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SPEECH: Remarks at the Thurgoodmarshall Commemorative Luncheon Constance Baker Motley Brooklyn Law Review Volume 60 Issue 2 Article 22 The eS cond Circuit Review: 1992-93 Term 2-1-1996 SPEECH: Remarks at the ThurgoodMarshall Commemorative Luncheon Constance Baker Motley Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Constance B. Motley, SPEECH: Remarks at the ThurgoodMarshall Commemorative Luncheon, 60 Brook. L. Rev. 529 (1994). Available at: https://brooklynworks.brooklaw.edu/blr/vol60/iss2/22 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. FOREWORD: JUDGE CONSTANCE BAKER MOTLEY" William E. Hellersteint Judge Constance Baker Motley was born in New Haven and attended New Haven's public schools. She received her Bachelor of Arts degree in 1943 from New York University and her LL.B. in 1946 from Columbia University School of Law. Judge Motley joined the legal staff of the NAACP Legal Defense and Educational Fund, Inc. in her third year at Columbia Law School and subsequently, as associate counsel, became its principal trial attorney. It was there that she began her long colleaguesbip with Thurgood Marshall, and she was one of the lawyers who, in 1954, helped write the briefs filed in the landmark school desegregation case of Brown v. Board of Education.1 In addition to appearing before state and federal courts throughout the United States in numerous civil rights matters, Judge Motley argued ten cases before the U.S. Supreme Court,2 winning nine, which were of key importance in securing equal rights for black Americans and bringing about the legal death of discrimination. The litigation that resulted in the admission of James Meredith to the University of Mississippi,3 Charlayne Hunter Gault and Hamilton Holmes *©1996 William E. Hellerstein. All Rights Reserved. t Professor of Law, Brooklyn Law School; Chairperson, Ad Hoc Committee to Commemorate Justice Thurgood Marshall, Association of the Bar of the City of New York. 1 347 U.S. 483 (1954). 2 Swain v. Alabama, 380 U.S. 202 (1965); Hamm v. City of Rock Hill, 379 U.S. 306 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964); Calhoun v. Latimer, 377 U.S. 263 (1964); Watson v. City of Memphis, 373 U.S. 526 (1963); Gober v. City of Birmingham, 373 U.S. 374 (1963); Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963); Turner v. City of Memphis, 369 U.S. 350 (1962); Hamilton v. State of Alabama, 368 U.S. 62 (1961). ' Meredith v. Fair, 298 F.2d 696 (5th Cir.), cert. denied, 371 U.S. 828 (1962). BROOKLYN LAW REVIEW [Vol. 62: 529 to the University of Georgia,4 Vivian Malone and James Hood to the University of Alabama5 and Harvey Gantt to Clemson College" are some of her better known cases. She also participated as chief counsel in many other school desegregation cases supported by the Legal Defense Fund, as well as cases involving housing, transportation, recreation and public accommodations. In 1964, Judge Motley became the first black woman to be elected to the New York State Senate. She immediately began a campaign for the extension of civil rights legislation and for additional low and middle income housing. In February 1965, she was elected by the Manhattan members of the New York City Council to fill a one-year vacancy in the office of President of the Borough of Manhattan and thus became the first woman to serve in that office and as a member of New York City's Board of Estimate. She was elected to a full four-year term in November 1965, when she became the first candidate for the Manhattan Presidency to win the endorsement of the Republican, Democratic and Liberal Parties. As Borough President, Judge Motley drew up a seven-point program for the revitalization of Harlem and East Harlem, and won a pioneering fight for $700,000 to plan for the renewal of those and other underprivileged areas of the city. On January 25, 1966, President Johnson nominated Judge Motley for a seat on the United States District Court for the Southern District of New York. She was the first woman appointed to the Southern District bench and the first black woman appointed to the federal judiciary. She became Chief Judge of the Southern District on June 1, 1982, and served until October 1, 1986, when she assumed senior status. It is entirely fitting that, on the occasion of the Association's Second Annual Justice Thurgood Marshall Commemorative Luncheon, Judge Motley should share her thoughts on the effects of Plessy v. Ferguson,7 on this, the one hundredth anniversary of that ill-begotten decision. ' Holmes v. Danner, 191 F. Supp. 394 (M.D. Ga. 1961). Adams v. Lucy, 228 F.2d 619 (5th Cir. 1955), cert. denied, 351 U.S. 931 (1956). 6 Gantt v. Clemson Agricultural College of South Carolina, 320 F.2d 611 (4th Cir.), cert. denied, 375 U.S. 814 (1963). 163 U.S. 537 (1896). REMARKS AT THE THURGOOD MARSHALL COMTVIEMORATIVE LUNCHEON" Hon. Constance Baker Motleyt April 24, 1996 Association of the Bar of the City of New York May 18, 1996, is the one hundredth anniversary of the Supreme Court's decision in Plessy v. Ferguson.' Of course, those of us who have been personally involved in the struggle of black Americans over the last fifty years are turning our attention not to a celebration of the infamous Plessy decision but to a historical assessment of how the country has evolved in the past century, notwithstanding the Supreme Court's affirmance of the doctrine of "separate but equal."' There are going to be, for example, several conferences during the next few weeks at which civil rights advocates, academics and intellectuals will gather and discuss the historical context of Plessy, its searing influence on American societal development and, of course, the revolutionary effect of Plessy's reversal by the Supreme Court in Brown v. Board of Education.' Plessy was the Supreme Court's decision to uphold race-based classifications as consistent with the Thirteenth and Fourteenth Amendments to the U.S. Constitution, a decision that took almost sixty years to overturn and whose effects we still feel to this day. These conferees will certainly be discussing their concern about the fact that at the end of the twentieth century, one hundred years after Plessy, we face the impending demise of affirmative action. This concern is obviously misplaced. ©1996 Constance Baker Motley. All Rights Reserved. 'Senior Judge, United States District Court, Southern District of New York. 1 163 U.S. 537 (1896). 2 Id. at 552. ' Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954). BROOKIYN LAW REVIEW [Vol. 62:5629 Affirmative action is already dead. The Supreme Court, by requiring any such government-based programs to withstand the "strict scrutiny" test under the Fifth and Fourteenth Amendments, has, in my opinion, effectively killed affirmative action, except as a remedy for proven past discrimination.4 As Justice Marshall said in his concurring opinion in Fullilove v. Klutznick,5 a case involving a federal affirmative action program, strict scrutiny is "strict in theory, but fatal in fact."6 The Plessy decision was rendered at a time that parallels the period in which we now find ourselves at the end of the twentieth century. The nineteenth century had witnessed an epic struggle in American society to bring about racial equality in its racially diverse community of free persons that came into being after the Civil War and a newly amended Constitution. The nineteenth century ended with the separate but equal compromise of the Fourteenth Amendment.! Today, we Americans find ourselves nearing the end of another epic struggle for racial equality whose auspicious rise with the decision in Brown may now decline with the demise of affirmative action. Just as Plessy signalled that "separate but equal" would be tolerated, the end of affirmative action in government programs will undoubtedly signal to many in the private sector an end to all affirmative action, leaving black Americans without effective legal redress for continuing racial discrimination in education, employment and housing. The nineteenth century, as you know, found us engaged in a struggle to end slavery, to confer citizenship on the former slaves and to enact laws designed to protect the former slaves See infra notes 20-28 and accompanying text. 448 U.S. 448, 519 (1978) (Marshall, J., concurring). 6 Id. 7 U.S. CONST. amend. XIV, § 1 provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 1996] THURGOOD MARSHALL COMMEMORATiVE LUNCHEON 533 from discrimination by individuals as well as former hostile southern state governments. At the same time, it was a period of great uncertainty and dramatic change: politically, socially and economically. Winning the emancipation of the slaves in this country was a long and divisive struggle. The South opposed the North's effort to free the slaves and correct the economic distortion caused by the North's paid labor. Civil war was visited upon this country when the South seceded from the Union in 1861 and fired upon Fort Sumter.
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