Journal of Supreme Court History

On April 16, 1937, a radical young lawyer named John P. Davis testified before the United States Senate Committee on the Judiciary in favor of President Roosevelt’s Court-packing plan.¹ As the only Black witness to testify over nearly five weeks of hearings, Davis argued that increasing the size of the Supreme Court would push the United States towards racial equality while protecting the civil rights of Black Americans.² When white witnesses touched briefly on Black issues, they almost uniformly argued against Court-packing and advocated the so-called bulwark theory of civil rights, expressed in some quarters of the Black community, that the Court was a final refuge for vindicating the rights of individual Black Americans targeted by the oppressive racial violence of Southern states and denied justice by Southern courts.³ But Davis represented a very different vision of civil rights, originating in left-wing parts of the Black community, that integrated labor and economic issues, citizenship rights, and safety from racial violence into a coherent package.

Davis, a thirty-two-year-old Harvard Law graduate and the first full-time civil rights lobbyist in American history, was no stranger to the ritualized sparring of congressional testimony.⁴ Introduced by the Committee Chairman as “a witness who represents a large number of colored people,” Davis was a widely recognized spokesman for the Black left and national secretary of the National Negro Congress (NNC).⁵ Although little known today, he was a towering civil rights figure during the 1930s, described by one biographer as “inspir[ing] more excitement, energy, and protest at the black grassroots level than any African American since Marcus Garvey.”⁶ In his testimony, he laid out detailed arguments for his position, directly cited and harshly criticized specific Supreme Court precedents, and deftly parried the “vicious questions” of pro-segregation Southern senators.⁷ Although his remarks, ignored by the [End Page 215] white press, drew praise in the Black community, his vision of civil rights was hardly a consensus one; Davis represented one side of a critical debate raging within the Black community in the late 1930s about the proper meaning and scope of civil rights and how best to pursue those rights.

The NNC’s muscular public support for Roosevelt’s Court-packing plan also highlights the telling silence of another Black organization. The National Association for the Advancement of Colored People (NAACP), by that point the premier litigation-focused civil rights organization in the United States, released no public statement in favor of or against the plan and gave no testimony before Congress. A few key players in the Association, however, publicly expressed their opinions on the subject, most notably NAACP special counsel Charles Hamilton Houston. A renowned civil rights lawyer, father of the modern law school at Howard University, and mentor to Thurgood Marshall, Houston would later become famous for laying the groundwork of the NAACP’s school desegregation campaign, which eventually culminated in Brown v. Board of Education.⁸ During the 1930s, however, Houston’s path to the racial, rights-based vision of civil rights represented by the Brown litigation was far from set, and he advocated that the NAACP speak out in favor of the plan for economic and class reasons similar to those advanced by Davis. Despite this, and although the White House exerted direct pressure on the Association, the NAACP steered clear of public comment and acknowledged the plan only insofar as it related to the Association’s other legislative priorities.

This article examines debates in the Black press and the internal records of the NNC and NAACP to illuminate the strategic divergence within the Black community over how to respond to FDR’s Court-packing plan. These debates reveal that Black lawyers and civil rights organizations struggled to balance new and sometimes radical ideas about the role of class and economics in civil rights advocacy with more racially focused theories of civil rights. It also confirms that the NAACP’s path towards the conception of civil rights later defined by the Brown litigation was not set in stone by 1937 and that...