Thurgood Marshall: American Revolutionary

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Thurgood Marshall: American Revolutionary

More extensivley and complexly than Taylor Branch's Martin Luther King, Jr., or Alex Haley's Malcolm X, or David Levering Lewis's W.E.B. Du Bois, Juan Williams study of the African American lawyer and judge, Thurgood Marshall examines in detail the hardships of racial segregation. The narrative explores what I would call a central paradox of American race relations: that segregation enforced spatial barriers, delimited political spheres, severely restricted opportunities but segregation also fostered a black community that thrived. Marshall's black family suffered from economic scarcity and poverty, and yet they served as pillars of their community, and Marshall asorbed precious lessons from his seemingly organic relationship to Baltimore's segregated black community. Williams has written a popular biography, a journalist's rendering, which will undoubtedly sell many copies to an interested audience. The narrative occasionally sacrifices analytical rigor for a perceived popular appeal -- Williams does not engage fundamental though complex legal themes, such as due process or federalism.

Though he is referred to as an activist or civil rights leader, Marshall should be approached as an astute legal strategist; his pragmatic discourse on equal protection secured the winning decision in Brown v. Board of Education, arguably the most significant Supreme Court decision of the twentieth century. Williams spends about a quarter of the book each on Marshall's early years, college and law school years, the era of Brown, and his ascension to the Supreme Court. Williams undoubtedly consulted Mark Tushnet's widely praised biographical study of Marshall, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, which was published in 1994. Tushnet is an academic specialist in legal history; though his book is approximately the same length as Williams's biography, I feel that Williams covers more material and achieves a better understanding of the justice, his legal reasoning, and the politics of state. The two studies are equal in their analysis of the succession of cases leading to Brown, but Williams's rich narrative of African American life gives us essential context. I feel that the weakness of both studies in terms of analysis of legal issues and analyzing the complex relations between law and society show us an urgent need for new intellectual histories of segregation/integration.

Williams researched deeply in African American social history, carefully reconstructing the nineteenth and early twentieth century world of Baltimore. Marshall attended Colored High School, befriending the likes of Cab Calloway. After his father died, Marshall's mother worked extra hours and saved, just to keep Thurgood in school. He attended Lincoln University, which many called the Black Princeton.

Williams found interesting materials and anecdotes in the Lincoln years. Contrary to what you might expect from a lawyer who led the fight against desegregation, Marshall was a college conservative. Marshall attended Lincoln at the same time as the poet Langston Hughes, and he debated Hughes on the merits of segregation of the faculty. Marshall argued that the university should retain its racially segregated, all-white faculty, while the cosmopolitan Hughes argued that Lincoln should recruit black faculty. Such an anecdote reminds us that integration was not yet a black shibboleth; perspectives varied and black Americans gradually evolved toward liberal integrationism (though, as I said, we need to research the details of that intellectual trajectory). Williams believes that Marshall's debate with Hughes represented a turning point, when "for the first time in his life, he began thinking about Jim Crow practices."(1)

It was after graduating from Lincoln, however, that Marshall confronted the harshest aspect of segregation, when he applied to law school and sought admission to the University of Maryland Law School, which excluded black Americans. Marshall prepared himself for an absurdly long train ride from Baltimore to Washington, D.C. and attended Howard Law School. Again, segregation shaped his fate -- Marshall would have received a solid education at the University of Maryland, but he found at Howard the legal mentoring of Charles Hamilton Houston. Houston was the driving force behind the first phase of legal desegregation, and would guide Marshall toward the university cases that set the groundwork for Brown. During those years, Williams reminds us, black lawyers were forbidden from joining the American Bar Association, though a few black lawyers joined the National Bar Association, founded in 1925. After graduation, Marshall returned to Baltimore but stayed in constant communication with Charles Hamilton Houston.

By the end of the 1930s, Marshall's stature as a lawyer was rising steadily, and he re-settled in the national office of the NAACP on Fifth Avenue in Manhattan, specifically recruited by Houston. According to William's reading of the evidence, no single attorney was appointed or authorized to commandeer the legal movement; it was an organizational program. Hamilton wrote: "I want to make the legal movement self-perpetuating so that no loss of the head or any set of members will hamper progress." To lead the organization, Marshall was chosen over other men; but why? Marshall was intellectually gifted, exceptionally articulate.

1938 was the apogee of Houston's career before the Court, the year of Gaines v. Missouri, when the Court held that the states must provide equal educational facilities, and ordered that Gaines's admission to University of Missouri Law School. The next year the state of Missouri commenced construction of an all-black law school, but Gaines disappeared and did not testify. Mark Tushnet argues that Marshall viewed the decision as a setback, whereas Williams writes favorably of the events. Here Tushnet is the better scholar: it does seem that with their conservative reasoning in Gaines, the Court simply affirmed the Plessy decision -- ruling that states could retain segregation if they built separate and comparable institutions. In the midst of the New Deal, the Court's legal reasoning and framework built in the nadir of black history was sustained.

In terms of constitutionalism, Marshall's major legal victory was not in education but in housing segregation; Shelley v. Kraemer (1948), which outlawed restrictive covenants as constituting a violation of equal protection. Although Williams traces the development from criminal procedure to the breakthrough ruling in Shelley to the legal approaches applied to the school cases, the careful biographer does not draw any kind of substantial connections between and among the cases. Nor therefore are we presented with possible interpretations of the development of an alternative equal protection jurisprudence.

By the beginning of the 1950s, Marshall was casting himself as a politician of sorts. Williams names one of his chapters "Machiavellian Marshall," but I suspect that he chooses that title as a jest, for Marshall was a principled, committed civil rights advocate rather than a man who chose a position based upon his calculation of the political consequences or a cost analysis of the professional outcomes. Williams responds to the recent criticism of Marshall that he colluded with the federal government in perpetuating anti-communism. By the mid-1950s Marshall was in constant communication with J. Edgar Hoover. He openly disparaged communists in speeches, saying, "we must continue to keep our membership abreast of new tactics of infiltration..."(2) He was willing to be informant against any of opponents of segregation. When Malcolm X led a protest against New York City police for their alleged assault on an African American woman, Marshall intervened at the request of President Kennedy. While Malcolm militantly criticized the police, Thurgood Marshall defended them and claimed that the woman injured the officers and berated Malcolm as a communist sympathizer. During the 1960s, Marshall moved to the political right, using his anti-communist connections with the FBI against black leaders, particularly Malcolm X.

By the end of the 1940s, after almost a decade of generally ignoring the issue of education, Marshall finally returned to problem of unequal schools. The case was Sipuel v. Oklahoma, a reprisal of Gaines, where the complainant applied to graduate school in education but was rejected because of state segregation statutes. Marshall had proven that the all-black graduate school was grossly unequal; before the case eventually reached the Supreme Court, the state withdrew and admitted Sipuel. Absurdly, however, Sipuel was separated from the white students in the classroom; forced to sit several rows behind her school mates; and eventually placed in a segregated area with a sign posted overhead, "COLORED." Williams effectively summarizes the subsequent cases, including Sweatt v. Painter, and McLaurin v. Oklahoma, both of which were decided in 1950.

Marshall was looking for education cases, but he did not feel as certain as Tushnet portrays him that elementary and high school education cases would result in affirming decisions. As Williams re-constructs the Court's reasoning in Brown, the justices did believe in the psychological costs of segregation; they felt, as Justice Warren said, that "to separate children solely because of their race generates a feeling of inferiority as to their status in the community." I suspect, however, that Williams would agree with me when I emphasize the extent to which the Court used social science ideology in supplementary fashion; their important move was affirming Marshall's long-term strategy of originalist intent of the Fourteenth Amendment. Marshall's formulation was was that "separate educational facilities are inherently unequal." Clear and elegant, and constitutionally resilient, Marshall's terse formulation could stand the test of time.

Historians tend to divide post World War H protest into two parts, the legalist integration phase and that of radical protest and demonstration. Let me take liberty with Williams's text for a moment. In 1955, Marshall argued a major bus segregation case -- Gayle v. Browder, which actually emanated from the Montgomery bus boycott; and Marshall won the decision. Yet, by most historical evaluations of the Civil Rights Movement, King dwarfs the jurist Marshall. Marshall's victory in Brown was a major, historic contribution to the black freedom struggle; without these legal decisions already in place, it seems to me that even the first phase of the Civil Rights Movement was going to be defeated. Without constitutional legitimacy and the promise of protection from the courts, local black protesters would be crushed by state and local officials, and white segregationists could easily prevail.

Marshall retired from the NAACP in 1960, and was appointed to the judgeship on the Second Circuit of Appeals. When President John F. Kennedy offered him the district job rather than a federal job, Marshall was disappointed. The Attorney General told Marshall point blank, to take it or leave it. "Its that or nothing," said Robert Kennedy. Marshall replied, as only a black politician who had survived the experience of segregation could, "Well, I've been dealing with nothing all my life, there's nothing new to that." Marshall brought with him everywhere he went, including into the oval office of the White House, his personal experience of racism that was common to all black people that lived in the United States. It was a painful scar and a disadvantage, and yet the story of Marshall's success recounts how black Americans were able to find strength in racial adversity; and create a transformative politics.

I feel that Marshall's ascension to the bench was too late to make and enforce the kind of definitive and sweeping doctrinal contributions to U.S. constitutionalism if he had served at a time when a majority of the justices shared his political orientation. Marshall was the last truly liberal appointment to the bench before a succession of conservatives; he spent most of his judicial career just barely holding up the left or liberal wing. As Justices Brennan, Douglas, and Fortas retired and died, each of their funerals signalled a slight turn to conservativism, though a rightist orientation did not actually predominate on the court until near the end of Marshall's life. For much of the 1970s and 1980s, with the exception of Bakke, the Court generally supported Marshall's poistions concerning the constitutional imperative of integration, as evinced by Fullilove v. Klutznick, which justified government set asides using the same kind of language and constitutional logic that Marshall had been proposing since the 1940s and 1950s. Bakke was a set back; according to Williams, the decision left a deep scar on Marshall. That year Marshall delivered a scathing speech in which he warned of racist backlash of the sort that he had witnessed in his youth; "The Klan never dies," the justice proclaimed. Still, it was not until late in the 1980s that affirmative action programs would succumb to conservative criticism.

Marshall lasted through the Reagan years, but not through Bush's presidency -- and his place at the bench was appointed to Clarence Thomas. It goes without saying that Thomas was a disappointment to the followers of Marshall. How could a President of all the people, an institution that owes its definition and legitimacy to our history, ultimately cater to blatant partisanship? In retrospect, it now seems that Bush's nomination represented the most cynical of racial politics -- invoking Marshall's ancestry as a factor in his decision to nominate Thomas, but then to choose a lawyer whose philosophy of jurisprudence did not draw from the black legal tradition that has been built by Charles Hamilton Houston or Marshall himself. The very racialism against which Marshall had struggled was used against him; the color-blind President manipulated race such that, once again, color was the criteria that could eclipse intellectual achievement. What Marshall told Kennedy could apply with somber accuracy to all of black Americans at the moment when Thomas was appointed: "I've been dealing with nothing all my life. There's nothing new to that."

Prof. Kevin Mumford

Dept. Of African and African American Studies

Yale University

(1). Williams, Thurgood Marshall, p. 48.

(2). Williams, Thurgood Marshall, p. 257.