ORAL HISTORY INTERVIEW WITH THE HONORABLE JOE R. GREENHILL
Joe Greenhill served as Chief Justice of the Texas Supreme Court from 1972-1982; he was an Associate Justice on the Texas Supreme Court from 1957 to 1972 and served as 1st Assistant Attorney General, in Austin, Texas from 1947 to 1950. Justice Greenhill is the co-founder of the Austin law firm of Graves, Dougherty & Greenhill. He earned his LL.B. from the University of Texas School of Law at Austin in 1939.
Presented here are selections from a series of interviews with Judge Greenhill. Interviews were conducted on January 9, 1986; February 10, 1986; April 7, 1986; April 17, 1986; April 22, 1986; and May 5, 1986. A transcript of the interviews, along with "A Historical Postscript" by Joe Greenhill, is held by Rare Books & Special Collections, Tarlton Law Library, The University of Texas at Austin. Date printed: August 28, 1998.
Greenhill helped prepare and argue
the State of Texas' response to Sweatt v. Painter as Assistant Attorney General. In the
interview, Greenhill discusses at length the State's case, the trials, the oral arguments
before the U.S. Supreme Court, and Sweatt himself.
BB: You finished up eight or nine months as a briefing attorney. Then were you out on the job market, again? Texas Supreme Court: as briefing attorney
JG: Price Daniel was elected Attorney General and the court recommended me to him, as assistant attorney general so I became an Assistant Attorney General. Price's wife, Jean Baldwin, had been a friend of mine for a long time. The Baldwins were across-the-street neighbors in Houston. That's when I went to work as Assistant Attorney General.
BB: How did you find that work? A great change?
JG: Yes. It paid a good deal more. I started out as the low man on the totem pole at $300 per month. That was better than $200 at the Supreme Court. The Attorney General writes hundreds and hundreds of opinions. I was useful to him having written or helped write drafts of Supreme Court opinions and evaluating that sort of thing, and Price used me in connection with that. Then he began to have a whole lot of cases. He had two major cases. One involving the title to the off-shore lands called the tidelands. The other involved segregation. I worked on both of those. For reasons of his own, Price put me in charge of the segregation cases.
BB: What can you tell me about those?
JG: First of all, there was not any preconceived racism on my part. I had a job and I could do it or I could quit. My job was to represent mainly The University of Texas, A & M, and school districts. At that time the Constitution of Texas required separation of the races and supposedly equal facilities. The Board of Regents of the University, at that time, were very strong for that same policy. I had several minor cases involving school districts. Thurgood Marshall, then lead counsel for the NAACP, had lost several cases that I had been involved in and didn't appeal those, but the case involving the Texas Law School was picked out as the case they wanted to run with. This was Heman Marion Sweatt. First of all there wasn't a separate law school. Not an equal one, because there wasn't any.
BB: Nowhere in the state?
JG: No. The legislature created one. I think it was called Texas State University for Negroes, as a branch of the Houston State University for Negroes. The Legislature gave us more money that we could spend. They wanted an instant equal separate school.
BB: Was this after the case had originated?
JG: It originated here. Sweatt applied to go to the Law School and was denied admission. So this was a suit to gain his admission.
BB: So after the suit had been filed, then the legislature made the appropriation for the black law school?
JG: At approximately the same time. They may have had some notion that they better get ready. But it really got going when Sweatt was turned down and Thurgood Marshall and others were ready to go to bat. There was a three-story building across the alley from the state capitol. It had been an old residence, I guess. Anyway, that was transformed into a Law School. Helen Hargrave was the assistant librarian, or maybe she had moved up to librarian. We needed to get a substantially equal library to the law school. So we bought up all the law books you could buy. A lot of the good law books were not available for sale. The English reports, Irish reports, early editions of major law reviews from the Eastwe bought up all we could. Then the substantially equal professors aspect was accomplished by using the same professors that taught at Texas Law School. They would come down and teach at Texas Southern. Meanwhile they began the building of a new wing at Houston. When the case was tried here in Travis County, Price took lead chair, I sat second chair.
One of the brightest things Thurgood Marshall did was establish that this old building that we were using by the capitol probably wasn't structurally sound enough to hold the weight of all those law books. Anyway, there wasn't any way we could lose that case in Austin. It was kind of like the City of Austin against Houston Lighting and Power. You try it here, Austin's going to win it here. It started up the appellate ladder. Through the Court of Civil Appeals and then to the Texas Supreme Court.
BB: By this time classes were being held at this new law school?
JG: Yes. We got into the new law school in Houston. They had fine facilities. Just beautiful. Better than the Texas law school. The law school at Texas was an old barn. There never was a building that needed tearing down worse and it was eventually torn down. By the time we got that case to the Supreme Court of the United States we were in good facilities, had been approved by the American Bar Association and the American Association of Law Schools.
BB: Now, I gather that there were similar segregated law schools in other southern states?
JG: Yes, they made a run at it. Some of them were kind of ridiculous. Usually just one or two. I think in Oklahoma, the black student was seated just outside the door so he or she could listen.
BB: Do you know if there was a particular reason why the NAACP chose Texas to test the law?
JG: No, I don't. This you'd have to ask Thurgood Marshall or somebody else. I do know that in many of the Southern states, particularly Mississippi and Arkansas, all blacks were extremely badly treated. Thurgood Marshall was a black. When he came to Austin he was treated as an equal. I'm not sure that's completely true. But there were no racial overtones, no heated racial overtones in the trial of Sweatt. He did have a problem in that then in Austin there wasn't any place on Congress Avenue or for two blocks either side where Marshall could get a room or buy a meal or go to the restroom. They had white and black toilets in those days, white and black drinking fountains. But he stayed with a private family. But compared to Mississippi and Arkansas it was a much better place to try a case.
He wasn't going to win, I don't think. I don't mean to describe any bad motives into the Texas judges, but he got in all of his evidence and had, I think, a very fair trial. I think he thinks he got a fair trial. That may have been the reason.
BB: So the case then went up through the Texas system?
JG: Yes, the Court of Civil Appeals wrote an opinion and the Supreme Court approved the opinion of the Court of Civil Appeals by what we call refusing writ of error, which is the same as adopting an opinion of the Commission of Appeals.
BB: Now what was your job through all of this? Were you looking up precedents, or writing briefs - that sort of thing?
JG: My main job was to research the law. The whole United States had been separate but equal with the possible exception of Massachusetts. So there was a case called Plessy against Ferguson by the Supreme Court of the United States, that said it was no federal obligation to teach or to educate. Nothing in our constitution says you shall. The states, if they offered educational opportunities to one group, they had to offer equal opportunities to all groups. The same is true of transportation. You had to have equal facilities but in different parts of the Pullman car. Churches were all segregated.
I researched the adoption of the 14th Amendment and the Civil Rights Act of 1868, I believe it was, as to what the Congress meant in proposing the 14th Amendment, and what the states meant when they adopted it. I think I have a book that may end up with you all where I researched the Congressional Record and its predecessor the Globe. I read all the speeches, I read all the acts that were introduced and was able to demonstrate, I think to the satisfaction of the Supreme Court of The United States, that the 14th Amendment was not proposed or adopted to require integration of the races. (At the same time that the 14th Amendment was proposed by a group of Republican senators and representatives and discussed mainly in a caucus of the Republican Party, so we don't have that record, but we do have the debates in Congress.) The most telling part of the debates in Congress was that, the 14th Amendment, and the Civil Rights Act of 1868.
Right after the Civil War, there were a few, including Senator Sumner of Massachusetts, who insisted on integration. Senator Sumner introduced a bill in Congress that required integration in schools, transportation and, I think, churches. The problem with churches was on account of another part of the constitution. That was debated very openly and Sumner couldn't get his bill passed. When Sumner was home ill, his bill was amended to take out the requirement of integration in schools and transportation and was adopted in that form.
BB: So it seemed to you a pretty clear case that integration was not what the Congress wanted?
JG: As clear as it could be. At the same time Congress was doing this, Congress was providing separate but equal schools in Washington, D.C. It was providing for federal land grant colleges like Texas A&M on a segregated basis. An argument is still going on now as to how the constitution should be interpreted. One approach says you look to the intent of the Congress and the people at the time of the constitutional amendment and the other says you look at the words in the Constitution as if they were handed down from a man on Mars and what do they mean in light of the present situation. This is a big thing today. This school looks at the meaning of the words as would be best for the country today. That's a dangerous doctrine that's worked out very well. I think it worked out well in Sweatt. What they held in Sweatt was indicated in the opinion that begins: "We appreciate the diligent research by counsel but we find it unnecessary to decide the segregation issue by overruling the Plessy against Ferguson because we find as a matter of law these two schools are not substantially equal."
BB: So as a matter of fact you may well have persuaded the court of the original intent of Congress?
JG: People who write about the Court say that. Frankfurter particularly wanted the decision to be held to the narrowest ground possible, which was to say no equal facilities.
BB: Which presumably left the door open to improved black schools that would still be constitutional?
JG: Yes. Some six years later, my wife and I and our two sons were on a vacation in Washington and visited the Supreme Court on its opinion announcement day. Thurgood Marshall was then Solicitor General. Quite by coincidence we were seated at the back in the Supreme Court's Argument Room next to Marshall when the Supreme Court announced its decision in Brown v. the Board of Education.
BB: You were there?
JG: I was there. Quite interesting. Of course, that did overrule Plessy against Ferguson. Marshall, of course, was elated. It wasn't any big deal to me. It was a lawsuit. When it came time to take recess, Marshall took my younger son, Bill Greenhill, and put Bill on his shoulders and ran down the corridor of the Supreme Court. I guess Bill may be one of the few lawyers that ever got a ride on the back of a later Supreme Court Justice. When the name of the Law School at Texas Southern was changed to the Thurgood Marshall Law School, Marshall, at first, didn't want anything to do with it. He thought maybe it was a segregated school. It's not. It's about 65 percent Black, then Mexican-American and Anglo the rest. But he was persuaded to come and I was asked to make one of the principal addresses and did. I got that plaque that's on the wall.
BB: When the Supreme Court gave its decision in the Sweatt case, did it state or imply how long would be allowed for the decision to be implemented?
JG: No, it didn't say anything at all. It said he should be admitted now because the facilities are not equal. So he went right in.
BB: Do you recall if there was any controversy about him enrolling?
JG: I don't remember any controversy at all.
Sweatt's problem was he couldn't pass. He was a nice man, a mail carrier. Marshall was a
real nice fellow. He's book smart and street smart, both. He told us after the case that
Sweatt was so nervous, perhaps afraid, to testify, that he had to take him out and fill
him full of gin every morning before he went on the witness stand. He made a good witness.
I think he deserves to be correctly remembered as an outstanding black.
This is the fifth interview with Judge Joe Greenhill in his office in Austin. The date is April 22, 1986. I'm Bill Brands.
BB: Did you find that articles in law reviews or in the bar journal were an effective means of communicating in perhaps a slightly less official way than through opinions of the court?
JG: I think both have a place, and I did it both ways. In several other places, the legislature's attention was called to a defect in the law or was informed that it would be wise that the legislature would do so; and so, and quite often that was done. On the other hand in tort law, where people have an accident, as I mentioned before, they don't do that in reliance on any law, they just are negligent; so there's a great deal more freedom there than with contracts. This is not entirely true because insurance companies calculate their risks on what the law is, and people buy insurance on what they think they need and it's very distressing to find out that the risk was substantially different than they had thought; so the courts are not entirely home free. A third area is constitutional law, and my view is that the court should never address a constitutional issue unless it is absolutely necessary. If you declare something to be unconstitutional, a statute or something else, it takes a huge amount of effort to change the constitution; whereas if you can decide the case on some other basis the legislature can change it with just a simple majority, usually, and they can act on their own and don't have to submit it to the people.
As to what constitutions mean you have the ongoing debate between the school of thought on the Supreme Court of the United States, as to original intent, particularly by Brennan, and the opposite view being taken by the Attorney General of the United States, Meese. I don't know Meese, but I worked a great deal on the case of Sweatt against Painter where the 14th Amendment was being construed, and I did extensive research over a period of a year as to the meaning of the 14th Amendment? what it was intended to do and the ills that it was intended to cure. Also I was able to find from the debates what it was not intended to do both in the Congress and the various states which adopted the 14th Amendment.
We were able to prevail in that view. It had to do, particularly, with segregation. I think segregation is bad. And personally, I'm delighted that it was abolished. I think we could not have lived under the old law of segregation. See what's happening in South Africa. But the 14th Amendment was not intended for integration. It was intended to give civil rights of a certain sort to blacks that had been completely deprived of civil rights. At the time the 14th Amendment was adopted the Congress itself was providing for separate schools in Washington, and separate land grant schools like Texas A&M.
BB: And this was the same Congress that was proposing to pass the 14th Amendment?
JG: Yes, the same Congress that adopted the 14th Amendment and then the states which ratified the 14th Amendment didn't bat an eye and just continued with their policy of segregation with the exception of Massachusetts as I recall. It was the holding of Sweatt against Painter that it was unnecessary to overrule the old cases, especially Plessy against Ferguson. The Sweatt decision turned on the fact that the Supreme Court of the United States decided that The University of Texas Law School and the law schools established at the then Texas State University for Negroes, now Texas Southern, were not substantially equal. And they weren't. The question is whether the constitution should mean what it was intended to mean, i.e. original intent, or whether it should be viewed as a document which just came to earth from outer space and you look at the words on the papers and say "what do they mean?." That's what Brown against the Board said.
We must view the constitution in the present light. That's the present argument between the Brennan school and Meese school. The Brennan view in Brown against the Board reached a very desirable result. On the other hand, if the constitution means what five of nine judges says it means, you are in danger of approaching the concept that we're a government of men and not a government of laws. If five men or women decide that the constitution means what they think it meansand of course that's their job I guessbut you have less stability. If the constitution doesn't mean what it was supposed to mean and you ought to have a change, then you should have a constitutional Amendment. So to avoid that problem, the court should never pass on a constitutional issue unless it absolutely has to, and then very carefully.
One of the latest cases that I had while I was still on the court involved marital rights, rights of spouses in property. Judge Pope took one view, and I took a different view. Pope's view turned on a construction of the constitution which would ultimately mean that Texas would have to adopt an alimony statute. The poorer of the two spouses in economics, usually the wife, is just naked, and the property of the husband can't be reached under that view because of the view that the constitution requires it. The decision wasn't necessary. If we left the constitutional issue out the legislature could change it as it should, if it needed to be changed, without a constitutional amendment.