When Richard Gergel was elevated to the federal judiciary by President Barack Obama in 2010, he found himself assigned to the Charleston, S.C., courtroom of an illustrious predecessor, J. Waties Waring, who had changed the course of American constitutional law.
Few — including Gergel — knew much about him.
The paradox was not lost on Gergel, a lifelong South Carolinian well-versed in local history. But soon, using his knowledge of court procedures and F.B.I. records and the South Carolina Freedom of Information Act, he was on a crusade.
Now, despite judicial duties that included the 2017 trial of Dylann Roof, the young white supremacist sentenced to death for massacring nine African-American worshipers at a Charleston church, Gergel has written a book about a largely forgotten racial atrocity that turned a Confederate soldier’s son into an improbable giant of civil rights jurisprudence. (Gergel would not comment on the Roof trial.)
The book, published Jan. 22 by the Sarah Crichton Books imprint of Farrar, Straus & Giroux, “Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring,” reinvestigates an unpunished crime that, in Gergel’s telling, ignited the modern civil rights movement, including Truman’s desegregation of the military and the Supreme Court’s historic ruling overturning school segregation.
“I stumbled across the story and stumbled across Truman’s role,” said Gergel, 64, on a recent visit to New York. “It was a case that not only woke up Waties Waring, it woke up Truman.”
“There was no one like him,” he said of Waring. “In the South in the 1940s there was a sense that something had to change but no one could figure out how to break the Gordian knot of Jim Crow.”
What turned a Southern gradualist into a revolutionary? “I started digging,” the judge said. Beyond the book, his quest ended in a 2015 renaming of the Charleston federal courthouse as the J. Waties Waring Judicial Center.
The backdrop of the Woodard case was indeed harrowing. On Feb. 12, 1946, Army sergeant Isaac Woodard, 26, discharged with a chest of medals after three years of fighting in the Pacific in a segregated unit, boarded a Greyhound bus from Camp Gordon, in Augusta, Ga., en route to home in Winnsboro, S.C.
There were conflicting accounts of what happened on that bus. Joyous soldiers, black and white, may have been sharing a celebratory bottle of whiskey. Woodard and the driver argued about restroom breaks and Greyhound’s rules requiring a driver to accommodate passengers’s needs.
When the bus stopped in Batesburg, a small town about 30 miles from Columbia, the state capital, the driver summoned the town’s two police officers, Chief Lynwood Shull and his deputy, Elliot Long, and Woodard was ordered off the bus.
Shull admitted using his blackjack on the sergeant. When Woodard wrested it away, Long, gun drawn, ordered him to drop it. Then, by the Gergel book’s account, Shull rained blows on Woodard so ferociously the blackjack broke. Woodard was left sightless, both eyes gouged out, and thrown in jail, igniting a racial fuse that would burn its way across America to Waring, the White House and eventually the Supreme Court.
“It’s more than just an incident, it’s a huge historical moment,” said Patricia Sullivan, a professor of history at the University of South Carolina and author of “Lift Every Voice: The NAACP and the Making of the Civil Rights Movement.”
As a law student at Duke University in the 1970s, Gergel had read of Waring. But passing mention of Woodard escaped him and he didn’t think much of Waring again until, as an intellectual property and personal injury lawyer and outside counsel to the city of Columbia, he was named to the federal bench.
“In my installation talk, I spoke about Judge Waring,” Gergel recalled. “I saw blank looks.”
He plunged into research, using his inside knowledge of court dockets and evidentiary records. “I understood what I was looking at,” he said. “I knew what to ask for.”
Waring, he found, was an eighth-generation Charlestonian born in 1880, with ancestry going back to slaveholders and colonists who arrived in the 1600s. He served as an assistant United States Attorney in Charleston, and with the support of the racially demagogic South Carolina Democratic Senator Ellison “Cotton Ed” Smith, was named by President Franklin D. Roosevelt as one of three judges on the district court in 1942.
His first years on the bench were undistinguished. But in 1944, Waring settled a case in favor of a black teacher paid less than white counterparts, astonishing her NAACP lawyer, Thurgood Marshall, later the first African-American Supreme Court justice. In a second equal-pay case, Waring ruled for the black plaintiff, under the prevailing separate-but-equal doctrine.
Woodard, meanwhile, was convicted of drunk and disorderly conduct and settled his $50 fine with his last $44 cash. Doctors pronounced him irretrievably blind, and the government disclaimed responsibility as he had been discharged from the military five hours before his injury.
Outrage built as news of the assault spread through what was then called the Negro press, attuned to anger over the 900,000 black veterans who had fought for democracy abroad and were now demanding it at home. Orson Welles denounced the beating on his national radio show. Joe Louis, Nat King Cole, Cab Calloway, Woody Guthrie and other stars staged a benefit in Harlem where Woodard spoke.
In various archives, including NAACP files, Gergel found overlooked material on the reaction of Truman, who told an aide: “Enough is enough. Dammit, I’m going to do something immediately.” Truman directed the Justice Department and F.B.I. to pursue a criminal civil rights case against Shull. The case fell to Waring, who was skeptical of any federal role in enforcing racial justice and ready to dismiss the charges. But prosecutors were pressed to proceed and the trial began in November 1946.
Woodard testified that Shull had driven the handle end of the blackjack into each eye. Shull countered that Woodard had attacked him without provocation and that in self-defense he had struck Woodard a single blow. Medical records never introduced in court but later tracked down by Gergel and shown to a pathologist confirmed Woodard’s account.
The trial took one day. The all-white jury came back in 28 minutes to pronounce Shull not guilty. Waring, deeply troubled by a bungled prosecution, called the sham trial his “baptism of fire.” Later, asked what changed him, Waring told reporters, “While on the bench, I developed a passion for justice.”
The following year, Waring ruled that the Democratic Party had to open its whites-only primary to black voters. He sent a white farmer to prison for a year for forcing an indebted sharecropper to work without pay, a form of enslavement commonly winked at by Southern courts. He issued orders enforcing black voting rights and with more blacks appearing on juries, desegregated the jury box.
And in 1951, driven to search for a strategy to overturn Plessy v. Ferguson, the 1896 Supreme Court ruling legalizing segregation as long as the races were treated equally, Waring persuaded Marshall, still representing the NAACP, to present “a frontal attack” on segregation in a lawsuit brought on behalf of Henry Briggs, a black gas station attendant in Summerton, S.C., claiming that white children got bus transportation to school while black children did not. Waring was outvoted on a three-judge panel, but his forceful dissent attacking the policy as a violation of the 14th Amendment guaranteeing equal protection of the law, strategically propelled the case into the Supreme Court where it was consolidated with similar cases and decided in 1954 as “Brown v. Board of Education” overturning school segregation.
For his efforts, Waring was menaced by the Ku Klux Klan and threatened with impeachment. A cross was burned in his backyard. He required 24-hour protection.
Waring left South Carolina for New York, dying there in 1968 at 87. Woodard died in the Bronx at 73 in 1992.
Among Waring’s admirers, Gergel writes, was a young African-American minister who had masterminded a bus boycott in Montgomery, Ala. He “will long be remembered,” said the Rev. Martin Luther King Jr., “for his minority opinion has now become a majority opinion.”