By Tomiko Brown-Nagin, Munford Boyd Professor of Law, Justice Thurgood Marshall Distinguished Professor of Law, and Professor of History at the University of Virginia. She is the author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.
Judge Robert L. Carter passed away last week. I had the honor of serving as a law clerk to the judge and found that experience profoundly rewarding. The judge, a brilliant man best known for his role as a chief strategist in Brown v. Board of Education, inspired me and many others. I share memories of my experience with him to shed light on his stupendous legal ability, his character, and his contributions as a mentor who taught invaluable lessons about life and the law.
As a NAACP Legal Defense Fund lawyer, Judge Carter litigated Briggs v. Elliott, the South Carolina case consolidated with four others as Brown. We initially bonded over my South Carolina roots: he had a hand in my life’s trajectory, and he knew it. I, in turn, saw in the judge a model of professional success and outstanding moral character. Each day, he made something extraordinary seem ordinary: the idea that one individual could touch another’s life and radically alter its course. After spending a year in the presence of this great man — a lawyer who faced racial threats and insults merely for practicing his profession — a clerk for Judge Carter could scarcely contemplate disengagement from the world. The judge’s life and work taught social responsibility.
Over the course of his career as a lawyer, Judge Carter earned a reputation as a man of strong convictions, unyielding principle, and great passion. Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court. Yet, the judge, a Nixon appointee, taught me that success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism.
The judge taught this lesson in chambers on many occasions. In a long-running class action employment discrimination suit he once counseled that it would be counterproductive to coerce compliance with his orders, despite the defendant’s continued resistance to opening job opportunities to the plaintiffs. Sanctions might have been ordered in that case. But the judge had presided over the action for years. Knowing the parties and issues very well, he concluded that it made no sense to force this defendant into submission at that particular moment in time. Judges should neither look for, nor create, confrontations where they can be avoided. A judge might effectively invoke the full force of his powers on some occasions, but on others a thoughtful judge might choose not make a big show of his full powers. Good judging required knowing when to do which.
The judge also taught judiciousness through his writings about Brown. Not content to bask in the afterglow of his great achievement, the judge critiqued the legal strategy in Brown. He found a paradox. Brown served the U.S.’s geopolitical interests, and in many ways, propelled race relations forward in this country. But, ironically, in the public schools context, Brown proved a tremendous disappointment. The federal judges charged with articulating rights, and local officials charged with implementing legal remedies, ultimately bear the blame for Brown’s mixed legacy in the schools. However, Judge Carter also found fault with himself and his colleagues. The lawyers, he said, fixated on the constitutional dimensions of Brown, when the case also touched upon critically important matters of educational philosophy and pedagogy. The attorneys did not seriously contemplate, much less adequately define, quality education. That limitation left generations of black students adrift in schools, subject to social experimentation, or worse, educational malpractice.
Judge Carter’s willingness to critique Brown taught me to have an open mind as a scholar and to go wherever the evidence leads, even if the conclusions suggested by the evidence are unsettling. His insistence that lawyers understand legal problems in context — social, political, economic — and work up cases and formulate remedies with subject matter experts, and after clearly defining client interests, left a lasting imprint. This kind of expert-driven, client-centered approach guides the work of some of the most highly regarded public interest lawyers.
Brown receives the most attention, but two civil liberties cases, NAACP v. Alabama and NAACP v. Button, are vital parts of the judge’s legacy that should be better known. These cases grew out of Southern states’ efforts to destroy the NAACP. In the first case, Alabama demanded that the association turn over its membership list; in the second, Virginia claimed that the manner in which the NAACP attracted plaintiffs for its test cases violated an ethics rule against soliciting business or “stirring up” litigation. As NAACP counsel in both cases, Carter argued before the U.S. Supreme Court that the states’ demands violated the members’ associational and speech rights under the First and Fourteenth Amendments. Carter’s theory of the case, which rested on creative thinking about the intersections and boundaries of constitutional rights, prevailed against those who argued that civil liberties could be separated from civil rights. Carter’s victories at the Supreme Court saved the organization and affirmed his leadership and courage. Some within the NAACP had not wanted to fight these battles; they were prepared to turn over the association’s membership lists to Alabama, an act that would have left loyal NAACP members exposed to reprisals by the white power structure in a Deep South state. Carter knew better.
It should not be forgotten that Carter first developed the theories that he relied on in these civil liberties cases while a young master of laws student at Columbia Law School, from which he graduated in 1941. There, Carter wrote a thesis on the First Amendment’s vital role in preserving a democratic society that he built on in these cases. His court victories are all the more impressive because they reflect the judge’s commitment to scholarship and his belief that scholarship should inform how we engage the central challenges of our time. The image of a young Robert Carter studying in the hallowed halls of Columbia University, doing the intellectual work of the black freedom struggle, makes an incredibly strong statement about him — and to those who hope to carry on his legacy.
I can perhaps make this point about Carter more vividly by recalling remarks by Governor Ben Tillman after he had orchestrated the enactment of Jim Crow laws in the state of South Carolina. Tillman noted that white legislators had done everything possible to subordinate blacks. "[W]e have scratched our heads to find out how we could eliminate the last one of them. We have stuffed ballot boxes. We shot them. We are not ashamed of it." Tillman and his political comrades had not counted on lawyers the caliber of Bob Carter, who sat thinking and scratching their heads, too, conceiving the theories that would dismantle legal subordination. In Button and other cases, Carter and his co-counsel did so much more: they created the legal infrastructure that would be used by women, ethnic and language minorities, and many other groups who sought liberation in the wake of the civil rights movement.
A magnificent public interest lawyer, Judge Carter had a stunningly open mind about how legal professionals could — and should — pursue social good. At a time when I had been led to believe that the highest and best contribution to public service was made through work as a civil rights lawyer, the legendary lawyer who litigated Brown encouraged me to rethink my assumptions. Anyone interested in advancing justice and fairness should consider a career as prosecutor, he said to me and my co-clerk (now a United States Attorney). The judge, a former partner at a New York City law firm, also turned my attention to Wall Street. Long before the most recent economic implosion due, in part, to some bankers’ ethical improprieties, Judge Carter argued that more socially responsible individuals should head to Wall Street. Social Justice, however one defines it, can and should be pursued in both the public realm and in the private sector.
The judge taught lessons about less lofty pursuits, too. He loved opera, ballet, fine wines, and relaxing on Caribbean isles. That he shared his interests outside the courtroom was almost as important as the lessons he taught about life inside the courtroom. By example the judge impressed upon me, a young person then very serious as I endeavored to make my way in the world, the importance of having fun.
Robert Carter — a lawyer and judge beyond measure, a visionary and an extraordinary mentor — has fallen; may the great man rest in peace.