MARSHALL, THURGOOD (1908–1993) (Update)

Thurgood Marshall has earned a unique place in American history on the basis of a long, varied, and influential career as a private attorney, governement lawyer, and appellate jurist. Two achievements in particular stand out. First, as counsel for the National Association for the Advancement of Colored People (NAACP), he has shaped the litigation that destroyed the constitutional legitimacy of state-enforced racial segregation. Second, as an Associate justice of the Supreme Court—the nation's first black Justice—he boldly articulated a liberal jurisprudence on a Court dominated by conservatives. No person in the history of the Supreme Court better illustrates the limits and possibilities of the jurist as dissenter.

Marshall was born July 2, 1908, in Baltimore, Maryland, attended that city's racially segregated public schools, and was graduated from Lincoln University. Excluded from the University of Maryland Law School by that state's racial policies, he received his law degree from Howard Law School. He excelled at Howard and came to the attention of the school's dean, charles h. houston, a pioneer in the use of litigation as a vehicle of social reform. Although Marshall embarked on a conventional commercial practice upon graduation, he also participated, under Houston's guidance, in important, albeit unremunerative, civil rights cases. Appropriately enough, his first consisted of a successful suit against the same state university system that had earlier excluded him. In Murray v. Maryland (1937) Marshall convinced the Court of Appeals of Maryland that the Constitution required the state to do more for black residents seeking legal education than merely offer them scholarships to attend out-of-state law schools.

In 1939 Marshall succeeded Houston as special counsel of the NAACP. Over the next two decades he traveled ceaselessly, addressing problems of racial inequality in a wide array of settings: from obscure local courts in which he sought to extract from hostile juries and judges a measure of justice for black defendants, to Korea where he investigated the treatment of black soldiers by United States military authorities, to black churches and lodges where he encouraged people in aggrieved communities to seek to vindicate their rights. He also argued thirty-two cases before the Supreme Court, prevailing in twenty-nine of them. His brilliant advocacy helped to convince the Supreme Court to invalidate practices that excluded blacks from primary elections (smith v. allwright), to prohibit segregation in interstate transportation (morgan v. virginia), to overturn convictions obtained from juries from which blacks had been illicitly barred (patton v. mississippi), and to prohibit state courts from enforcing racially restrictive real estate covenants (shelley v. kraemer). Marshall's greatest triumph arose from the skillfully orchestrated litigation that culminated in brown v. board of education (1954), which invalidated state-enforced racial segregation in public schooling. By the close of the 1950s, Marshall had attained widespread recognition as a leading public figure and was known affectionately in much of black America as "Mr. Civil Rights."

The next stage in Marshall's career was marked by a series of high-level appointments. In 1961, President john f. kennedy appointed him to the United States Court of Appeals for the Second Circuit over the strong objections of segregationist senators who delayed his confirmation for nearly a year. In 1965, President lyndon b. johnson appointed Marshall solicitor general of the United States. The first black American to hold this post, Marshall argued several important cases before the Court, including miranda v. arizona (1966), in which he successfully urged the Court to impose greater limitations on the power of police to interrogate criminal suspects; harper v. virginia state board of elections (1966), in which he successfully argued that state poll taxes violated the federal Constitution; and united states v. guest (1966), in which he successfully defended the federal prosecution of white supremacists in Georgia who committed a racially motivated murder during the era of the civil rights movement.

In 1967, President Johnson set the stage for Marshall to cross the color line in another area of governmental service when he named him to a seat on the Supreme Court. Marshall's elevation vividly symbolized the ascendancy of values and interests he had long sought to advance. At the outset of Marshall's career on the Court, it was presided over by Chief Justice earl warren and animated by a decidedly reformist ethos. Ironically, however, the liberal wing whose ranks Marshall fortified began to disintegrate soon after he took his seat. By the mid-1970s, the appointments of Chief Justice warren e. burger and associate Justices lewis f. powell and william h. rehnquist had brought to the fore a conservative ethos that has long confined Justice Marshall to the periphery of judicial power.

During his years on the Court, Justice Marshall has seldom held sway in the middle as a "swing" vote. Rather, he has made his mark as a judicial maverick—always independent, consistently bold, frequently dissenting. Keenly attentive to allegations of invidious discrimination, Justice Marshall has been strongly favorable to the claims of members of historically oppressed groups. However, he has repeatedly found himself at odds with the Court. memphis v. greene (1981) involved a city's decision to close a street, mainly used by blacks, which traversed a predominantly white neighborhood. The Court upheld the legality of the city's action. Justice Marshall perceived a violation of the thirteenth amendment, concluding that the city's action constituted a racially prejudiced "badge or incident of slavery." personnel administrator of massachusetts v. feeney (1979) called into question a state law that provided an absolute preference for veterans of the armed forces in civil service positions, a system of selection that tended overwhelmingly to disadvantage women in relation to men. The Court upheld the statute. Justice Marshall condemned it as a violation of the equal protection clause of the fourteenth amendment. mobile v. bolden (1980) concerned an at-large voting scheme under which, for almost seventy years, no black had ever been elected to a seat on the ruling city commission in Mobile, Alabama, even though blacks constituted nearly a third of the city's population. The Court held that this electoral arrangement could be invalidated only if it were used as a vehicle of purposeful discrimination. Justice Marshall concluded that the system's racially disparate impact violated the fifteenth amendment. rostker v. goldberg (1981) brought into question the constitutionality of a federal statute that requires men but not women to register for the military draft. Differing with the majority of his colleagues, Justice Marshall declared that the Court erred in placing its "imprimatur on one of the most potent remaining public expressions of "ancient canards about the proper role of women."

Critical of the Court for showing too little solicitude for those who have been historically victimized on the basis of race and gender, Justice Marshall has also rebuked the Court for displaying undue aggressiveness in defending the asserted rights of those who challenge affirmative action policies that provide preferences to women and racial minorities. Sharply distinguishing between benign and invidious discrimination, he has voted to uphold every affirmative action plan the Court has reviewed. Here, too, he has been forced into dissent, objecting bitterly to decisions that have increasingly limited the permissible scope of affirmative action measures. In regents of university of california v. bakke (1978), the first affirmative action case that the Court resolved, Justice Marshall declared that "It must be remembered that during most of the past 200 years, the Constitution as interpreted by the [Supreme] Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier."

A decade later, Justice Marshall continued to rail against an interpretation of the Fourteenth Amendment that he considers perverse. In richmond v. j. a. croson co. (1989), for instance, he dissented against a ruling that invalidated Richmond, Virginia's policy of reserving that for enterprises owned by racial minorities a designated percentage of business generated by the city. Observing that "It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to confront the effects of racial discrimination in its midst," he angrily chided his colleagues for taking "a deliberate and giant step backward." The Court's decision, he predicted, "will inevitably discourage or prevent governmental entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is the harsh reality of the majority's decision, but it is not the Constitution's command."

Other areas in which Justice Marshall's strongly held views have frequently been at odds with the Court's conclusions involve capital punishment, abortion and the legal status of the poor—areas in which Marshall's jurisprudential commitments frequently overlap. Insisting that death penalties under all circumstances violate the Eighth Amendment's prohibition against cruel and unusual punishment, Justice Marshall has filed dissents against all executions that the Court has sanctioned. In ake v. oklahoma (1985), his advocacy on behalf of those charged with capital crimes succeeded in wringing from his colleagues a rare broadening of rights to which criminal defendants are entitled. Writing for the Court, Justice Marshall held that, at least in cases possibly involving the death penalty, due process requires states to afford indigent defendants the means to obtain needed psychiatric experts.

With respect to abortion, Justice Marshall has been among the most stalwart defenders of roe v. wade (1973), dissenting in every case in which the Court has upheld legislative inroads on what he views as a woman's broad right to decide whether or not to terminate a pregnancy. An example of his allegiance to Roe v. Wade (1973) is his dissenting opinion in maher v. roe (1977), where he maintained that a state violated the Constitution by denying poor women funding for abortions while making funds available to them for expenses of childbirth. "Since efforts to overturn [ Roe v. Wade ] have been unsuccessful," he charged, "the opponents of abortion have attempted every imaginable means to circumvent the commands of the Constitution and impose their moral choices upon the rest of society." Articulating his anger with characteristic sharpness, Justice Marshall asserted that this case involved "the most vicious attacks yet devised" in that they fell on poor women—"those among us least able to help or defend themselves."

Throughout Justice Marshall's career on the Court he has vigorously attempted to improve the legal status of the poor. He has argued, for instance, that the federal courts should subject to heightened scrutiny state laws that explicitly discriminate on the basis of poverty. For the most part, however, his efforts have been stymied. One particularly memorable expression of Justice Marshall's empathy for the indigent is his dissent in United States v. Kras (1973), a case in which the Court held that federal law did not violate the Constitution by requiring a $50 fee of persons seeking the protections of bankruptcy. Objecting to the Court's assumption that the petitioner could readily accumulate this amount, Justice Marshall wrote that he could not agree with the majority

that it is so easy for the desperately poor to save $1.92 each week over the course of six months.… The 1970Census found that over 800,000 families in the Nation had annual incomes of less than $1,000 or $19.23 a week.… I see no reason to require that families in such straits sacrifice over 5% of their annual income as a prerequisite to getting a discharge in bankruptcy.… It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are.… It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

On occasion Justice Marshall's dissents have succeeded in changing the mind of the Court. An example is the Court's response to claims of racially invidious discrimination in peremptory challenges. In swain v. alabama (1965) the Court had ruled that prosecutors could properly use race as a basis for peremptorily excluding potential jurors so long as they did so as a matter of strategy relating to a particular trial and not for the purpose of barring blacks routinely from participation in the administration of justice. By repeatedly dissenting from orders in which the Court refused to reconsider Swain and by showing in detail this decision's dismal practical consequences, Marshall finally convinced the Court to reverse itself—though even when it did in batson v. kentucky (1986), Marshall still maintained that his colleagues had neglected to go far enough in ridding the criminal justice system of invidious practices.

For much of Justice Marshall's career on the bench, he seems to have deliberately avoided any extrajudicial controversies. Beginning in the 1980s, however, he appears to have altered his habits. He publicly criticized ronald reagan, declaring that his civil rights record as President of the United States was among the worst in the twentieth century. He also chided President george bush for selecting david h. souter to occupy the seat on the Court vacated by Justice Marshall's long-time ally, Justice william j. brennan. In an unprecedented action, Justice Marshall declared on a televised broadcast that, in his view, the President's choice was inappropriate.

Although Justice Marshall recieved considerable criticism for his comments on Presidents Regan and Bush, extrajudicial remarks that generated an even greater amount of contraversy stemmed from a speech that he gave in 1987 in the midst of the bicentenial celebration of the United States Constitution. Bodly challenging the iconography of American constitutionalism, he asserted that he did not find "the wisdom, foresight, and sense of justice exhibited by the framers [to be] particularly profound. To the contrary," he declared, "the government they devised was defective from the start," omitting, for example, blacks and women as protected members of the polity. Eschewing "flag waving fervor," Justice Marshall noted his intention to commemerate the bicentennial by recalling "the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document" and by also acknowleging the Constitution's unfulfilled promise.

Some detractors fault Justice Marshall on the grounds that his penchant for dissent has robbed him of influence that he might otherwise have wielded. Judging influence, however, is a dangerous endeavor. Justices john marshall harlan, oliver wendell holmes, jr. , and louis d. brandeis are as well respected on the basis of their dissenting opinions as they are respected for any other aspect of their illustrious careers. History may well bequeath the same fate to Justice Thurgood Marshall. Justice Marshall resigned from the Court in 1991.

Randall Kennedy
(1992)

(see also: Badges of Servitude; NAACP Legal Defense Fund; Race and Criminal Justice; Race-Consciousness.)