Thurgood Marshall

by Juan Williams

  White agreed to vote with him, so Marshall thought he had the fifth vote necessary to form a majority approving of the university’s affirmative action plan. But while Marshall had been engaged with White, Justice Powell had decided to switch his vote. Chief Justice Burger had personally appealed to him to vote against quotas and for Bakke.

  Justice Powell’s switch was based on his discomfort with the idea that sixteen seats in the medical school had been set aside on the grounds that they went to those with “disadvantage.” He agreed with Marshall that racial discrimination had severely damaged the nation’s black citizens and that there was no ignoring race. But Powell, responding to Burger’s appeal, also agreed that quotas were unacceptable. After the initial conference, in which he agreed with most of what Marshall argued, Powell concluded that a vote for the university would be a vote to legalize the use of racial quotas. Nothing Marshall could argue about the history of racism in the United States was sufficient to get over Powell’s objections to quotas. Meanwhile, Burger acted to make sure Powell would remain part of the 5–4 majority voting against the university He assigned Powell to write the opinion.

  Marshall, sensing he was beaten on this key case, fired off an angry memo to the other justices:

  I repeat, for the next to last time: the decision in this case depends on whether you consider the action of the Regents as admitting certain students or as excluding certain other students.… As a result of our last discussion on this case, I wish also to address the question of whether Negroes have “arrived.” Just a few examples illustrate that Negroes most certainly have not.… This week’s U.S. News and World Report has a story about “Who Runs America.” They list some 83 persons—not one Negro, even as a would-be runner-up.… It would be the cruelest irony for this court to adopt the dissent in Plessy now and hold that the university must use color-blind admissions.21

  Justice Powell, unlike Justice White, was not convinced. But he understood the importance of his black colleague’s argument and took it into account in writing the majority opinion. Powell emphasized in his draft that he had no problem with the university’s decision to take race into account. But after reading Powell’s draft, a bitter Marshall wrote back that he would dissent “in toto.”

  However, Marshall did not completely dissent from Powell’s final draft. Realizing that he needed to confirm Powell’s judgment that race could be a factor in considering an applicant, Marshall voted with him on that one, key, point. But Marshall strongly dissented from the rest of Powell’s majority opinion, which ruled that the sixteen seats set aside amounted to an unconstitutional use of a racial quota.

  In his emotional dissent, Marshall wrote:

  It must be remembered that during most of the past 200 years, the Constitution as interpreted by this court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.…

  Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of the master; and killing or maiming him was not a crime.… The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment.… The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.22

  Marshall didn’t say it in his dissent, but compounding his frustration was the fact that Jewish leaders, his former allies at the NAACP, had used their political strength to support Bakke. Quotas had been used for much of American history to limit the number of Jews at schools and in top jobs. That ugly history led Jewish groups to oppose the use of all quotas, even though the U.C. Davis plan did not limit slots for Jews or anyone else. Marshall felt this division in the liberal coalition gave Bakke his victory.

  “Well, the trouble with Bakke to my mind was that the Jewish people backed it,” Justice Marshall said in an interview over a decade after the decision. “And that gave me great problems. I wanted to win it. And there were times when I almost won it. They were playing with the word ‘quota.’ Worried about the word as if they can’t handle the words. We can all handle words.”

  Particularly galling to Marshall was the suggestion made by some of his fellow justices during the arguments over Bakke that poor whites as well as blacks should benefit from any program intended to help the disadvantaged. “There’s not a white man in this country who can say he never benefited by being white,” Marshall said with certainty.

  * * *

  The Bakke defeat left a deep scar on the seventy-year-old Marshall. He took it as a personal affront, a signal that he, the only black justice, no longer had a major influence on the nation’s legal approach to race relations. Marshall’s isolation, combined with his recent illnesses, his sense of being threatened by the Carter people, and his drinking, began to bring out a grumpy, gruff, even rude and imperious side to his character. Friends, people who worked with him, and his fellow justices reported at about this time that Marshall seemed depressed.

  The public saw his pained personality, too. As the highest ranking black man in American government, Marshall had made a rule of lambasting black militants for their failure to obey laws and work hard. Now he changed his tune. Marshall made one of his rare public appearances at Howard University Law School. He agreed to attend only because his good friend Wiley Branton was being installed as dean of his alma mater. For the first time he did not focus on opportunities for well-prepared black students. Instead he spoke about the continuing presence of racists who were still ready to defeat any black person.

  Marshall warned against the “myth” that blacks were doing better economically and socially. Race relations were not getting better, he said. He pointed to the resurgence of the KKK—“The Klan never dies”—and said black students needed to outperform whites in law, politics, or business if they hoped to succeed because whites would never treat blacks as equals. The raging justice went so far as to say it was ridiculous for him to try to act as a role model for young black people, even though he was on the Supreme Court: “For what? These Negro kids are not fools. They know that if someone says they have a chance to be the only Negro on the Supreme Court, the odds are against them.”23

  His relationship with his colleagues soured further when Marshall was on the losing end of a 6–3 decision in Herbert v. Landò. The Court ruled that a person suing for libel, publication of a “damaging falsehood,” had the right to probe the thinking of newspaper editors—or TV and radio producers—for evidence of bias or intent to do harm to the person’s good name. The ruling struck Marshall as a clear violation of the First Amendment protections for a free, aggressive press.

  In his dissent Marshall said journalists should be able to argue about stories without fear of later having those discussions used against them. It was an angry dissent, but the real expression of his anger came out when he spoke to the annual conference of the Second Circuit Court of Appeals. “My personal view on editorial autonomy can be succinctly stated: It must be afforded the utmost protection to ensure that the public is exposed to the widest possible range of information and insights,” Marshall said. “Ill-conceived reversals [by the conservative majority on the Supreme Court] should be considered as no more than temporary interruptions. ”24

  While Marshall was now freely firing off public criticism of the Court, there was even greater return fire. In 1979 Bob Woodward, the Washington Post reporter who had done groundbreaking work on the Watergate scandal, coauthored The Brethren, in which Marshall was depicted as failing to pay attention to cases, not doing his work, and being criticized by his fellow justices. To a public wondering what the now reclusive justice was like behind the
marble walls of the Court, the authors told stories of Marshall regularly watching TV at work and leaving in the middle of the day. When he was around, the authors wrote, Marshall was less than serious, greeting Chief Justice Burger by saying, “What’s shakin,’ chiefy baby!” They also reported that Marshall was more admired for cracking dirty jokes during obscenity cases than for his legal skills.

  Woodward and his coauthor, Scott Armstrong, also wrote that Marshall’s fellow justices told each other stories about his “laziness and inattention.” They reported that several justices had concluded that Marshall was overly dependent on his clerks in preparing for cases and writing opinions. The book told the story of the day Justice Stevens visited Marshall to ask a question about a case. “He asked Marshall about one opinion that Marshall was writing and he concluded that Marshall did not really understand the issues in it,” they wrote. “Stevens was sure that Marshall was capable of being a good lawyer, but he had not done his homework and was relying entirely on a clerk.”25

  The book enraged Marshall, already feeling unappreciated and disrespected by the Court’s new majority. Now his public reputation was being slurred, and he suspected that other justices, whom he considered family, had talked to the authors. There was also the worry that the book would give a new burst of energy to efforts to force him to retire.

  Marshall remained angry about the book for years. His face became red at the mention of its title. “I would say ninety-nine and forty-four one-hundredths of the words in The Brethren are goddamn lies,” he bellowed in a later interview. “When The Brethren came out I didn’t even have a radio, much less a TV. Ask the guy who wrote it. He has never talked to me in his life. If he says so, he’s a liar.”

  The deep hurt was evident to the people closest to Marshall—his wife and clerks. They had always been careful to protect the only black Supreme Court justice, but now they grew even more fierce in guarding his reputation. Karen Hastie Williams, Marshall’s goddaughter and the daughter of his friend William Hastie, who clerked for Marshall in the 1974 term, said the book’s damaging description of Marshall was offensive and not true. “The clerks in his chamber, as well as in a number of other chambers, usually wrote a first draft of the opinions,” said Hastie Williams. “But then T.M. would go over it, and would talk with the clerks about it. He would talk about the draft opinions, what he liked, what he didn’t like, he’d make editorial comments. He was very hardworking and very devoted to his work at the Court and took it very seriously.”26

  “I think The Brethren was really unfair,” said Phillip Spector, who clerked for Marshall in the 1977 term. “I think, first of all, if he wants to spend his lunch hour watching TV instead of socializing, that again is his privilege.” As for writing his opinions, Spector recalled that “all of the justices depend heavily on their clerks.” He noted that Marshall was one of three justices who took the time to have their clerks, and sometimes themselves, read every petition, often from prisoners, requesting the high court to hear appeals of lower court rulings.27

  But Susan Bloch, who clerked for Marshall in the 1976 term, saw the justice primarily focused on areas of law that interested him: “He cared mainly about civil rights, death penalty cases, abortion, people kind of cases. He cared less about corporate kinds of cases.”28

  Marshall’s fellow justices gave ambivalent views of his work on the high court. Chief Justice Burger, in a cagey response to questions about Marshall’s reputation said no member of the Court ever told him “directly or indirectly” that Marshall was not competent and worthy of “complete respect.”29

  And while Justice Powell dismissed The Brethren as having “a good deal of fiction in it,” he added, in only circumspect praise: “I don’t think there’s ever been any lack of respect for Thurgood Marshall on this court.”30

  Justice Brennan, Marshall’s closest colleague on the Court and fellow liberal, was one of the few justices to strongly dispute the image of Marshall as little more than an empty head on top of a black robe. “If it appears in history books that Justice Marshall never did his own work, that would just be false,” said Brennan in an interview. “That just isn’t true. The truth is that Thurgood Marshall is one of the ablest—and he’s been one of the ablest on the Court since its origin. There’s no doubt about it.”

  The Brethren’s release caught Marshall at a low point. He had been ill, and his defeats on key cases had drained much of his interest in the work of the Court. Despite his health problems Marshall had braved discomfort to do the work he considered important, defending minorities and the poor. The book was not inaccurate in its reporting, but it was limited. The more aggressive and engaged Marshall of his early tenure on the Court was not on view. Although he did often use his clerks to keep the wheels turning in his office, he had maintained control of the decision-making in his chambers. And Marshall’s playful behavior with his fellow justices could easily have been interpreted as the actions of a man who worked at happy relationships with justices, even when he disagreed with them. But out of that context, the book’s judgment of Marshall hit the public as condemning.

  Marshall felt under siege and was less trusting and more cantankerous than ever. It was becoming more difficult for old friends and the clerks to get through his gruff exterior. And in October 1979 Marshall’s health took another blow when he fell down the Capitol’s steps. He broke both arms and cut his forehead. He was at home for two weeks and seemed to become even more withdrawn—to the point of rudeness. “I went over, my wife had baked some cookies for him, and I took them over to his house,” Justice Rehnquist recalled in an interview. “And you know, he was quite cordial, but he never turned off the television set the entire time I was there. He would just watch television part of the time and then talk to me part of the time.”31

  Marshall continued to distance himself from people in 1980, when the University of Maryland named its new law library in his honor. He refused to go to the dedication and cursed the law school dean, Michael Kelly, when Kelly called to plead with him to come. The justice told Kelly that since there had been no place for young Thurgood Marshall at the school, he would not have anything to do with it now. When school officials invited other members of the Court to attend the ceremonies, Marshall wrote a memo to the justices urging them not to go. “I will not be there and I have made this clear to them from the beginning,” Marshall wrote. “I am very certain that Maryland is trying to salve its conscience for excluding the Negroes from the University of Maryland for such a long period of time.”32

  Justice Brennan traveled to Baltimore for the ceremony and acted as a stand-in for his good friend. “They named it the Thurgood Marshall Library and they have a beautiful bust of him as you come in the door and a portrait as well …” Justice Brennan recalled in an interview. “Thurgood refused to go. I was very, very happy to do it. He never thanked me. Never said a word to me about it. That’s Thurgood.”

  Marshall could not, however, turn down one offer. Baltimore officials asked him to sit for a sculptor so a statue could be made of him and placed in front of a new federal building in downtown Baltimore. The Baltimore Sun ran a story on Marshall’s three visits to the studio of the artist, Reuben Kramer. Marshall brought his sons, Goody, twenty-one, and John, nineteen, along and even tried to show the boys the house where he was born on McMechen Street, but there was only a vacant lot left. When the statue was dedicated in 1980, Justices Blackmun, Brennan, Powell, Stevens, and White all trekked up to Baltimore to join Marshall for the ceremony.

  The Marshall statue was a tribute, but it also reflected the growing sense that even though he was very much alive, he belonged to the past. The Carter administration, desperately trying to hold on for a second term, wanted Marshall to retire. Marshall’s refusal became more important when the conservative Republican Ronald Reagan defeated Carter in November 1980. Even after the defeat, administration people pressed Marshall, hoping that Carter would be able to name a nominee before the right wing took control of the Wh
ite House.

  Since Marshall had rejected all direct appeals to retire, Carter officials began urging reporters to speak with him. The story being circulated was that Carter, even as a defeated president, would get the Democrat-controlled Congress to confirm his nominee. Hints of a breaking story sent reporters to the phones, calling Marshall and his friends to see if and when the big announcement would be made. Some reporters even called the Marshalls at home, forcing Cissy constantly to deny that he was soon quitting.

  The phone calls and rumors became so intense that Warren Burger heard a report that Marshall was dead. The chief justice immediately had his secretary call the Marshall home to offer condolences to Mrs. Marshall. Burger’s secretary said, “Excuse me, Mrs. Marshall, please remain calm. I just got a call from the chief justice. He just heard over the radio that Justice Marshall had died.” Cissy Marshall was first more amused than shocked. “I’m very calm because he’s there in the living room having his dinner!” she said.33

  The phone calls and stories about Marshall’s imminent retirement continued until Reagan was inaugurated. That week The Washington Post quoted Marshall as calling any report he was leaving a “bald-faced lie.” The justice told the paper: “I’m serving out my term.… And it’s a life term. ”34

  CHAPTER 32

  Hangin’ On

  WITH RONALD REAGAN IN THE WHITE HOUSE, Marshall was now one of the unfashionable left-wingers in Washington. No conservative president was going to celebrate an old civil rights activist. And Marshall would be out of tune with the president’s policies and any new appointees to the Supreme Court.