"MAY IT PLEASE THE COURT. . ."

With these traditional words, U.S. lawyers respectfully catch the ears of the learned judges hearing their appeals. Briggs v. Elliott, Case No. 2 of the five segregation cases heard last week by the Supreme Court, pitted together two of the legal profession's great advocates:

JOHN WILLIAM DAVIS, 80, a white-maned, majestic figure in immaculate morning attire who looks type-cast for the part, has argued more cases (140) before the Supreme Court of the U.S. than any other lawyer living or dead. His first, Pickens v. Roy, came on in 1902--when the present Chief Justice of the U.S. was eleven. Big Steel paid John W. Davis more than $100,000 last year to win the historic Steel Seizure case (Youngstown Sheet & Tube v. Sawyer). Davis' fee for taking segregation's side last week was more modest: a silver tea service, gift of the South Carolina legislature.

As senior partner of ihe 104-year-old Wall Street firm of Davis Polk Wardwell Sunderland & Kiendl (95 lawyers). John W. Davis represents A.T.&T., Standard Oil Co. (N.J.), Guaranty Trust Co. of New York, International Paper Co., et al. He did not need another client, and he already owned a tea service. Davis took the segregation case partly because an old friend, South Carolina's Governor James F. Byrnes, asked him to, partly as a matter of constitutional (states' rights) and social conviction ("Race is a fact, like sex"). Some of his other friends were sorry to hear him, at twilight, singing segregation's old unsweet song. But the popularity of a cause rarely cuts any ice with John W. Davis. One of his permanent heroes is Chretien Guillaume de Lamoignon de Malesherbes, who (at 71) defied popular opinion by defending Louis XVI before a French revolutionary tribunal. Advocate Malesherbes lost his case, his royal client's neck, and his own, but not his place in legal history; Advocate Davis knows his own standing is equally secure.

No Trimmings. Once before, on another matter of principle, John W. Davis took another memorably unpopular position. In 1924, after a steppingstone career as a law professor at Virginia's Washington & Lee, West Virginia state legislator, member of Congress, Solicitor General of the U.S. and Ambassador to the Court of St. James's, Davis was being talked about as presidential material. A supporter urged him to drop J. P. Morgan as a client so that he would be more palatable to the Bryan Democrats, to whom Wall Street was a dirty word. Davis refused: "Any lawyer who [trims] his professional course to fit the gusts of popular opinion . . . degrades the great profession . . ."

Davis was nominated anyway--as a compromise candidate, on the 16th day and 103rd ballot, by a sweltering, weary, deadlocked Democratic convention. (Vicepresidential candidate: Charles W. Bryan, brother of William Jennings Bryan.) The predictable happened: W. J. Bryan deserted, La Follette started a third party, the Hearst press excoriated Davis as THE MORGAN LAWYER (Columnist "Bugs" Baer cracked that Davis' national anthem would be "The Star-Spangled Banker"), and Cal Coolidge won going away. The Democratic candidate polled 8,386,000 votes--only 29%.

Feeling "like a sucked orange," Davis returned, not at all reluctantly, to his old profession, his old firm, his old (and many new) clients. In time, Davis Polk moved into three floors of rambling, book-lined offices at the corner of Broad & Wall, linked by a secret elevator (behind a panel) to the House of Morgan. But in the place of honor on the senior partner's wall there still hangs a black-and-gold shingle, proudly inscribed DAVIS & DAVIS, ATTORNEYS-AT-LAW--relic of John W.'s country-lawyer days in partnership with his father (John J.), back home in Clarksburg, W. Va. (Even today, Davis sometimes wistfully calls himself a "country lawyer." With a Fifth Avenue apartment and a 16-room house in Locust Valley, wealthy, twice-widowed Davis can be described more accurately as a town & country lawyer.)

Living Legend. In the 29 years since his defeat, Davis has all but faded from popular memory ; in his own profession, he is a living legend. Most Davis Polk business never reaches a courtroom at all. But the courtroom is still the showcase of the legal profession, and John W. Davis the acknowledged star of the show. His finest role is not swaying juries at a trial, but persuading judges on an appeal.

In five years (1913-18) as Solicitor General, "the Government's lawyer," Davis won these famous victories: U.S. v. Midwest Oil Co., upholding President Wilson's executive order withdrawing oil lands from use* Guinn and Beal v. U.S., holding unconstitutional, under the 15th Amendment, the notorious "Grandfather Clause" denying Oklahoma Negroes the vote; Wilson v. New, upholding one of the first U.S. wage & hour laws; The Selective Draft Law Cases. Davis' biggest defeat as Solicitor: Hammer v. Dagenhart, holding the first Child Labor Act unconstitutional/- 5-4 (Mr. Justice Holmes dissenting).

Among his major appeals in private practice: Cement Manufacturers Protective Association v. U.S., holding that members of a trade association had not violated the Anti-Trust laws by swapping business information; U.S. v. Macintosh, rejecting, 5-4, Davis' argument that a conscientious objector should not on that account be denied citizenship;* Associated Press v. NLRB, in which the Supreme Court, 5-4, applied the NLRA to newspapers, rejecting Davis' "freedom of the press" argument; Niagara Mohawk Power Corp. v. Federal Power Commission, now "in the bosom of the court" awaiting decision (issue: Who owns Niagara Falls?).

Go for the Jugular. In Daniel Webster's more leisurely time, the great case of McCulloch v. Maryland consumed six days of argument; today counsel are ordinarily confined to an "hour apiece. For Davis, therefore, Webster's first principle of argumentation is more important than ever: "The power of clear statement is the great power at the bar." In front of him, Davis spreads out the "record on appeal," and the "briefs" (written arguments, hammered out by other lawyers in his firm and submitted to the court in advance). Davis has prepared no full-length script, no memorized remarks--just a few key phrases on a scribble sheet. But he is master of his case. Lightly he skips from page 1,428 of the record to page 3, and back again, to make his points. His words, though spontaneous, are apt; his voice still sonorous, if no longer as powerful ("The horn you blow doesn't get any louder as you get older"); his argument confident without being arrogant. Other lawyers may try to put across a dozen ideas in a case. Davis prefers to narrow the issue to its lifeline: "Always go for the jugular vein."

sb

THURGOOD MARSHALL, 45, who ranked No. 1 in his law-school class ('33) at all-Negro Howard University in Washington, D.C., used to cut classes regularly--whenever John W. Davis came to town. Recalls Marshall: "Every time John Davis argued, I'd ask myself, 'Will I ever, ever . . .?' and every time I had to answer, 'No, never.' " Nowadays Marshall, officially special counsel of the National Association for the Advancement of Colored People, and unofficially (to the Negro press) "Mr. Civil Rights," has his own Howard cheering section. But, though he thinks John Davis "all wrong on civil rights." Marshall stayed up most of one night recently to "edit out the snide cracks" about Davis from a draft brief in the Briggs case, prepared by more emotional and less respectful juniors on N.A.A.C.P.'s interracial legal staff. Says Marshall sagely: "Lose your head, lose your case." But in the courtroom, Marshall is at his most moving when he is most moved.

Four Corners. From the actual plaintiffs and defendants he represents, Marshall gets not a cent; the N.A.A.C.P. and its Legal Fund (combined annual budget: $500,000) pay him a flat $12,000 a year to give first-class counsel to Jim Crow's "secondclass citizens." Marshall generally has a running headstart on opposing lawyers in civil rights cases; the law he made yesterday is today's precedent. Four of Marshall's victories have become the constitutional cornerstones of the Negro's new civil rights: Smith v. Allwright, outlawing the Texas "white primary" and opening the way to effective Negro voting throughout the South; Morgan v. Virginia, striking down state-imposed segregation in interstate transportation; Sweatt v. Painter, compelling the University of Texas to admit a Negro to its law school; Shelley v. Kraemer, holding unenforceable, under the 14th Amendment, a racial housing covenant. Marshall's Supreme Court record: won 13, lost 2.

While John W. Davis customarily goes almost uninterrupted in his arguments before the Supreme Court, enjoying the deference paid to the dean of the appellate bar, Marshall has generally been peppered with questions. He is as proud of these spirited exchanges as Davis should be of his immunity from them; Marshall rightly regards it as a personal tribute that the justices expect him to meet the frankest and most penetrating questions they can put. After his argument in Alston v. School Board, involving racial discrimination in salaries of public-school teachers in Norfolk, the U.S. Court of Appeals for the Fourth Circuit paid Marshall a rare compliment of another kind: still in their robes, the three judges stepped down off the bench to congratulate him on his masterly presentation. (He won.)

Finder's Rights. Thurgood (short for Thoroughgood) Marshall was born in Baltimore. His father was a country-club steward; his mother is a teacher in the segregated public schools there.

Young Marshall went to Jim Crow public schools himself, then to Pennsylvania's private, predominantly Negro, Lincoln University. On the side. he worked as grocery clerk, dining-car waiter, baker. His father wanted Thurgood to study law; no law school in Maryland would accept a Negro.

Marshall enrolled at Howard. "There," he says, "for the first time, I found out my rights." The late Charles Houston, then Howard's law dean and later N.A.A.C.P.'s counsel, looked on Howard as a self-destroying force: he wanted it to turn out a battery of able Negro lawyers who would one day accomplish the abolition of segregation, and so make Howard obsolete.* Star Student Marshall signed on, eventually (1938) succeeded Houston in the N.A.A.C.P. job. It has taken harddriving, easygoing Marshall to all 48 states, Japan and Korea, has several times put him in hot spots where mobs menaced his life. Inching along from precedent to precedent, Marshall is conscious of the distance still ahead, but also conscious and proud of the distance he and the N.A.A.C.P. have already traveled. Says he: "It's good to see the change, when you know you did it.':

* A decision that returned to plague Davis in the Steel Seizure case.

/- Overruled 23 years later.

* Overruled 15 years later.

* There was a Howard lawyer in each of the five segregation cases.

This file is automatically generated by a robot program, so reader's discretion is required.