As chief counsel to the Civil Rights Movement, the young Thurgood Marshall became the scourge of white supremacists. No lawyer in the 20th century did as much as he to overturn Plessy v. Ferguson, the separate-but-equal reading that gave the Constitution’s sanction to Jim Crow. Thirty-two times he brought cases before the court; 29 times he walked out of the building with victories. In Brown v. Board of Education, he finally knocked the slats from under segregation. His successes inspired a generation of public-interest lawyers who believed the Constitution could and should be used to reconstruct the country’s social institutions. Then the right-thinking years of Ronald Reagan and George Bush ran against him. In dissent, he pushed" back. The old Thurgood Marshall was a middling justice, not as good as some, better than others. “I don’t know what legacy I left,” he said a bit grumpily. “I leave that to the people.”
Marshall’s life has run in synchronization with the civil-rights movement. He was born in 1908, the year two lynchings in Abraham Lincoln’s hometown led to the organization of the National Association for the Advancement of Colored People. His father was a waiter; his mother taught school. His great-grandfather was a slave. This ancestor was so balky that his owner set him free - on the condition that he “get the hell out of the county” because a white man couldn’t in good conscience sell him to anyone else. The freeman learned he had to have a first name to join a Negro regiment and fight in the Civil War; so he called himself Thoroughgood, simplified to Thurgood for his great-grandson. Marshall’s father taught him to argue, sharpened his mind. He told him, “If anyone calls you a nigger, you not only got my permission to fight him–you got my orders.” These are the skills a lawyer needs. But Mrs. Marshall wanted him to be a dentist: colored folks went to white lawyers. They would trust–and pay–a Negro dentist.
As a young man, Marshall at first showed few signs of promise. In 1925, he went to Lincoln University in Pennsylvania, where Langston Hughes, the poet, found him “rough and ready, loud and wrong.” Hughes and others had to prod him into joining them in a campaign to integrate the school’s all-white faculty. Later the law school at the University of Maryland wouldn’t have him because of his race; so he enlisted in Charles Houston’s new law program at Howard University. After graduating at the top of his class, he hung out his shingle in Baltimore. He paid his secretary $7.50 a week, hitting her for lunch money when he was broke, which was most of the time.
With some relief, Marshall left private practice in 1937 after Houston hired him as assistant counsel for the NAACP. One of his first jobs was to go to Dallas, where a Negro doctor reporting for jury duty had been kicked down the courthouse steps. Marshall walked into the governor’s office and laid out the horror story. The startled pol was so impressed that he ordered the Texas Rangers to protect Negro jurors. Marshall pressed an NAACP strategy of suing to force segregated graduate and professional schools to admit Negroes. He also brought suits to secure equal salaries for Negro and white teachers. In later years he liked to recount the story of how his mother had once told him, “You may be tall, but if you get mean, I can always reach you with a chair.” “We have a lot of tall, mean people all around,” he would say. “But the 14th Amendment to the Constitution is a mighty big chair and I figure I can reach a lot of ’em.”
Marshall understood the mind of the South as well as he knew his own. He believed that color alone couldn’t account for segregation because there were “Negroes as white as the drifted snow, with blue eyes, who were just as segregated as the colored man.” He argued that the problem was “an inherent determination that the people who were formed in slavery, regardless of anything else, shall be kept as nearly that state as possible.” He said there was no way the Constitution could be read to support such perversity.
To argue his principles he often had to risk his life. Police cars followed him out of Columbia, Tenn., after one trial in 1946. The cops stopped him, arrested him for drunk driving, pushed him into a squad car and started down a side road to a spot where a lynch mob was waiting. His co-counsel followed the rogue lawmen in his own car, dogging them until they returned to Columbia and ordered Marshall into the street a block from the courthouse. “You’re not going to be able to say you shot me in the back while I was trying to escape,” he said, forcing them to drive him to the judge, who threw out the drunk charge. That night he phoned Supreme Court Justice Tom Clark. “Were you drunk?” the justice inquired. “I hadn’t had a drink in two days,” Marshall replied. “But let me tell you, five minutes after I hang up this phone, I’m going to be drunk.”
If he could drink bourbon all night, he would be up early the next morning immersed in work. “He was earthy, bright,” recalls Jack Greenberg, Marshall’s successor at the NAACP’s Legal Defense and Educational Fund, Inc. “He related to people, not abstract theories.” Marshall was there when the freedom movement hit the tiny farming hamlet of Summerton, S.C. In 1953 a group of black parents sued the Clarendon County School Board for money to buy gas for a school bus. When the suit was dismissed, the Rev. J. A. DeLaine persuaded 20 of the parents to join a new suit for equal facilities. His life was threatened. Plaintiffs lost their jobs or farms they had worked all their lives. In walked Marshall. “He wanted everybody to come to church and sign another petition,” recalls Annie Gibson, 79, one of the plaintiffs. “Every time we had a meeting he’d be there.” The case was one of four Marshall shaped into Brown v. Board of Education.
While preparing the suit Marshall pushed his staff to the limit: they worked seven days a week for months. “We had to devise new theories,” recalls Constance Baker Motley, a young aide. (Motley later became a U.S. district court judge; Marshall worked hard to advance women in the law.) They produced bales of legal, sociological and psychological arguments. But what Greenberg remembers most is the way Marshall told the Supreme Court he saw children playing together in the streets but going to school separately; the Constitution couldn’t have intended that. The day the court agreed, Marshall walked into the office of Roy Wilkins, executive secretary of the NAACP, and kissed him. Then he returned to his own office. “Thurgood Marshall was a man who believed in partying,” Motley remembers. “As the news got out, everybody came in. About 2 o’clock in the morning we decided it was time to go home.”
To implement the decision Marshall meant to bring the first suits in the border states, then to move into the heart of the old Confederacy. He didn’t foresee the massive resistance. that grew in the South. Nor did he expect the direct action, grass-roots civil-rights movement of the Rev. Martin Luther King Jr. No lawyer could guide or control it. What Marshall could do was spring it from jail, a job for which he was seldom given full credit. Donald Hollowell, a Southern attorney who helped him, still remembers the time they freed King from an Atlanta slammer. Marshall called that day. “Say, Don,” he laughed. “They tell me everybody in the world got MLK out of jail but the lawyers.”
During the Kennedy years, Marshall’s momentum carried him out of the movement and onto the federal bench. He withdrew inward. But he did advise newly independent African nations on how to set up constitutions that would protect white minorities (“I’d give ’em the same protection a black man would want in Mississippi”). In Kenya he was introduced to England’s Prince Philip, who said, “Would you like to hear what I have to think about lawyers?” “Would you like to hear what I think of princes?” Marshall replied. And they hit it off. LBJ made him solicitor general. Then in 1967 Johnson elevated him to the Supreme Court.
Marshall was an original. “He was a much more rich, funny, mischievous, wise, complex, riveting person than the stolid figure you saw on the bench,” recalls Harry Littman, one of his clerks. Some issues bored Marshall. Studying a case of a meatpacking company charged with pollution, he pushed back his chair one day and summoned up a mock conflict of interest to get himself off the hook. “I’m recused,” he said. “I love their ham.” He’d yell, “Hey, short-hair,” to his male clerks, “Hey, longhair,” to the women, calling them “knuckle-head” equally as an endearment. In books like Bob Woodward and Scott Armstrong’s “The Brethren,” he was portrayed as sluggish, lazy, relying too heavily on clerks. People laughed when they caught him watching “People’s Court” in his chambers. But he didn’t give a damn what other people thought about the way a judge should look or what role they expected him to play.
Marshall was the first African-American to rise to the court - the first Marylander since Chief Justice Roger B. Taney, who had ruled in the Dred Scott case 110 years earlier that the Negro had no rights the Constitution was obliged to uphold. He was the only justice who had defended a murder suspect. “Death is rather final,” he told his clerks, reminding them how many cases of falsely accused defendants he had seen, and he argued (unsuccessfully) that the state had no constitutional right to extinguish anyone’s life.
His misfortune was to try to build upon the Warren court just as it was beginning to run out of steam. He wanted to extend the equal-protection clause to protect entitlements like welfare and housing. When the court went conservative and decisions on issues like busing, abortion and affirmative action didn’t go his way, he started telling clerks that if they didn’t like writing dissenting opinions, they shouldn’t apply for jobs with him. “If there was a leitmotif to Marshall’s dissents,” says A. E. Dick Howard, professor of law at the University of Virginia, “it was his concern for the unempowered, the poor, minorities, those outside the mainstream.”
Marshall’s legacy is secure. At a party a few weeks ago for all his clerks, they unveiled the portrait that will hang in the Supreme Court once he is gone. When someone asked him what he thought about it, he looked up and said, “Well, I wish I looked more like a hanging judge.” By then, he had decided to step down. He had talked it over with his wife and called his old friend William J. Brennan, who left the court a year ago. He was tired. “I’m getting old and falling apart,” he said last week. History will remember him as a greater litigator than judge. Even if he had never sat on the court, he was one of the 20th century’s most important legal advocates. “His work defined the terrain of discussion about the Constitution for his time,” says Mark Tushnet of Georgetown Law School, who has written a forthcoming book on Marshall and the Constitution. “It doesn’t mean he won; but he said, ‘This is where the discussion has to take place’.” And he left his country a better place for all Americans to call home.
When Stephen Field was barely middle aged, he was one of a group of Supreme Court justices who told a colleague it was time to retire. Many years later, as he began to fail, Field met with one of his younger colleagues, who delicately reminded him of the earlier visit. With a fierce look, Field silenced his visitor. “Yes,” he said, “and a dirtier day’s work I never did in my life.”
No one can force a justice to go. By law, all federal judges are appointed for life. By custom, only a colleague can suggest a resignation. When the legendary Oliver Wendell Holmes Jr. was 90, the almost-as-legendary Charles Evans Hughes suggested he step aside. Holmes, a gentleman to the end, retired immediately.
The Founding Fathers gave federal judges lifetime tenure for a simple reason: they wanted to guarantee the independence of the judiciary. But that good intention has produced many unintended consequences, particularly justices staying at their posts even as their health and energy have failed. Others like Thurgood Marshall have hung on for as long as possible, perhaps hoping to give a vacancy to a president who would appoint a kindred political spirit.
Changing the rule would require a constitutional amendment, an arduous process that seldom succeeds. The last president who tried to force the issue was Franklin Roosevelt. Faced with an aging bench hostile to his New Deal programs, FDR sought legislation to appoint one new justice for each sitting one older than 70. His “court packing” plan failed in Congress. If Roosevelt couldn’t force a change, probably no one can.
