Q&A: A Civil Rights Lawyer Who Helped Defeat Jim Crow Looks Back

Brennan Center senior fellow Dorothy Samuels interviews Michael Meltsner about his new book, his career, and the role of serendipity in life.

February 8, 2018
With Passion Book

Cross-posted from The National Book Review

As a newly minted lawyer in 1961. Michael Meltsner was hired by Thurgood Marshall and his soon-successor, Jack Greenberg, to join the legendary legal team at the NAACP Legal Defense Fund. He fast became a vital player in the national civil rights movement, helping to shape legal strategy, arguing major cases, and making multiple appearances before the Supreme Court. In his eloquent new memoir from Twelve Tables Press, Meltsner, a longtime professor at Columbia and Northeastern law schools, recounts and reflects on his journey - from growing up as an only child in New York City, to his emergence as an important legal advocate for equality and justice, leading architect of the anti-death penalty movement, and influential reformer of American legal education. Meltsner spoke to Dorothy Samuels for The National about his book, his career, and the role of serendipity in life.

Q: First, Michael, congratulations on the new book.  And thanks for having this exchange with me. With Passion is really your second memoir.  I was so struck by your first, The Making of a Civil Rights Lawyer (University of Virginia Press, 2006), that I gave it to my older daughter for inspiration when she graduated from law school. Why a second shot at an autobiography, one that covers some of the same territory as your first, namely your time as a young civil rights lawyer? 

A: I wanted to evoke an era that is slowly being forgotten. Almost everyone I worked with is dead or long retired. So are the judges I argued before and many of my clients. Every week or so some writer, graduate student or lawyer colleague asks for an interview about some piece of civil rights history. Most recently, I’ve been able to contribute to excellent books about Bobby Kennedy and Mohammad Ali. Even though I am still working, I sometimes feel like a living archive and realize that as long as I can fog a mirror there are still a lot of stories to tell.

Q: With Passion, actually, is a much more sweeping and personal account of your life than the earlier volume.

A: In 2010, I was diagnosed with esophageal cancer. While laying on various hospital slabs, watching the prescribed chemical poisons flow into my veins, I distracted myself by remembering the New York City of the Second World War, postwar fears of the atom bomb, how McCarthyism devastated the left-liberal elite, the fifties gang culture. I came from a family struggling with a big secret—my father was diagnosed with a deadly, debilitating disease but was never told.  Yet he lived a full if short life. As a result of what she knew my mother wanted me to grow up fast. I was given too much early freedom in a city always on the move.  For a long time I was on a kind emotional and developmental autopilot. How did this fit with the life I led thereafter of a throttle out litigator? I wanted to find out and I often make sense of things by writing.  Then Trump came along and I felt a desperate need to remind people of a different time, one which will come back to us. I was lucky to come of age when you could make an impact. The stories flooded back and I wanted to tell them. 

Q: Some of those stories present a rather unpleasant picture of New York City in your coming-of-age era. Yet, as you write, the City is an indelible part of who you are: “[N]o matter where I am, the City is with me always, folded into the daily fabric of my life.” You resided with your parents in two very different parts of the City, the Rockaways by the ocean, in Queens, and later on the Upper West Side of Manhattan. How did that help shape you?

A: It was a different time but even from today you can see the City’s DNA was at work. Lower Manhattan was lighting up with new stars. Neighborhoods were getting integrated but real diversity always depended on money. It was a high time for a gang culture that would soon be dominated by drugs. As a teen I landed a job delivering packages and messages all over Manhattan. I got to know its rhythms. I sensed an attraction to destroy and renew, rebuild. And the next person you met was often improbable in style, values, ethnicity and race. I suppose this set me up for working for LDF, a world when diversity was normal and where race could be inhaled, celebrated and studied.

Q: At Yale Law School, legal studies competed with your desire to be a writer, and led to your involvement with Monocle, the political satire magazine started by Victor Navasky, your close law school friend (and future editor of The Nation, professor at Columbia Journalism School, and well-known book author).Plainly, you’ve never lost the writing bug. With Passion is the 8th book you’ve authored or co-authored, including a published novel, and you’ve also written a play about the illegal and immoral torture of war-on-terror prisoners under President George W. Bush.  Your ability to sustain a strong writing career on top of everything else is a thing of wonder to this scribe.

A: Stephen King has said you learn best by reading and writing a lot, and the most valuable lessons of all are the ones you teach yourself. It took me a while to learn those lessons but I had help from a long list of talented, giving people both at home and at work. Some are well known like Victor and Tony Amsterdam; others less famous but equally important. I talk about some of them in With Passion. Perhaps my greatest talent, very important to an only child, has been picking and holding on to the best of friends.

Q: You speak in With Passion of life’s “serendipity” in determining paths taken and presenting unforeseen opportunities. Your aspiration to do civil liberties work, you say, was ignited “watching the televised hearing in which Joseph Welch demolished Senator (Joseph) McCarthy.” Your mother-in-law’s suggestion that you talk to some of her “well-placed” friends about your career plans led to your learning of an open legal position at the NAACP Legal Defense Fund and interviewing for the job.  You were the last hire of Thurgood Marshall who soon left for a federal appellate judgeship. This was before the Civil Rights Act of 1964. What was it like for you to join this exclusive, history-making legal outfit?

A: In the beginning we were a small, embattled group. Stretched thin by the number of places where we were needed. The coming of jets was a big help. There was good law on the books and it got better over time but making it real in people’s lives was always what Jack Greenberg, my new boss, called “trench warfare.” The intensity of the lawyering struggles in the sixties was extreme. The Kennedys, for example, only gave civil rights real support after our clients took to the streets and were met with hate. For us, it was a decade of extremes—passion about what was at stake and then the kind of cold-blooded detachment, strategizing and analysis that lawyers have to do to win.

Q: What difference did it make, if any, that you were a white lawyer working at a black civil rights organization?

A: I’ve written about this in detail, but the bottom line is that I almost never felt I was treated differently by colleagues or clients in the Movement years because I was white. Justice Marshall as well as my colleagues and friends Jim Nabrit and Derrick Bell—very different personalities but both movers and shakers—made a sharp distinction between racial policies and personal relationships. Of course, when you are the lawyer you are somewhat insulated from activist rhetoric. I have often had an almost physical reaction to bigotry talk. You might compare Trump’s language with what was said about Japanese –Americans when they were interned in 1942. It’s chilling. I don’t care who the object is I dislike all forms of stereotyping.

Q: You tell the story of your sad encounter with the controversial comedian Lenny Bruce. Could you share the circumstances and what you took away from it?

A: Bruce was convicted in 1964 of giving an obscene performance in New York’s CafĂ© au Go Go, but hadn’t been sentenced. He wanted to do his act to prove it wasn’t prurient before the three judges who would decide if he went to prison. His lawyers were appalled and he dismissed them. One of Bruce’s buddies, a Columbia professor, asked me to prepare Bruce for his sentencing hearing. At the time, I carried a full docket of civil rights cases, but I agreed.  He was not Lenny the spitfire the public saw; rather he was more like a Talmud student, obsessing over the words in the odd collection of law books he’d assembled. I told him to do his act if it was therapeutic, but it wasn’t going to change his sentence. He got four months but died of an overdose before he served a day. We treat dealing with sex in public totally different today. I’ve taught First Amendment law for many years. I always tell students that if a prosecutor today brought a case like Lenny’s, it would be laughed out of court.  

Q: Now to your representation of Mohammed Ali, beginning in 1968. Given the avalanche of tributes following the fighter’s death in June 2016, it is easy to forget the incredible antipathy aroused by his refusal to be drafted during the Vietnam War and claim of conscientious objector status. 

A: Mohammad was barred from boxing, his heavyweight championship rescinded, because he refused induction in the Armed Services, claiming he was exempt because he also functioned as a minister of the Nation of Islam. His sincerity was questioned and was called a coward and a traitor. Time passed. While the five-year jail sentence in the criminal case against him bounced up and down the federal courts, he was going broke. But attitudes toward the Vietnam War were changing. We got him his license back, leading to his famous fights with Joe Frazier, largely because of my deceased father. He had a gambling habit and taught me as young person much about the fight game, including that big-name fighters, world champions, often had a criminal record. We dug deep in state files and discovered 244 boxers with records had been licensed, including killers and armed robbers. Ali had been barred on the pretext of him being involved in a crime when really it was because he was an outspoken black man, a Muslim from a sect that many feared. A federal judge, a Marine war hero it turned out, ruled his treatment violated the Constitution.  

Q: One of the most important battles you led during your years at the NAACP Legal Defense Fund was to integrate hundreds of Southern hospitals that excluded or segregated blacks. In a fascinating chapter, you describe the effort - the court wins and frustrations in securing enforcement and compliance.

A: I worked for a group of unusual doctors and dentists. Some had a history of having been arrested before for showing up with their clubs ready to play at an all-white municipal golf course and their trunks at the City swimming pool. It turned out that as difficult as it was to win the case—amazing to think of all the judges who supported discrimination in hospitals back then—forcing actual change was harder. It took a civil rights law based on our case, a Bobby Kennedy emissary to shake up the federal bureaucracy and, most important, the need of Southern medical facilities to be eligible for Medicare dollars for behavior to change. 

Q: After almost a decade with the Legal Defense Fund, you joined the faculty of Columbia Law School. Together with a Columbia colleague, Philip Schrag, and a small cadre of other innovators, you created widely copied clinics affording students pre-graduation experience practicing law under supervision - a model of “experiential learning” that has helped transform legal education. What explains that success story?

A: We were hired to teach something about actual practice to students who were complaining that their education was lacking because the schools were keeping them from the experience of working on racial conflict and poverty. This had never been done before and there were no shortage of academics strongly resisting the idea.  Like most pioneers, Philip and I found the route ahead was full of obstacles but the 25 or so clinicians who started this movement at a couple of dozen places are now over 1500 clinical law teachers. No law school today is without numerous opportunities for students to litigate under supervision, write high court briefs, or counsel community members with legal problems.

Q: You continue to be a significant player in efforts to end capital punishment in America. Where do things stand in the states and what is the current strategy for achieving abolition? Do you see a risk of backsliding during the Trump era?

A: Capital punishment is withering away. Jurors and prosecutors increasingly find ways to avoid it.  It’s costly, unreliable, arbitrarily imposed, often disproportionate and racially inflected. But barring a miraculous change in the composition of the Supreme Court it will continue to hang around, mostly in those relatively few counties and states—mostly Southern—that account for most death sentences.  It has become a kind of sacrificial rite that accomplishes no valuable crime-related end. Particularly disheartening is the execution of men who have waited twenty or even thirty years on death row and in many cases the substitution of another form of death—life without parole. Their crimes were committed when the offenders were essentially different people; decisions about their fate should take present circumstances and status into account   

Q: As we wind up this back-and-forth, I can’t resist sharing a favorite passage from With Passion: your reaction to a judge’s order in a 1963 Georgia case you handled. The order was written by Elbert Parr Tuttle, then chief judge of the region’s federal Court of Appeals, and it forbid the prosecution of four young civil rights workers for “insurrection,” a capital crime that allowed the four to be held without bail for months, just for marching down a street in Americus, Georgia, to protest segregation. “My reaction was aesthetic,” you write. “Judge Tuttle had done something of beauty. He had fulfilled the promise of the law to remedy gross injustice.” That description has stuck with me, contemplating the almost certain lack of beauty in many future rulings by Trump judicial appointees, including, potentially, another hard-right Trump Supreme Court nominee. A final thought?

A: I’m so glad you focused on my experience with Judge Tuttle. To see him in operation was to make all the frustrations and burdens of litigating for social change worth it. He was the real deal. In the end, I think I inherited from my father a fundamental optimism. Even as he struggled with illness, he signed his letters, ”Have fun and keep fighting.”  I have marvelous children and grandchildren. I hope they and their peers have a chance to make the world better.  Or at least get the chance to see the beauty of justice arising the way I did.