1. See Garrow, D., Bearing the Cross (1986)Google Scholar; Branch, T., Parting the Waters (1988)Google Scholar; Williams, J., Eyes on the Prize (1987)Google Scholar; Hampton, H. and Fayer, S., Voices of Freedom (1990)Google Scholar; Wilkins, R., Standing Fast (1982)Google Scholar; Abernathy, R., And the Walls Came Tumbling Down (1989)Google Scholar; Blumberg, R., Civil Rights: The 1960s Freedom Struggle: Social Movements Past and Present (1984)Google Scholar; Morris, A., The Origins of the Civil Rights Movement: Black Communities Organizing for Change (1984)Google Scholar; Sitkoff, H., The Struggle for Black Equality 1954–1980 (1981)Google Scholar; Fairclough, A., To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr. (1987)Google Scholar; McAdam, D., Political Process and the Development of Black Insurgency, 1930–1970 (1982)Google Scholar; McAdam, D., Freedom Summer (1988)Google Scholar; Bloom, J., Class, Race, and the Civil Rights Movement (1987)Google Scholar; Bell, D., And We Are Not Saved: The Elusive Quest for Racial Justice (1987)Google ScholarPubMed; Peake, T., Keeping the Dream Alive (1987)Google Scholar; Carson, , King Scholarship and Iconoclastic Myths, 16 Reviews in Am. Hist. 130 (1988)CrossRefGoogle Scholar; Garrow, , Martin Luther King, Jr., and the Spirit of Leadership, 74 J. Am. Hist. 438 (1987)CrossRefGoogle Scholar; Carson, , Martin Luther King, Jr.: Charismatic Leadership in a Mass Struggle, 74 J. Am. Hist. 448 (1987)CrossRefGoogle Scholar; Cone, , Martin Luther King, Jr., and the Third World, 74 J. Am. Hist. 455 (1987)CrossRefGoogle Scholar; Harding, , Beyond Amnesia: Martin Luther King, Jr., and the Future of America, 74 J. Am. Hist. 468 (1987)CrossRefGoogle Scholar; Huggins, , Martin Luther King, Jr.: Charisma and Leadership, 74 J. Am. Hist. 477 (1987)CrossRefGoogle Scholar; Korstad, and Lichenstein, , Opportunities Found and Lost: Labor, Radicals, and the Early Civil Rights Movement, 75 J. Am. Hist. 786 (1988)CrossRefGoogle Scholar; Rabinowitz, , More Than the Woodward Thesis: Assessing the Strange Career of Jim Crow, 75 J. Am. Hist. 842 (1988)CrossRefGoogle Scholar; Woodward; idem, Critics: Long May They Preserve, 75 J. Am. Hist. 567 (1988)Google Scholar; Belknap, M., Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South (1987)Google Scholar; Chafe, W., The Unfinished Journey (1986)Google Scholar; King, M., Freedom Song: A Personal Story of the 1960s Civil Rights Movement (1987)Google Scholar; Weiss, N., Whitney M. Young, Jr., and the Struggle for Civil Rights (1989)Google Scholar; Weisbrot, R., Freedom Bound: A History Of America's Civil Rights Movement (1990)Google Scholar; The Civil Rights Movement in America (Eagles, C. ed. 1986)Google Scholar.

2. For example, Taylor Branch's recent Pulitzer prize-winning account of the civil rights movement extracts as the lessons of the Montgomery boycott the power of unity, the importance of leadership, and the discovery of nonviolent resistance as a powerful weapon. See Branch, T., Parting the Waters: America in the King Years 1954–63 143–205, esp. 195 (1988)Google Scholar. On the Montgomery bus boycott, see King, M., Stride Toward Freedom: The Montgomery Story (1958)Google Scholar (King's own memoir published shortly after the boycott); Robinson, J., The Montgomery Bus Boycott and the Women Who Started It (1987)Google Scholar (a memoir by one of the boycott's organizers); R. Abernathy, supra note 1, at 131–88 (an autobiography by a prominent participant); Garrow, D., Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 11–82 (1986)Google Scholar (a Pulitzer prize-winning work of prodigious research, which is the starting point for understanding not only King but also any aspect of the civil rights movement in which he was involved); Thornton, , Challenge and Response in the Montgomery Bus Boycott of 1955–1956, 33 Ala. Rev. 163–235 (1980)Google Scholar (an insightful article by the coauthor of a forthcoming full-length study of the boycott to be published by Harvard University Press); Barnes, C., Journey From Jim Crow: The Desegregation of Southern Transit 108–31 (1983)Google Scholar (a careful, original study based on primary sources of the entire transportation problem and its significance); Lewis, A., Portrait of a Decade: The Second American Revolution 60–71 (1964)Google Scholar; Williams, J., Eyes on the Prize: America's Civil Rights Years, 1954–1965, at 58–89 (1987)Google Scholar (a volume prepared to accompany the recent public television series of the same name); Stevenson, J., The Montgomery Bus Boycott, December 1955: American Blacks Demand an End to Segregation (1971)Google Scholar; Bishop, J., The Days of Martin Luther King, Jr. (1971)Google Scholar; Sitkoff, H., The Struggle for Black Equality, 1954–1980, at 41–68 (1981)Google Scholar; Oates, S., Let the Trumpet Sound: The Life of Martin Luther King, Jr. 51–112 (1982)Google Scholar; Bass, J., Unlikely Heroes 56–83 (1981)Google Scholar; Valien, , The Montgomery Bus Protest as a Social Movement, in Race Relations 112–27 (Masuoka, J. & Valien, P. eds. 1961)Google Scholar; Millner, S., The Montgomery Bus Boycott: Case Study in the Emergence and Career of a Social Movement (unpublished Ph.D. dissertation, University of California, 1981)Google Scholar; Yeakey, L., The Montgomery Alabama Bus Boycott, 1955–1956 (unpublished Ph.D. dissertation, Columbia University, 1979)Google Scholar; Gilliam, T., The Montgomery Bus Boycott of 1955–1956 (unpublished M.A. Thesis, Auburn University, 1968)Google Scholar.

3. Kennedy, , Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999 (1989)CrossRefGoogle Scholar.

4. See J. Robinson, supra note 2, at 43–44; Thornton, supra note 2, at 176–77, 188–89, 192–93, 196–98; S. Millner, supra note 2, at 107–17.

5. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); J. Williams, supra note 1, at 60–63.

6. For a discussion of Ms. Robinson's efforts in desegregating Montgomery's buses, see her memoir. J. Robinson, supra note 2. See also Garrow, , The Origins of the Montgomery Bus Boycott, Southern Changes 21 (Oct./Nov. 1985)Google Scholar; M. King, supra note 2, at 110–11.

7. Montgomery, Ala., Code §§ 6–10, 11, 1–6 (1952); Judgment of the Court, The City of Montgomery v. Rosa Parks, No. 4559 (Feb. 22, 1956).

8. See M. King, supra note 2, at 111; D. Garrow, supra note 1, at 11–17, 25; Thornton, supra note 2, at 188–89, 202. Ala. Code § 48–301(31a) (1940), as amended, states “[t]he conductor or agent of the motor transportation company in charge of any vehicle is authorized and required to assign each passenger to the division of the vehicle designated for the race to which the passenger belongs” (emphasis added).

However, § 316 states that the agent may "assign or reassign each passenger or person to a division, section, or seat of a vehicle … for the race to which the passenger or person belongs” (emphasis added).

See L. Yeakey, supra note 2, at 433–34. Crenshaw also rejected hiring black drivers, using the union contract as an excuse. Id. See also J. Williams, supra note 1, at 77.

9. Thornton, supra note 2, at 192, 201; D. Garrow, supra note 1, at 26; M. King, supra note 2, at 108–9, 113. Dr. King stated; “We are not asking an end to segregation. That is a matter for the legislature and the courts. We feel that we have a plan within the law. All we are seeking is justice and fair treatment in riding the buses. We don't like the idea of Negroes having to stand when there are vacant seats. We are demanding justice on that point.” Alabama Journal, Dec. 7, 1955.

10. M. King, supra note 2, at 109, 112; C. Barnes, supra note 2, at 112; Thornton, supra note 2, at 192; S. Millner, supra note 2, at 122–26.

11. T. Gilliam, supra note 2, at 80; see M. King, supra note 2, at 76; L. Yeakey, supra note 2, at 443. Hitherto taxis had regularly charged reduced rates.

12. See M. King, supra note 2, at 83–84; L. Yeakey, supra note 2, at 377.

13. Wilkins initially found the MIA's seating proposals at war with his organization's insistence on ending Jim Crow transportation. It apparently was doubtful whether Mrs. Parks's appeal would have addressed this ultimate constitutional question.

14. Though frequently the social imperatives meant that the NAACP reacted more than planned its campaign. See Tushnet, M., The NAACP's Legal Strategy against Segregated Education, 1925–1950 (1987)CrossRefGoogle Scholar; Wasby, , Civil Rights Litigation by Organizations: Constraints and Choices, 68 Judicature 337 (1985)Google Scholar.

15. 347 U.S. 483(1954).

16. C. Barnes, supra note 2, at 115–16; D. Garrow, supra note 1, at 52. The NAACP took this position as early as 1948. See M. Tushnet, supra note 14, at 115.

17. D. Garrow, supra note 1, at 54.

18. A Montgomery Advertiser editorial commented on Sellers's action: “In effect, the Montgomery police force is now an arm of the White Citizens Council.” L. Yeakey, supra note 2, at 489. M. King, supra note 2, at 126–27; C. Barnes, supra note 2, at 112–13; L. Yeakey, supra note 2, at 443, 487; Thornton, supra note 2, at 214–15; S. Millner, supra note 2, at 131–33.

19. M. King, supra note 2, at 129.

20. L. Yeakey, supra note 2, at 401–2.

21. Participants' accounts differ widely on who suggested a federal suit, and when. It appears that Robert Carter first proposed a federal suit in a letter to Gray, Dec. 28, 1955. See Thornton, supra note 2, at 211 n.49; L. Yeakey, supra note 2, at 502 n.1.

22. T. Gilliam, supra note 2, at 32; L. Yeakey, supra note 2, at 495, 501–3; C. Barnes, supra note 2, at 116. However, Mr. Gray denies this motive in the Parks case. Interview with Fred Gray by Norman Lumpkin, Alabama Center for Higher Education, Statewide Oral History Project, Transcriptions of Interviews, Vol. IV, Interview No. 55, Ache No. T.I. 55 (Sept. 1, 1973) [hereinafter cited as Interview No. 55]. See also M. King, supra note 2, at 109.

23. See Redish, M., Federal Jurisdiction 216–31 (1980)Google Scholar.

24. See C. Barnes, supra note 2, at 116 n.26.

25. Browder, No. 1234-N Civ. (M.D. Ala. Feb. 1, 1956); see D. Garrow, supra note 1, at 61; Thornton, supra note 2, at 215 n.52, 216; Interview No. 55, supra note 22, at 4.

26. 28 U.S.C. § 2281 (1948), repealed Pub. L. 94–381 (1976); 28 U.S.C. § 2284 (1948); Ex parte Young, 209 U.S. 123 (1908); see Currie, , The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 2 (1964)CrossRefGoogle Scholar; 28 U.S.C. § 1253 (1954).

27. See C. Barnes, supra note 2, at 116–18; Plessy v. Ferguson, 163 U.S. 537 (1896). For a discussion of Plessy, see C. Lofgren, The Plessy Case (1987). Flemming v. So. Carolina Elect, and Gas Co., 128 F. Supp. 469 (E.D.S.C. 1955), rev'd, 224 F.2d 752 (4th Cir. 1955), appeal dismissed, 351 U.S. 901 (1956); Brown v. Board of Education, 347 U.S. 483 (1954); Flemming v. So. Carolina Elect, and Gas Co., 224 F.2d 752 (4th Cir. 1955), appeal dismissed, 351 U.S. 901 (1956); see Thornton, supra note 2, at 192.

28. See J. Williams, supra note 1, at 87.

29. See L. Yeakey, supra note 2, at 399–400; M. King, supra note 2, at 79–80; Ala. Code § 14–54 (1940); Thornton, supra note 2, at 221–24. On January 6, 1956, Montgomery attorney Fred Ball wrote both to the Montgomery Advertiser and to city solicitor William Thetford arguing that the boycott violated a state law prohibiting boycotts.

30. NAACP, 1956 Annual Report 31–2; see J. Stevenson, supra note 2, at 4445; L. Yeakey, supra note 2, at 510, 585–91.

31. J. Stevenson, supra note 2, at 44–45.

32. See D. Garrow, supra note 1, at 64; Thornton, supra note 2, at 224 n.60; text infra at notes 80–90.

33. D. Garrow, supra note 1, at 64.

34. The “Men of Montgomery” (a group of local businessmen) were frustrated by the inability of politicians to resolve the boycott, and negotiated directly with the boycott organizers. See J. Williams, supra note 1, at 85–87. King stated: “Twice, a half a dozen of the Men of Montgomery met with a similar number from the MIA in an earnest effort to settle the protest, and I have no doubt that we would have come to a solution had it not been for the recalcitrance of the city commission.” M. King, supra note 2, at 122.

35. Thornhill v. Alabama, 310 U.S. 88 (1940).

36. Lash v. Alabama, 244 Ala. 48, 14 So. 2d 242 (1943), cert, denied, 320 U.S. 784 (1943). See also Thornton, supra note 2, at 227.

37. See L. Yeakey, supra note 2, at 515.

38. See id. at 407 n.1; Montgomery, Ala. Code §§ 33–2, 10, 16, 17, 20, 26; D. Garrow, supra note 2, at 72; M. King, supra note 2, at 145; C. Barnes, supra note 2, at 116; T. Gilliam, supra note 2, at 125; court transcript at 1–2, Alabama v. King, No. 7399 (Montgomery Cir. Ct. Feb. Term, 1956) [hereinafter King Transcript].

39. T. Gilliam, supra note 2, at 125; King Transcript, supra note 38, at 1–2.

40. King Transcript, supra note 38, at 87.

41. See M. King, supra note 2, at 147–49. The MIA avoided using the word boycott, instead preferring “protest” to avoid the antiboycott statute's language.

42. Carter also sentenced King to 386 days at hard labor but suspended this sentence because King had embraced nonviolence. See L. Yeakey, supra note 2, at 526; M. King, supra note 2, at 149. King later recalled feeling sympathy for Judge Carter: “to convict me he had to face the condemnation of the nation and world opinion; to acquit me he had to face the condemnation of the local community and those voters who kept him in office.” M. King, supra note 2, at 149.

43. King Transcript, supra note 38, at 565; see D. Garrow, supra note 1, at 74.

44. See M, King, supra note 2, at 149–50; Thornton, supra note 2, at 218 n. 56; J. Williams, supra note 1, at 87; T. Branch, supra note 1, and 183. After King's arrest, a seventy-five year old black woman commented: “I've been riding the buses all through the boycott because I'm old and sick; but since they arrested my pastor, I'll walk from now on if necessary.” Quoted in L. Yeakey, supra note 2, at 658.

45. L. Yeakey, supra note 2, at 402–3.

46. Flemming v. So. Carolina Elect, and Gas Co., 351 U.S. 901 (1956).

47. See A. Lewis, supra note 2, at 64–65; C. Barnes, supra note 2, at 118–19.

48. C. Barnes, supra note 2, p.t 119, 125; T. Gilliam, supra note 2, at 130.

49. City of Montgomery v. Montgomery City Lines, 1 Race Rel. L. Rep. 534–35 (1956); L. Yeakey, supra note 2, at 529–30; C. Barnes, supra note 2, at 112, 119.

50. City of Montgomery v. Montgomery City Lines, 1 Race Rel. L. Rep. at 540, 542.

51. Id. at 542–43.

52. Id. at 543.

53. This has been attributed to the late Harvard Law Professor Thomas Reed Powell. See Auerbach, J., Unequal Justice 9 (1976)Google Scholar.

54. City of Montgomery v. Montgomery City Lines, 1 Race Rel. L. Rep. 534, 544–45; Dawson v. Mayor and City Council of Baltimore City, 350 U.S. 877 (1955). Dawson was a summary affirmance with precedential authority.

55. City of Montgomery v. Montgomery City Lines, 1 Race Rel. L. Rep. at 536–37.

56. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

57. See D. Garrow, supra note 1, at 76; Fairclough, , The Preachers and the People: The Origins and Early Years of the Southern Christian Leadership Conference, 1955–1959, 52 J. S. Hist. 417 (1986)Google Scholar.

58. M. King, supra note 2, at 151–52.

59. Id. at 80, 153–54.

60. 1 Race Rel. L. Rep. at 707–9; L. Yeakey, supra note 2, at 579.

61. See L. Yeakey, supra note 2 at 597; 1 Race Rel. L. Rep. at 917.

62. 1 Race Rel. L. Rep. at 917–18; Alabama ex rel. Patterson v. NAACP, 265 Ala. 356, 91 So. 2d 220 (1956).

63. 1 Race Rel. L. Rep. 919; Ex Parte NAACP, 91 So. 2d 221 Ala. (1956), reh'g denied, Dec. 6, 1956.

64. Ex Parte NAACP, 265 Ala. 349, 91 So. 2d 214 (1956), rev'd sub nom., NAACP v. Alabama, 347 U.S. 449 (1958); see generally L. Yeakey, supra note 2, at 574–84.

65. For accounts of this struggle, see Osborne, , Freedom of Association: The NAACP in Alabama, in The Third Branch of Govt. 149 (Pritchett, C. & Westin, A. eds. 1963)Google Scholar; Murphy, , The South Counterattacks: The Anti-NAACP Laws, 12 W. Pol. L.Q. 371 (1959)Google Scholar.

66. Browder v. Gayle, 142 F. Supp 707 (M.D. Ala. 1956), aff'd, Gayle v. Browder, 352 U.S. 903 (1956), reh'g denied, 352 U.S. 950 (1956), reh'g denied, 352 U.S. 955 (1956).

67. L. Yeakey, supra note 2, at 536.

68. “We cannot in good conscience perform our duty as judges by blindly following the precedent of Plessy v. Ferguson, when our study [convinces us] that the separate but equal doctrine can no longer be safely followed as a correct statement of the law. In fact, we think that Plessy v. Ferguson has been impliedly, though not explicitly, overruled….” Browder v. Gayle, 142 F. Supp. at 717. This theory was first propounded by Judge Jerome Frank. See Perkins v. Endicott Johnson, 128 F.2d 208, 217–18 (2d Cir. 1942); Glennon, R., The Iconoclast as Reformer (1985)Google Scholar.

69. See, e.g., Kluger, R., Simple Justice (1975)Google Scholar; Woodward, C., The Strange Career of Jim Crow (3d rev. ed. 1974)Google Scholar; Hutchinson, , Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948–1958, at 68 Geo. L.J. 1 (1979)Google Scholar; M. Tushnet, supra note 14.

70. See Florida ex rel. Hawkins v. Board of Control of Florida, 347 U.S. 971 (1954); Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954); Tureaud v. Board of Supervisors of Louisiana State Univ. and Ag. and Mech. Coll., 347 U.S. 971 (1954); Housing Auth. of the City and County of San Francisco v. Banks, 347 U.S. 974 (1954); Holcombe v. Beal, 347 U.S. 974 (1954); Wichita Falls Junior College Dist. v. Battle, 347 U.S. 974 (1954).

71. Judge Rives described Muir as being decided the same day as Brown, but he was mistaken.

72. See L. Yeakey, supra note 2, at 569. On the role of judges in the civil rights movement, see J. Bass, supra note 2; Peltason, J., Fifty-Eight Lonely Men (1961)Google Scholar; and Read, F. & McGough, L., Let Them be Judged (1978)Google Scholar.

73. M. King, supra note 2, at 153.

74. Browder v. Gayle, 1 Race Rel. L. Rep. 678–79 (1956). Of course, as Flemming illustrates, a party may prematurely seek United States Supreme Court review via an appeal and the Court may dismiss without addressing the merits. However, if a party properly follows the court's jurisdictional rules, then an appeal, in theory, is obligatory; the Supreme Court must hear the case. See Gunther, , The Subtle Vices of the “Passive Virtues”—A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964)CrossRefGoogle Scholar.

75. 28 U.S.C. § 1253.

76. Jurisdictional statement, in the Supreme Court of the United States, October Term, 1956, No. 342, Gayle, v. Browder, et al., Walter J. Knabe, Counsel for Appellant. Motion to Affirm, In the Supreme Court of the United States, October Term, 1956, No. 343, Gayle v. Browder, Robert L. Carter, Counsel for Appellees [hereinafter Jurisdictional Statements].

77. See L. Yeakey, supra note 2, at 585–86.

78. Id. at 591; NAACP, 1956 Annual Report 31–2; J. Robinson, supra note 2, at 127.

79. D. Garrow, supra note 1, at 79; M. King, supra note 2, at 57–58; L. Yeakey, supra note 2, at 592–94.

80. On October 26, the city commission issued a statement that it intended “to maintain the way of life which has existed here in Montgomery since its origin, so far as we are legally able.” Quoted in L. Yeakey, supra note 2, at 612. The Montgomery Advertiser editorialized that this new effort was an ill-considered “blunder” because the Supreme Court decision in Browder, rather than the boycott, was the “critical development” and that the court's ruling was so predictable that “every citizen is qualified to be his own lawyer in predicting that the court will rule bus segregation unlawful.” Quoted in L. Yeakey, supra note 2, at 615. On October 30, the city commission passed a resolution stating “the Legal Department of the City be and is hereby instructed to file such proceedings as it may deem proper to stop the operation of car pools or transportation systems growing out of the bus boycott.” 2 Race Rel. L. Rep. 123, 125 (1957).

81. See D. Garrow, supra note 1, at 80.

82. 2 Race Rel. L. Rep. 123, 125; M. King, supra note 2, at 158.

83. Interview No. 55, supra note 22, at 5.

84. M. King, supra note 2, at 158–59.

85. Alabama Journal, Nov. 13, 1956, at 1.

86. T. Gilliam, supra note 2, at 141.

87. See D. Garrow, supra note 1, at 80. Newspapers reported that the Supreme Court opinion reached the courthouse during the hearing. The Alabama Journal, Nov. 13, 1956, at 1, col. 7. T. Gilliam, supra note 2, at 141, stated that news of the Supreme Court's ruling arrived during the lunch recess. Dr. King stated that the news arrived during a “brief recess.” M. King, supra note 2, at 159.

88. Gayle v. Browder, 352 U.S. 903 (1956).

89. Brown v. Board of Education, 347 U.S. 483 (1954); Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. City of Atlanta, 350 U.S. 879 (1955).

90. 2 Race Rel. L. Rep. 124.

91. David Garrow suggests that Judge Johnson declined to halt the state proceedings on November 2, 1956. D. Garrow, supra note 1, at 80. Browder v. City of Montgomery, 146 F. Supp. 127, 130, 132 (M.D. Ala. 1956).

92. Browder v. City of Montgomery, 146 F. Supp. 127, 131 (M.D. Ala. 1956). See Douglas v. City of Jeannette, 319 U.S. 157 (1943).

93. Quoted in M. King, supra note 2, at 160.

94. Id. at 160–61.

95. C. C. Owen (president of the Alabama Public Service Commission, the controlling body of public transportation) stated: “The people of Alabama are not going to abolish segregation…. To keep down violence and bloodshed, segregation must be maintained…. I will urge all public transportation companies to make every effort to keep harmony among passengers by assigning seats in such a manner that the races will be kept separate.” The Montgomery Advertiser, Nov. 14, 1956, at 1, col. 4.

Luther Ingalls (leader of the Montgomery County White Citizens' Council) stated: “This decision … is just another example of legislating by the Suprme Court For those of you who continue to vote for administrations committed to a policy of integration, I can only say that you will eventually receive your just desserts and that the sins of their fathers will descend upon the heads of your children.” The Montgomery Advertiser, Nov. 14, 1956, at 1, col. 4. Alabama State Senator Sam Engelhart, Jr. stated: “I don't believe the white people of Montgomery are going to accept any such mandate from the Supreme Court. As far as I'm concerned they can move Montgomery City Lines, Inc. lock, stock, and barrel to Washington, D.C.” The Montgomery Advertiser, Nov. 14, 1956, at 2, col. 2.

96. Quoted in C. Barnes, supra note 2, at 129.

97. See Motion for Clarification and Rehearing, Gayle v. Browder, October Term, 1956, No. 342, at 3–5.

98. Gayle v. Browder, 352 U.S. 950 (1956).

99. See Motion for Acceleration of Opinion or Order and Judgment, Gayle v. Browder, October Term, 1956, No. 342 and 343; William Brennan Papers, Case Files, Manuscript Division, Library of Congress.

100. 2 Race Rel. L. Rep. 121.

101. Id. at 122–23.

102. See D. Garrow, supra note 1, at 86, 94; The Montgomery Advertiser, Feb. 23, 1957, at 1A. L. Yeakey, supra note 2, 640–42. Apparently, United States District Judge Frank Johnson also feared that the bombings would undo the federal court order for he expressed this position to United States Deputy Attorney General William Rogers. D. Garrow, supra note 1, at 87.

103. Parks v. City of Montgomery, 38 Ala. App. 681, 92 So. 2d 683 (1957); Montgomery, Ala., Code § 1–8; Gayle v. Browder, 352 U.S. 903 (1956).

104. King v. State, 98 So. 2d 443 (Ala. App. 1957); Parks v. City of Montgomery, 38 Ala. App. 681, 682, 92 So. 2d 683 (1957).

105. See L. Yeakey, supra note 2, at 649–50.

106. 2 Race Rel. L. Rep. 412.

107. Id.

108. See King v. State, 98 So. 2d 443 (Ala. App. 1957). The struggle for racial justice in Montgomery continued, of course, into succeeding years. A forthcoming book by J. Mills Thornton and Ray Arsenault will detail subsequent developments and suggest how the legacy of the boycott embittered both whites and blacks in the city for some time to come.

109. The Montgomery bus boycott is widely understood by participants, professional historians, and the general public as having been the first successful mass protest of the modern civil rights movement.

The Montgomery effort was as important as the Brown decision itself in pushing the black movement forward. It was a long and difficult struggle in which the black population of the city took on the entire white power structure in a yearlong battle, and won. That battle encouraged a rising tide of black militancy. It was the most important confrontation of the decade, in which blacks demonstrated to the world and to themselves the unity and the sacrifices of which they were capable. It inspired blacks to challenge white supremacy elsewhere and was a crucial turning point in the emergency of the New Negro and the eclipse of the old. It became a unifying point not only for blacks in Montgomery, Alabama but for blacks across the nation.

[T]he Montgomery boycott changed the character of black efforts for social reform. Previous challenges to segregation, led by the NAACP, had relied upon passive support on the part of most blacks. Lawyers and lobbyists did the work for people. But in Montgomery, victory required active participation of the whole black community.

J. Bloom, supra note 1, at 138 and 144.

Aldon Morris's The Origins of the Civil Rights Movement, supra note 1, illustrates the conventional wisdom about the effectiveness of the bus boycott for integrating the buses.

“The Montgomery bus boycott, because it gained national attention let the black population know that the tactics and strategies of the mass movement could be effective and could bring far faster results than the legalistic method of the NAACP.” Id. at 38.

“A detailed examination of the movements in Montgomery, Tallahassee, and Birmingham reveals that it was effective mass organization that enabled these movement centers to challenge the racist regimes of the South.” Id. at 50.

“Massive sit-in demonstrations, like the Montgomery bus boycott, were proof that organized collective action produced gains for blacks.” Id. at 229.

Another illustration of the conventional wisdom is the recent public television series, Eyes on the Prize (PBS television broadcast, 1987), a stirring six-hour program, that naturally stressed moving documentary footage of key episodes in the civil rights movement. A companion volume by the same title has some notable differences from the electronic version. J. Williams, supra note 1. Chapter 1 documents the story of school desegregation, in which legal figures and strategies play an enormous role. Id. at 1–35. Court cases do not lend themselves to drama and the public television series, for whatever reasons, chose to begin its account with the Montgomery bus boycott and the case of Emmet Till. It is perfectly understandable in terms of dramatic effect but the interpretation that results distorts the story precisely because it underestimates the role of law in the struggle. Both the text and the video of Eyes on the Prize assume that the boycott produced the victory and that the courts “had to rule” in favor of the movement. J. Williams, supra note 1, at 71. Eyes on the Prize places emphasis on the education of Rosa Parks as a community organizer at the Highlander School, the organization of the car pools, the emergence of the young minister, Martin Luther King, Jr., the emotional church meetings, the organizing skill of E. D. Nixon, Jo Ann Robinson, and other MIA leaders, and, of course, the boycott itself. A second series of Eyes on the Prize (PBS television broadcast, 1990), carries the story forward to the end of the 1980s.

Even David Garrow's Bearing the Cross, supra note 1, is subject to this interpretation. In the last sentence of his exhaustive chapter on the Montgomery bus boycott, he concludes: “As news photographers snapped pictures [of King and others boarding integrated buses in Montgomery for the first time], the bus pulled away from the curb. Black Montgomery, after 382 days of mass effort, had achieved its goal.” Id. at 82. See also Carson, C., In Struggle 4 (1981)Google Scholar; Woodward, Book Review, N.Y. Rev. of Books, Jan. 15, 1987, at 3 (reviewing Garrow, D., Bearing the Cross (1986)Google Scholar); M. King, supra note 2, at 89; J. Williams, supra note 1, at 71, 88; Piven, F. & Cloward, R., Poor People's Movements 184 n.3, 206, 211 (1979)Google Scholar; L. Yeakey, supra note 2, at 624–25; 656–57.

110. See Kinoy, A., Rights on Trial 154–55 (1983)Google Scholar; King, Mary, Freedom Song 261–67 (1987)Google Scholar.

111. The importance of the Supreme Court's Browder ruling for the actual integration of Montgomery's buses has been recognized by some commentators and observers. See Kennedy, supra note 3; C. Barnes, supra note 2, at 124; A. Lewis, supra note 2, at 71; A. Fairclough, supra note 1, at 438; Thornton, supra note 2, at 229; Time, Feb. 18, 1957, at 17; Interview with Jack Crenshaw by D. Garrow, in Montgomery, Ala. (Apr. 1, 1982); Barkan, , Legal Control of the Southern Civil Rights Movement, 49 Am. Soc. Rev. 552, 555–56, 562 (1984)Google Scholar; R. Wilkins, suprar note 1, at 237; Fuller, We Are All So Very Happy, New Republic, Apr. 25, 1960, at 13; Outside the Magic Circle, the Autobiography of Virginia Foster Durr 284 (Barnard, H. ed. 1985)Google Scholar.

112. Quoted in J. Williams, supra note 1, at 71.

Even though it was a Supreme Court ruling that made it possible to end the boycott, the black community of the United States knew that the disciplined and organized mass movement in Montgomery had created the pressure that contributed to the favorable court ruling. The victory was clear proof not only to Montgomery blacks but to blacks across the nation, protest organizations, opposition forces, and the general American population that power is created when masses act collectively….

A. Morris, supra note 1, at 63.

This paragraph suggests that law, to Morris, is merely the product of leveraged political pressure. His act of faith assumes that the courage of the Montgomery black community must have been successful. He even tries to hedge his bet. Although he acknowledges that the Supreme Court acted, he asserts that the Court's ruling merely “made it possible to end the boycott” as though the favorable outcome was inevitable. Id.

113. There is some evidence that Brown v. Board of Education, 347 U.S. 483 (1954), helped to stimulate the Montgomery bus boycott. On May 21, 1954, four days after Brown, Jo Ann Robinson wrote to Montgomery Mayor Gayle asking for changes in the city's segregated bus system and threatening a black boycott of the buses if the changes did not occur. See J. Robinson, supra note 2, (forward by David Garrow).

There were some early boycotts against Jim Crow transportation in the late nineteenth and early twentieth centuries that achieved temporary success at integrating streetcars. See C. Barnes, supra note 2, at 10–12. During the 1940's, scattered efforts at nonviolent protests occurred. Id. at 58–60. The best known was the Journey of Reconciliation, organized by the Congress of Racial Equality in 1947, in order to implement the United States Supreme Court's ruling in Morgan v. Virginia, 328 U.S. 373 (1946), that struck down a Virginia statute mandating Jim Crow seating on buses because it burdened interstate commerce. See C. Barnes, supra note 2, at 58–60. In 1953, blacks in Baton Rouge, La., staged a ten-day boycott of the city's buses. See D. Garrow, supra note 1, at 27.

114. Brown had a powerful impact on encouraging, ennobling, and inspiring the black community. See, e.g., Hon. Constance Baker Motley, Columbia Oral History Interview, at 141, 186, 531–32; Carter, , The Warren Court and Desegregation, 67 Mich. L. Rev. 237, 247 (1968)CrossRefGoogle Scholar; Kaplan, , Comment on School Desegregation, 64 Colum. L. Rev. 223, 228 (1964)CrossRefGoogle Scholar; Lomax, L., The Negro Revolt 73–74, 84 (1963)Google Scholar; Pettigrew, T., A Profile of the Negro American 10 (1964)Google Scholar; Lewis, A., Portrait of a Decade 5, 8–9 (1964)Google Scholar; Gerber, , The Effects of the Supreme Court's Desegregation Decision on the Group Cohesion of New York City's Negroes, 58 J. Soc. Psychology 295 (1962)CrossRefGoogle Scholar; Cleaver, E., Soul on Ice 3 (1968)Google Scholar; Farmer, J., Freedom—When? 114, 169 (1968)Google Scholar.

115. See R. Kluger, supra note 69, at 267–357; Hutchinson, supra note 69, at 430; M. Tushnet, supra note 14, at 70–166.

116. See Hutchinson, supra note 69, at 86–87.

117. See Muir v. Louisville Park Theatrical Association, 347 U.S. 971 (1954); Mayor v. Dawson, 350 U.S. 877 (1955), and Holmes v. City of Atlanta, 350 U.S. 879 (1955).

118. See Jurisdictional Statements, supra note 76.

119. See C. Barnes, supra note 2, at 118 n.33, 119 n.34. At the Supreme Court's conference on January 13, 1956, the Court initially voted unanimously to affirm the fourth circuit's decision. See Conference Sheet for January 13, 1956, List 1, Sheet 1, Box 286, Harold Burton Papers; Conference Sheet for January 13, 1956, List 1, Sheet 1, Box 324, Hugo L. Black Papers. However, Chief Justice Warren apparently called the conference's attention to the fact that the fourth circuit had remanded the case to the district court for trial. As a consequence, the judgment was not final and therefore not appealable to the Supreme Court under 28 U.S.C. § 1254(2). Had the case arisen in a state court, quite clearly the jurisdictional statute, 28 U.S.C. § 1257, which expressly limits the Supreme Court's jurisdiction to “final judgments” of the highest state courts, would have precluded Supreme Court review. However, there is no such parallel limitation in § 1254(2), though a Supreme Court ruling, Slaker v. O'Conner, 278 U.S. 188 (1929), had interpreted § 1254 to require a final judgment.

On January 16, 1956, Justice Reed circulated a memorandum to the conference in which he argued that Slaker, despite being labeled by one commentator as “rather doubtful authority,” was supported by the legislative history. Justice Reed conceded, however, that the history was “inconclusive.” Therefore, he urged that Flemming ought either to be dismissed for want of jurisdiction or affirmed by a per curiam overruling Slaker. See Memorandum to the conference by Stanley Reed, January 15, 1956, Felix Frankfurter Papers, MS Box 88, Folder 10.

Justice Frankfurter followed Reed's memorandum with his own Memorandum for the Conference on January 25, 1956. See Memorandum for the Conference by Mr. Justice Frankfurter, January 25, 1956, Felix Frankfurter Papers, Manuscript Box 88, Folder 10. In it, he argued that the Court ought to follow the controlling Slaker case because of the duration of time in which Slaker had been accepted as controlling law. Id. He went on to recognize the political controversy attending the Court's segregation decisions: “In so far as it is relevant to take into account the currents of opinion affecting our segregation cases, I do not think it would help things to seize jurisdiction in this case, with a view to affirming the Court of Appeals for the Fourth Circuit by overruling a jurisdictional policy that has maintained itself for twenty-seven years.” Id. With a typical Frankfurterian appeal to judicial restraint, he thought it improvident for the Court to reach out and overrule Slaker. Justice Frankfurter also analyzed whether the court of appeals judgment was “final.” “With a conscious purpose of seeking an escape if I could, I have been unable to find one.” Id. Thus, Frankfurter supported the disposition of Flemming urged by Justice Reed. Id. The views of Reed and Frankfurter prevailed as, on April 23, 1956, the Supreme Court issued a per curiam decision dismissing the appeal and citing Slaker. Although the decision did not indicate that any Justice dissented from the dismissal of the appeal, in fact Chief Justice Warren and Justices Black and Douglas voted to affirm the Fourth Circuit's decision. See Conference Sheet for April 20, 1956, List 2, Sheet 1, Felix Frankfurter Papers, MS Box 89, Folder 17; Conference List for April 20, 1956, List 2, Sheet 1, Box 286, Harold Burton Papers; 1955 Supreme Court Docket Book, No. 511, Box 279, Harold Burton Papers.

This history of the Supreme Court's handling of Flemming indicates that the Court came close to overruling Plessy by affirming summarily the fourth circuit in Flemming, despite the fact that it would have had to overrule Slaker at the same time.

An argument in opposition might suggest that the Court's reluctance to act on the appeal in Flemming was due to the type of timidity that surrounded its handling of the case of Naim v. Naim, 350 U.S. 891 (1955). See Hutchinson, supra note 69, at 62–67. This argument is unpersuasive because, unlike Naim, the Supreme Court had handled several other post-Brown cases with per curiam rulings indicating that it would apply the Brown principle to other segregated public facilities. Naim did not involve the segregation of state facilities but did involve a situation in which the emotions of the white South were at a fever pitch.

120. See Law and Political Culture Symposium, 55 U. Chi. L. Rev. 413 (1988)CrossRefGoogle Scholar, F. Piven & R. Cloward, supra note 109, at 181–263; Tygiel, J., Baseball's Great Experiment (1983)Google Scholar; Dudziak, , Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988)Google Scholar; Bell, , Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harv. L. Rev. 518 (1980)CrossRefGoogle Scholar.

121. See sources cited supra note 78; Mayor v. Dawson, 350 U.S. 877 (1955) and Holmes v. City of Atlanta, 350 U.S. 879 (1955); Hutchinson, supra note 69, at 60–73.

122. 1 Race Rel. L. Rep. 679 (1956).

123. Flemming v. So. Carolina Elect. and Gas Co., 239 F.2d 277 (4th Cir. 1956).

124. Eyes on the Prize (PBS television broadcast, 1987, Part I).

125. Very late in the boycott, a white citizen's group, the Men of Montgomery, came to believe that a negotiated settlement was advisable. See Thornton, supra note 2, at 218–20.

126. Only one commentator has conceded the help given the MIA by federal courts, but insists that the boycott would have continued to a successful conclusion even without the federal judicial interference.

[B]ecause the U.S. Supreme Court's decision in the Browder case aided the cause of the boycotters, this movement's meaning or result should not be reduced to being merely a court victory. From the vantage point of black Montgomery and those outside observers who journeyed to the city to witness the boycott, the action itself was the preeminent decisive factor in this whole affair, not the legal decision. The bus boycott was a popular protest, and there is a great deal of evidence to suggest that the movement would have continued despite an adverse ruling in the federal courts. Rufus Lewis and Fred Gray admitted that even had the carpool been stopped, black people in defiance of the law would have continued the boycott. They may have had to find alternative ways to carry out their protest, but the firm, unequivocable desire to carry on could not be denied.

L. Yeakey, supra note 2, at 59–60.

There are a number of responses to his interpretation. The first is skepticism about his “great deal of evidence.” He interviewed people in 1976 and found that “90% of them” believed that the people wanted to continue to boycott. However, twenty years later, after the development of the tradition of the boycott having been the successful ingredient, this statistical measurement is unsatisfactory. Further, one of the persons he cites for this proposition is Robert L. Carter, whom I interviewed and who suggested quite the opposite conclusion to me. Judge Carter commented that “the boycott [would] have fizzled out except for the support of the law.” Interview with the Honorable Robert Carter, New York City (July 17, 1986). The second is that continuing the boycott would have produced further court action on the part of city officials. Those who continued to boycott would have been held in contempt by Montgomery judges. And city officials undoubtedly would have devised other steps to counter those taken by the black community.

In addition, the fact that people stayed away from the buses and the carpool between November 13, and December 20, 1956, does not suggest that they could have continued over the long term to boycott without a mechanism for transporting themselves. Montgomery citizens continued to boycott and were able to do so in part because they knew that the time framework was extremely limited. Indeed, initially advisors counseled that it would be only a few days. And Taylor Branch has even described these few weeks as “arduous” and as a “struggle through a victory lap.” T. Branch, supra note 1, at 194.

127. See Thornton, supra note 2, at 221 n.65.

128. See D. McAdam, supra note 1, at 136–39; A. Morris, supra note 1; W. Chafe, supra note 1, at 163–65.

129. Quoted in J. Williams, supra note 1, at 88.

130. M. King, supra note 2, at 69.

131. Quoted and interpreted in D. Garrow, surpa note 1, at 86.

132. Raines, H., My Soul is Rested (1977)Google Scholar.

133. J. Williams, supra note 1, at xi; King, M., Where Do We Go from Here: Chaos or Community? 17 (1967)Google Scholar; Norrell, , Caste in Steel: Jim Crow Careers in Birmingham, Alabama, 73 J. Am. Hist. 669, 689 (1986)CrossRefGoogle Scholar. “The involvement of the masses of black people in the Montgomery bus boycott opened the door to new forms of resistance that sprang up all over the south.” J. Bloom, supra note 1, at x (foreword by Richard G. Hatcher, Mayor of City of Gary). See also Rogers, , Oral History and the History of the Civil Rights Movement, 75 J. Am. Hist. 567 (1988)CrossRefGoogle Scholar. SNCC activist, John O'Neal, described the boycott as “galvanizing” blacks. Id. at 569.

134. Fellowship of Reconciliation, Martin Luther King and the Montgomery Story (1957)Google Scholar. However, some felt that the comic book did not adequately depict Gandhi's activities, and overemphasized Dr. King's role in the boycott. “One of my co-workers suggested that there is too much adulation of Dr. King in the story. There seems no doubt that he was the man of the hour in this case. Undoubtedly the facts of the case make the man stand out. Just so we don't start ‘myths’ here too!” Letter from J. Sherk, Exec. Secretary, Peace Section, Mennonite Central Committee, to A. Hassler, Fellowship of Reconciliation (Feb. 20, 1958), Id. at 11. See H. Sitkoff, supra note 1, at 82; R. Blumberg, supra note 1, at 42; D. McAdam supra note 1, at 137. Sitkoff argues that “the example of the successful bus boycott accelerated the movement of the black struggle from the courtroom to the streets.” H. Sitkoff, supra note 1, at 62.

135. In Tallahassee, however, the protest ended without forcing city officials into integrating the buses. Tallahassee city officials acted more promptly to challenge the boycott as a violation of the state franchise law. Civil rights activists did not file a federal court action challenging the constitutionality of racial segregation on buses. As a consequence, the state officials were able to engage in a variety of dilatory tactics even extending well beyond the time when the Supreme Court in Browder ruled bus segregation unconstitutional.

In Tallahassee, the boycotters apparently never brought a three-judge federal district court case and, when federal intervention was finally requested, it was in a case brought by state court criminal defendants, resulting in a federal judicial decision to withhold judgment until they had exhausted their state court remedies. The state courts meanwhile dallied around setting high bail bonds and sentences.

That the state officials refused to desegregate the buses even after the Supreme Court's ruling in Browder illustrates not only recalcitrance but bad faith. They passed a new seat assignment bill as a subterfuge for one explicitly requiring separation of the races on public buses. The experience in Tallahassee illustrates that Supreme Court decisions are not self-executing and that the mass protest had little or no impact. Faced with the kind of resistance that white Tallahassee displayed, no integration would occur until ordered by a federal judge. On the Tallahassee boycott, see Smith, C. & Killian, L., The Tallahassee Bus Protest (1958)Google Scholar; T. Gilliam, supra note 2, at 139; C. Barnes, supra note 2, at 124–28, 247; A. Fairclough, supra note 1, at 412–16; J. Williams, supra note 1, at 89; but see A. Morris, supra note 1, at 63–68; D. McAdam, supra note 1, at 138; C. Barnes, supra note 2, at 126–27.

136. On the successes and failures of the SCLC, see A. Fairclough, supra note 1.

137. M. King, supra note 2, at 190.

138. See H. Sitkoff, supra note 1, at 62–63.

139. The Rock Hill boycott failed for the perverse reason that the boycott proved too successful. It cost the bus company so much money that it went out of business. See C. Barnes, supra note 2, at 124–34; 157; 193–205; A. Fairclough, supra note 1, at 438. See also supra note 135. The final elements included integrating bus terminal restaurants and waiting rooms.

140. The NAACP, 1956 Annual Report at 7, stated that “Although the actual desegregation of Montgomery bus seating came through a Supreme Court decision in response to a NAACP suit, the Montgomery protest was an event of the greatest significance in the struggle of the Negro toward dignity and full citizenship.”