Thurgood Marshall

by Juan Williams

The high court ruled unanimously against Nixon, ordering him to release the tapes. Marshall, given his ties to President Johnson, had never been a Nixon fan. And in his conversations with other justices, he was especially angry at Nixon’s claim that only the president could determine if it were in the national interest to release the tapes. When the first draft of the Court’s opinion was circulated among the justices, Marshall wrote a tough-minded note to its author, Chief Justice Burger, a Nixon appointee. Marshall wanted the Court to hammer home the point that Nixon’s claims about acting in the national interest were egotistical blather. The Court did take a hard stand. A month later, Nixon resigned.

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  As the 1970s wore on, Marshall’s health continued to deteriorate. Early in 1975 Marshall was in Las Vegas when he came down with a bad fever and severe respiratory infection. Still smoking two packs of cigarettes a day, Marshall saw his infection quickly develop into pneumonia. He flew to Washington and went directly to a room at Bethesda Naval Hospital. Justice Douglas had suffered a stroke and was also off the bench. With Marshall hospitalized the Court was down to seven justices, and both of the ailing justices were among the liberal minority. Marshall would miss a month on the bench. Doctors warned him to quit smoking and lose weight (he was now way over 230 pounds), but he could do neither.

  In June 1975 Marshall was well enough to travel to Baltimore for one of the few speeches he was willing to give in an increasingly cloistered life. The occasion was the fiftieth anniversary of his graduation from Douglass High School, and Marshall was the commencement speaker. Standing before 450 mostly black students, he blasted away at contemporary black youth culture, with its heavy focus on black pride and talk about black power. “I don’t care how many Afros you wear or how many dashikis you carry on your shoulders, you will never get anything unless you are able to compete with everybody else at the same level and be superior,” Marshall said. As for Washington affairs, he urged the students not to be cynical about politics because of Watergate. “We’ve got to get involved in the machinery of this country because if we will not, somebody else will be running it.”8

  Over the next year Marshall’s work on the Court centered on one issue: the death penalty. He had helped to engineer the 5–4 ruling in the 1972 Furman case, which outlawed capital punishment because of arbitrary sentencing. Now the Florida, Georgia, and Texas legislatures had put in place guidelines for sentencing criminals to death in an attempt to make executions more consistent and end any racial bias in sentencing.

  In the 1972 case Marshall had been absolutely opposed to the death penalty. He viewed it as cruel and unusual punishment and therefore unconstitutional. But that argument had persuaded only his fellow liberal justices, Brennan and Douglas. To get the votes of Justices White and Stewart, Marshall had argued that the death penalty was being applied inconsistently in different courtrooms and to different defendants.

  Now, in Gregg v. Georgia, that argument no longer held water because of the new state statutes. Also, Justice Douglas had been replaced by the quiet, bow-tie-clad John Paul Stevens, a moderate from Chicago who was appointed by President Gerald Ford. To gain the five votes he needed, Marshall recounted stories in the judges’ conferences about his own experiences defending poor black men in front of all-white juries. He talked about being the only one of the justices ever to have defended a client in a death penalty case and how he considered it a victory to see innocent clients sentenced to only life in prison because it meant they had escaped the electric chair.

  This time his stories and arguments failed to sway the Court’s moderates. Justices White and Stewart voted against him, as did Justice Stevens. They joined Justices Rehnquist, Powell, and Blackmun, and Chief Justice Burger in a 7–2 vote to reinstate the death penalty. Marshall’s only supporter in dissent was his good friend William Brennan.

  In a frustrated voice, Marshall read his dissent from the bench on his sixty-eighth birthday. He maintained his hard line and concluded that there was no case in which the death penalty could be viewed as anything but “unconstitutional because it is excessive.”9

  The decision was more than a defeat. It signaled a new isolation for Marshall. He and Brennan were now removed from the mainstream; they were off on the Court’s left wing, and their arguments were becoming distant voices as the conservative majority charged right. The days of Marshall as an active force in the Court’s thinking seemed to be slipping away, and he was deeply troubled by his loss of standing among his new peers. But for Marshall as well as Brennan, there was little room for accommodating the right wing on issues such as the death penalty.

  “We seemed quite often, as we do to this day, to be the lone dissenters in many cases,” Brennan said later in an interview. “I mean if you’re against the death penalty there’s no possible way you can accommodate. You can’t.” Brennan said it was not a matter of being stubborn, but expressing heartfelt positions which is “a responsibility expected of a justice.”10

  Many years later Marshall, too, saw the Gregg case as the instant he lost touch with the Court. He still had no idea how seven justices could have voted to allow the death penalty to be imposed on convicts. “My colleagues?” Marshall said in exasperation during an interview. “I don’t know why they vote for the death penalty. I’ve told them about a thousand times.” During the interview Marshall was asked if he would reject the death penalty even if a person killed his mother or someone in his family. Without hesitation he replied: “That’s right.”

  After reading his dissent on a Friday morning, Marshall went home but continued to stew over his loss. That Sunday he woke up with chest pains at 4:00 A.M. and started walking around his home. By 7:00, Marshall later said, he “started to get worried” and called a doctor, who told him to go to a hospital. When he got to Bethesda, he asked the doctor, “Is this it?” The doctor replied, “It sure is.” He had suffered a heart attack. Over the next three days he had two milder attacks.11

  During the following two months, Marshall was either in the hospital or lying on his back at home. Doctors pleaded with him to quit cigarettes and prescribed a forty-pound weight loss, but he could not. The heart attacks spurred a new round of reports that Marshall was going to retire. The question around the Court was whether President Ford could successfully nominate someone for the seat before the fall election.

  Lyle Denniston, the Supreme Court reporter for the Washington Star, forecast that Ford would have to name “a black with a national reputation” and suggested that person might be William Coleman, Ford’s transportation secretary. Marshall again told reporters he had no intention of leaving the Court, even if his friend Bill Coleman was set to replace him.12

  In the fall of 1976, the former Georgia governor Jimmy Carter defeated Ford, and the Democrats gained control of both the White House and the Congress. That combination created new pressure for Marshall to retire. He could be assured that Democrats would have the opportunity to name his replacement. But Marshall told friends that he and Cissy had a deal. “When I start to get senile she’s going to tell me, then I’ll retire.”

  It was a rough time for a sick man to be on the Court. The 1976 term put Marshall under tremendous pressure as a new debate erupted over abortion. These cases, under the heading Maher v. Roe, centered on instances in which healthy but poor women with normal fetuses wanted abortions and asked state governments to fund them through Medicaid. The issue went to the heart of Marshall’s logic on why abortion should be legal. He felt a poor woman—just as a rich woman—should be given the best possible care when she made the difficult choice to abort a pregnancy.

  As he had failed to persuade his colleagues in the latest death penalty cases, Marshall failed to get any justices to join Brennan and Blackmun (the author of the Roe decision) in supporting government-funded abortions for healthy women. This was not the active Marshall filled with stories, making arguments, and walking around to lobby his colleagues. This was a less engaged man, lacking the energy or the inclination to
argue with people who disagreed with him.

  In his dissent, however, Marshall was in full throat, condemning his colleagues for turning their backs on the poor: “The [state laws restricting abortions] challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives. Many thousands of unwanted minority and mixed race children now spend blighted lives in foster homes, orphanages and ‘reform’ schools.… The effect will be to relegate millions of people to lives of poverty and despair.”13 Marshall’s comments were extreme, even offensive to some of his fellow justices. He wrote as if lecturing people who were beneath him. His rhetoric about the lives of poor children and minority children also seemed dark and tortured. This was an unhappy and angry man.

  By now Justice Marshall rarely got outside the Court or his suburban home. His poor health gave him an easy excuse for turning down any invitation. He was also exiled from the nation’s legal establishment. White lawyers in the top firms and law schools had never been convinced that he was a strong legal mind, and their snide private digs at him began getting into the public debate. Archibald Cox, whom Marshall had replaced at the Solicitor General’s Office, told a reporter: “Marshall may not be very bright or hard-working but he deserves credit for picking the best law clerks in town.”14

  All the while Marshall continued to hear that the Carter White House was looking at people they could name to the Court once he announced his retirement. Now the most often named candidate was the nation’s second black solicitor general, Wade McCree. McCree had not only followed in Marshall’s footsteps by becoming solicitor general but had also served as a federal appeals court judge.

  Griffin Bell, Carter’s attorney general, acknowledged in a later interview that he had advised the president that Marshall should step down and McCree be nominated as his replacement. “I told President Carter that [Justice Marshall] ought to leave,” Bell said, explaining that his age and health were limiting his effectiveness on the Court. “The president was going to appoint Judge McCree.”15

  Some of Bell’s aides spread word of the attorney general’s conversations with Carter. Bell said he soon heard from several of his assistants that Marshall’s response was that McCree was never going to take his seat. Bell’s aides were upset at what they took to be Marshall’s low personal assessment of McCree. “What Marshall was saying was that he didn’t want anybody replacing him,” Bell recalled. “He wanted to stay as long as he could function. Some people thought that was a bad sign.”

  Marshall was in fact hearing from Carter officials that it would be smart for him to cooperate with the president’s plan. Although the president never personally called, Marshall said, he took the messages to be coming straight from the Oval Office. According to Marshall, some Carter emissaries, whom he would not name, came to his chambers. “He sent people to me to ask me to resign. I told them my usual. The expression is one I love, Fuck yourself!”

  The tension between Marshall and McCree exploded into a public spectacle during May 1978. A banquet was held in the main hall of the Supreme Court building, with beautifully decorated tables placed among the large marble columns. The honoree was Dan Friedman, an assistant solicitor general who had recently been named chief judge of the U.S. Court of Claims. Several Supreme Court justices were there, including Marshall. Solicitor General McCree was the master of ceremonies for the black-tie affair.

  At one point McCree began to list the former solicitors general. He called out the name of Marshall’s predecessor and the name of Marshall’s successor. He had skipped Marshall’s name entirely. “He had not yet mentioned Thurgood Marshall,” said Dores McCree, Wade McCree’s wife, in an interview, “when all of a sudden, we heard this rustling of noise. We heard someone jump up and say, ‘I’m here, I’m here, I’m a judge too, you know.’

  “And Marshall got up and stalked out of the room,” she continued. “And the shock of everybody, you could not ignore it, you could not overlook it.” According to Mrs. McCree, her husband planned to save Marshall’s introduction for last because Marshall had served as a judge, as solicitor general, and finally as a Supreme Court justice. “He was to be the crowning glory, he was to be the pièce de résistance, he was the person Wade wanted to emphasize the most,” she said. “But Thurgood couldn’t wait; he thought he’d been bypassed and overlooked. He just stalked out in this big huff, and everybody said, ‘Oh, he’s been drinking again.’ ”16

  The guest of honor, Dan Friedman, who had worked with Marshall at the Solicitor General’s Office, went rushing after the justice. “I went down to his chamber to ask him to come back. He refused,” Friedman recalled in an interview. Marshall told him, “I’m not putting up with this.” In his rage Thurgood had left Cissy behind. She made desperate apologies for her husband’s behavior before hurriedly exiting.17

  A few weeks later Dores McCree and Cissy Marshall met at a luncheon of the Supreme Court justices’ wives. Justice Stewart’s wife had invited Mrs. McCree to the lunch, and Mrs. McCree took the opportunity to apologize to Mrs. Marshall. Afterward, the two women walked up to Justice Marshall’s chambers. When they walked into the office, Mrs. McCree began to apologize. “It was as if I had never spoken,” she said. “He didn’t respond, didn’t say a word, not one word.”

  A month later there was a party for Marshall’s seventieth birthday. The event was held at the Washington home of Wiley Branton, who had been Marshall’s cocounsel in the Little Rock Central High School case. Invitations had long ago been sent to the justices. Also invited were McCree and Marshall’s former colleagues at the NAACP as well as good friends such as federal judge Damon Keith. McCree showed up with a gift for Marshall and the hope that he could repair the relationship and possibly get Marshall’s blessing to be his successor. He carefully approached the justice, but Marshall quickly turned away and set the gift aside.

  “Marshall had not quite rejected it but had snubbed his present,” recalled Louis Claiborne, Marshall’s former colleague in the Solicitor General’s Office who was now working for McCree. Turning to Claiborne out of frustration, McCree said, “Why is that man so angry with me? I haven’t done anything.” Claiborne, with a lawyer’s detachment, replied, “Well, surely you’ve figured out that he thinks you’re just waiting for him to die or resign so you can succeed him.”18

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  Marshall’s feeling that he was being disrespected came at the same time that he was under assault inside the Court. Since October 1977 the Court had been preoccupied with a critical case that touched directly on Marshall’s lifelong effort to bring more black students into the nation’s professional schools. The case involved a young white man, Allan Bakke, who sued the University of California at Davis because minority students with lower grades had been admitted to the medical school, while Bakke had been denied admission. The school had set aside sixteen slots solely for students from “economically or educationally disadvantaged” backgrounds, most often black students. Bakke complained that the policy amounted to a quota for minorities and discriminated against him, violating his Fourteenth Amendment right to equal protection.

  The case drew front-page attention the moment Bakke filed suit. His argument crystallized the national divide over affirmative action plans. Polls showed there was a widespread backlash against giving preference to blacks in hiring or education, with some saying the preference would reward unqualified applicants. A California state court ruled in Bakke’s favor and ordered him admitted to the medical school, but that order was overturned by the state supreme court. Finally Bakke appealed to the U.S. Supreme Court.

  The case energized Marshall. He was back at center stage after a string of defeats at the hands of the conservative majority. The nation’s obligation to make up for its racist, exclusionary history was the heart of his career. Marshall expected to take the lead on this case and believed his colleagues, even the conservatives, would defer to him.

  In conference there was no clear majority. Marshall made three argum
ents to his colleagues. First, he said the nation’s legacy of slavery was still being felt and blacks had not yet “arrived.” Second, he noted that the Constitution had never been color blind. He pointed out that in Plessy v. Ferguson, the landmark 1896 case, the Court had set forth a separate-but-equal doctrine, branding blacks as second-class citizens. Third, Marshall said the Court should not view the university as trying to exclude Bakke. Instead, he argued that affirmative action was intended to include black people who had suffered from the nation’s history of state-sanctioned racial discrimination.

  By the end of the conference, Marshall wrote on his yellow legal pad that he needed just one vote to win a 5–4 victory on the Bakke case. He wrote the initials of three justices as sharing his opinion—Brennan, Stewart, and Powell. The swing vote, Marshall concluded, belonged to Justice White, who had voted with Marshall on several earlier desegregation cases. “We heard that after the first conference, it wasn’t entirely clear how it was going to come out,” recalled Phillip Spector, one of Marshall’s clerks that term.19

  Marshall began a full-court press to win White’s vote. White was a fascinating character. His broad shoulders and huge hands hinted that he was not another bookish lawyer. He had been an All-American football star at the University of Colorado before playing professionally for the Pittsburgh Steelers. In his first year as a pro, he led the league in rushing and quit only because he had a Rhodes scholarship. He later graduated with honors from Yale Law School before clerking for Chief Justice Vinson. White was also a judicial moderate who was sensitive to racial issues. Marshall began lobbying for his vote on Bakke using emotional arguments about the continued damage done to black people by racism.

  “I guess I listened to him pretty carefully on race matters because I had known about Marshall before he became a judge and I knew his work on the Second Circuit and as S.G., but I really wasn’t prepared for the impact he would make,” said White in an interview years later. “He spoke with such conviction. It was conviction that came out of experience. He could embellish his points with examples that would scare you to death, experiences he had trying cases in the South.”20