In November 1965, Marshall appeared before the Supreme Court to defend the federal government’s authority in bringing the charges. He cited an 1870 federal statute outlawing “conspiracies” intended to intimidate blacks and deny them their constitutional rights. Lawyers for the accused argued that any charge of murder was the legal responsibility of the state, not the federal government. In a unanimous decision the Supreme Court ruled in Marshall’s favor (U.S. v. Price). Six of the men were later tried for conspiracy and found guilty.
Marshall soon had two other major victories. First, in January 1966, he argued that Virginia was violating the Twenty-fourth Amendment—which outlawed poll taxes—by requiring its residents to pay a tax to vote in state and local elections. Marshall argued that poll taxes in any election were illegal and had the effect of putting a coin-operated “turnstile” in front of the voting booth. The Court, in a 6–3 decision, ruled in Marshall’s favor (Harper v. Virginia Board of Elections).
A few months later the solicitor general broke new ground before the Court by claiming that New York State was violating the Voting Rights Act. The state had prohibited American citizens born in the U.S. territory of Puerto Rico who were literate but spoke only Spanish from voting. The new solicitor general said the government had no problem with requiring that voters be literate; it was opposed to the English-only restriction. The Court ruled 7–2 in favor of Marshall (Katzenbach v. Morgan).
While Marshall argued a fair number of cases, he did not spend as much time in court as had Archibald Cox. His predecessor had sometimes argued three or four cases a week, and his style was formal and academic, as if he were lecturing the justices. By contrast, Marshall’s style was fairly casual. He was conversational with the justices and deferential to their points. Nonetheless, Marshall was seen as an effective advocate, and fears about his ability to handle anything but civil rights cases faded, even if they did not go away.
As he took control of his new post, Marshall became a well-known figure in the administration. During 1966 he was in and out of the White House, for meetings with the president as well as for state dinners and ceremonies. Marshall and the president frequently talked about civil rights, but their discussions ranged through American policy and history. “I know that when he was solicitor, President Johnson called upon him for advice in many things having nothing to do with civil rights,” said Bill Coleman, lawyer and close friend to Marshall. “He and Johnson really got along, they both had that hearty laugh, they were both gutsy, and could tell stories. They were awfully good friends.”
“We talked about a lot of things that I ain’t gonna talk about,” Marshall said later. “Johnson’s ambition was, ‘That history must show that compared to me, Lincoln was a piker.’ He wanted to outdo him. Takes a hell of a lot of doing. But that man, I loved that man.”
As Marshall was getting to know Johnson, the president was preoccupied with the military buildup in Vietnam. The war was quickly becoming unpopular, damaging Johnson’s public standing day by day. Marshall defended him as a victim of bad advice. “That was the military’s fault,” he said. “The military got McNamara in a box, and the generals fed this stuff to him, and McNamara parroted it to Johnson. Not once did I go to the White House that McNamara wasn’t either going in or going out. He must have gone over there two or three times a day.”
Black Nationalists were some of the most vocal critics of Johnson’s policy in Vietnam. They pointed out that 20 percent of U.S. troops in Vietnam were black and called it a “race war” run by white politicians who were using blacks to kill Asians. In March 1966, Marshall made a point of hitting at these opponents. He said black soldiers were patriotic, willing to die for their country, and neither black nor white military people should be criticized for fighting Communism. “If our country needs fighting men we are always there,” Marshall told a crowd at Bethel Methodist Church in Baltimore.16
Marshall’s frequent visits to the White House were not limited to serious policy matters. Over glasses of bourbon and Dr Pepper, Johnson and Marshall would also trade gossip. One of their targets was the new senator from New York, the former attorney general, Robert Kennedy. Marshall still remembered Bobby Kennedy’s reluctance to nominate him for the Second Circuit, and Johnson viewed the younger brother of the assassinated president as a possible foe in the 1968 Democratic primaries. Johnson regularly dumped on Bobby in his talks with Marshall.
“Whooooo! That started with Bobby,” Marshall said in an interview. “They had a big conference in the Kennedy White House on some big deal. And sure enough Johnson heard about it. So he called and wanted to know about the meeting. An aide announced: ‘The vice president’s on the phone and he wants to know whether he’s to come over or not?’ And without even covering up the phone, Bobby said, ‘We don’t need that stupid son of a bitch for nothing. Tell him to go to hell!’ ”
Marshall said Johnson held a grudge from that point on. When Johnson became president and Bobby Kennedy asked him to support his campaign for the Senate, Johnson quipped: “Remember what you said about me before. That goes for you now!”
Away from Washington’s political wars, Marshall led a cloistered life. The family lived in a small town house, hidden in a new development not far from his downtown office. He had some small dinner parties, where guests recalled that he liked to carve roasts with a new invention, the electric knife. Generally, Marshall spent little time on the social scene or hanging out with friends.
“When he moved down to D.C., from that point on they took Thurgood out of circulation, told him he couldn’t move around, talking, catting around, and all that kind of stuff,” said his friend Monroe Dowling. “And he started getting disagreeable. You know, he couldn’t play around with women, or even come out and play poker with the boys and things like that.” The new solicitor general, who by now had to wear bifocals everywhere, also began to put on weight in his new sedentary life. A New York Times Magazine piece on Marshall claimed that he now weighed far more than two hundred pounds: “While not exactly fat, Marshall is comfortably thick, with a double chin that hangs like a testament to a man whose idea of physical exercise is to avoid all thoughts of it.”17
To blow off steam while under the strict demands of a bureaucratic job, Marshall began to drink more. His colleagues in the Solicitor General’s Office were impressed with a man who could have three martinis at lunch. He smoked cigarettes constantly. And there were stories about the boss being free with his hands around women at dinners and social parties.
“He did have a tendency to let his hands stray,” said Louis Claiborne. “I don’t know to what extent that occurred. I know that it was said that he had touched—I mean, in these days it would have been called sexual harassment, I’m sure. I don’t know that he ever forced himself on anybody. I think probably his manner of being affectionate was less than entirely subtle.” Ebony magazine quoted a “friend” of Marshall’s as referring to the same problem: “His human frailties are the same as every male,” the source said. In the same article Marshall’s appetite for a good drink was touched on delicately by a person who said, “He never lets a highball get in the way of a case.”18
His personal flaws, however, never created a scandal. Instead, his shortcomings led friends to feel that they had to look out for the first black solicitor general and a man who was in a position to rise even further. Despite all his disavowals there was persistent talk that Marshall was on track for the Supreme Court. Ted Poston of the New York Post, an old friend of Marshall’s, frequently reminded his readers that Justices Reed and Jackson had both occupied the solicitor general’s job before being elevated to the high court. And when The New York Times sent a reporter to interview Marshall for a magazine article, Marshall had to knock down several questions about whether he was being prepped for the high court.19
At the Solicitor General’s Office, Marshall was busy. As the government’s lawyer, he sometimes had to handle cases in which he was forced to go against his lifelong tendenc
y to side with the little guy. In one case a defendant claimed that his confession was illegal because federal agents had not informed him of his right to remain silent and have a lawyer while being questioned. Marshall responded that having federal agents take the time to spell out constitutional rights to every defendant interfered with their ability to get to the bottom of the case quickly.
“We start from the premise that it is essential to the protection of society that law enforcement officers be permitted to interrogate an arrested person,” Marshall told the Court. “An inflexible Constitutional rule turning on the presence or absence of council or on the recitation or omission of a warning may be easier to apply, but we believe that it will, more often than not, cast out the baby with the bath water.”
The high court disagreed. Ruling on Marshall’s case and others, grouped under the title Miranda v. Arizona, the justices said that under the Fifth Amendment every defendant had a right to avoid self-incrimination. Confessions were invalid, the Court said, unless the suspects were first informed that they could remain silent and ask for a lawyer.
The 5–4 ruling was a landmark for the Supreme Court in setting out the rights of any suspect. The New York Times, in a front-page article, described the ruling as imposing “sweeping limitations on the power of the police to question suspects in their custody.” The Washington Post later described Marshall’s loss on the Miranda ruling as “his most notable defeat as Solicitor General.”20 The Miranda case also established that Thurgood Marshall had completed the transition from the NAACP lawyer who was frequently at odds with the FBI to the government lawyer who was able comfortably to represent a federal agent’s point of view before the Supreme Court.
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Marshall also demonstrated his ability to play hardball Washington politics when he found himself caught in a nasty cross fire between President Johnson, FBI Director Hoover, and Sen. Robert Kennedy. The case involved Fred Black, a prominent Washington lobbyist who was under FBI investigation for alleged ties to the Mafia. Black was never charged with working for organized crime, but a Justice Department investigation led to charges of tax evasion, and Black was found guilty. The conviction was appealed to the Supreme Court, but they refused to review the case.
As the Justice Department had prepared to deal with Black’s appeal, they uncovered the fact that the FBI had placed electronic eavesdropping devices in Black’s hotel suites in Washington and Las Vegas. Some of the taped conversations included talks between Black and his lawyer, which as privileged lawyer-client exchanges were considered confidential by law. Alarmed at the potential damage to their case, department lawyers began pressing Marshall to inform the Supreme Court about the bugging. The lawyers hoped the high court would not throw out the case if the government admitted its error.
When Hoover found out that the Justice Department wanted to tell the Court of the buggings, he exploded, fearing that he would be the fall guy if Black’s conviction were overturned. And he argued there was no reason for the department to inform the Court about the taps because those conversations had not been used to convict Black on the tax evasion charges.
Attorney General Nicholas Katzenbach and Marshall decided that despite Hoover’s objections, they were obligated to tell the justices about the buggings. Hoover then demanded that Marshall tell the Court that former Attorney General Robert Kennedy had authorized the tap. He claimed Kennedy had intimate knowledge of the FBI buggings and had even listened to taped conversations. Kennedy, however, denied that he had listened to any such tapes and claimed never to have authorized Black’s bugging.
When on May 24 Marshall sent a letter to the Court revealing the illegal electronic surveillance, he sided with Kennedy and Katzenbach. He made no mention of any Justice Department authorization for the FBI’s bugging. Hoover and the FBI were left exposed, and a furious Hoover came out swinging. He threatened to issue a press release saying that Kennedy had signed those authorizations. Hoover also insisted on a meeting with the president’s top aides to complain. On May 27, 1966, Hoover first wrote to Marvin Watson, one of Johnson’s assistants, that Robert Kennedy “was either lying or had a very convenient lack of memory.”21 Watson let the president know that political warfare had broken out between Hoover, Katzenbach, and Kennedy—with Marshall caught somewhere in between. Johnson called his solicitor general in for a half-hour meeting in the Oval Office the next day.
In a later interview Marshall said Johnson expressed a strong distaste for bugging. Marshall asked, “Hey, you know about this bugging business?” Johnson said he did. He wanted Marshall to tell the Court that Bobby Kennedy had dirty hands in the Black case. He felt it should be known that Kennedy had at least given Hoover a general authorization for secret surveillance of organized crime. And, most important, the president wanted Marshall to confirm Hoover’s claim that Kennedy was fully aware that Black’s rooms were tapped.
The FBI knew Johnson was on Hoover’s side. One of Hoover’s top aides, Cartha DeLoach, wrote in a memo that Johnson’s personal secretary at the White House “told me in strict confidence on Saturday, June 4, 1966, that the President … is chiefly concerned over the fact that the Attorney General [Katzenbach] appears to be ‘fronting’ for others, namely Bobby Kennedy.”22
Marshall was trapped. He was caught in Johnson’s fight with Kennedy as well as in Katzenbach’s feud with Hoover. While he tried to figure out how to shelter himself in the political storm, a new player entered the game. Associate Justice Abe Fortas, who had been appointed to the Supreme Court by Johnson in 1965, began meeting with the FBI about the case. “Justice Fortas stated that the entire matter boiled down to a continuing fight [between Johnson and Kennedy] for the Presidency,” DeLoach wrote in a memo. “If the facts, as possessed by the FBI, concerning Kennedy’s approval of wiretapping were made known to the general public then it would serve to completely destroy Kennedy [with liberal voters].”
Fortas convinced his colleagues on the Court to request that Marshall provide more information on the extent of the FBI’s bugging and the contents of the tapes. He was looking to embarrass Kennedy and help Johnson. Fortas also took the opportunity to deride Marshall. He played heavily on Hoover’s fear that Marshall was willing to let the FBI director take the blame. Fortas told FBI Agent DeLoach that Marshall had “ineptly and inadequately presented the matter of electronic devices to the Supreme Court.” Fortas added that in his opinion Marshall had also given a “stupid presentation to the Supreme Court” on how the FBI handled confessions a few months earlier during arguments over Miranda warnings. Hoover later wrote in a personal memo that he had heard from a Supreme Court justice, undoubtably Fortas, that Marshall was just a “dumb Negro.” Justice Fortas kept the president informed about what was going on, even bragging to DeLoach that he was going to “slip in the back door and see the president” about the matter.23
Despite all the behind-the-scenes maneuvering, the Supreme Court’s request for more information had still not been answered. After two more weeks of heated meetings and phone calls, Marshall responded to the high court with a letter that walked a high wire over the chasm between Kennedy and Hoover. Without naming Kennedy, Marshall wrote that past attorneys general had allowed the FBI to use electronic bugging in cases involving “the interest of internal security or national safety.” With that general authorization, Marshall told the Court, the FBI did place electronic bugs on Black.
Marshall’s letter pleased all sides. Kennedy continued to deny that he had knowledge of any specific illegal surveillance of Black. Hoover was satisfied that the Justice Department had acknowledged authorization for the surveillance. And in deference to President Johnson, Marshall’s letter painted the current administration as the good guys who had stopped illegal bugging practices permitted under previous administrations. Marshall wrote: “Present department practice, adopted July 1965, in conformity with the policies declared by the president on June 30, 1965 … prohibits the use of such listening devices.”24
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p; The letter also worked for Black. The Supreme Court ordered a review of his conviction. He was retried and this time acquitted of tax evasion. For his part Marshall had the fortunate look of a man who had survived a political war. Katzenbach recalled how delicately Marshall handled the situation: “Whatever Thurgood’s feelings about [Kennedy or Hoover] were, he was very helpful to me in working that out, because it protected Bobby and it protected Hoover.”
Shortly after Marshall had sent his memo on the Black case to the Supreme Court, he got a surprise invitation to the White House for a party celebrating Hoover’s fiftieth year at the Justice Department. “Johnson said, ‘The director told me to invite you,’ ” Marshall recalled with great pride many years later.
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While Marshall was finding his way through Washington’s political thicket, he continued to play a key role as the top black figure in the U.S. government. For the second straight year several big cities were dealing with summer riots. To calm the racial storm the administration invited civil rights leaders to Washington for a conference called “To Fulfill These Rights.” Johnson wanted the nation to see federal policy makers and black leaders working together to provide more jobs and better education for blacks. But the conference itself was in danger of collapsing. The president’s approval ratings had fallen sharply as black militants, riots, and nationwide anger over the escalating Vietnam War had the administration on the defensive.
“There was a very high degree of nervous anxiety over the conference, a lot of worry that it would be a disaster,” said Harry McPherson, the White House counsel, who had to get on the phone with the president several times to reassure him that it was wise to go ahead with his appearance at the conference. But the situation outside the conference, at the Sheraton Park Hotel in Washington, was growing worse. “We had pickets, we had all kinds of stuff. There were a lot of guys in blue overalls with kerchiefs around their heads and sullen looks on their faces,” McPherson recalled.
Thurgood Marshall Page 41
