, not at some unstated time in the future. He turned to the “real rock” on which the defendants rested, Plessy v. Ferguson. He analyzed the expert testimony offered at trial, particularly Clark’s studies demonstrating that segregation “had a deleterious and warping effect upon the minds of children.” Waring stated that Clark’s studies clearly showed that “the humiliation and disgrace of being set aside and segregated as unfit to associate with others of a different color had an evil . . . effect upon the mental processes of our young.” Based on this evidence, Waring concluded it was “clearly apparent . . . that segregation in education can never produce equality and it is an evil that must be eradicated . . . 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.” Noting that his colleagues viewed the matter otherwise, Waring concluded that he could not join their opinion and, therefore, “this opinion is filed as a dissent.”
Waring’s dissent presented a new and far different equal protection analysis. In prior separate but equal cases, the Supreme Court and lower courts carefully analyzed the facilities or services provided to African American citizens and then compared them with those provided to white citizens. If the comparison demonstrated inequality, then the disparity was unconstitutional. This approach invited protracted and costly litigation, allowing any change in southern racial practices through litigation to be slow and incremental. Waring’s dissent reasoned that the separate but equal analysis was fundamentally flawed, burdensome, and wholly unnecessary because “segregation is per se inequality.” Under Waring’s per se analysis, the day of tedious comparisons by the courts of black and white services and facilities would be a thing of the past, because racial segregation, standing alone, would be unlawful. Some variety of Waring’s per se approach had been presented to the Supreme Court from time to time by the NAACP and in amicus briefs, but his dissent in Briggs was the first instance where the per se analysis was fully developed in a decision issued by a federal judge. Moreover, Waring had encapsulated this new approach with his own memorable phrase, “Segregation is per se inequality.” His per se analysis would appear once again and be the defining holding of the most important case in American history, Brown v. Board of Education.
The news of Waring’s historic dissent spread rapidly through the civil rights community, and he received tributes from across the country.
Judge Hubert Delany, then one of the nation’s few sitting African American judges, wrote to Waring on June 26, 1951, stating that his dissent “will go down in the history of jurisprudence. . . as a document comparable to nothing that has heretofore been said with such clarity, wisdom and courage.” The Charleston NAACP president, A. J. Clement, wrote to Waring the same day, declaring, “Your dissent today will be the assent in an early tomorrow.”
He went on to state, “The people of my group have thanked God for you in the past. America will thank God for you in the future and at some later date the South will raise a monument to you.” [Activist] Aubrey Williams wrote to Waring on June 29, 1951, stating that he had “done an enduring and permanent chapter in the history of man’s long struggle for justice.”
Waring responded to these tributes with candor about his purpose in filing the dissent. He told Judge Delany that the Supreme Court cases of the prior summer “almost cross the threshold but do not quite do so. I have great hopes that the Briggs case may shove them across.” To Aubrey Williams, he wrote, “I can only hope that I have spoken sufficiently clear and strong enough to force the Supreme Court of the United States to . . . make a full declaration of the meaning of the American Constitution . . . I hardly dare to hope that I may have had a small part in bringing these vital issues to the attention of the top court.” Responding to a telegram from [civil rights leader] James Dombrowski, Waring shared his disappointment in not getting “a majority of the court to see the light but after all perhaps it is better. It gave me an opportunity to show the two pictures of the South.”
But the clearest statement of Waring’s intent can be found in an enthusiastic entry in Elizabeth’s diary on the date the dissent was filed: “I feel now that it is done that this is our last act, that we have driven the last nail in the coffin of segregation . . . We may rest assured we have done all we can do.” The importance of Elizabeth’s partnership was encapsulated in the copy of the dissent the judge inscribed and gave to her: “To my precious Elizabeth. This could not have been done without her love and encouragement and support.”
Despite the widespread enthusiasm in the civil rights community over Waring’s dissent, there was an undercurrent of criticism among some activists about Marshall’s decision to bring a direct challenge to public school segregation at this time, rather than proceed more cautiously. The most notable of these criticisms was published in The Pittsburgh Courier in a column by Margaret McKenzie, a prominent African American attorney. McKenzie accused the “NAACP high command” of injecting “new vigor in the moribund Plessy v. Ferguson doctrine” by directly challenging the precedent in Briggs, arguing that it would have been “wiser simply to let the ancient Plessy doctrine fade away.” Other black publications ran their own articles second-guessing the NAACP’s litigation strategy. Marshall and his team organized a vigorous counteroffensive, accusing their critics of supporting a gradualist approach and proposing a legal strategy based on fear and timidity. These criticisms never really disappeared until the Supreme Court’s decision in Brown.
Charleston’s News and Courier addressed the Waring dissent in a hyperbolic editorial titled “Contention for Miscegenation.” The editors argued that the establishment of “mixed race schools,” as supported by Waring, would lead to the “extermination of the white race in the United States and supplant it with a mixed race, Negro and Caucasian,” through the “forced association in school of little boys and girls, white and colored.” South Carolina would not tolerate such a result, the editors insisted, and would give up “public or tax supported schools” rather than allow black and white children to be “educated together.” The paper published in full Waring’s dissent and urged its readers to “examine with care the dissenting opinion of Federal Judge J. W. Waring in the Clarendon case.”
On January 26, 1952, some six months after issuing the Briggs dissent, Judge Waring, now seventy-one years old, advised President Truman that he intended to retire. Truman addressed Waring’s retirement a few days later at a presidential press conference, calling him “a very great judge.”
Friends and allies from around the nation wrote to Waring to thank him for his service and to praise his courage and vision. Waring announced that he and Elizabeth had sold their Charleston home and would be moving to New York City.
Among his many well-wishers was the Minneapolis Tribune reporter Carl Rowan. In a private note, Rowan informed Waring that he received the news of his retirement with “a great deal of sadness” because “I . . . think of you there, eternally, on Meeting Street, a symbol of a man who dared to stand for justice.” Waring responded, telling Rowan, “I have done all the judicial work that has been brought before me and cannot see where anything more important will come in the future.” He explained that the Clarendon County case was then in the hands of the U.S. Supreme Court and should the plaintiffs not succeed, “I would not be interested . . . in passing upon separate but equal issues.”
Waring explained his retirement to a disappointed [Morehouse College president] Dr. Benjamin Mays: “I feel there is nothing more in South Carolina for me to do. I have raised the constitutionality of segregation . . . It is now up to the Supreme Court to declare the law.” He stated that he believed “there is a wider field of endeavor for me [in New York] living as a retired judge and no longer muzzled by cases pending or expected to be brought before me.”
The New York Times, in an editorial titled “A Judge Worthy of Honor,” praised Waring’s service on the bench as reflecting “courage, integrity and intelligence” and observed that his alienation from the white citizens of Charleston was the consequence of his devotion to two documents, the Declaration of Independence and the U.S. Constitution. Even his old nemesis, the editorial page of the News and Courier, acknowledged that but for his “crusading on the Negro question,” Waring had achieved “an excellent record on the bench,” showing “judicial dignity, intelligence and ability as a lawyer.”
The Warings left Charleston and moved into a small Upper East Side apartment in New York. Judge Waring became actively involved with various civil rights and civil liberties organizations, serving on the national boards of the ACLU and the National Urban League. In retirement, he reviewed drafts of the briefs submitted by the Legal Defense Fund in the various Brown-related cases before the Supreme Court and gave Thurgood Marshall editorial suggestions. He was honored by numerous religious, service, and legal organizations and was treated in his adopted city as an icon of the civil rights movement.
Waring closely monitored the Supreme Court’s handling of Briggs v. Elliott, as well as other cases raising the constitutionality of public school segregation from Delaware, Virginia, the District of Columbia, and Kansas. The first school segregation case filed after Briggs was from Topeka, Kansas, Brown v. Board of Education, and was presided over by a three-judge federal panel. That panel ruled unanimously a few months after the Briggs decision that Plessy remained good law and that the facilities and educational resources provided to black children within the district were substantially equal to those provided to white students.
Another suit arose out of Prince Edward County, Virginia, where students protested that the county’s segregated school system deprived them of equal educational opportunities. The Virginia case, Davis v. County School Board of Prince Edward County, was also assigned to a three-judge panel. That panel, following the Briggs decision, found that the separate schools in the county were unequal and gave the State of Virginia time to equalize the facilities.
Plaintiffs in Delaware brought a state court suit challenging school segregation, arguing that Plessy’s separate but equal doctrine was no longer good law. The Delaware Supreme Court, in Gebhart v. Belton, rejected the plaintiffs’ argument that Plessy had been overruled, but found that educational facilities within the state were not equal. Rather than allow the state time to correct this inequality, as was permitted in the South Carolina and Virginia cases, the Delaware Supreme Court ordered the immediate integration of [the] state’s public schools. The Delaware Supreme Court held that if the state’s educational inequality problems were resolved, the defendants could petition the court to modify its integration order and, presumably, return to a segregated school system.
The final school segregation case pending before the U.S. Supreme Court, Bolling v. Sharpe, challenged segregation in the District of Columbia public schools. Because the District of Columbia is not part of any state and not subject to the Fourteenth Amendment, Bolling presented the issue of whether segregation was lawful under the Fifth Amendment’s due process clause.
Eventually, all of the school segregation cases, except the one from the District of Columbia, were consolidated by the U.S. Supreme Court under the name Brown v. Board of Education. Some have observed that because Briggs was the first case filed, tried, and appealed to the Supreme Court, it should have been the lead case, rather than the Topeka, Kansas, case. The original appeal in Briggs was remanded to the three-judge panel to make updated findings regarding the new school construction funding, and it could perhaps be argued that the Kansas case then became the most senior case. A more plausible explanation for the consolidation of the cases under the Brown v. Board of Education name was that with a Kansas case as the lead, the South could not claim that the Supreme Court had unfairly targeted the region.
When the dust finally settled on the various school segregation appeals that were docketed by the Supreme Court, Judge Waring’s dissent was the clear outlier. In all of the other cases, involving at some level the participation of fourteen different judges, only Waring had ruled that public school segregation violated the Fourteenth Amendment, regardless of whether the facilities and educational resources were equal. In this, Waties Waring stood alone.