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Justice Marshall participated in 3655 cases.
Joined with Majority2338
Dissented967
Concurred100
Concurring in Judgment188
Did Not Participate182
Judgment of the Court5
Dissent from Denial of Certiorari1
Jurisdictional Dissent56

Marshall, Thurgood

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Birth: July 2, 1908, Baltimore, Maryland.

Education: Lincoln University, A.B., cum laude, 1930; Howard University Law School, LL.B., 1933.

Official Positions: Judge, U.S. Court of Appeals for the Second Circuit, 1961–1965; U.S. solicitor general, 1965–1967.

Supreme Court Service: Nominated associate justice by President Lyndon B. Johnson, June 13, 1967, to replace Tom C. Clark, who had retired; confirmed by the Senate, August 30, 1967, by a 69–11 vote; took judicial oath October 2, 1967; retired October 1, 1991; replaced by Clarence Thomas, nominated by President George H.W. Bush.

Death: January 24, 1993, Bethesda, Maryland.


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Thurgood Marshall
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Thurgood Marshall

President Lyndon Johnson appointed Thurgood Marshall to the Supreme Court because, in Johnson's words, it was “the right thing to do, the right time to do it, the right man and the right place.” Marshall was the first African American to sit on the Supreme Court. His nomination came at the right time because by 1967 the Democratic Party's commitment to civil rights required representation of African Americans in high office. Marshall was the right man not only because he had been the strategist of the legal challenge to school segregation that culminated in Brown v. Board of Education (1954) and was the nation's most prominent African American lawyer, but also because he was committed to the implementation, through constitutional law, of Johnson's Great Society vision.

When Marshall arrived at the Court, he joined a solid liberal majority that shared that vision. The Court's composition changed rapidly, however, and Marshall spent most of his career on the Court holding up the banner of a vision about which the nation had grown somewhat skeptical.

After graduating from Lincoln University in Pennsylvania, Marshall enrolled in Howard University's law school, from which he graduated first in the class of 1933. Dean Charles Hamilton Houston of Howard took Marshall as a protŽgŽ, and Marshall referred throughout his life to the lessons Houston taught him. For Houston, law was a method of social engineering. He urged his students to work through law to improve the legal and social conditions of the African American community.

Marshall became the leader among African American lawyers because he took Houston's message to heart. After a brief attempt to sustain a private practice in Depression-racked Baltimore, Marshall moved to New York in 1936, where he joined Houston on the staff of the National Association for the Advancement of Colored People (NAACP). In 1939, after Houston left New York, Marshall became the NAACP's chief lawyer, a position he held until 1961. Marshall was one of the NAACP's leading speakers and organizers, but his main contribution came through his work as a lawyer.

The NAACP's legal staff grew from two when Marshall joined it to around a dozen when he left. Marshall's responsibilities as a manager made it difficult for him to sustain his work as a trial lawyer, but his early experience at trials gave him a sense—this infused his work as a judge as well—of how the abstract legal rules appellate judges define actually work in the courtroom. Marshall also was the NAACP's leading appellate advocate. He developed a casual and informal style of argument that worked quite effectively before courts, even the Supreme Court in the late 1940s and 1950s, that were inclined Marshall's way but needed assurance that the course he wanted to pursue was acceptable both legally and morally. When he argued against school segregation in Brown, his conversational style contrasted dramatically, and favorably, with the more oratorical style of his great adversary, John W. Davis. And even when the Court rejected Marshall's argument for rapid desegregation in its decision on the appropriate remedy in Brown II (1955), his insistence that constitutional rights were “present and personal” made the justices appropriately uncomfortable with their own actions.

In 1961 President John F. Kennedy appointed Marshall to the U.S. Court of Appeals for the Second Circuit, where he served four years. In 1965 President Johnson named Marshall solicitor general, intending to elevate him to the Supreme Court when the opportunity arose. Two years later, Johnson created a vacancy on the Court by appointing Ramsey Clark attorney general, which led Justice Tom C. Clark, Ramsey's father, to retire.

Marshall arrived at the Court when it was in the full flush of the Warren Court's liberal activism. Like most new justices, Marshall did not write many significant opinions in his first years of his tenure, and by the time Marshall had enough seniority to do so, the Court's composition had changed. President Richard Nixon's four appointments destroyed the powerful liberal coalition, and although occasionally a majority could be knit together for a liberal result, Marshall's abilities were not those of a coalition builder. His main contributions to constitutional law therefore came in his dissents. The Court's further transformation in the 1980s simply reinforced this situation.

In Stanley v. Georgia (1969), for example, Marshall wrote an opinion drawing together free speech and privacy concerns to find it unconstitutional to punish a person for possessing obscene material in his home. In sympathetic hands, Marshall's analysis might have led the Court to ban all regulation of obscene materials, but when the Court confronted the fundamental free speech question in Miller v. California (1973), a new conservative majority allowed local communities to apply their own standards to suppress obscenity. Marshall was among the four dissenters.

For most of Marshall's tenure, his colleagues respected him for the role he had played in making constitutional law with the NAACP and for the unique perspective he brought to the Court. Their respect, however, did not translate into making Marshall influential within the institution. His contributions to constitutional law consisted of his work with the NAACP and the public and academic reception of his dissents.

Marshall's jurisprudence embraced Houston's belief that law was a method of social engineering, but without the scientific or systematic overtones that Houston's term conveys. Rather, Marshall approached legal problems with a practical orientation born of his experience as a lawyer. For him, legal issues were practical problems of social organization, and the right legal answers were those that provided the most sensible solutions to the problems. Marshall's experience led him to rely not on expert advice, but on his own judgment to determine what the most sensible solution was. In Powell v. Texas (1968), for example, Marshall rejected the position, advanced by most liberals of the time, that alcoholism was a disease that could not be punished through the criminal process. He was skeptical about the claims made by experts based on a rather thin record, but, more important, he emphasized that as society was then organized, no real solution to the problem of public drunkenness seemed available except through the admittedly unattractive use of police to help alcoholics “dry out.”

Another early decision, and its ultimate fate, illustrates Marshall's jurisprudence and place on the Court. The NAACP's lawyers had struggled for years to eliminate racial discrimination by private parties such as homeowners and restaurant operators. Their constitutional claims were impeded by the state action doctrine, which required some participation by state officials in enforcing discrimination before the discrimination became unconstitutional. Marshall had argued Shelley v. Kraemer (1948), a restrictive covenant case, before the Court, and his argument drew on his insistence that the Constitution had to take social reality into account. As a justice, Marshall found “state action” in the activities of operators of modern shopping malls, which he described as the modern equivalents of Main Street, in Amalgamated Food Employees v. Logan Valley Plaza (1968). The opinion made social reality the basis for what Marshall regarded as sensible constitutional law. Again, however, the Court's new majority first undermined the decision in Lloyd Corp. v. Tanner (1972) and then formally overruled it in Hudgens v. National Labor Relations Board (1976).

Marshall's pragmatism led him to develop his most enduring contribution to constitutional law, the “sliding scale” approach to equal protection cases. The Court's majority purported to follow a rigid scheme in which the crucial step involved classifying a challenged statute as implicating either a fundamental right or a suspect class; if the statute involved either, it was almost always held unconstitutional. According to Marshall, that approach failed to appreciate the way rights and classifications could interact: the practical and normative impact of a statute that involved a not-quite-suspect class and a not-quite-fundamental right, Marshall argued, could be as problematic as the statutes the Court's majority regularly held unconstitutional. Rather than using a rigid classifying approach to equal protection cases, Marshall said, the Court should balance the severity of the statute's impact on groups and on rights against the goals government was trying to promote. Although the Court purported to reject Marshall's approach, some of its decisions—for example, City of Cleburne v. Cleburne Living Center (1985)—are best understood as adopting it. Academic commentators almost uniformly believe that Marshall's approach in Cleburne is sounder than the majority's.

Marshall's “sliding scale” or balancing approach allowed him to incorporate his sensitivity to the practical impact of law, particularly its impact on the poor, into constitutional law. When the Court upheld a fifty-dollar filing fee for bankruptcy cases in United States v. Kras (1973), Marshall objected to Justice Harry Blackmun's casual suggestion that it would be relatively easy for poor people to raise that sum: “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.” Suggesting that the Court would not uphold “compulsory visits to all American homes for the purpose of discovering child abuse,” Marshall dissented from the decision in Wyman v. James (1971), which allowed social workers to make unannounced searches of welfare recipients' residences. In Harris v. McRae (1981), he objected to the Court's use of a “relentlessly formalistic catechism” to uphold Congress's denial of funding for abortions to women receiving Medicaid, noting that the denial had “a devastating impact on the lives and health of poor women.”

Most of Marshall's career with the NAACP had been devoted to attempts to persuade the Court that race discrimination pervaded society, but could be eliminated through law. He continued that effort as a justice, even as the Court's conservative majority became skeptical about both parts of the argument. Dissenting from the majority's refusal to find unconstitutional a city's decision to close a street through an exclusively white neighborhood to keep out “undesirable traffic,” Marshall applied what he called “a dab of common sense” to explain why the decision was discriminatory in City of Memphis v. Greene (1981). His experience as a member of a racial minority allowed him to explain in Castaneda v. Partida (1977) why race discrimination could persist even in communities with a majority of racial minorities. “Successful” members of minority groups, he wrote, “frequently respond to discrimination …. by attempting to disassociate themselves from the group,” but the point of the antidiscrimination doctrine was to avoid “broad overgeneralizations concerning minority groups.”

Marshall's concern for individual rights might have posed a problem for him in affirmative action cases. Adhering to a Great Society notion of affirmative action, Marshall consistently voted to uphold affirmative action programs. His opinions, however, endorsed affirmative action as a remedy for prior discrimination, not as a means of allocating social benefits to minority groups. He was more willing than the Court's majority to find that past discrimination continued to affect present conditions, but always connected affirmative action to discrimination.

Marshall's affirmative action opinions also contain a second theme. After the Court held segregation unconstitutional, it gave state governments time to work out programs to eliminate it. The Court, in short, deferred to the judgment of local authorities as they tried to respond to what they, and the Court, understood to be a difficult social problem. Marshall saw affirmative action in much the same way: it too was a difficult social problem, and local authorities should be given substantial leeway in developing their responses. Marshall therefore never suggested that the Constitution required governments to adopt affirmative action programs, but he always voted to uphold the programs they did adopt.

Great Society liberalism generally had a strong nationalizing impulse, and despite Marshall's willingness to defer to legislatures in the affirmative action area, his experience made him skeptical of “states' rights” claims made to insulate local governments from national regulation. He was an active supporter of the Warren Court's innovations in constitutional criminal procedure and wrote one of the Court's important decisions applying Bill of Rights guarantees—protection against double jeopardy—to the states in Benton v. Maryland (1969). These decisions imposed national standards of police conduct and overrode claims that states should be free to develop their own approaches to law enforcement. In Marshall's eyes, local police practices were too often directed at racial and economic minorities. Marshall dissented in Florida v. Bostick (1991), in which the Court upheld the practice of “working the buses,” meaning that police officers board buses and “request” permission to search passengers' belongings. For Marshall, the practice did not give the people who used buses any real choices. Moreover, they tended to be people who could not afford trains or airplanes, and Marshall's opinion suggested that, as in the bankruptcy filing fee case, the majority failed to understand what it was like to be poor. The theme he sounded in criminal procedure cases was the demand for a realistic appreciation of what one observer said Marshall's questions to lawyers asked for—“what really happens between the cops and a criminal suspect in a squad car, or the way social workers really treat welfare clients.”

Marshall drew on his life's experience when he became, along with Justice William Brennan, one of two justices who argued that capital punishment violated the Constitution's ban on cruel and unusual punishments. As a practicing lawyer, he had represented defendants executed for capital crimes, and he always believed that, because “death is so lasting,” even a small risk of error was intolerable.

His analysis of the constitutional question had two elements. First, as he argued in Furman v. Georgia (1972), capital punishment no longer served any acceptable social purpose. Retribution, which he called “vengeance,” was simply an appeal to “our baser selves.” No convincing case for the death penalty's deterrent effect had been made. And, in an approach that revealed the importance Marshall gave to experience, he argued that the death penalty was “morally unacceptable to the people of the United States,” despite widespread legislative approval of capital punishment. The reason for that judgment, Marshall explained, was that “people who were fully informed as to the purposes of the penalty and its liabilities” would find it “shocking, unjust, and unacceptable.” An important component of this judgment, to Marshall, was the fact that the death penalty “falls upon the poor, the ignorant, and the underprivileged members of society,” who find it difficult to get their voices heard in legislatures. For Marshall, the courts—staffed by people experienced in law, as he was—were the places that such people could get a fair hearing.

The second element in Marshall's approach to the death penalty also relied on his experience, this time as a lawyer who knew how the law was actually administered. After the Court allowed states to reinstitute capital punishment, Marshall's dissents regularly pointed out how unfairness infected capital trials. His most astringent comments were reserved for the competency of counsel. When, in Strickland v. Washington (1984), the Court adopted a strict test for determining when counsel's performance was unconstitutionally ineffective, requiring that the lawyer's performance had to be both well below what professional norms required and prejudicial to the defendant, Marshall commented, “How under the sun can a deficient performance not register in the defense?”

Marshall was a Great Society liberal in another way. Although he was not sympathetic to claims by local governments, he did try to insulate some intermediate institutions—those standing between individuals and governments—from government regulation. This idea was a part of the Great Society's institutional settlement in which such intermediate groups, through bargaining in a pluralist political system, could shape public policy and thereby become committed to the existing order.

Labor unions were among the most important of these intermediate institutions, at least in the ideological universe of Great Society liberals. Marshall tended to support the power of centralized labor unions against challenges from individual members. He wrote the Court's opinion in Emporium Capwell Co. v. Western Addition Community Organization (1975), finding no violation of federal labor law when an employer fired four African American workers who had created a minority caucus outside their union and tried to bargain with the employer. Marshall's opinion argued that separate bargaining would “divide [workers] along racial or other lines,” thereby reducing the bargaining power of all workers.

Marshall's concern for preserving the authority of intermediate groups was also expressed when he became the Court's liberal specialist in Native American law and sought to insulate Native American populations from state regulation. His opinions developed standards for interpreting federal law that, while conceding the power of the national government to do whatever it wanted with respect to those populations, routinely found that Congress had not tried to exercise its power in a way that severely undermined them. Again, a case lying at the intersection of concern for intermediate groups and attention to minority interests shows Marshall's concerns more clearly. Santa Clara Pueblo v. Martinez (1978) involved a rule defining membership in the pueblo, which had significant consequences for a person's entitlement to tribal and federal benefits, in a way that discriminated against women. Marshall's opinion for the Court refused to find that Congress, in enacting the 1968 Indian Civil Rights Act, meant to allow lawsuits in federal court to challenge such rules. The challenger's only remedy, Marshall said, was within the Native American system of courts.

That Marshall implemented the liberal vision associated with Johnson's Great Society does not mean, therefore, that he adhered to positions taken by those the media labeled “leading liberals.” He supported Johnson in the Vietnam War, for example, and in Schlesinger v. Holtzman (1973), he issued an extraordinary order dissolving a stay Justice William O. Douglas had issued against continued bombing of Cambodia. Marshall was also more skeptical than some liberals about some versions of affirmative action as they developed in the 1980s, and he never found black nationalists such as Malcolm X attractive.

Great Society liberalism, however, might be acceptable as a political vision, but not as a constitutional one. The most basic criticism of Marshall's approach to constitutional law emerged in the dialogue between him and the Court's majority over the choice between the majority's rigid approach to equal protection law and Marshall's “sliding scale” approach. Proponents of the majority's approach argued that some rigidity was essential to confine judicial discretion; otherwise, judges who “balanced” competing interests would both duplicate what occurred in the political branches and enact their own policy preferences into constitutional law. Similarly, critics were concerned about Marshall's insistence on a “realistic” appreciation of what happened outside the Court; some degree of abstraction, they argued, was necessary because each judge's assessment of what “really” happened would be shaped by his or her personal perspective, an inadequate basis on which to rest constitutional law.

Precisely because Marshall did not find it important to work out in general terms an overall approach to constitutional law, he never addressed these concerns directly. Indeed, his deep commitment to his realistic and pragmatic approach showed that he rejected these arguments. Here too he relied on his experience. For Marshall, judges whose careers had been confined to the academy or to elite law practice might not truly understand how constitutional law operated in police stations or welfare offices, but Marshall was not this kind of judge. His career had carried him from a struggling private practice, to trial and appellate work in ordinary cases and in celebrated constitutional appeals, to the solicitor general's office where he had an overview of the federal government's litigation, and to the Supreme Court. And unlike any of his colleagues, he had lived the life of an African American in a racially divided society. His range of experience gave him confidence in his assessment of reality. His confidence was bolstered by the trajectory of his career, not just by the range of his experience. As Marshall saw it, he had succeeded as a lawyer and judge because, at each stage in his career, his judgment had been vindicated—for example, when the Supreme Court held segregation unconstitutional and when Johnson selected him to serve on it.

Marshall's approach to constitutional adjudication fit comfortably with his sense of himself and his career. An open and friendly man who found it difficult to have harsh words with or say harsh words about people he worked with, Marshall tried to treat his colleagues on the Court as if they ought to have the same degree of confidence in their ability to exercise sound judgment, to develop sensible solutions to the practical problems that law presented, as he had in his own ability. Within the Court, even those who consistently voted to reject Marshall's positions said that they respected the experience he brought to the conference table. Still, Marshall may not have appreciated that his colleagues, no matter how much they respected him for his achievements, might not be willing to base the edifice of constitutional law solely on the sound good sense of whoever happened to be the justices of the Supreme Court.

For all the misgivings critics might have about directing judges with less experience and generosity of spirit simply to exercise good judgment in making constitutional law, Marshall's career as a practicing lawyer and as a justice does exemplify how far good judgment can take a person.

Bibliography

Thurgood Marshall's papers are in the Library of Congress and were opened shortly after his death. Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 (1993), deals with Marshall's career with the NAACP; and Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991 (1997), deals with his career as a judge and as solicitor general. Tushnet also edited Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (2001). Juan Williams, Thurgood Marshall: American Revolutionary (1998); and Howard Ball, A Defiant Life (1999), look at his life as a whole. Roger Goldman with David Gallen, Thurgood Marshall: Justice for All (1992), is a compilation of tributes to Marshall, with an essay on and excerpts from his opinions.

For examinations of his opinions on specific subjects, see Victor Kramer, “The Road to City of Berkeley: The Antitrust Positions of Justice Thurgood Marshall,” Antitrust Bulletin 32 (1987): 335; Mark Tushnet, “Change and Continuity in the Concept of Civil Rights: Thurgood Marshall and Affirmative Action,” Social Philosophy & Policy 8 (1991): 150; Jonathan Weinberg, “Thurgood Marshall and the Administrative State,” Wayne Law Review 38 (1991): 115; and Tracey Maclin, “Justice Thurgood Marshall: Taking the Fourth Amendment Seriously,” Cornell Law Review 77 (1992): 723.

Noteworthy Opinions

Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968)

Stanley v. Georgia, 394 U.S. 557 (1969)

Benton v. Maryland, 395 U.S. 784 (1969)

Wyman v. James, 400 U.S. 309 (1971) (Dissent)

Furman v. Georgia, 408 U.S. 238 (1972)

United States v. Kras, 409 U.S. 434 (1973) (Dissent)

Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975)

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)

Strickland v. Washington, 466 U.S. 668 (1984) (Dissent)

Florida v. Bostick, 501 U.S. 429 (1991) (Dissent)

 

Document Citation
Marshall, Thurgood, in Biographical Encyclopedia of the Supreme Court 334 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18168-979368.
Document ID: bioenc-427-18168-979368
Document URL: http://library.cqpress.com/scc/bioenc-427-18168-979368