Marshall, Thurgood

Source:

 African American National Biography

Marshall, Thurgood

(2 July 1908–24 Jan. 1993),

civil rights lawyer and U.S. Supreme Court justice, was born Thoroughgood Marshall in Baltimore, Maryland, the son of William Canfield Marshall, a dining-car waiter and club steward, and Norma Arica Williams, an elementary school teacher. Growing up in a solid middle-class environment, Marshall was an outgoing and sometimes rebellious student who first encountered the Constitution when he was required to read it as punishment for classroom misbehavior. Marshall's parents wanted him to become a dentist, as his brother did, but Marshall was not interested in the science courses he took at Lincoln University in Pennsylvania, from which he was graduated with honors in 1930. He married Vivian “Buster” Burey in 1929; they had no children.

Unable to attend the segregated University of Maryland School of Law, Marshall enrolled in and commuted to Howard University School of Law, where he became a protégé of the dean, Charles Hamilton Houston, who inspired a cadre of law students to see the law as a form of social engineering to be used to advance the interests of African Americans. After graduating first in his class from Howard in 1933, Marshall remained in Baltimore, where he opened a private law practice and struggled to make a living during the Depression. Marshall was active in the Baltimore branch of the National Association for the Advancement of Colored People (NAACP), and in 1936 Houston persuaded both the NAACP board and Marshall that Marshall ought to join him in New York as a staff lawyer for the NAACP. After Houston returned to Washington in 1938, Marshall remained and became the chief staff lawyer, a position he held until 1961.

Thurgood Marshall visits the White House's Oval Office, Washington, D.C., 13 June 1967. (Lyndon Baines Johnson Presidential Library.)

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Early in his Baltimore practice Marshall had decided to attack the policies that had barred him from attending the state-supported law school. Acting under Houston's direction, Marshall sued the University of Maryland on behalf of Donald Murray. The Maryland state court's 1936 decision ordering the school to admit Murray because the state did not maintain a “separate but equal” law school for African Americans was the first step in a two-decade effort to undermine the constitutional basis of racial segregation. Over the next fourteen years, Marshall pursued his challenge to segregated higher education through two main areas. In Missouri ex rel Gaines v. Canada (1938), a case Houston developed and argued, the U.S. Supreme Court directed the University of Missouri to either admit Lloyd Gaines to its law school or open one for African Americans. The attack culminated in Marshall's case of Sweatt v. Painter (1950), in which the Supreme Court held that the law school Texas had opened for African Americans was not “equal” to the well-established law school for whites.

The cases that the Supreme Court decided under the name Brown v. Board of Education constituted Marshall's main efforts from 1950 to 1955. Assembling a team of lawyers to develop legal and historical theories against segregation, Marshall had his greatest triumph as a lawyer in Brown (1954), in which the Supreme Court held that segregation of public schools by race was unconstitutional. In the 1896 case of Plessy v. Ferguson, the Supreme Court had upheld segregation, saying that segregation was a reasonable way for states to regulate race relations and that it did not “stamp the colored race with a badge of inferiority.” Examining the background of the Fourteenth Amendment, Marshall's team concluded that the amendment's framers did not intend either to authorize or to outlaw segregation. From this research Marshall came to the conclusion that under modern conditions, given the place of education in twentieth-century life, segregated public education was no longer reasonable. Marshall also relied, though less heavily, on arguments based on the psychological research of Kenneth B. Clark showing that, Plessy notwithstanding, segregation did in fact damage the self-images of African American schoolchildren. During oral arguments Marshall occasionally stumbled over technical and historical details, but his straightforward appeal to common sense captured the essence of the constitutional challenge: “In the South where I spend most of my time,” he said, “you will see white and colored kids going down the road together to school. They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together.”

There was trouble, however, as officials in the Deep South engaged in massive resistance to desegregation. Marshall argued the case of Cooper v. Aaron (1958), which arose after the Arkansas governor Orval Faubus sought to circumvent desegregation by closing four Little Rock schools on the first day of class. Marshall pointed out that Faubus's attempts to thwart the Supreme Court directive in Brown threatened fundamental American ideas about the rule of law, and he asked the Court to assert its constitutional authority by directing Little Rock officials to reopen and racially integrate the schools. Marshall told the justices that a ruling in favor of Faubus would be tantamount to telling the nine black boys and girls who had endured harassment and intimidation at Little Rock's Central High School throughout the 1957–1958 school year, “You fought for what you considered democracy and you lost…. go back to the segregated school from which you came.” Again the Supreme Court agreed with Marshall, and in August 1959 the schools reopened in line with federal desegregation orders.

A gregarious person who was always ready to use an apt, humorous story to make a point, Marshall traveled throughout the segregated South to speak to teachers and NAACP members, and in the 1940s and 1950s he became a major civil rights leader. By the mid-1950s his role as a civil rights leader had superseded his work as an attorney, and he had become a widely sought-after speaker and fund-raiser. He also was active in the Episcopal Church and the Prince Hall Masons. His wife died of lung cancer in February 1955, and the following December he married Cecilia Suyatt, a secretary in the NAACP's national office; they would have two children, both boys.

Fending off attacks on the NAACP, its lawyers, and its members as well as attempting to push desegregation forward took a toll on Marshall. His travels kept him away from his family, and his NAACP salary, even when supplemented by gifts from wealthy white members, was inadequate to provide a college education for his sons. Moreover, the emergence of Martin Luther King Jr., the Southern Christian Leadership Conference (SCLC), and the Student Nonviolent Coordinating Committee (SNCC) shifted the civil rights movement away from the legal strategies Marshall favored toward more direct-action tactics. Because of this, and to ease his financial burden and make more time for his family, in 1961 Marshall accepted an appointment to the U.S. Court of Appeals for the Second Circuit (in New York). Political maneuvering delayed his confirmation for nearly a year, after which he served on the Second Circuit for five years. His opinions were solid but hardly pathbreaking. Aware of his lack of experience in business and tax law, which constituted an important portion of the Second Circuit's business, Marshall took guidance from Judge Henry Friendly in those areas.

In 1965 President Lyndon Johnson named Marshall U.S. solicitor general, the government's chief lawyer before the Supreme Court. Although neither said so explicitly, both Johnson and Marshall expected that Johnson would name Marshall to the U.S. Supreme Court as soon as possible. In 1967 Johnson manipulated Justice Tom Clark into resigning from the Court by naming his son Ramsey Clark attorney general, and that same year, saying it was “the right thing to do, the right time to do it, the right man and the right place,” Johnson named Marshall to be the first African American Supreme Court justice.

Marshall joined a Court that was dominated by liberals, but within five years the Court's composition had changed dramatically following the retirement of Chief Justice Earl Warren and the deaths of Justice Hugo Black and Justice John Marshall Harlan. Instead of being active in the coalition that determined the Court's positions, Marshall found himself in a beleaguered minority that opposed the more conservative justices appointed by Richard Nixon and Ronald Reagan. Marshall rarely got the opportunity to write important majority opinions, even when his liberal colleagues led by William J. Brennan were able to cobble together a majority, because such opinions had to appeal to one or two of the justices who were significantly more conservative than Marshall, and Marshall was relatively uncompromising on matters he cared about.

Marshall's repertoire of stories endeared him to nearly every one of his colleagues, although initially some conservatives, including Lewis F. Powell, were put off by what they saw as Marshall's failure to approach the job with appropriate seriousness. Marshall did delight in puncturing what he took to be Chief Justice Warren Burger's pomposity, occasionally greeting Burger with, “What's shakin', Chiefy baby?” Yet most of Marshall's colleagues came to understand that he used his stories, often about the experiences of black Americans in the nation's court system, to make points about the cases the justices were considering. At the time of his retirement in 1991, Marshall brought more experience as a practicing lawyer to the Court than did any of his colleagues, and he often urged them to take more account of courtroom realities than of abstract deliberations about the Constitution.

Court watchers, particularly those who were unsympathetic to Marshall's positions on constitutional issues, criticized him for delegating too much of his work to his law clerks. Familiar with numerous aspects of the law from his experiences on the court of appeals and as solicitor general, Marshall had a facility for quickly determining the main thrust of each party's contentions and for deciding what result to reach. He would provide a sketchy outline of what an opinion should say; after that, the law clerks did substantially all of the opinion drafting in his chambers, as was the case in other chambers as well. Marshall did not edit his clerks' drafts as closely as other justices did, but he rejected drafts that did not capture the substance or the intensity of his views, and thus the guidance he gave made the opinions his own.

Marshall's most important contribution to constitutional doctrine was his “sliding-scale” theory of the Fourteenth Amendment's guarantee of equal protection of the laws, which he stated in most detail in dissenting opinions in Dandridge v. Williams (1970) and San Antonio Independent School District v. Rodriguez (1973). The Court's stated doctrine distinguished between two “tiers” of judicial scrutiny. One tier involved “suspect” classifications, such as race or “fundamental” interests; statutes using those classifications received strict scrutiny and rarely were upheld. The other tier contained all other statutes; statutes in this category simply had to have a “rational basis” and rarely were struck down. As the Court grappled with more and more cases involving discrimination against women, aliens, and nonmarital children, and cases dealing with the provision of public assistance, Marshall pointed out that the rigid two-tiered approach was inadequate, because for one thing, it failed to take account of variations in the importance of different interests; perhaps even more important, it failed to describe the outcomes of the Court's cases. Marshall proposed that the Court adopt an approach that openly balanced the importance of the goals the government was trying to achieve, the nature of the interest(s) affected, and the character of the group adversely affected by the classifications of a given statute. Although the Court did not expressly adopt Marshall's suggestion, some of its decisions seemed implicitly to do so, and many scholars believe that his analysis was more representative of the Court's decision making than was the doctrine that the Court claimed to be applying.

Beyond his specific doctrinal contributions, Marshall provided a voice on the Court, and in the Court's internal deliberations, for black Americans and others with few champions. After he retired, several of his colleagues said that Marshall's opinions had brought the real world into the Court's deliberations. When the Court, in upholding a federal filing fee for bankruptcy (United States v. Kras [1973]), suggested that it should not be difficult for a poor person to set aside about two dollars a week to pay the fee, Marshall became indignant, writing in his published opinion, “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.”

Marshall drew on his experience as a criminal defense lawyer when he argued that in all cases capital punishment is a form of cruel and unusual punishment barred by the Constitution. After the Court rejected that proposition in Gregg v. Georgia (1976), Marshall continued to express his disagreement; his dissents often asserted that the fair administration of justice was compromised in death penalty cases, particularly when defendants facing death sentences had received inadequate legal assistance.

Marshall's overall approach to constitutional law combined Charles Hamilton Houston's view that it is a form of social engineering with a pragmatic grasp of courtroom and practical realities. For example, he refused to deem that the police practice of arresting drunks was unconstitutional, in part because he believed that society had not instituted a better method of dealing with the problem than to lock up drunks until they were sober. He was willing to endorse large-scale reforms through constitutional law, as in attempts to effect desegregation and to rid the law of the death penalty, because Brown had taught him that a bold Supreme Court pronouncement often had an indirect but lasting impact on social practices.

Feeling the effects of age, and having lost his closest ally on the Court when Brennan retired in 1990, Marshall announced his retirement on 27 June 1991. The Court was substantially more conservative when Marshall left than when he arrived. During his tenure the nation's political system had drifted to the right; so had the Court, a trend that would continue with the appointment of his successor, Clarence Thomas. Marshall never was able to act as a social engineer on behalf of African Americans and others who had made up the New Deal and Great Society political coalition; instead, he came to occupy a different role on the Court, that of the great dissenter.

Earlier on the day of his retirement Marshall filed his final dissent. In Payne v. Tennessee a majority of the Court overruled the controversial decision in Booth v. Maryland (1987) and allowed prosecutors to introduce statements about the personal impact that a murder had had on the victim's family and friends. Beginning with the statement “Power, not reason, is the new currency of this Court's decision making,” Marshall's dissent bitterly criticized the majority opinion. Although the Warren Court, whose work Marshall had endorsed and contributed to during the 1960s, was not averse to overruling precedents, Marshall believed that those cases were different: old rules that either did not work or were inconsistent with later developments had been displaced. In Payne, by contrast, Marshall believed that the only change that had taken place between 1987 and 1991 was the makeup of the Court. To have constitutional law turn on the personalities of the judges was, in Marshall's view, inconsistent with the ideal of the rule of law.

Marshall died at Bethesda Naval Hospital in Maryland. Many tributes noted that he would have deserved a major place in histories of constitutional law even had he not served on the Supreme Court, because his efforts as chief lawyer for the NAACP in leading the Court to restructure constitutional law with regard to race was as important a contribution as any in modern history. Marshall made fewer contributions to constitutional law as a justice, largely because he was not part of the Court's more conservative majority, but his passionate voice for the poor and for African Americans resonated in his dissenting opinions, and he remained an inspiration to those who believed in the possibility of achieving justice through the Constitution.

This entry is taken from the American National Biography and is published here with the permission of the American Council of Learned Societies.

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