Martha Minow, one of Marshall’s clerks in 1981, recalled that the full shock of the Reagan landslide hit Marshall the day the Republican-controlled Senate began new committee appointments. The former segregationist Strom Thurmond—Marshall’s old adversary—was named chair of the powerful Judiciary Committee.
Hearing the news, Justice Brennan walked over to Marshall’s nearby chambers to commiserate. Afterward they walked out of the office, sadness hanging over them. Brennan, short and thin, ambled slowly arm in arm with the tall, thick Marshall. The sight struck an emotional chord with Minow, who stood in the hallway to watch the old men walk away. “You could just see there was a sense of everything they had worked for being turned around,” she recalled.1
The political temperature inside the Court was changing, too. Chief Justice Burger, long a law-and-order advocate, stepped up his hard-nosed speeches on crime. He complained that the courts offered little protection to Americans victimized by vicious crimes but gave every protection to criminals.
An outraged Marshall was reluctant to duel with the chief justice in public. He was still intensely loyal to the Court. But his resentment continued to build, and finally he spoke out against the climate. He told a judicial conference that no judge had any business promoting safeguards for victims of crime or helping police and prosecutors win convictions if it meant taking away protections for people accused of crimes. “[There are those who claim] that the judiciary has not taken an active enough role in combating crime,” Marshall said without naming Burger. “The suggestion that we take sides frightens me.… Our central function is to act as neutral arbiters of disputes that arise under the law.… I therefore urge that you politely disregard any suggestion that you give up the robe for the sword.”2
Burger did not directly respond to Marshall, but relations between the two became distant. Chief Justice Warren had frequently visited with Marshall and made sure that he wrote a fair share of the high-profile opinions. Burger, by contrast, almost never spoke to the justice and gave him the most tedious writing assignments. “Until Burger, the low man on the totem pole got all the income tax cases, because those are the driest things,” Marshall said. “They give them all to me and Blackmun” as liberal members of the Court. Justice Brennan, another liberal, was spared because he was the senior justice.
Despite his bumpy relationship with Burger, Marshall did not dislike him. He considered Burger a “mystery,” a Nixon-appointed chief justice, though not in hock to conservatives. “I can tell you this,” Marshall said. “There were enough votes here to get rid of the Miranda rules [requiring police to inform suspects of their rights to have a lawyer and to be silent]. And Burger wouldn’t let it go through. He just hung it up.”
Marshall’s favorite conservative justice was Sandra Day O’Connor. An Arizona Republican, O’Connor was Reagan’s first nominee and the first woman on the Supreme Court. She was a tall, athletic-looking woman with a deep concern for issues of discrimination and a strong appreciation of Marshall’s role in history. From her first day on the Court she treated Marshall as her personal hero. Seeing another pioneer breaking into the highest ranks of the legal fraternity, he became fond of O’Connor despite her views.
Aside from O’Connor, however, Marshall began taking more public slaps at some of his right-wing brethren. At a 1982 oral argument during a death penalty case, Justice Rehnquist asked a prosecuting attorney if it would not be cheaper to execute a young convict than to pay to feed and jail him for a lifetime. An angry Marshall interjected, “Well, it would have been cheaper just to shoot him right after he was arrested, wouldn’t it?”3 The comment made headlines around the country. But Marshall had no regrets and did not think it hurt his relationship with the other justices, including Rehnquist. “I thought it should be said,” he replied years later in an interview.
Occasionally Marshall’s critical attitude came out in edgy racial humor, such as addressing other members of the Court as “Massa” in a deep slave dialect. Especially in the justices’ conferences when the case being discussed involved racial issues, Marshall used his humor to belittle justices who disagreed with him. “In conference there’s no question about where Thurgood stood,” Brennan recalled. “No matter how uneasy it made any of us. That’s the way he felt about it, and he expressed it that way. I got worried about whether he carried that too far.”4
While he felt free to take shots at his fellow justices, Marshall was extremely sensitive when critics made fun of him. In February 1982, National Lampoon published a satirical article under Marshall’s byline. It detailed how he had become a connoisseur of dirty movies while setting the Court’s standards for obscenity. In the parody Marshall complained that too much pornography was badly written. To remedy the problem he offered guidelines to help writers produce better-quality obscene material.
“To write dirty well, pick topics your audience will be interested in, like fellatio, blow jobs and white women. Especially white women. They’re my favorite. Oh, yeah.” The article then offered an example of good porn: “Handsome Thurgood X. was sitting in his chambers one day.… Suddenly he was interrupted by Sandra Day O., a distinguished white woman. ‘You certainly look foxy in your big, black robes,’ Sandra purred. ‘I’ve got something even bigger and blacker underneath,’ replied Thurgood. Thurgood had always had a way with women—you could say he was a sort of Afro-disiac.”5
Marshall was not amused by the attempt at humor. A few days after he saw a copy of the article, he wrote to FBI Director William Webster that it was “scandalous” and asked if the bureau could start a criminal investigation. Webster wrote back that there was no basis for them to get involved and that FBI lawyers had concluded the article was written “to produce humor” and was “patently absurd.”6 Marshall, still stinging, decided to drop the issue.
Although he was becoming more thin-skinned and had testy relationships on the Court, Marshall’s arguments in conference proved persuasive on the first major race relations case of the 1980s, Fullilove v. Klutznick. The case dealt with the constitutionality of a federal government plan to set aside 10 percent of its contracts for minority businesses. Some white contractors complained that the set-asides were discriminatory. But the Court voted 6–3 that given the history of government-approved discrimination, Congress had the power to employ a contract set-aside plan. In his concurring opinion Marshall focused on the history of racial discrimination and the need for the government to remedy the damage it had created. “Such classifications may disadvantage some whites, but [not] whites as a class.… Today, by upholding this race-conscious remedy, the court accords Congress the authority necessary to undertake the task of moving our society toward a state of meaningful equality.”7
Marshall’s stand in the Fullilove case did not, however, fit with his own record on hiring clerks. His clerks on the Second Circuit were all white, and the ones he hired on the Supreme Court were overwhelmingly white. Out of the twenty-eight clerks he hired in his first ten years on the high court, only one, Karen Hastie Williams, his goddaughter, was black. In 1980, the year of the Fullilove case, Marshall apparently became newly sensitive to appearances. He saw to it that two of the four clerks he hired were black. The two, Stephen Carter, a Yale Law School graduate, and Adebayo Ogunlesi, a Harvard Law graduate, were more than qualified. But Marshall, concerned about his own performance on the Court, had not instituted an affirmative action plan of the kind he was advocating in his Supreme Court opinions. Marshall’s hiring rate for black clerks was about 15 percent through the rest of the 1980s, although he never hired any clerks from his alma mater, Howard University, or from any other predominantly black law school. He did better with females; almost a third of his clerks were women.
Despite his limited hiring of black clerks, Marshall remained a revered figure among civil rights activists. In fact, it was Marshall who was unhappy about the direction of the civil rights movement. Roy Wilkins, his longtime friend and head of the NAACP, had suffered a serious stroke in 1
977 and died in 1981. In an interview after Wilkins’s retirement, Marshall expressed his displeasure with the state of the NAACP. He said the group’s current leaders were not worthy heirs to the scrappy, inspired group he had worked with. He complained that the group was paying too many people big salaries: “They’ve got six million here and three million there—maybe they’ve got too much money, I don’t know.”8
Marshall was similarly disdainful of Jesse Jackson, a former aide to Martin Luther King, Jr., who had become the leading civil rights figure in the nation during the 1980s. Marshall found Jackson’s rhyming speeches, hunger for TV appearances, and regular threats of boycotts unappealing. The justice saw Jackson as a self-promoter, and when Jackson tried to make appointments to see Marshall, the justice said no.
While he felt the civil rights movement lacked direction and leadership, Marshall began to assert a new definition of civil rights in his Supreme Court opinions. He argued that constitutional protections should be extended to the homeless, to the poor, and to convicts.
In Clark v. CCNV, a 1984 case, Marshall challenged both the federal government’s lawyer and his fellow justices on the right of homeless people to sleep in Lafayette Park, across from the White House. They claimed to be there to protest poverty and homelessness in America.
Chief Justice Burger dismissed the argument as “frivolous” and an attempt to “trivialize” the Constitution. And Paul M. Bator, attorney for the government, said the homeless had a right to protest in Lafayette Park but not to sleep there. Marshall interrupted Bator during oral arguments to ask: “Did you ever sleep on a grate?” When Bator replied, “No sir,” Marshall nodded as if to say Bator had no idea what the poor had to go through to survive. “Well, these people want you and others to understand what that’s like,” he said. He went on to draw parallels between blacks who engaged in lunch counter sit-ins at segregated restaurants during the 1960s and the protests by the homeless. “These demonstrators want to get over the message there are many people who have no place to sleep. How can you get over that message without being allowed to go to sleep?”
Despite his passionate arguments, Marshall did not win the support of his brethren. In a 7–2 decision they ruled against the protesters. Marshall’s only support came from his liberal ally Justice Brennan. The case was typical of the Court’s actions in the early 1980s, with Marshall reduced to writing strongly worded dissents while the majority went off in the other direction.
Although he was clearly isolated on the Court, Marshall had some surprising victories, in which he championed a more expansive view of civil rights. For example, he successfully made himself into an advocate for prisoners and inmates with mental problems.
One of his major victories came in Ake v. Oklahoma (1984). A convicted murderer, Glen Ake, appealed to the Supreme Court arguing that his sentence should be overturned because the state had refused to pay for a psychiatrist to evaluate him. Ake claimed that he needed the exam to prove he was insane when he committed the crime and should not be given the death penalty because of his mental problems. Marshall persuaded the other justices to vote with him on the theory that the state had an obligation to make certain that every suspect got the fullest possible defense.
Two years later Marshall continued the same line of argument. He contended that a murderer who was found to be insane could not be sent to the electric chair. In Ford v. Wainwright, Marshall got a majority of his colleagues to agree. He argued it was unconstitutional under the Eighth Amendment’s ban on cruel and unusual punishment. But these wins were exceptional, and every win came only after great struggle.
* * *
Marshall’s health continued to be a problem. In February of 1984 the seventy-five-year-old was hospitalized with viral bronchitis for a number of days. By now the justice looked like an old, sick man. His eyes teared up uncontrollably from glaucoma, and he had difficulty reading. His hearing was so bad that he had to wear hearing aids in both ears. And on occasion he had to go to the hospital for anticoagulants because of blood clots that doctors feared might cause another heart attack. Reporters regularly called the Supreme Court to ask about Marshall’s health. But the justice refused to make any comment. He scribbled on the margin of one inquiry from the Court’s press secretary, Toni House: “I’m not hanging on for life.”9
Marshall’s chronic health problems led The New York Times to write: “He is enormously overweight, tipping the scales, he says, at 250 pounds.… He gave up smoking years ago but his occasional wheezing and gasping as he moves about the court have frequently alarmed his admirers.”10
The age and poor health of Marshall and his lone liberal colleague, eighty-year-old Justice Brennan, were highlighted as the Court’s conservatives took more power. In 1986 Chief Justice Burger resigned. President Reagan named a relatively young Antonin Scalia, fifty, to the Court and nominated William Rehnquist to be chief justice. With younger, more active conservatives now leading the Court, the aging liberals were having a difficult time making any impact. The best the liberal wing could do was hold on. Life magazine wrote that “neither man [Brennan or Marshall] has any intention of retiring while Reagan—whom Brennan refers to as ‘That Man’—is in office to appoint their successors.”11
While he was widely assumed to be near resignation if not death, Marshall continued to focus on cases that meant a great deal to him. He not only wrote dissents in every death penalty case, but also maintained his lifelong crusade against laws that allowed prosecutors to use race as a basis for keeping blacks off juries. Throughout the 1980s Marshall had been systematically filing dissents in any case where black defendants charged that blacks had been forced off juries with peremptory challenges. His regular dissents on the issue caught the attention of his colleagues on the high court as well as federal appeals court judges around the country. When a black man appealed his conviction on burglary charges because prosecutors had excluded blacks from the jury, the Supreme Court agreed to review the case.
In a 1986 ruling (Batson v. Kentucky), the justices held 7–2 that in criminal cases black jurors could not be excluded simply because they were the same race as the defendant. It overturned a two-decades-old precedent. Marshall had won a surprising and deeply satisfying victory; the high court had finally limited the use of race as a basis for disqualifying jurors.
But Marshall pushed the issue even further. He wanted to get completely rid of the use of peremptory challenges. Ironically, that effort split the two-man liberal wing of the Court. Justice Brennan was not willing to do away with the long-standing right of lawyers to strike jurors whom they suspected might not be fair to their case.
Brennan, wanting to sign on to Marshall’s concurring opinion, finally wrote to ask him if he could accommodate his concern that lawyers not be unfairly hamstrung in jury selection. But Marshall refused his friend’s invitation to soften his stand. “I continue to believe that [allowing the use of peremptory strikes] will by its nature be ineffective in ending racial discrimination.… I see no reason to be gentle in pointing that out and I doubt that pulling my punches would make the situation any better.”12
Marshall’s unyielding position was similar to the stance he almost always took with his fellow justices in the 1980s. During that period, he spent as little time as he could at the Court, coming in around 10:00A.M. and sometimes leaving by 3:00 P.M. He was less interested in engaging the other justices in conversation or even argument than in writing eyecatching dissents and occasionally making angry public comments about the direction of the Court. His detachment and anger deepened after he lost two key cases dealing with race, Wygant v. Jackson Board of Education and McCleskey v. Kemp.
In Wygant, a 1986 case, the Court ruled 5–4 that when teachers were being laid off, the board of education could not use race as a consideration to keep black teachers on the job while firing more senior white teachers. In the 1987 McCleskey case, the Court ruled against Warren McCleskey, who had appealed his death sentence on the ground that capital punis
hment was given to blacks more often than to whites. McCleskey’s case was the first to challenge the death penalty in the Supreme Court on purely racial grounds. Justice Marshall argued that since blacks were more likely to get the death sentence, they were being given “cruel and unusual punishment,” in violation of the Eighth Amendment and their rights to equal protection. Again he lost 5–4. In both cases Marshall proved unable to persuade the swing vote, which belonged to Justice Powell.
In an interview Powell acknowledged that Marshall talked with him about the cases. And Powell conceded that Marshall sometimes became angry at his colleagues when they voted against him: “I think Thurgood was perhaps more demonstrative than the rest of us,” said Powell politely.13
Justice White, in a separate interview, said because of these setbacks Marshall became resentful of his colleagues in the mid-1980s. With a solid conservative majority in place, White said, Marshall “was not averse to writing strong dissents and speaking out that way in conference—I don’t blame him.”14
Marshall confided to his longtime friend Monroe Dowling, who was now living in Washington, that he was furious with the conservatives and was using the justices’ conferences to raise hell. “Thurgood would say how mean and unpleasant they could be. If it hadn’t been for Brennan, I guess they would have put him in jail. Thurgood called them everything but the son of God in conference.”15 Marshall began to make his unhappiness public in more speeches and interviews during the late 1980s. He had previously made some critical comments to fellow judges at Second Circuit conferences, but now he made speeches before wider audiences that featured harsher tones.
The first major outburst came in a speech commemorating the two hundredth anniversary of the Constitution. Former Chief Justice Burger was the head of the bicentennial celebration, and no one expected Marshall to do anything but join his former colleague in the spirit of an all-American celebration. But Marshall’s attitude toward the bicentennial became apparent when he turned down Burger’s invitation to Philadelphia to take part in a proposed reenactment of the signing of the Constitution, with the justices playing the founding fathers. “If you are going to do what you did two hundred years ago,” he said, “somebody is going to have to give me short pants and a tray so I can serve coffee.”
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