Matthew J. Perry: The Man, His Times, and His Legacy

By Randall L. Kennedy

The landmark—but largely unsung—career of a civil rights pioneer

Matthew J. Perry: The Man, His Times, and His Legacy chronicles the life and accomplishments of the attorney who led the struggle for desegregation in South Carolina, served as a primary legal advocate in the national civil rights movement, and became South Carolina's first African American U.S. District Court judge. In this volume, scholars of the civil rights era, fellow civil rights activists, jurists, attorneys, a governor, and an award-winning photojournalist join together to produce a multilayered biography of Matthew J. Perry. Collectively they bring to light the remarkable achievements of a man well known in his home state but sometimes obscured on the national stage by the shadows of Thurgood Marshall, J. Waties Waring, and Charles Hamilton Houston.

This volume tells the story of Perry's life, including his humble beginnings in Columbia, his service to the nation during wartime, his remarkable career as a creator of positive social change, and, finally, his achievements as a respected member of the federal judiciary. The contributors describe Perry's courage, skills as an orator, quick legal mind, and genteel nature. They set his story in the turbulent civil–rights–era South, revealing how broad social, historical, and legal issues affected Perry's life and shaped the trajectory of his activist and professional life. The volume underscores how Perry enabled his home state to escape from Jim Crow's clutches with much less turmoil than many of its neighbors.

Published in concert with the dedication of the Matthew J. Perry, Jr. United States Courthouse in Columbia, South Carolina, this life story portrays an esteemed juror whose grace and resiliency led South Carolina into the twentieth century.

• Language: English
• Publisher: University of South Carolina Press
• Release date: Feb 22, 2021
• ISBN: 9781643362090

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RANDALL L. KENNEDY

Introduction

Matthew J. Perry, a Lawyer with a Cause

AMONG THE FACETS of Matthew J. Perry, Jr.’s life that warrant admiration, the most inspiring and consequential is his tenure as the leading civil rights attorney in South Carolina during the Second Reconstruction. Perry is the Palmetto State’s Thurgood Marshall. He has played a central role in all of the important legal challenges that civil rights activists directed against the old regime of Jim Crow pigmentocracy. Perry has had a long and distinguished career as a judge on the United States Court of Military Appeals and the United States District Court in South Carolina. Like Marshall, however, his career would warrant extended notice even had he not received appointment to the bench. Professor Harry Kalven, Jr., once quipped that the Civil Rights Movement was the first revolution in history conducted, so to speak, on advice of counsel.¹ Perry was part of a remarkable cadre of attorneys who offered wise advice and contributed excellent advocacy. Inspired by the entire sweep of his exemplary life-in-the-law, this essay focuses on the difficulties that Perry faced as a young black attorney, the methods he used to overcome obstacles, and his role as counsel to civil rights activists, many of whom he represented in criminal prosecutions for trespass and disorderly conduct when they were arrested for participating in sit-ins and other forms of protest.²

Born in Columbia, South Carolina, in 1921, Matthew Perry inherited a social order in which law and custom subordinated blacks in virtually every phase of life. This regime violated the fundamental norms of American democracy. After all, in the aftermath of the Civil War, during the First Reconstruction, federal constitutional amendments abolished slavery, required states to offer to all persons equal protection under the law, and prohibited states from using race as a criterion for voting eligibility. And, for a brief period, racial egalitarianism did surface in South Carolina. Blacks helped to write the state Constitution of 1868, held posts in the state legislature, represented South Carolina in the United States Congress, and administered law as jurors and sheriffs. In 1870 Jonathan Jasper Wright became the first black in American history to sit on a state Supreme Court.³ In 1873 the University of South Carolina became the first institution of higher education in the South to admit black students, and for four years thereafter blacks attended the university’s school of law where they learned the rudiments of jurisprudence alongside white colleagues.⁴

Tragically by the beginning of Matthew Perry’s lifetime, the very idea of racial equality in South Carolina had suffered a systematic repudiation. The story of the white primary is illustrative. For many years state law regulated the primary elections of political parties. The dominant party, the Democratic party, expressly prohibited Negroes from voting in its primaries. Since the Democratic party monopolized statewide office-holding through the first half of the twentieth century, the exclusion of blacks from party primaries essentially meant their disfranchisement.

In 1944, in Smith v. Allwright,⁵ the federal Supreme Court invalidated a white primary arrangement in Texas that was essentially the same as South Carolina’s. Officials in South Carolina responded by repealing the laws regulating primaries and then arguing that, as private organizations, political parties are beyond the scope of federal constitutional rules since those rules apply only against governmental action. Appealing to a special session of the state legislature, Governor Olin D. Johnson declared that after these statutes are repealed, we will have done everything in our power to guarantee white supremacy in our primaries.⁶

In 1946 George Elmore, a black South Carolinian, challenged the new system of racial exclusion.⁷ Vindicating the plaintiff, a federal court of appeals condemned the South Carolina state government’s efforts to insulate political parties from constitutional requirements. It ruled that this scheme denied blacks all effective voice in the government, that the state was involved in this malevolent project, and hence that this spurious effort at privatization thus amounted to a negation of federal constitutional rights.

Serving notice that it meant to perpetuate white supremacy regardless of opposition, the state political establishment responded to the Elmore decision defiantly. The Democratic party decreed that while whites were eligible for membership, blacks could be only nonmembers. The party also insisted that while members were automatically eligible to vote in its primaries, non-members could attain eligibility to vote only by taking an oath which declared in relevant part, I … solemnly swear … that I believe in and will support the social, religious, and educational separation of the races.⁸ This obstruction, too, was soon invalidated by a federal court.⁹ But that it existed at all reveals the remarkable extent to which the ascendant political elites of the state were openly, proudly, and self-consciously committed to a racist worldview.

In the South Carolina in which Matthew Perry grew to maturity, state officials tried every conceivable way to reinforce white supremacist dogma. Statutes demanded, for example, that circuses maintain separate entrances marked For White People and For Colored People, that the state training school for the feeble-minded admit white persons only, and that whites and blacks be separated in trains, steamships, buses, prisons, and textile factories.¹⁰ In no area of public life was Jim Crow segregation more sedulously guarded than public education. A provision of the state constitution stipulated that Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school for children of the other race.¹¹

Pursuant to this directive, Perry was limited, like all black South Carolinians of his time, to separate and unequal primary and secondary schools. Although the state constitution spoke only of segregating children, officials also operated the state’s colleges and professional schools on a rigidly segregated basis. A state law enacted in 1887 expressly provided that the University of South Carolina was to be open exclusively for white students.¹²

Perry attended South Carolina State College, the black analogue to the University of South Carolina. During college, he enlisted in the armed services and traveled across the country. During the Second World War, he also visited Belgium, England, and France as a member of the Army Quartermaster Corps—an experience that broadened his horizons and acutely sensitized him to the deep hypocrisy embedded within American democratic pretensions. Though a soldier in the Allied army of liberation, Perry nonetheless remained in the grip of Jim Crow both at home and abroad. In Alabama he suffered the indignity of seeing Italian prisoners of war being welcomed in a restaurant, while as a black soldier in uniform he could only obtain a sandwich through a rear window. In Europe he served in a segregated unit that mostly did manual labor overseen, of course, by white officers.

Upon returning to the United States after the war, Perry completed college and decided to pursue further study. Several influences nourished his ambition. His parents instilled a deep appreciation for learning. Neither his mother nor his father attended college; indeed his father, himself a veteran of World War I, received little more than an elementary school education. Matthew Perry’s parents understood, however, that education could serve as a means by which their children could attain upward social mobility. They championed education with evangelical zeal and imbued their son with a burning desire to attain professional training that would hold open a possibility for more security, independence, and happiness at work than was the typical lot of laboring people, particularly black laboring folk. Perry’s instruction with regards to this matter was by no means abstract. His mother, Mrs. Jennie Lyles Perry, and grandfather William Lyles (his father, Matthew J. Perry, Sr., died during his childhood) not only insisted that Perry do household chores daily, they also insisted that he help with the financial upkeep of the family. After school and on weekends he dug ditches, delivered papers, painted, and did all manner of other odd jobs, attaining a familiarity with menial work that later played a role in prompting him to seek a higher station.

Another influence was ideology. As a collegian, and even more as a tested veteran of the armed services, Perry perceived that he and other blacks were being systematically wronged. I accepted our plight as a fact of life, he later recalled, and yet I was sure that it wasn’t right. He chafed at the limitations imposed upon him by the segregation regime and came to believe that becoming an attorney might arm him with the necessary resources to attack those injustices.

Perry would have liked to have attended the University of South Carolina School of Law, but the university’s policy of open, unembarrassed racial exclusion barred him. In 1946, a black student named John H. Wrighten III challenged that policy. He sued, claiming that the state was in violation of the federal Constitution’s Equal Protection Clause in that it offered a legal education to whites but not to blacks. Wrighten alleged that South Carolina was failing even to meet the separate but equal standard; worse than offering a segregated law school to blacks, the state offered blacks no law school at all.

Judge J. Waties Waring, the most liberal judge in the state, ruled in favor of the plaintiff. But even Judge Waring declined to grant Wrighten the relief he sought—immediate admission to USC. Instead, the judge gave the state the choice of doing away with public legal education altogether, admitting Wrighten to USC, or quickly establishing a law school for black South Carolinians. State officials chose the latter course. They conjured up a South Carolina State College Law School and brazenly asserted that their instant creation was substantially equal to the USC School of Law.¹³

The first class that matriculated at South Carolina State College Law School contained only six students. Matthew Perry enrolled in the second class. It contained only five students. Previously, students who graduated from the state’s public law school were granted automatic admission to the South Carolina bar. After South Carolina State opened, however, the rules were suddenly changed. Now passing an examination became a prerequisite to admission to the bar. For good reason, black aspirants feared that they would be victimized by a racially prejudiced administration of the bar exam. Some probably were. To succeed in such an environment, blacks frequently had to perform better than merely passable. As the saying goes, they had to be twice as good to receive half as much as their white counterparts. Perry was well aware of these realities, and that understanding stood him in good stead. Despite the obstacles that faced him, he passed the bar examination on his first try.

When Perry graduated from law school in 1951, the opportunities available to any black attorney, much less a black neophyte, were discouragingly scarce. Prosecutors’ offices were off limits. So, too, were judges’ chambers. So, too, were the offices of the white attorneys who constituted the great bulk of the state bar. For a white firm to have hired a black attorney in those days would have been inconceivable.

Segregation gave certain black professionals or entrepreneurs a monopoly over black consumers. One thinks of barbers, morticians, hoteliers, restauranteurs, and clerics. But segregation did not even offer this dubious benefit to black attorneys, because black litigants were often loathe to engage a black lawyer for fear of provoking the disapproval of white judges or juries. It is not surprising that the post office and the classroom frequently served as the primary workplaces for many blacks who, on paper, were lawyers.

Perry began his legal career as a solo attorney practitioner in Spartanburg, South Carolina. He was the only black lawyer in town and one of only 15 Negro attorneys in the state. He accepted anything that walked in the door and agonized over the many days when no clients disturbed his loneliness. From time to time, however, he did get a chance to practice his craft. In one instance, he was called upon to represent a black defendant charged with violating a traffic ordinance. The presiding municipal court judge normally treated attorneys with respect, if not cordiality. When Perry stepped forward, however, the judge’s demeanor visibly hardened. Perry recalls the judge asking nastily, "What have you got to say? The words May it please the court …" had hardly left Perry’s mouth before the judge interrupted, declaring essentially that there was no need for argument because he had already determined that Perry’s client was guilty and that he deserved the maximum punishment available.

A while later, Perry appeared before the same judge and received the same treatment. A bit later, he appeared before the same judge yet again. On this third occasion, however, Perry was prepared. As soon as the judge interrupted and delivered another maximum sentence, Perry served him with a notice of appeal and remarked that he had brought a stenographer to the hearing in order to establish a proper record. Taken aback, the judge asked Perry why he had prepared a notice of appeal even before the hearing. Perry recalls replying that he had prepared the notice because he knew beforehand, based on his past unpleasant experience, what was going to happen. After Perry prevailed on appeal, that judge accorded him and his clients increased courtesy and, even better, discernibly more fairness.

Although Perry’s initial cases did not involve direct challenges to the Jim Crow system, he prepared himself for the coming combat by studying the court decisions that increasingly undermined the legitimacy of the Jim Crow system. Cases that are now largely forgotten were to him exciting beacons signaling the possibility of a brighter future—holdings such as Morgan v. Virginia (1946)¹⁴ in which the federal Supreme Court reaffirmed the illegality of racial segregation in interstate travel; Shelley v. Kramer (1948)¹⁵ in which the Court decided that state judges could no longer legitimately enforce racially discriminatory restrictive covenants; McLaurin v. Oklahoma (1950)¹⁶ in which the Court ruled that it was unconstitutional for the University of Oklahoma to restrict a black student to a separate, racially identified space in the cafeteria, library, or classroom; and Sweatt v. Painter (1950)¹⁷ in which the Court held that a racially isolated University of Texas law school for Negroes could not realistically be seen as equal to the University of Texas law school for whites.

Perry attended seminars sponsored by the NAACP Legal Defense Fund where he met Robert Carter, Oliver Hill, Thurgood Marshall, Constance Baker Motley, Samuel Tucker, and scores of other experienced civil rights lawyers. On one occasion he traveled to Howard University in Washington, D.C., to witness a mooting of the petitioners’ lawyers in what became the single most important case of the Second Reconstruction—Brown v. Board of Education (1954),¹⁸ the epochal ruling in which the Court held that racial segregation in public schooling violated the Equal Protection and Due Process Clauses of the federal Constitution.

Perry’s initiation into civil rights litigation came through a childhood friend who also became a lawyer, Lincoln Jenkins, Jr., who asked Perry to help him resolve a now-forgotten controversy in Sumter, S.C. Perry’s enthusiastic response gave rise to an effective, long-standing alliance. Most of the important civil rights cases that Perry subsequently litigated were done with Jenkins at his side, the man with whom Perry eventually established a law office.

One of their early cases together stemmed from a lawsuit brought by a young black woman, Sarah Mae Flemming, against South Carolina Electric and Gas Co.¹⁹ Boarding a crowded bus in Columbia on the morning of June 22, 1954, Flemming took a seat vacated by a white passenger. Noting that a black passenger was sitting in the white section of the bus, the driver loudly ordered Flemming to leave the seat and move to the back of the bus. Frightened, Flemming attempted to leave the bus through the front door. The driver jabbed her in the stomach with his elbow and ordered her to leave through the rear door.²⁰

Flemming’s suit was dismissed by a federal trial court but reinstated by the Fourth Circuit Court of Appeals, which ruled that Brown v. Board of Education implicitly forbade states from requiring racial segregation in intrastate travel. After Flemming’s case was tried on remand and again dismissed, Flemming’s local counsel, a white attorney, removed himself from the case because of threats to his family, as well as the social and financial costs exacted by pressing an argument that many whites perceived as a dire threat to their way of life. Determined to pursue her claim, Flemming engaged Jenkins as her new local counsel. Winning again on appeal the case was again remanded for another trial.²¹ Jenkins turned to Perry to help him try the case.

The Flemming case underlines a point often obscured by the prominence given to iconic events and personalities. Negroes throughout the United States have always struggled against their oppression. In the post–World War II era, for example, challenges to Jim Crow segregation in the Deep South did not begin with Rosa Parks and the magnificent protest that she, Martin Luther King, Jr., and others mounted in Montgomery, Alabama in 1955–56. Prior to Parks’s disobedience were similar objections raised by other Negroes, including black South Carolinians, who resisted segregation.

The Flemming case also underscores the risks that attorneys faced when representing clients who fought the Jim Crow regime. Attorneys often depend on favorable word-of-mouth to obtain referrals and on the good will of colleagues, adversaries, and judges to obtain desirable outcomes for clients. For this reason, even established white attorneys frequently declined to represent certain people or to voice certain arguments. It was well-known, for example, that in many parts of the Deep South, most white attorneys simply refused to question racially discriminatory jury selection procedures.²² Some may have foregone these claims for strategic reasons. Some, as segregationists themselves, may have done so for ideological reasons. But many ignored potential claims for a purely self-interested reason: They did not want to rile their neighbors.

Similar pressures affected black attorneys. To be sure, there were some who, ironically, may well have felt freer than their white counterparts. Bereft of lucrative ties to established political and economic power, some may have felt less burdened because they had less to lose. On the other hand, financial, professional, political, and social weakness prevented some black attorneys from openly attacking segregation.

Perry, by contrast, consistently joined with those who fought Jim Crow. Although he assisted in many campaigns featuring various organizations, the one with which he was most intimately involved was the NAACP. For many years, beginning in the late 1950s, he chaired the Legal Committee of the South Carolina NAACP and subsequently became an influential officer in that association at the national level.

Looking back it may seem obvious that self-advancement would dictate affiliation with the Civil Rights Movement on the part of an ambitious black lawyer. At the time, though, that conclusion was anything but clear. There was no assurance that Matthew Perry, or his contemporaries Ernest Finney, Lincoln Jenkins, Donald James Sampson, Willie T. Smith, Zack Townsend, John H. Wrighten, and others who offered counsel to civil rights activists would be on the winning side. That is why some people, blacks and whites alike, warned attorneys like Matthew Perry to eschew affiliations with civil rights activists. They feared the prospect of throwing away hard-won professional training on futile struggles that might only attract the enmity of powerful whites.

While representing Sarah Mae Flemming, Perry encountered one of the realities behind such fears. More specifically, he encountered George Bell Timmerman, the United States district judge who presided over the case and was the father of South Carolina’s incumbent governor. Timmerman was in a position to assist or impede a young lawyer. By stepping into the breach to become Flemming’s advocate, Perry attracted Timmerman’s ire. As Perry recalls the matter, the judge treated him and his co-counsel like so much garbage—mistreatment that would have been fully consistent with Tim-merman’s record as an implacable, prickly, and outspoken white supremacist. When South Carolina enacted legislation making membership in the NAACP grounds for the dismissal of public school teachers, Judge Timmerman wrote an opinion defending the constitutionality of this provision. The statute, he declared, is designed to protect young minds from the poisonous effects of NAACP propaganda. In his view, it was eminently justifiable for the state to disqualify from public teaching positions any person belonging to the NAACP, because that organization disturbed the peace and tranquility which has long existed between the white and negro races….²³ Of course, the peace and tranquility that Judge Timmerman lauded was merely an apparent acquiescence coerced by racist tyranny. And the poisonous propaganda he condemned was nothing more than an insistence on equal justice before the law. That anyone would have been forced to confront such a judge in a court of the United States is appalling. That a young black attorney affiliated with the NAACP would have faced that situation is still more chilling. Yet that was the situation that Matthew Perry encountered and sought to overcome.

Although the racial prejudice that suffused Jim Crow South Carolina inevitably infected the atmosphere of the courtroom, trials presented one of the few arenas in which black professionals could meet their white counterparts in open, head-on competition. Not only was this opportunity to engage in battle exciting for black attorneys, but it was also uplifting for black onlookers. Jim Crow racial etiquette generally forbade whites from according to blacks honorific symbols of respect such as calling them Mr. or Mrs. The ethics of racial domination in the Deep South instead demanded that whites refer to blacks by their first names, or simply as boy or girl no matter what the person’s age. In courtrooms, however, black attorneys were often able to elicit at least grudgingly respectful treatment from judges and opposing counsel—a concession that many black spectators especially savored.

By the beginning of the 1960s, blacks across the country were demanding change with an ever-increasing militance. In many narratives, the pivotal event signaling the onset of a more aggressive phase in the struggle against racial injustice was the sit-in of February 1, 1960. On that day four freshmen at North Carolina A&T College, in Greensboro, North Carolina, occupied seats and requested service at a lunch counter at an F. W. Wool-worth’s store that customarily served only whites. The Greensboro sit-in was electrifying and inspired similar outbursts of disciplined rebellion across the South. It is worth noting, however, that on January 1, 1960—one month before Greensboro’s landmark sit-in—several hundred black South Carolinians gathered at the Springfield Baptist Church in Greenville, South Carolina, to engage in their own protest against racial stigmatization. During a 1959 visit to Greenville, the great baseball star Jackie Robinson suffered verbal abuse and was threatened with arrest when he entered the whites only waiting room at the Greenville Municipal Airport. Angered by this affront to one of the nation’s most esteemed Negroes, Reverend J. S. Hall led some 350 persons on a march through sleet and rain to the airport, where 15 of the protesters entered the white waiting room and bore witness to a statement read by Reverend C. D. McCullough of Orangeburg. We will no longer make a pretense of being satisfied with the crumbs of citizenship while others enjoy the whole loaf only by the right of a white skinned birth, the minister asserted. We will no longer acquiesce in the degradation which Southern tradition … imposes upon us, but will insist upon the right to participate fully in the democratic processes of our nation…. With faith in this nation and its God we shall not relent, we shall not rest, we shall not compromise, we shall not be satisfied until every vestige of racial discrimination and segregation has been eliminated from … public life.²⁴

For the next few years, such protests erupted constantly in South Carolina. Many led to arrests which were challenged in the highest state and federal courts. The circumstances varied widely. In Rock Hill, Arthur Hamm, Jr., entered a McCrory’s five- and ten-cent store with Reverend C. A. Ivory, whom Hamm pushed in a wheelchair. After purchasing several items, Hamm and Ivory proceeded to the lunch counter where they asked to be served. They were told that the store observed a policy of serving only whites at the counter and that they should leave immediately or else face arrest. Refusing to budge, they suffered arrest and convictions for trespass.²⁵

In Greenville, ten black youngsters entered an S. H. Kress store and seated themselves at a counter for the purpose of being served a meal. At that time there existed a city ordinance which required racial separation in restaurants. The punctiliousness with which the ordinance enforced racial caste distinctions warrants notice:

It shall be unlawful for any person owning, managing, or controlling any hotel, restaurant … or similar establishment to furnish meals to white persons and colored persons in the same room, or at the same table, or at the same counter; provided, however, that meals may be served to white persons and colored persons in the same room where separate facilities are furnished.

Separate facilities shall be interpreted to mean:

(a) Separate eating utensils and separate dishes for the serving of food, all of which shall be distinctly marked by some appropriate color scheme or otherwise;

(b) Separate tables, counters or booths;

(c) A distance of at least thirty-five feet shall be maintained between the area where white and colored persons are served

…

(e) A separate facility shall be maintained and used for the cleaning of eating utensils and dishes furnished the two races.²⁶

After James Richard Peterson and the other protesters in Greenville declined to leave the counter following the store manager’s refusal to serve them, they, too, were arrested and convicted for trespass.

In Columbia, protests were particularly numerous and strong. In one instance, two Negro college students, Simon Bouie and Talmadge Neal, took seats in a booth in the restaurant department at an Eckerd’s drugstore and waited to be served.²⁷ Soon thereafter, an employee of the store put up a chain affixed with a NO TRESPASSING sign. The college students paid it no heed and continued to sit quietly in the booth. The store manager then called city police and asked them to remove the students. After the police arrived, the manager asked the students to leave. In keeping with the civil rights anthem We Shall Not Be Moved, they stayed put. A police officer then asked them to leave. Bouie inquired into the basis of the officer’s demand and was told that a continued refusal to move would constitute a breach of the peace. When the students remained seated, they were arrested.

The Taylor Street Pharmacy in Columbia was also the site of a sit-in. Unlike some establishments, the pharmacy would sell food to blacks at its lunch counter. But it would not permit them to sit on stools at the counter to eat the food. Five college students—Charles F. Barr, David Carter, Richard Counts, Milton D. Greene, and Johnny Clark—sat in to protest this policy and, upon refusing to leave, were also arrested.²⁸

The largest demonstration in Columbia occurred on March 2, 1961, when nearly 200 high school and college students gathered at the Zion Baptist Church before walking in groups of 15 to the grounds of the South Carolina State House to voice their disapproval of segregation. The dissidents walked single file or two abreast in an orderly fashion carrying placards emblazoned with messages such as I Am Proud to Be a Negro and Down with Segregation. After 45 minutes had elapsed, city authorities insisted that the protesters disperse. These authorities later stated that they feared disorder—not at the hands of the demonstrators but perhaps at the hands of possible troublemakers who were among the 200 to 300 white onlookers that curiously witnessed the demonstration. The dissident students, however, refused to disperse. When they were told to leave or face arrest, they began to sing religious and patriotic songs, including The Star Spangled Banner, while clapping their hands and stomping their feet. The police then proceeded to arrest the protesters en masse and march them off to jail.²⁹

Amidst the variety of individual dramas embedded in these episodes of defiance are several important similarities. First, each of these cases ended up on the docket of the Supreme Court of the United States. Second, each conviction was ultimately reversed. Third, in each of the cases Matthew Perry played an integral role. Perhaps the most essential task that he performed was creating and preserving a good record for appellate review. This was no small matter. Trial lawyers must typically take care to meet all relevant procedural requirements. In these cases, however, carefulness was an even more imperative need than usual since local, hostile judges were quick to seize upon any misstep as a basis for an adverse judgment.

Perry harbored no illusions about winning at trial. Indeed, he was so convinced that local juries would convict his clients that he invariably waived their right to a jury and opted instead for bench trials. He also knew that local judges would almost certainly convict, but determined that bench trials would proceed more quickly and cleanly. Perry expected little relief from the South Carolina Supreme Court. On occasion that Court repudiated some of the more blatant excesses of police and prosecutors. But there was no doubt in Perry’s mind that if his clients were to prevail they would have to do so in the United States Supreme Court.

Perry assisted significantly in fashioning the arguments intended to persuade the justices to reverse the convictions of the protesters. He benefited from the experience and sophistication of the legendary lawyers at the NAACP Legal Defense Fund, and in some instances Legal Defense Fund attorneys made the oral arguments at the federal Supreme Court in cases that Perry and his local associates had painstakingly developed in the state courts. On three occasions, Perry himself stood in the well of the Supreme Court in Washington, D.C., to argue on behalf of his clients.³⁰

Without disparaging Perry’s considerable skills as a legal strategist, trial lawyer, and appellate advocate, it should be noted for the sake of realism that an advocate can do nothing more than facilitate a favorable judgment; he cannot compel it. Had Perry argued before a Supreme Court of the United States constituted by jurists who shared the views of, say, Judge Timmerman, he would have been unsuccessful regardless of the technical brilliance of his arguments. Fortunately, the justices before whom he argued were of a different stripe. Sympathetic to the aims of the protesters, the justices of the Warren Court, or at least a majority of them, displayed a ready willingness to embrace arguments in favor of reversing the protesters’ convictions—even when some of these arguments tested the bounds of plausibility.³¹ In Simon Bouie’s case, for example, the Court reversed his conviction on the ground that he was deprived of notice that his conduct was illegal—a strange outcome indeed given that Bouie and his colleagues surely expected to be arrested. Similarly tenuous was the Court’s overturning of the convictions obtained in Rock Hill. Noting that the convictions were pending on appeal when the federal Civil Rights Act of 1964 was signed into law by President Lyndon B. Johnson, and that the act outlawed racial discrimination in places of public accommodation, the Court asserted that Congress had implicitly abated criminal punishments for conduct of the sort in which the defendants had engaged. For the reasons ably stated by four dissenting justices, the Court’s conclusion in this instance is highly debatable to say the least.

Far more satisfying is the judgment in Peterson v. City of Greenville. The Court ruled that the state could not legitimately exclude blacks on a racial basis and that that was, in fact, what had happened. The city of Greenville denied that it was behind the store manager’s refusal to serve blacks. The city’s attorneys conceded that such an exclusion would have been unconstitutional had it been prompted by the city’s segregation ordinance. But the city’s attorneys maintained that the admittedly illegal ordinance had had nothing to do with the manager’s refusal to serve blacks. The manager’s decision, the attorneys argued, was a private choice and hence unconstrained by the federal Constitution. The Court concluded, however, that the city and state had involved themselves in the racially discriminatory exclusion, even assuming that the store manager would have acted as he did independently of the existence of the ordinance. According to Chief Justice Warren, When a state agency passes a law compelling persons to discriminate against other persons because of race, and the state’s criminal processes are employed in a way which enforces the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators.³²

Convincing as well is Edwards v. South Carolina, the case arising from the demonstration at the South Carolina State House. The United States Supreme Court vacated the convictions because, in its view, police authorities had arrested the demonstrators not for any actual disruption they had created, but rather out of fearful anticipation of disruption that might be fomented by enemies of the demonstrators. Indeed, in a remark that bore tribute to the trial record carefully fashioned by Perry and co-counsel, the Court observed that The circumstances in this case reflect an exercise of [First Amendment freedoms] in their most pristine and classic form.³³ The federal Constitution, the Court concluded, does not permit a state to make criminal the peaceful expression of unpopular views simply because it provokes opposition. A function of free speech, the Court said, is to invite dispute.³⁴ The duty of state authorities, the Court made clear, was to protect demonstrators in the exercise of their freedom of expression, not to silence them preemptively in capitulation to those who disapproved of the protesters’ message.

Regardless of one’s view of the federal Supreme Court’s disposition of the protest cases, a proper assessment of Matthew Perry’s performance as an advocate leads easily to the conclusion that he admirably served the interests of his clients and the overall struggle for racial justice. He did not always prevail. He suffered his share of bitter disappointments. After the great initial victory in Brown v. Board of Education, Perry was eventually given the heady responsibility of pressing forward with the implementation of the Court’s decision in South Carolina. From that vantage he witnessed at close range the cruel but effective ways in which state and local officials stymied desegregation. Perry ultimately obtained judicial relief that stopped or at least limited these evasions.³⁵ But the cost in terms of delay was high. On the tenth anniversary of Brown, only ten black students in the entire state attended classes with whites in a primary or secondary public school.³⁶

Sobering, too, were the awful events of February 8, 1968, when state patrolmen shot into a crowd of students at Perry’s alma mater, South Carolina State College, killing three and wounding 28. For a person who had been involved so intimately in protecting civil rights activists through law, these lawless killings were dispiriting indeed. The immediate cause of the demonstration was a throwback to the Jim Crow regime—the refusal of a white bowling alley operator to desegregate his bowling alley. The lethal over-reaction of the state police constituted a vivid reminder of white supremacists’ devaluation of black lives. And the failure of the governor and other officials to investigate seriously the basis of the shootings was a haunting echo of many previous episodes in which blacks had been left without the equal protection of the law. As I. A. Newby aptly observes, the Orangeburg Massacre is best understood as a dramatic illustration of just how little white [South] Carolina had changed through a decade of black activism and a generation of civil rights endeavor.³⁷

Still, for all that remained to be done at the end of the 1960s—for all that remains left to do at present in the early years of the twenty-first century—South Carolina has moved a substantial distance down the road toward racial fairness. The South Carolina in which Ernest A. Finney, Jr., an African American, served as an associate justice of the state Supreme Court from 1985 to 1994 and then as chief justice from 1994 to 2000 is very different from the state which limited Matthew Perry to a segregated law school in the 1940s and 1950s. This is not to minimize the disturbing persistence of racial inequities. But recognizing real advancements not only serves the cause of historical accuracy; it also usefully reflects and encourages militant, intelligent, progressive collective action.

Matthew Perry is in the front ranks of those responsible for racial progress in South Carolina, the South, and indeed the nation. As a leading figure in the legal campaigns of the Second Reconstruction, he mastered with remarkable dexterity the delicate task of gaining and retaining the respect, simultaneously, of lawyers and nonlawyers, blacks and whites, sophisticates and the unlettered, local people and those who answered to national constituencies. Given Perry’s prominence and success, it is remarkable that comments about him—both for and without attribution—contain so few traces of spite, anger, or jealousy. To a notable extent he