Article excerpt

Thurgood Marshall, I thought, would always be there.

My life has been rounded by his. I was born in 1954, scant months after his advocacy led to the stunning victory in Brown v. Board of Education,(1) and so I grew up in the world he had helped to build. I arrived at college just as the Warren Court,which he joined only near its end, began to fragment. I was privileged to serve as his law clerk at the very instant when liberalism ran into the stone wall of electoral distate--the reagan landslide of 1980. And now, upon his retirement, I am at last coming to grips with my pahtial estrangement from the liberal establishment to which Marshall has always been a hero.

Thurgood Marshall has long been my hero, too. Few black Americans would say otherwise. Not long ago, I chatted with an elderly taxi driver, a beautiful black man who popped up one day like a Greek chorus, to help me keep my head on straight. The driver explained to me that I was too young to remember what it was like in the old days. He told me that for his generation, rooting for Thurgood Marshall was like rooting for Joe Louis--the heavyweight out to battle and demolish one white hope after another. Marshall was the man to call whenever the racists struck. Marshall, the lawyer, using the white man's weapons to fight back the white man's system. Marshall, the symbol. Marshall, the hero.

John Ely, in dedicating Democracy and Distrust to Earl Warren, writes, "You don't need many heroes if you choose carefully." Point taken--but choosing Thurgood Marshall as my hero didn't require much care. He was simply there. I met him for the first time in the spring of 1978, when he came to Yale to preside over the final moot court arguments, in which I was a finalist. For me, he was already larger than life. Before attending law school, I had spent a week reading Simple Justice, Richard Kluger's fascinating, but flawed, history of the litigation culminating in Brown. Kluger writes history by locating heroes and telling their stories. Some of the heroes of his book were the individuals with the courage to stand up against the totalitarian white supremacist power structures then governing their states and communities. Some of the heroes of his book were judges. And some of the heroes were lawyers, like Charles Hamilton Houston and William Hastie, even now too often ignored in law school classroom, and Thurgood Marshall--who would probably be ignored, despite his remarkable legal achievements, but for his elevation to the Supreme Court.

Before I read Simple Justice, I had only the thinnest appreciation for the achievements of the legal arm of the civil rights struggle. Although I was a history major, my courses, on twentieth century American history treated Brown as an axiom and the civil rights movement that followed--which we did study in history--as what really mattered. Indeed, in the armchair radicalism of my undergraduate days, I was inclined to treat law as relatively unimportant, as a cloak for the true power relations of society. Certainly I could not imagine lawyers as heroes.

Which is why Kluger's book was an eye-opener for me. Kluger's tale has its faults--I have in mind particularly his exaltation of Earl Warren and his crediting the inner dynamics of the Brown Court, rather than the skill or forcce of the litigants before it, as well as his notion that Marshall and others in the New York office of the NAACP Legal Defense Fund had to be pushed to confront segregation directly. Later, listening eagerly at the feet of Thurgood Marshall and also of Spottswood W. Robinson, III, for whom it was my privilege to serve as law clerk at the Court of Appeals for the District of Columbia Circuit, I would hear most of the same tales, and many others, with greater nuance and complexity. But my critique would come later. At the time, it was the heroes who got to me, and Kluger's book is full of them. Kluger, much like David Halberstam, paints his principal figures as much larger than life, and as budding lawyer, I was content, even delighted, to leave them that way. …