Lucas E. Morel
The Joe Louis of the Courtroom
When President Lyndon Johnson nominated Thurgood Marshall to the Supreme Court, the New York Times opined that "apart from the symbolism, Mr. Marshall brings to the Court a wealth of practical experience as a brilliant, forceful advocate." Unfortunately for Marshall, all we remember today is the symbolism—the Court's "first Negro." This is surprising given Marshall's near-quarter century on the high court. How did the symbol obscure the substance of the man Justice William J. Brennan called "the central figure in this nation's struggle to eliminate institutional racism"? Two well-researched biographies, plowing much of the same ground but for different readerships, attempt to recover Marshall's pre-Court reputation as "Jim Crow Buster."
Juan Williams, Washington Post correspondent and author of the critically acclaimed civil-rights documentary Eyes on the Prize, presents Marshall's life in almost bite-sized chapters. Written for a popular audience, Thurgood Marshall: American Revolutionary will instruct while it fascinates even the casual reader. Williams devotes most of his biography to Marshall's 27-year association with the NAACP. Perhaps deservedly so, for what Americans know least about Marshall's legal career is precisely what needs most to be recovered.
Born July 2, 1908, Thoroughgood Marshall went on to live in every decade of the twentieth century. In Williams's account, Marshall's 84-year life span intersects with a veritable "Who's Who" of black America: one finds him carousing with Cab Calloway (of "Minnie the Moocher" fame) at Baltimore's Colored High and Training School; defending an all-white faculty at Lincoln University from the barbs of a worldly-wise "returning student" named Langston Hughes; flirting with the "angels" at Father Divine's peace mission during his Howard Law School days; playing late-night poker with Duke Ellington on the eve of his "first big case" (Smith v. Allwright, a Texas "white primary" case); helping Jackie Robinson sort through his financial problems; the list goes on. When he died on January 24, 1993, this great-grandson of a slave had not only helped secure the rights of blacks in the United States but had flown to Korea to defend them from discriminatory courts-martial, and even helped write a new constitution for postcolonial Kenya.
"Thurgood," as the second-grader shortened his name, was the second of two sons raised by fiercely independent parents: William, a Pullman dining car porter, and Norma, a Baltimore schoolteacher. Williams recounts that by the time Thurgood entered Douglass Colored High, he had a reputation "as a cut-up and prankster." Still, many a kitchen argument with his cantankerous father prepared him to captain the varsity debate team while only a freshman. When he later enrolled at Pennsylvania's Lincoln University, known as "the Black Princeton," Marshall would again make the varsity debate team as a fresh man and hone the rhetorical skills he would wield as the NAACP's legal barnstormer through segregated America.
Racism made its deepest impression upon Marshall when he chose the law over dentistry as his profession. After graduating from Lincoln University with honors in 1930, the recently wed Marshall returned to Baltimore with high hopes but little money. He planned on attending law school at the University of Maryland, where the tuition was cheap, but local lawyers in formed him that only two blacks had ever graduated from the law school, and none since segregation laws took hold across the South in the 1890s. To spare himself the indignity of a rejection, Marshall never applied to the University of Maryland Law School, but he re solved to learn the law in spite of Jim Crow's initial rebuff to his ambition.
Marshall found his calling and eventually his revenge under the new vice dean at Howard University Law School, the legendary Charles Hamilton Houston. A Phi Beta Kappa student at Amherst College and the first black editor of the Harvard Law Review, Houston arrived at Howard in 1929 determined to revamp its struggling evening law program into a "West Point of Negro Leadership." Its primary purpose: to train a cadre of civil-rights lawyers who would act as "social engineers," paving the way for full integration of blacks into the mainstream of American life. In only his second year, the domineering and perfectionist Houston turned a "dummy's retreat" into a full-time law school ac credited by the "lily white" American Bar Association. As Marshall remembered it, "I never worked hard until I got to the Howard Law School and met Charlie Houston." Williams writes that Marshall got the "horsin' around" out of his system and "dug deep" in his law books. In June 1933, he graduated first in his class—one of only six out of an original class of thirty-six.
A year out of law school and struggling as a "freebie lawyer" in Depression-era Baltimore, Marshall found an opportunity to "get even with Maryland for not letting me go to its law school." He persuaded Donald Gaines Murray, a Baltimore local and Amherst graduate, to apply to the University of Maryland Law School. As expected, the school rejected Murray's application, suggesting that he enroll in stead at Princess Anne Academy—Maryland's nominally "separate but equal" college for blacks. This added no small insult to injury, as Princess Anne did not even have a law school. So on April 20, 1935, Marshall filed an NAACP-funded lawsuit to force Murray's ad mission. With mentor Charlie Houston at his side, Marshall argued that the absence of a law school for blacks, where the state provided one for whites, violated the Fourteenth Amendment's "equal protection" clause. To his surprise, he won the case (Pearson v. Murray) and soon be came the NAACP's point man in courtrooms across the country.
A key to Marshall's victory was the so-called Margold strategy, an ingenious plan to undermine the "separate but equal" doctrine handed down by the Supreme Court in the infamous 1896 case of Plessy v. Ferguson. There the Supreme Court had voted 7 to 1 to legalize segregation by permitting states to separate citizens by race in public railway cars. (In his lone dissent, Justice John Marshall Harlan declared, "Our Constitution is color-blind.") Based on re search conducted from 1931 to 1933 by Nathan Margold, an assistant U.S. attorney on hiatus working for the NAACP, the NAACP would sue for a strict enforcement of the nefarious "separate but equal" doctrine. "The South would go broke paying for truly equal, dual systems," Marshall explained, and therefore be forced to integrate their public institutions.
The strategy worked—most of the time. But in some cases, racial bigotry was so entrenched, state and local governments that could not afford to offer equivalent services for blacks simply shut down public parks, playgrounds, swimming pools, golf courses, even graduate schools in tended for "whites only" to avoid integrating them. Undaunted, Marshall continued to dismantle, brick by brick, the legal edifice of white supremacy in the South.
Marshall rose quickly through the ranks of the NAACP. Beginning with a "temporary" six-month appointment as assistant special counsel in 1936 (under Charlie Houston), he eventually directed the NAACP's Legal and Educational Defense Fund from 1940 to 1961. He would argue or assist in 43 cases before the Supreme Court, securing victories in 37 of them. Key issues included the admission of blacks to state law schools (Missouri ex rel Gaines v. Canada, 1938), overturning "white primaries" (Smith v. Allwright, 1944), integrating interstate transportation (Morgan v. Virginia, 1946), prohibiting state enforcement of "restrictive covenants" in housing contracts (Shelley v. Kraemer, 1948), and voiding coerced confessions in racially charged cases (Watts v. Indiana, 1949). Of course, the case that truly made "separate but equal" a legal relic was Brown v. Board of Education of Topeka (1954), in which a surprisingly unanimous Court desegregated public schools.
According to Williams, this string of juridical pearls established Marshall as "the architect of American race relations in the twentieth century." So why are most Americans unaware of the scale of Marshall's contributions? After all, as Williams recounts in persuasive detail, over a decade of public opinion sided with Thurgood Marshall's claim to the civil-rights mantle: a 1952 Collier's magazine spread called him "Our Greatest Civil Liberties Lawyer," his portrait graced the cover of Time magazine in 1955, he was widely known as "Mr. Civil Rights" throughout the 1950s, and in polls among black Americans, he either beat or tied Martin Luther King , Jr., for the title, "Most Important Black Leader." But in 1961, President John F. Kennedy made a recess appointment of Marshall to the U.S. Second Circuit Court of Appeals, where he was "hidden away as a judge" for the next four years. Add to that his service from 1965 to 1967 as Solicitor General under LBJ, and so few people recognized Marshall that he was even mistaken for the flamboyant Congressman from Harlem, Adam Clayton Powell, Jr.
Ultimately, King's eclipse of Marshall as the spokesman for civil rights had as much to do with what Marshall did wrong on the Supreme Court as with what King did right at the Lincoln Memorial. Williams observes that Marshall's fade coincided with King's growing popularity as the leader of mass protests. King first made headlines as he shepherded middle-class blacks through a 382-day bus boycott in Montgomery, Alabama. "The boycott's goals had been achieved through the courts," Williams notes, "although national attention had focused on King and the people who stayed off the buses." And while Marshall supported King in public, "in his heart he viewed the bus boycott and King's speeches as street theater" compared to "the NAACP's effort to get the courts to end legal segregation."1
In August 1963, with Marshall cloaked in appeals court anonymity, King was introduced as "the moral leader of our nation" before delivering the most memorable oration since the Gettysburg Address. The "I Have a Dream" speech, uniting biblical and constitutional themes, would forever secure King's reputation as the civil-rights champion of modern America. Ironically, King would soon follow Marshall as an "old man of the movement" with his criticism of the Vietnam War and call for an Economic Bill of Rights for the Disadvantaged.2
Marshall's opportunity to reclaim his reputation as "Mr. Civil Rights" came and went during his Supreme Court years, when he offered little that built upon the unambiguous program of desegregation that culminated with his victory in the 1954 Brown case. It was on September 1, 1967, that Marshall became the first black Supreme Court justice, with the oath administered by a former Ku Klux Klansman, Justice Hugo L. Black. Only in America—although, truth be told, as Franklin D. Roosevelt's first appointment to the high court, then-Senator Black was more New Dealer than closet Klanner; so much so, that Marshall and the NAACP supported Black's high court appointment in 1937!
Thirty years later and now a justice himself, Marshall faced a rapidly developing body of civil-rights law. But his promotion from civil-rights litigator to high court judge changed his focus from the high-profile casework of his NAACP days—with its attendant fund raising and speech making—to a smorgasbord of federal cases that only rarely made for front-page, above-the-fold news.
Here Williams's biography simply runs out of gas. His journalistic skills certainly helped chronicle the transformation of young "Goody" into the NAACP's "Joe Louis of the Courtroom." However, they availed him little when it came to judging Marshall's years on the high court—and it shows. After spending 22 chapters on Marshall's NAACP work, Williams devotes only three chapters to Marshall's 24 years on the Supreme Court. Given the symbolic status ascribed to the Supreme Court's "first Negro," Marshall's tenure of nearly a quarter century on the Court cannot be glossed over.
Howard Ball, a University of Vermont political scientist and Hugo Black scholar, does give equal time to Marshall's Supreme Court tenure. Too bad it's not exactly time well spent—by Marshall or Ball. A Defiant Life: Thurgood Marshall and the Persistence of Racism, with its relentless polemicism, offers an in complete account of Marshall's failure as a justice to build on his civil-rights achievements of the 1930s-50s. Ball argues plausibly that "Marshall came to the Court at the wrong time." The liberal Chief Justice Earl Warren retired only two years after Marshall arrived on the Court, allowing Nixon to appoint the conservative Warren Burger in his place. With the retirement of three more justices in as many years, Nixon gave the Court a less activist, and hence more conservative, cast. Ball concludes that by the mid-1970s, Marshall had "a clear, disturbing sense of how the Court as a small group worked, and how, as an outsider, he was at the margins of Supreme Court decision making."
Enamored with Marshall's view of the courts as "vehicles of social transformation," Ball misses the irony in Marshall's metamorphosis from a defender of individual rights to an advocate of "class-based" remedies. A better guide to Marshall's "supreme" years is George town University law professor Mark V. Tushnet's Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (Oxford Univ. Press, 1997).3 A clerk to Marshall during the October 1972 Term—the cusp of Marshall's fade in to high court oblivion—Tushnet discerns "a deep continuity in Marshall's jurisprudence of affirmative action." But he admits, "Marshall's judgments as a strategist included a significant strain of pragmatism" when de fending state action that favored minorities.
No case presented Marshall with a greater opportunity to lead the Supreme Court in protecting the civil rights of all Americans than one he initially voted not to hear: Regents of the University of California v. Bakke (1978). Thirty-three-year-old Allan Bakke, a white Vietnam War veteran and honors engineering student, was twice denied admission to the new medical school at the University of California at Davis—this despite earning a grade-point average of 3.51 and Medical College Admissions Test percentiles of 96, 94, 97, and 72. Applicants admitted under a separate track for "disadvantaged" students (which in practice meant racial minorities) averaged GPAs of 2.62 and MCAT percentiles of 34, 30, 37, and 18. The California Supreme Court ruled that the two-track admissions system violated the Fourteenth Amendment's "equal protection" clause and ordered Bakke's admission.
In a separate opinion that was joined by no other justice—not even his closest ally, William J. Brennan—Marshall never once referred to Allan Bakke! He focused instead on the in tent behind government use of racial classifications, and not the impact that "race conscious remedial measures" have on "otherwise 'innocent' individuals" like Bakke. Disillusioned by the slow progress on actual desegregation of schools in the decades following the Brown decision, Marshall argued that the Constitution may not require but surely allowed states to give "consideration to race" to "remedy the cumulative effects of society's discrimination." An increasingly garrulous Marshall summed up his rationale by proclaiming to his fellow justices, "Damn right, you owe us!"
For 70 years, the nation's highest court had permitted state segregation against black citizens. A "color-blind" Constitution was nowhere in sight. But when a white citizen claims he's the victim of racial discrimination, mirabile dictu, the Court discovers that taking race into account is no longer permissible! This Marshall could not abide: "It would be [the] cruelest irony for this Court to adopt the dissent in Plessy now." Admitting the abstract justice of Harlan's dissent, Marshall just could not bring himself to resurrect Harlan's "color-blind" doctrine when the first beneficiary would be a white man. But this contradicted a speech Marshall had delivered as recently as 1975, where he scorned the insurgent "Black Power" movement as a stumbling block to true empowerment of individual blacks: "I don't care how many Afros you wear or how many dashikis you carry on your shoulders, you will never get anything unless you are able to compete with everybody else at the same level and be superior."
To Marshall's dismay, the Court rejected the rigid quota system of the UC-Davis medical school (even though the Court did not exclude consideration of race per se) and upheld Bakke's ad mission. When his least favorite presidents, Ronald Reagan and George Bush, tilted the Court even more to the Right, Marshall found himself permanently out of sync with his more judicially restrained colleagues. As "an outsider" for his remaining years on the bench, Marshall posed a perennial question to aspiring law clerks: "Do you like writing dissents? If you don't, baby, this is not the office for you." According to Ball's calculation, Marshall dissented in over 40 percent of the cases he heard as Supreme Court justice.
In his eulogy to Thurgood Marshall, Chief Justice William Rehnquist observed, "Almost everyone who sits on the Supreme Court is remembered for some contribution to American constitutional law. But Thurgood Marshall is unique because of his major contributions to constitutional law before becoming a member of the Court." Marshall had ample opportunity to do both, but he could not find a judicial voice consistent with the new world he had done so much to construct. Still, American Revolutionary and A Defiant Life remind us how much we owe to Marshall's Herculean labors as NAACP lead counsel, a suitable tribute to the man once known as "Mr. Civil Rights."
Lucas Morel is assistant professor of politics at Washington and Lee University.
- Nevertheless, in October 1964, Marshall would himself walk out of the triennial convention of the Episcopal Church when its delegates failed to adopt a resolution approving the disobeying of segregation laws as in "basic conflict with the concept of human dignity under God."
- For an incisive analysis of King's move away from civil-rights advocacy toward democratic socialism, see Christopher Lasch's The True and Only Heaven: Progress and Its Critics (Norton, 1991), pp. 386-411.
- Tushnet also wrote Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (Oxford Univ. Press, 1994).
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