Theodore M. Shaw

By Theodore M. Shaw, Professor of Professional Practice at Columbia Law School; “Of Counsel” to Fulbright & Jaworski, LLP; and an American Constitution Society Board Member. He was an attorney at  the NAACP Legal Defense Fund for twenty-three years and was Director-Counsel and President from 2004 until 2008.

John Payton, the sixth Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc., died on March 22, 2012, after a brief illness, at the age of sixty-five. John was one of the most formidable advocates of his generation, and he litigated and argued some of the most important civil rights cases of his time. His legal career spanned private practice, governmental service, and public interest. He led the litigation department of Wilmer, Cutler & Pickering (now Wilmer, Hale), served as corporation counsel for the District of Columbia, and led the NAACP Legal Defense Fund. Among the Supreme Court cases he litigated were NAACP v. Claiborne Hardware, in which he won a decision in the U.S. Supreme Court overturning a monetary judgment against the organization under Mississippi’s secondary boycott law; City of Richmond v. J.A. Croson Co., in which he ably, albeit unsuccessfully, defended a minority contracting municipal ordinance; and perhaps most notably, two cases in which he defended the University of Michigan’s pursuit of diversity in admissions, Gratz v. Bollinger, and Grutter v. Bollinger. Most recently, in 2010, John successfully argued and won Williams v. City of Chicago,an employment discrimination case against the city’s fire department. Under his leadership LDF won five Supreme Court cases, including a successful defense of the recently extended Voting Rights Act.

I had the privilege of knowing John Payton for almost thirty years. Among the most significant matters on which we collaborated were the two Michigan cases. It is said that success has many parents, while failure is an orphan. There were many who were responsible for the 2003 landmark affirmative action cases that saved diversity in higher education, thereby keeping the doors open to selective colleges, universities, graduate and professional schools. John litigated both cases in the trial courts, in the court of appeals, and in the Supreme Court. He argued Gratz, and his work was essential to the victory in Grutter. I was deeply involved in both cases, and while the Legal Defense Fund represented intervening black and Latino students in Gratz and filed an amicus brief in Grutter, the posture of “reverse discrimination” cases excludes or marginalizes the voices of those who have the most at stake -- African Americans and Latinos. Even as John represented the institutional interests of the University of Michigan, it made a difference to black and brown students, and people across the Nation, that his voice, eloquent, forceful, and passionate, was heard in oral arguments before the Court. And so it was in all of the civil rights cases John argued. His was a passionate voice for racial and social justice. But even in the “orphan” cases – which for John were few - John’s work and his voice were no less forceful, excellent, and passionate. When the Supreme Court struck down Richmond, Virginia’s minority contracting program in Crosonby a narrow 5-4 vote, it was not because John Payton failed his client. He had done the best that could be done, and a Supreme Court increasingly hostile to programs and efforts specifically designed to include African Americans and others who had been historically excluded from opportunity was on its way to becoming a forum in which they were unlikely to win. Yet John, in the aftermath of Croson, tirelessly traveled the Country, meeting with attorneys in the public and private sectors in an effort to properly craft contracting programs and to ameliorate the effects of the decision. John did not accept defeat. He simply went back to work.