Thurgood Marshall: American Revolutionary
Supreme Court Justice Thurgood Marshall died in January 1993, and the line of mourners stretched around the block throughout the day he laid in state in the Great Hall of the Supreme Court Building. More than 18,000 people paid their respects that day. At the next day's funeral service at the National Cathedral more than 4,000 people were in attendance, including the President and the Vice-President of the United States. At that service, U.S. Supreme Court Chief Justice William Rhenquist remarked that, with respect to the Supreme Court's motto "Equal Justice under Law," "Surely no one individual did more to make these words a reality than Thurgood Marshall."
Marshall, born in Baltimore, Maryland in 1908 of lower middle class African American parents, showed little promise of greatness as a youth. In fact, people thought him too timid and too good looking. By age 6 he had changed his name from "Thorogood" to Thurgood, showing an independent streak that would be a hallmark of his character for the rest of his life. By age 15, he had a job delivering hats for Mr. Schoen, a Jewish merchant. When trying to get on a bus, Marshall jostled a white woman. A white man intervened and tried to beat him up, calling him a nigger. Thurgood dropped the hats and started punching. He was arrested, and only by Mr. Schoen's intervention was he let go.
In high school, he was a good student, but he was also noted for his practical jokes. In punishment for one prank, he had to memorize the Constitution of the United States. That exercise sparked his lifelong interest in the law. At Lincoln University, his fees were paid by contributions from his extended family and by loans. During the summers, he worked with his father as a waiter, and Williams recounts the story that Marshall allowed a customer, a "big tipping old Senator" to call him a nigger for a whole week. When Marshall's father found out, and fired him for not challenging the insult, Marshall explained: "Now I figure it's worth about $20 to be called a nigger but the moment you've run out of them 20's I'm going to bust you in the nose." His father re-hired him. At Lincoln, though still mischievous, he made the college's championship debating team, an achievement that aided him in his application to law school.
Even though he wanted to attend the University of Maryland Law School, he had to settle for Howard University Law School because of Maryland's segregation policy. Without money to live in Washington, Marshall commuted from Baltimore to the District of Columbia every school day, leaving at 5:30 in the morning and coming home late at night. His mother had to pawn her rings and other small jewelry to send her son to school.
At Howard, Marshall worked hard, so distinguishing himself that the Law Dean, Charles Houston, a Phi Beta Kappa from Amherst College and doctorate in law from Harvard, saw Marshall's potential, and the two became friends before Marshall's graduation. Before leaving law school, Marshall got a taste of what his life's work would be in the Crawford case. In this case a Black man, accused of raping and killing two white women in Virginia was found guilty and sentenced to hang. Marshall and Houston successfully appealed, reducing the sentence to life imprisonment, which at that time was a victory. In June, 1933, Marshall graduated. Of his class of 36 people, only six graduated. Marshall was the valedictorian.
Out of law school Marshall found it difficult to get work. But when in 1935 the NAACP decided that it would make an attempt to integrate the University of Maryland Law School, Marshall persuaded Charles Houston to let him be the lead lawyer. He won the case, a development that eventually propelled him to the NAACP's legal staff in 1937. With victory at the University of Maryland, the NAACP decided it was time to go South, and Marshall led the successful team when the Supreme Court ruled in Missouri ex rel Gaines v. Canada that the University of Missouri Law School must admit Black applicants.
By 1938, Marshall now the chief counsel for the NAACP, busied himself with the task of eliminating the "whites only" primaries in the South. This battle waged since 1924, came to a successful conclusion in 1944 in Smith v. Allwright, when the U.S. Supreme Court surprisingly confirmed Marshall's contention that Black people's being prohibited from voting in primaries in Texas was a violation of the 14th Amendment.
Marshall also defended Blacks in criminal cases, in many instances risking his life. Once in Columbia, Tennessee while defending two Black men charged with rioting and attempted murder, Marshall and his fellow NAACP lawyers, on their evening drive from Columbia to Nashville, were stopped by police. Separated from his friends, Marshall was taken down a dirt road towards a river in the woods. If his friends had not intervened, risking their own lives, it is very likely Marshall would have been lynched that night.
In many other places in the South, attempts were made to kill him. In one case, white men drove by the house in which Marshall was staying with a bomb intended for him. The inept bomber, unable to throw the bomb in time, had his arm blown off. His friends threw him out of the car, and sped away. He survived only because of the humanity of the intended victims.
In 1948, the year Harry S. Truman was re-elected as President of the United States, sponsors suggested Marshall for a federal judgeship for the Southern District of New York. He had the support of Mrs. Eleanor Roosevelt and the NAACP, but the attempt failed mostly because of infighting among New York's Tammany Hall leadership. Six years later, the successful Brown v. Board of Education of Topeka, et al. case placed Marshall in a spotlight that even New York politicians could not ignore. In that case, Marshall invited and received the assistance of law deans and professors of distinguished law schools, as well as sociologists, historians, and psychologists. Among them was Kenneth Clark, a well known African American psychologist who showed that Black children living in segregation tended to believe in Black inferiority. That, among other historical and sociological arguments, persuaded the Court that segregation was inherently unequal and socially unacceptable.
Williams provides a little known but interesting revelation. He wrote that our present Chief Justice William Rhenquist, then a law clerk for Justice Robert Jackson, sent a memo to his boss concluding: "I think Plessy v. Ferguson was right and should be reaffirmed." Fortunately the opposite decision in Brown v. Board of Education was unanimous, surprising even the NAACP lawyers.
The problem that remained now was how soon should the order be implemented. The NAACP wanted an immediate implementation, no longer than a year, but President Eisenhower pressured Chief Justice Earl Warren to allow the South to set its own timetable. Williams writes that Ralph Bunche, the Nobel Prize winner, overheard the President pressuring the Chief Justice to go slow, to which Warren responded: "I thought I would never have to say this to you, but now I see it necessary to say to you specifically - you mind your own business and I'll mind mine." Nevertheless, in Brown II, 1955, the Court decided to allow the South to desegregate "with all deliberate speed."
That ruling was not welcomed at the NAACP office nor by Thurgood Marshall, but he realized that something profound had happened in Brown and there was no point in arguing uselessly over the timetable. However long, hard work had to be done after 1955 to bring about compliance with the Court's orders.
In the meantime Marshall had come under intensified surveillance by the FBI. It had been surveilling him since WWII, and in 1955, the NAACP found an electronic bug in Marshall's office. Although suspicion focused on the Bureau, nothing could be proven. Nevertheless, this incident ironically created conversations between Marshall and FBI director J. Edgar Hoover. Hoover eventually supported Marshall's nomination to the federal bench.
The legal progress made by Marshall and the NAACP in the early 50s stimulated many different movements around the country. One such was the Montgomery Bus Boycott between 1955 and 1956 which catapulted Martin Luther King to fame, and which gave rise to similar boycotts elsewhere, as well as sitins and protest marches. Williams points out that although the sit-ins brought attention to continued segregation in the South, Marshall was privately dismissive of King's efforts. He felt that most people didn't understand that the marches and boycotts achieved very little, and that true progress came from his and the NAACP's successful efforts in the courts. Referring to Dr. King he said, "For American Negroes...to start disobeying laws on grounds that it was against their conscience would set it all back," but in public Marshall continued to sing King's praises.
Interestingly, the activities of King and other militants brought Marshall and J. Edgar Hoover even closer together. Hoover was under the impression that the Southern Christian Leadership Conference (SCLC) and other civil rights groups were being infiltrated by communists, and said so to Marshall. Both Marshall and Walter White had taken extreme care in getting rid of anyone suspected of communist sympathies in the NAACP. Knowing that the major civil rights organization posed no problem, set Hoover at ease.
One year after the decision in Montgomery, Marshall was embroiled in the Little Rock high school desegregation confrontations. President Eisenhower was of no help, because as Williams makes clear, he would have been content if Little Rock had stayed segregated. Only when Arkansas' Governor Orval Faubus challenged his presidential powers did Eisenhower federalize the national guard to protect Black students in Little Rock. The case against the Little Rock School Board ended in the Supreme Court, and it ruled in Cooper v. Aaron that integration was the law, and that the Governor as the chief officer of the state was obliged to obey federal law.
By 1960, a new generation of college students called for much more direct action and greater confrontation than that employed by King and the Southern Christian Leadership Conference, and by Marshall and the NAACP. Malcolm X and the Nation of Islam also expressed more militant sentiments. Some members of the Nation of Islam called Marshall an integrationist, and a half white, and Malcolm himself called him a fool. But to Marshall such epithets branded these detractors as lunatics, and he became increasingly alienated from them.
But in 1960 he got a confidence boost when the new African state of Kenya asked him to write its constitution. He took the job seriously. He studied all the constitutions of any importance and came to the conclusion that the amended American Constitution was the best. So the Kenya Constitution mimics that of the United States, but guaranteeing minority rights for white people. Much later Marshall remarked, "I'm damn proud of the constitution I wrote."
In 1961, President John F. Kennedy decided to appoint Marshall to the Federal Appeals Court, but his nomination faced fierce opposition from Southern Senators, particularly James Eastland, John McClellan and Sam Irving of Watergate fame. All segregationists, they held up the appointment for eleven months. Eventuall Marshall was confirmed by an 11 -4 vote of the Senate Judiciary Committee, and a 54-16 vote by the full Senate.
This was a fortuitous development for Marshall, for by 1961 he was losing patience with demonstrators who he thought were getting all the spotlight. The political climate changed after Kennedy's death, and more so with the election of Lyndon Johnson in 1964. In 1965 Johnson asked Marshall to be his Solicitor General at $4,500 less salary. This position, unlike a federal judgeship, had no lifetime job guarantee, but Johnson asked Marshall to make the sacrifice. Lady Bird Johnson wrote in her diary that her husband fully intended to put Thurgood Marshall on the Supreme Court if he did a good job as Solicitor General. This time the Senate Judiciary Committee took only 15 minutes to unanimously confirm Marshall for the job and the Senate did not even debate the issue.
Interestingly, one of Marshall's first cases was to present the government's case against 18 Southerners in Mississippi who had murdered Civil Rights activists Schwerner, Goodman and Cheney. All 18 men in the conspiracy had been declared innocent by a Mississippi court, and the Federal Government had to step in and to bring charges of violation of the civil rights of the three murdered men under interestingly, the Force Act of 1870. In this case, United States v. Price, the Supreme Court ruled in Marshall's favor, and six of the defendants were actually found guilty.
In 1967 President Johnson, deciding that Marshall had performed well as solicitor general, nominated Marshall for the U.S. Supreme Court. Once again, Southern Senators were outraged. They tried everything. They requested negative materials from the F.B.I., but Hoover., by now friendly with Marshall, provided only neutral stuff and publicly praised Marshall. At confirmation Southerners asked all kinds of obscure questions, so much so that they confused even themselves. Holding up the confirmation for a month did not help, but a full Senate vote of 69-11 with 20 senators abstaining, reassured Marshall's supporters.
On the Court, Thurgood Marshall, as expected voted consistently for the most liberal and moral interpretation of the Constitution. He was influential in outlawing the death penalty (now reinstated in some states), providing humane protection for the criminally insane, and insuring women's right to abortion. By the late 1980s however, Marshall grew increasingly intolerant of the conservative majority on the Court, and Williams writes that he was not, at times, averse to calling them unflattering names. President's Reagan and Bush also became targets of his ire, with, for example, Marshall suggesting once that Bush seemed dead, though alive.
In 1991, now very ill, Marshall decided to retire. He had held on as long as he could in hopes of a return to balance on the Court, but it was not to be. Two years later he died.
Juan Williams' biography differs from others on Justice Marshall in that his is the only one based on extensive interviews with Marshall and buttressed by comprehensive research in primary sources. It shows a man and a jurist undeterred by naked threats and subtle pressures in his determined struggle to make America live up to the humane possibilities of its Constitution. He succeeded greatly and against incredible odds, and it is for this reason that Juan Williams' timely and wonderful book, Thurgood Marshall: American Revolutionary, is so aptly titled.
John C. Walter, Professor
American Ethnic Studies Department
University of Washington…