School desegregation was not the only issue on Marshall’s mind. In 1972, while Justice Brennan was ill, Marshall became a leader of the justices opposed to capital punishment. In Furman v. Georgia, he succeeded as part of a coalition that won a difficult 5–4 vote outlawing the death penalty. The majority insisted that strict guidelines be put in place to prevent its consistent use by different juries and judges. Of particular concern to Marshall was the high incidence of poor people and blacks getting the death penalty for crimes that were punished with lesser sentences for rich whites. Stephen Saltzburg, one of Marshall’s clerks that year, recalled the unusual sight of an energetic, passionate Marshall going to see each of the other justices, trying to win converts.33
“In striking down capital punishment, the court does not malign” legislatures who approved of the death penalty and judges and juries who sentence criminals to death, Marshall wrote in his opinion. “On the contrary, it pays homage to [our system of government]. Only in a free society could right triumph in difficult times and could civilization record its magnificent advancement. In recognizing the humanity of our fellow human beings, we pay ourselves the highest tribute. We achieve ‘a major milestone in the long road up from barbarism’ and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and for humanity by shunning capital punishment.”34
Conservatives accused Marshall and his four colleagues of going easy on criminals at a time when the crime rate was rising. Marshall had been moving toward opposition to the death penalty for years. Going back to his days in private practice, when one of his first clients was put to death, and later when as a lawyer for the NAACP he saw white prosecutors railroad black defendants before all-white juries, he had come to believe that the death penalty was not administered fairly.
But philosophically Marshall had not been opposed to putting people to death. Just ten years earlier, as a Second Circuit judge, he had been willing to vote for a death sentence. “He was not against the death penalty when I worked for him,” said Ralph Winter, who was Marshall’s clerk during the 1961 term on the Second Circuit Court of Appeals. “We had a case [U.S. v. Denno] and I said this guy has got to get a new trial. Ultimately I wrote him a memo and persuaded him, but he was not anti-death penalty.”35
But by the late 1960s, with a voice on the Supreme Court, Marshall became absolutely opposed to the death penalty. Justice Brennan, a longtime opponent of capital punishment, had several animated conversations with Marshall about the issue. Brennan convinced Marshall they had a unique responsibility because the Supreme Court was the final place of appeal.
“No way, José. How are you going to not kill a person after he has been executed if you find out he is innocent?” said Marshall. “I mean, you can’t un-ring a bell. When you kill him, he’s gone.”
Marshall’s 1970s legal battles sometimes spilled out of the courts. He was among the justices who took the lead in opposing President Nixon’s attempt to stop The New York Times and The Washington Post from publishing portions of a military report on U.S. involvement in Vietnam. The “Pentagon Papers” were viewed by the Nixon White House as national security documents, and Nixon’s lawyers asked the high court to stop newspapers from publishing them. The Times was given a restraining order after printing some of the material, but the Post published other documents before the Court could act.
The Court voted 6–3 against the president. In his concurring opinion Marshall said Congress had not given Nixon the power to stop newspapers from publishing material even if the president labeled it SECRET. The ruling kicked up another political storm, and conservatives again identified Marshall as one of the high court “liberals” allowing the country to go haywire.
Nixon’s loss in court did not hurt him politically. He trounced the Democrat George McGovern in 1972, proclaiming himself the spokesman for a “Silent Majority” that wanted tougher sentences for criminals and support for the U.S. military in Vietnam. Marshall was clearly on the other side of popular opinion and beginning to feel that the Court was turning more conservative too. His sense of becoming politically isolated was manifested when he gave away his tickets to Nixon’s inaugural and stayed home. The sixty-four-year-old’s alienation only increased when, two days later, Lyndon Johnson died.
“He thought that moving me up there was what killed him off [politically]. They used the Vietnam War as an excuse,” Marshall said in an interview after Johnson’s death. “He told me that as late as a week before he died.” Marshall asked the former president if he had changed his mind about Marshall’s Supreme Court nomination costing him the presidency. “Nope. More and more, I’m sure I’m right,” Johnson responded.36
Johnson, a savvy political operator, may have been appealing to Marshall’s ego and even trying to persuade him to stay on the Court and justify the sacrifices made to get the seat for him. Marshall was now the only Johnson appointee left on the high court. Whatever Johnson’s motives, Marshall took his words to heart. In the coming years he struggled to stay on the Supreme Court. As if carrying his dead leader’s shield into battle, he crossed swords with an increasingly conservative court and fought politicians, including Democrats, who tried to force him off.
CHAPTER 31
Backlash on the Court
BY 1973 MARSHALL FOUND HIMSELF working hard to keep his balance on a high court shifting fast to the right. There were two longtime liberals still in place, William Brennan and William O. Douglas; they usually sided with Marshall’s opinions. But now a conservative majority was taking shape. William Rehnquist, a tall, learned Arizonian who had clerked on the high court during the Brown case, joined the Court in 1972. Also that year Lewis Powell, a stately Virginia gentleman and former president of the American Bar Association, came on the Court joining Potter Stewart and Warren Burger. A new era of conservatism dawned on the Court. Those four were often joined in decisions by two moderates, Byron White and Harry Blackmun. That new voting bloc pushed Marshall into the far left corner of dissent, an unfamiliar place for the sixty-five-year-old.
Marshall was not initially put off by the changes on the Court. He told friends he still felt like “family” up there, and he was an active voice in the justices’ arguments over cases. Once, when a complex corporate tax case was being argued, Justice Powell recalled that Marshall leaned over and whispered: “Lewis, I’ll trade you my vote in this case for a future draft choice.”
While he still enjoyed working with his colleagues, Marshall’s image to the world outside was changing. After struggling through pneumonia, appendicitis, and the car crash, he made fewer public appearances. It was rare for him even to venture out with his boys, who were now sixteen and fourteen. Marshall sent his court courier, Grafton Gaines, and Cissy to most of their games and school programs. He saved his energy for the Court.
Marshall was intellectually energized when two explosive cases, Roe v. Wade and Doe v. Bolton, hit the docket. The cases revolved around Texas and Georgia statutes restricting abortions. Norma McCorvey (identified as Jane Roe to protect her identity during the case) was a single woman in Texas who said she had been raped. She demanded a legal abortion under her constitutional right to privacy.1 Mary Doe, an unidentified Georgia woman, was not pregnant but had a neural-chemical disorder. Her doctor said a pregnancy could threaten her life. Doe wanted to be able to get an abortion if she became pregnant.
The cases were argued in December 1971 and reargued in October 1972. The high court was immediately buffeted by a storm of public argument, with feminist groups asserting that the decision to have an abortion was a private issue for a woman. Marshall was sympathetic to this perspective from his experience as an advocate for poor blacks. Going back to his days in Baltimore and Harlem, he had heard stories about penniless black women who suffered or died at the hands of any hack willing to perform an illegal abortion. In the justices’ conferences Marshall asserted that poor women needed to be able to have legal abortions since rich women could get
around state laws by going to private clinics or leaving the country. He took an active role in arguing that abortion should be viewed as a constitutional right.
The conservative wing was divided over the issue, with Rehnquist and White firmly opposed to making abortion a constitutional right. However, Chief Justice Burger and Justices Powell and Stewart signed on with Marshall and the three other liberal justices. The writing of the historic decision was assigned to Harry Blackmun.
Marshall was openly aggressive in trying to shape Blackmun’s opinion. The initial draft limited abortions to the first three months of a pregnancy. Justice Brennan, however, proposed that the three-month limit be replaced with a new standard—when a fetus was “viable” outside the mother’s body. At the urging of his clerks, Marshall sent a memo to Blackmun in support of Brennan’s idea. “Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of those women,” Marshall wrote. He argued that it made no sense to outlaw an abortion if the baby could not live on its own outside the womb.2
Marshall’s letter, in combination with Brennan’s arguments, persuaded Blackmun. The controversial ruling allowed abortion until the fetus had “viability” outside the mother’s body. Also, any pregnancy that threatened the “life and health of the mother” could be ended in a legal abortion.
The success Marshall was having with major issues—busing, pornography, the death penalty, and now abortion—made him a happy member of the Court despite its more conservative membership. But as the activists of the old Warren Court eked out a few major victories, they attracted political fire from the White House. In 1973 President Nixon privately derided Marshall to his staff as “a boob.” Nixon also put down the Court’s two other liberals: Justice Brennan was in the “boob” category, and Justice Douglas was not even worthy of “mention.” The president’s conversation would not become public until tapes revealed it years later, but Nixon’s assessment was an indirect acknowledgment of the impact Marshall and the liberals were having on the Court.
Ironically, Nixon would soon be glad that the old “Boob”—Marshall—had enough influence on the Court to help protect the president’s power. In July 1973, Rep. Elizabeth Holtzman of New York filed suit in U.S. District Court seeking an injunction to end Nixon’s bombing of Cambodia. Nixon’s attack on the Southeast Asian nation was an attempt to cut off supply routes to the North Vietnamese and end the Vietnam War. But Cambodia was not involved in the war, and Holtzman asked the court to block the assault on a neutral country. The lower court ordered the bombing stopped. But the Second Circuit Court of Appeals, Marshall’s former court, overruled the decision. Holtzman appealed to the Supreme Court, which was recessed for the summer. She then had to take the appeal directly to the justice in charge of the Second Circuit—Thurgood Marshall.
Marshall listened to the argument but promptly ruled against Holtzman, allowing Nixon to continue the bombing. Infuriated, Holtzman turned to William O. Douglas and asked him to overrule Marshall. Douglas, who was vacationing in Washington state, agreed and issued an order for a stay of the bombings.
Marshall felt that Douglas had slapped him in the face. He immediately telephoned the remaining justices and got them all to agree that Douglas was acting improperly. Then, writing on behalf of the Court, Marshall overturned Douglas’s decision. Without speaking to Douglas, a champion to the antiwar movement, Marshall wrote that no one judge had the right to act alone and reverse a ruling. The Cambodia bombing campaign, Marshall wrote, “may ultimately be adjudged to have not only been unwise but also unlawful [however] the proper response to an arguably illegal action is not lawlessness by judges charged with interpreting and enforcing the laws. Down that road lies tyranny and repression.” Holtzman v. Schlesinger (1973).
Douglas, age seventy-five and the senior member of the Court, was stung. He felt Marshall had conspired with his colleagues to overrule him. Douglas immediately wrote a dissent in which he complained that the Court could act to reverse him only if six of the nine were together.
The dispute had become personal. Despite their common standing as heroes to liberals, Douglas and Marshall entered a nasty enmity that would last the rest of their lives. Years later Marshall said: “Douglas was no friend of mine. We overruled him. And he never did forgive me for that. I don’t think he was [truly a liberal]. I think he went along.”
Douglas was similarly angry and disdainful of Marshall. In an autobiography published a few years after the high court’s battle over Cambodia, he wrote that the only reason President Johnson put Marshall on the Court was “simply because he was black, and in the 1960’s that was reason enough.” Douglas explained: “The public needed a competent black on the court for symbolic reasons.… A black reaching the top was likely to be anxious to prove to society that he was safe and conservative and reliable.”3
Douglas, because of bad relations with the other justices and deteriorating health, was isolated and largely ineffective during his remaining three years on the Court. Marshall, in contrast, continued to be a force. When the Court ruled that it was a violation of the First Amendment to censor or withhold mail from prisoners, Marshall wrote a concurring opinion that was widely quoted and praised for its humanity: “Whether an O. Henry authoring his short stories in jail or a frightened young inmate writing his family, a prisoner needs a medium of self-expression.”4
While the two titans of the left did battle, the nation was generally going through a conservative period, including a backlash against much of the Court’s effort to break down school segregation with busing. By 1973 the increasing flight of middle-class families out of the big cities and their schools led the Supreme Court to hear two cases that reinterpreted its support for racial integration. First, the Court agreed to hear a case in which Hispanic parents sued the San Antonio school district because affluent districts spent more money per pupil. That inequity, the parents contended, amounted to discrimination against the minority children concentrated in poorer residential areas of the state.
In a 5–4 decision that found Marshall on the losing end of a major case, the Court ruled for the school district. Poor children were guaranteed some minimal level of spending but not equal spending, the Court said. Affluent school districts had the right to spend added money if they so chose. Marshall dissented by arguing that a disparity in spending amounted to a “denial of equal protection of the laws.”5
Marshall was hailed by many in the press and legal circles for his dissent. Even inside the Court, one of Justice Burger’s clerks, John Oakley, sent a note to Marshall, congratulating him for taking a stand: “I believe your opinion will in time be acknowledged as one of the great dissents in the history of the court, not only because its erudition is inspired by humanism, but also because it must eventually become the law of the land.”6
The next year, 1974, another critical school case came to the Court. As white middle-class families fled Detroit, they had created an overwhelmingly black school district in the city. Any attempt to bus students within Detroit’s city limits to integrate schools was doomed because of the shortage of white students. Lawyers for Detroit’s black parents wanted the courts to approve a plan to merge the mostly black urban and the mostly white suburban school districts to allow for integration. The state resisted, and the black parents sued. After the parents won in the lower court and appeals court, the Supreme Court reversed the rulings. It decided that federal courts were wrong to violate school district boundaries and hold suburban areas responsible for segregation in the city.
Marshall took the unusual step of reading a part of his dissent from the bench. Sitting in front of the red velour curtains that lent a hush to the chamber, he spoke with the singular voice of the NAACP lawyer who had ended legal segregation in American schools in 1954: “In Brown v. Board of Education, this court held that segregation of children in public schools on the basis of race deprives
Negro children of equal educational opportunities and therefore denies them the equal protection of the laws.… After twenty years of small, often difficult steps toward that great end [of school integration], the court today takes a giant step backwards.”
Marshall added that the state of Michigan had a duty to eliminate, “root and branch,” every aspect of racism. Arguing that integration was difficult given the nation’s history of segregation, he said it would be easy to carve the nation’s cities into two, with whites on one side and blacks on the other. “But it is a course, I predict, our people will ultimately regret,” he concluded. “I dissent.”7
Although Marshall was on the losing side of 5–4 votes in both these cases, he did not feel defeated so much as engaged in a fight. While he was emotionally and intellectually caught up with this battle, there were heated fights outside the Supreme Court too. The nation was in a frenzy over a growing scandal threatening the Nixon presidency.
The story began in 1972, when the Nixon White House approved a break-in of Democratic campaign headquarters in the Watergate office complex in Washington. When some of the burglars were arrested, the administration tried to distance itself from the crime, but several of the president’s aides were implicated and convicted. An independent prosecutor subpoenaed tapes of Nixon’s conversations about the matter, but the president refused to release them. He claimed “executive privilege” until federal courts ruled against him. The president appealed to the Supreme Court.
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