Thurgood Marshall

by Juan Williams

  He stepped on toes again at a convention of patent and trademark lawyers in Hawaii. Marshall said the original, unamended Constitution was “defective from the start” because it allowed slavery and denied women the right to vote.

  In a defiant speech on what had seemed to be a motherhood-and-apple-pie subject, the justice said it took a “bloody Civil War” to abolish slavery and the nation was still struggling with the consequences of having been born with a Constitution that treated some citizens as less than human. He added that only the post-Civil War amendments guaranteeing equal rights and due process had saved the country. The authors of the Constitution “could not have imagined nor would they have accepted that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and a descendant of an African slave,” Marshall said.16

  While he was in Hawaii, Marshall ran into his old NAACP colleague Bob Carter. The two had rarely spoken since they began feuding in the late 1950s. Now, with Cissy Marshall leading the way, they agreed to have dinner. Carter was a federal district judge in New York, a widely respected man and a veteran of the civil rights movement. Late in life the two had more in common than they would have guessed thirty years earlier.

  Carter later said the Hawaii dinner was not a big deal even as it signaled that the two had come together again. “We were just pleasant with one another—there wasn’t any feeling in mind—it just was Thurgood and I were free. I don’t hold grudges long.” Similarly, Marshall found himself even wishing his former nemesis had been named to a higher court. After the dinner he felt that Carter “should at least have been on the Court of Appeals.”

  When Marshall got home from Hawaii, his critical remarks about the Constitution were still in the news. And a few weeks later he broke with Supreme Court decorum by making personal comments about current politics and personalities, including some on the Court, in an unprecedented televised interview with the columnist Carl Rowan. “Well, a couple of more decisions like that Georgia sodomy case and we won’t have any privacy left, but I’m going to raise my voice against it as long as I got breath,” he said, criticizing the ruling in Bowers v. Hardwick, a 1986 case in which the Court upheld a Georgia law making sodomy criminal.

  Marshall was also extremely critical of Attorney General Edwin Meese’s Justice Department for trying to “undermine the Supreme Court itself.” He told Rowan that he no longer read legal briefs from the Justice Department because “they write political speeches and put the word ‘brief’ on them.” He offered a particularly venomous assessment of the current solicitor general, Charles Fried. Marshall said Fried represented only “the president and not the rest of the government.”

  These comments sparked a lot of grumbling inside the Supreme Court and in legal circles. But around the nation they got less attention than Marshall’s uncensored judgments about American presidents. He said Roosevelt did not “do much for the Negro,” but Truman “did everything he could.” Marshall said Eisenhower did nothing but “try to undermine the [1954] school decision.” He reserved judgment of President Kennedy except to say that he “was held back by the Attorney General, his brother.”

  Marshall’s highest praise went to President Johnson. He told Rowan that Johnson’s plans “were just unbelievable, the things he was going to do—but he was too far for Negroes and civil rights.” However, he had less kind words for Jimmy Carter, saying “his heart [was] in the right place … [but] he’s going to be a non-entity anyhow.”

  Marshall’s worst rating for any president went to Ronald Reagan: “The bottom.… I think he’s down with [Herbert] Hoover and that group and [Woodrow] Wilson, when we didn’t have a chance.” When Rowan reminded the justice that Reagan was an extremely popular president, he responded: “Is he more popular than the average movie star?”17

  The Baltimore Sun, Marshall’s hometown paper, expressed surprise at his lack of propriety. The Sun noted that the last Supreme Court justice to make such harsh comments about a sitting president was impeached and urged Marshall to practice “judicial lockjaw.”18

  Reporters asked President Reagan about Marshall’s low assessment of his civil rights record during a state dinner at the White House. The president responded that as a child he was taught that “the greatest sin was prejudice,” and as governor of California and president he had fought for civil rights. “I am just sorry that he is not aware of that,” Reagan said coldly.19 The president’s response apparently did not change Marshall’s mind. In an interview a few years later he continued to express contempt for Reagan: “I wouldn’t do the job of dogcatcher for Ronald Reagan.” The justice said Reagan’s administration had “started the downhill slide which is proceeding as planned in civil rights. You just get the feeling that it’s hopeless.”

  In conversations with his best friend on the court, Justice Brennan, Marshall also said that during the Reagan years, he felt the court’s right-wing majority was guilty of casting votes that were racist. “It’s a fact,” Brennan said in an interview, that Reagan’s appointees to the court took a regressive stand on civil rights cases. “The principles that we had thought were settled are now upset. See, Thurgood, as I suggest, thinks that this shows innocently or otherwise that there’s still a streak of racism. I agree that there is. There’s no question. But I will not accept his feeling that that may also be true of our colleagues, that they are personally racist or that their votes reflect any racism.”

  As Marshall got more crotchety and indifferent to arguments about ending affirmative action, he became a favorite target for conservatives. When the National Review magazine ran an article on how the Court had become home to older liberal justices who relied heavily on their clerks, they put a picture of a sleeping Marshall on the cover. “Is the fellow in the black robes, second from the left, actually listening?” the conservative author Terry Eastland asked. “Or has his mind drifted elsewhere, perhaps to what TV Guide offers that afternoon? And of the 15 or so opinions of the court assigned to him during the term, how many does he—not his clerks—actually write?”20

  The article outraged Marshall’s supporters. “It’s utterly untrue, utterly, utterly, utterly untrue!” said Justice Brennan in an interview. “Thurgood would say, if he’d say anything, he would say I’m sure that it’s simply another illustration of the survival of racism.”

  Marshall confided his hurt feelings about the article to Brennan, but in an interview he claimed never to have seen it. “I’ll bet you they never sent me a copy of it,” he railed. “If they still got their teeth they didn’t send it.”

  By the late 1980s Marshall’s brusque manner was on display wherever he went. His friends and clerks treated him as a grand, frumpy old lion, a sage emperor who had earned the right to be gruff and indifferent to critics as well as friends. His family, clerks, and secretaries made excuses for his behavior but privately worried about him. “Once in a while he’ll explode,” Cissy Marshall said in an interview when asked about her husband’s frustration with the conservative court and what remained of the civil rights movement. “I wish he would explode more and get it out of his system. But he keeps a lot in.”

  Marshall’s pal Monroe Dowling said Cissy Marshall worked endlessly to keep her husband out of situations where he might embarrass himself in public or bring shame on the Court. Dowling recalled, “I think drinking diverted his attention sufficiently. Cissy worked her heart out, and she did the best she could to make him a great man.”

  In September 1988, Marshall was honored in celebration of his eightieth birthday by the Congressional Black Caucus with a dinner at the Washington Hilton. Colin Powell, then the national security adviser; the former National Urban League Secretary Vernon Jordan; the former attorney general Ramsey Clark; and the newly appointed Supreme Court justice Anthony Kennedy were in the audience. Despite the outright adulation, Marshall was still in a difficult mood. When he stood up to speak, he pointed to a large, flattering photo of himself: “What worried me about th
is thing … doesn’t it look like a memorial? If I can put it in the best English available, I ain’t dead yet!” After a short speech he quickly left.21

  * * *

  To counter negative publicity about him, Marshall’s friends and family began urging him to write about his life. Marshall had stayed away from reporters until he sat down for the TV interview with Rowan in 1986. He had turned down interview requests from the networks, newspapers, and magazines, even his former law clerks. But after publication of The Brethren, he encouraged Stephen Carter, one of his former clerks, to write favorable pieces about him. “He felt that maybe it was time to have some people do some talking who were going to say good things about him,” said Carter.

  After the headlines he created with the TV interview and the growing pressure for him to create a first-person record of his life, Marshall agreed to write his life’s story jointly with Rowan. The justice signed the contract and got a check for $100,000 from the publisher, Little, Brown. The two began to sit down for interviews but soon found themselves divided over the project. Rowan, having heard about Marshall’s tirades in the Supreme Court case conferences, wanted to focus on the confidential conversations. And in recounting Marshall’s career as a lawyer, he wanted to focus on a case Marshall had lost, the Lyons murder case. Marshall was outraged. He told Rowan to leave him alone and sent the money back to the publisher.

  “Well, he was very angry at Rowan for asking him to reveal conference secrets, and he said to me, ‘I can’t believe it, I could just see the Washington Post headlines: “First Nigger on the Court Opens up the Conference,” ’ ” said Susan Bloch, one of Marshall’s former clerks.22

  By July the Legal Times newspaper reported that Marshall told friends the book deal was dead. “All I can tell you is that I decided that the first-class materials for a book were not available,” Rowan told the paper. Marshall refused to explain why the deal was off, but the paper said his friends still hoped he would do the book with another writer.23

  Marshall subsequently responded to a letter I wrote him requesting an interview with The Washington Post Magazine. In more than a dozen interviews over a six-month period in 1989, Marshall spoke about everything from his childhood to the Brown decision. The interviews took place in his office, where he had a small bust of Frederick Douglass on his desk along with pictures of his grandchildren. On the walls were animal skins and spears from his trips to Africa. On the shelf behind his desk was a small TV that he would turn on and watch while eating Campbell’s soup for lunch. His secretary, Jane McHale, would come in with messages, and if he wanted some hot tea, he would call for his assistant, Grafton Gaines.

  By this time in his life, Marshall walked with the help of a cane. He wore white support socks because of circulatory problems. He was gruff but wonderfully full of opinions, attitudes, and a strong sense of irony about the ways of the world. At one point I asked him whether he had a problem with liquor. Without missing a beat he shouted: “Hell yes. Not enough! Not enough to go around.” Then his face turned serious, and he added, “It runs in my family.” When I asked why he often happily told stories about drinking too much, the justice confided that it was a strategy. “It keeps people off of you,” he said. “I figure if I can tell it, it ain’t nothing new.”

  One day, after a clerk had come into the office to drop off a document, Marshall shook his head. “These guys, my law clerks,” he said laughing, “they get from $100,000 to $120,000 when they leave here.” Marshall clearly regretted that he had never made big money as a lawyer and his jibe had the edge of envy to it. But he said he had never given any thought to leaving the Court and entering a lucrative private practice. “I’ve said it three or four times—I took the job for a tenure of life, I took it for life so I’m going to stay for life,” he added. On another day he described his tenacious effort to stay on the Court in this way: “I expect to die at the age of a hundred and ten, shot by a jealous husband.”

  In 1989, after two terms of Reagan and the election of the Republican George Bush, Marshall’s politics were way out of touch with the American public. The divide was particularly evident in his views on crime. While much of the debate in Congress was about stiffer, mandatory sentences and applying the death penalty to more crimes, Marshall insisted that the rights of suspects and even convicted criminals needed strong protection.

  One area in which Marshall was willing to limit individual rights was gun control. “Oh, I’m for complete gun control,” he said. “I don’t believe you have any right to carry a gun, except for policemen and law enforcement officers. But I don’t see why anybody else needs a gun. If he does, let him have it licensed.”

  During another visit Marshall spoke of his disappointment with the current civil rights movement. He was particularly concerned that the nation’s commitment to the ideal of integration was no longer in evidence. Television and magazines were filled with young black people who were far more excited by talk of Malcolm X-style black nationalism than Thurgood Marshall’s lifelong work to bring about equality of the races and integration under law. “Oh hell yes, we’ve made progress since the 1950s,” Marshall said. “In my mind, no question. But since the 1970s you haven’t made as much as you should have made.”

  One of the difficulties some younger, more race-conscious black Americans had with Marshall was that he was married to a woman of Filipino ancestry and his two sons had married white women. His grandchildren looked white. In an era of strong emphasis on blacks taking pride in being black, Marshall and his focus on integration was out of sync.

  The Washington Post Magazine article brought a new round of attention to him and pleased Marshall. He spent the next several weeks autographing copies of his cover photo for colleagues, his staff, and Court personnel.

  More media attention came to Marshall when he began using the term Afro-American in his legal opinions. In October 1989, Marshall filed a dissent in a death penalty case and for the first time used the expression. He told reporters that he chose not to use African-American because it was not in the dictionary—Afro-American was.

  He had never used the term black, which had become a common label in the 1960s with the “Black Power” movement. He preferred the word Negro with a capital N, or on occasion colored. He said he was uncomfortable using the term because he remembered a time when calling someone “Black” would start a fight. Marshall said, “I don’t think you get pride by calling yourself this or that.… I think you get pride by studying your background … and finding that you have nothing to be ashamed of.”24

  Just as Marshall was doing the interviews with the Post, he was caught up in his last major battle in defense of affirmative action programs. He filed strong dissents in two 1989 cases, Ward’s Cove Packing Co. v. Atonio and Richmond v. J. A. Croson Co.

  In the first case the conservative majority ruled that people who claimed discrimination had to prove they were being treated in a biased manner. The Court declared that there was no convincing evidence of discrimination if one racial group disproportionately outnumbered another in management or any other area of a company’s operations. The majority opinion said such differences could be attributed to the level of education and training of the people in one group.

  In the second case the majority ruled 6–3 that the city of Richmond could not have a 30 percent set-aside for black-owned companies in its municipal contracts. The conservatives argued that individual contractors, be they black or even Alaskan Aleuts, must first show that they had personally suffered discrimination in contracting before they could benefit from any set-aside.

  Marshall, noting that Richmond had been the capital of the Confederacy and renowned for strict segregation, could not believe that his colleagues would doubt that blacks continued to suffer discrimination in the city. “[A] majority of this court signals that it regards racial discrimination as largely a phenomenon of the past.… I, however, do not believe this nation is anywhere close to eradicating racial discrimination or its vestiges. In co
nstitutionalizing its wishful thinking, the majority today does a grave disservice …”

  Although Marshall lost both cases and did little personally to try to win votes from the conservatives, he was still having an impact on his colleagues, according to one of the Court’s conservative newcomers, Antonin Scalia. “Marshall could be a persuasive force by just sitting there,” Scalia said in an interview. “He was always in the conference a visible representation of a past that we wanted to get away from, and you knew that as a private lawyer he had done so much to undo racism or at least its manifestation in and through government. Anyone who spoke in conference on one of these race issues had to be looking at Thurgood when you’re speaking. You know you’re talking in the presence of someone who devoted his life to that matter. Therefore, you’d better be doggoned sure about it.… He wouldn’t have had to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”25

  In Marshall’s mind the key to the Court’s future action on cases dealing with race was the Fourteenth Amendment, requiring equal protection and due process. He wanted the Court to “stop looking around for excuses not to enforce it.” By his own account during this period, Marshall failed to change votes on affirmative action and contract set-aside cases. In one interview a dejected Marshall conceded: “I haven’t done as much as I could—I don’t know why.”

  The problem with the high court’s understanding of race, Marshall later added, was that few of the justices knew much about the lives of black Americans. “What do they know about Negroes?” he asked. “You can’t name one member of this Court who knows anything about Negroes before he came to this Court. Name me one. Sure, they went to school with one Negro in the class. Name me one who lives in a neighborhood with Negroes. They’ve got to get over that problem. What you have to do—white or black—you have to recognize that you have certain feelings about the other race, good or bad. And then get rid of ’em. But you can’t get rid of them until you recognize them.”