Thurgood Marshall

by Juan Williams

  In 1990, Justice Brennan, who was still more willing to engage his colleagues than Marshall, led a fight to get a majority to support federal government set-asides for minorities on broadcasting licenses. Marshall was resigned to writing his dissent by this point, but Brennan won a majority by visiting with other justices and arguing that Congress had the power to improve the nation’s quality of life by having radio and TV stations in the hands of racially diverse owners.

  A month after the ruling, in July 1990, Brennan, age eighty-four, suffered a minor stroke. That same month he retired. President Bush appointed a federal appellate and former New Hampshire state supreme court justice, David Souter, to replace him. Souter had a moderate to conservative record far different from Brennan’s. Justice Marshall, age eighty-two, was alone holding down the Court’s left wing.

  After Souter’s nomination Marshall, in an unusual step, agreed to tape an interview with one of his favorite Washington TV correspondents, Sam Donaldson of ABC’s newsmagazine show PrimeTime Live. Marshall, looking disheveled and speaking in short, mumbled sentences, was clearly upset about Brennan’s departure, telling Donaldson that Brennan “cannot be replaced.” Marshall specifically explained that there was now no one on the Court to engage the right wing because “no one here can persuade the way Brennan can persuade.”

  When Donaldson mentioned Souter, Marshall turned sour and said: “When his name came down I listened to television and the first thing I called my wife and asked, ‘Have I ever heard of this man?’ She said no.… So I promptly called Brennan because it’s his circuit. And his wife answered the phone … she said he’s never heard of him either.”

  Donaldson then asked the justice about President Bush. Marshall became even more dour. “It’s said that if you can’t say something good about a dead person don’t say it,” said Marshall. “Well, I consider him dead.”26

  The interview stirred a Washington storm. Attorney General Richard Thornburgh said Marshall’s comments “saddened him.” Thornburgh said it was “the first time any Supreme Court justice has ever criticized, in our history, an appointment and indeed the president who made the appointment.” Senate Minority Leader Robert Dole told reporters that Marshall’s comments amounted to “cheap shots … [that were] partisan and demeaning.” Newsweek magazine later reported that many of Marshall’s friends found the justice’s performance on TV “embarrassing. ”27

  Souter was easily confirmed (90–9), but the damage to Marshall was considerable. Questions about his physical health now extended to questions about his mental health. His public attack of a fellow justice created tensions inside the Court, even among justices who had always supported him.

  A few days after the television interview, Marshall was in Chicago to give a speech at the American Bar Association when his cane got caught in a floor sign and he suffered a serious fall on his left shoulder. He did not break any bones but was sufficiently shaken and bruised that he canceled the speech and went back to Washington to see his doctor.

  The next several months saw Marshall’s health continue to worsen. He walked with a pained, slow motion. His eyes teared almost constantly, and it was hard for him to read. His circulatory problems worsened, and his heart was weak. Meanwhile, President Bush’s popularity climbed to record-breaking heights after the U.S. military successfully pushed Iraq out of Kuwait. Bush looked to be a shoo-in for another four years as president. The justice told friends he no longer thought he could stay on the Court until Democrats regained control of the White House.

  Emotionally and physically on the decline, Marshall paid attention only to cases that had to do with the death penalty. Now that Brennan was gone, Marshall was the lone voice objecting to capital punishment. In a 1990 case he took a stand against victim impact statements—allowing crime victims to offer emotional testimony intended to encourage a jury to hand out death sentences. But it was another futile fight. Marshall lost when the conservative majority ruled 6–3, in Payne v. Tennessee, that victims should be able to testify.

  At the last conference for the term in June 1991, Marshall privately told his colleagues that he was going to retire. He said he had already called Justice Brennan. There was silence as the other justices took in the meaning of their colleague’s words. Chief Justice Rehnquist got up and uncharacteristically hugged Marshall. Justice O’Connor cried. Other justices came up and held his hands.

  The people in Marshall’s chambers were just as shocked and surprised. Scott Brewer, one of his clerks that term, said he never gave them any sign he was about to retire. As word spread among his clerks and assistants, the office filled with crying and hugs.

  But the very next day, Marshall’s dissent in the Payne case came out, revealing the distance between Marshall and his colleagues. “Power not reason, is the new currency of this court’s decision making …” Marshall wrote.

  That day Marshall sent President Bush an official letter announcing his retirement, a week short of his eighty-third birthday. He had been on the court for twenty-four years. In a final gesture he also walked down from his seat on the bench, removed his black robes, and stood in the lawyers’ well, the same place he had stood to argue Brown. With his son Thurgood Jr. and his daughter-in-law, Colleen Mahoney, behind him, the retiring justice vouched for their qualifications as lawyers and asked that they be admitted to the Supreme Court bar.

  News of his retirement stirred memories and emotions nationwide. It was the end of an era. Marshall’s reclusive behavior, bad health, and rough manner had taken him out of the mainstream of popular culture for more than a decade. But his retirement gave new life to Marshall’s status as a national icon, a symbol of this century’s civil rights struggle. A large group of reporters—far bigger than the Supreme Court press corps—jammed into the Court’s East Conference Room. Marshall came in leaning heavily on his cane. His collar was unbuttoned, and his tie was off to one side as he sat down heavily in a grand old mahogany chair.

  “How do you feel, Justice?” a reporter shouted. The ornery side of Marshall came right out. “With my hands,” he replied, ending with a harrumph. His wife, his oldest son, his daughter-in-law, and grandchild (Thurgood William Marshall, whose middle name was a tribute to Justice William Brennan) stood in the shadows, joined by Marshall’s friend and former cabinet secretary William Coleman.

  When reporters asked if President Bush should name a black person to succeed him, Marshall said that Bush should not use race as a “ploy” to allow the “wrong Negro” to get the job. “I think the important factor is to pick the person for the job not on the basis of race one way or the other.” Marshall quoted his father as once telling him that there was no difference between a white and black snake—“they both bite.”

  One reporter asked about Martin Luther King, Jr.’s mountaintop vision of a day when black Americans were free at last. Had black America achieved the dream? Marshall said, “I’m not free. All I know is years ago when I was a youngster, a Pullman porter told me that he had been in every city in this country.… And he never had been in any city in the United States where he had to put his hand up in front of his face to find out he was a Negro.”

  And how did he wanted to be remembered? Marshall quipped: “He did what he could with what he had.”28

  Within weeks of his departure, Marshall’s complaints about light-headedness led his doctors to hospitalize him. His doctors implanted a pacemaker and told reporters that he should soon be able to resume a normal life.

  While Marshall struggled with failing health, he was still technically a member of the Court. He had resigned pending the confirmation of his successor and even wrote one pro forma dissent in a death penalty case. But he was concerned that he might have to stay on the Court for several more months because of a storm swirling around the man nominated to replace him, Clarence Thomas.

  Thomas, age forty-three, had been on the U.S. Court of Appeals for the District of Columbia for only sixteen months. He had served as President Reagan’s appointee
to chair the Equal Employment Opportunity Commission for eight years before President Bush put him on the D.C. circuit. The stocky, cigar-smoking Thomas was a strong opponent of affirmative action. He once wrote to The Wall Street Journal that the Constitution should always be applied in a “colorblind fashion.” He had moved the EEOC away from class-action suits against big companies. Under Thomas the agency emphasized cases where people could prove that they, personally, had been the victim of discrimination.

  Thomas was also more of a black nationalist than a Marshall-style integrationist. He was an admirer of Malcolm X, a man who had openly cursed Marshall. Thomas had even criticized the Brown decision as based on sociology, not law, and asked why black children had to sit next to white children to get a good education. He supported the death penalty, and he was opposed to abortion rights. But none of those positions proved sufficiently controversial to stop overwhelming support for a poor black boy, raised by his hardworking grandfather, who had gone to Yale Law School and then made his way to become a Supreme Court nominee.

  Thomas seemed set for certain confirmation until a former employee, Anita Hill, testified before the Senate Judiciary Committee that he had made crude sexual comments to her. The hearings became a national sensation, with TV networks broadcasting her testimony and then his denial, claiming he was the victim of a “high-tech lynching.” People across the nation began impassioned conversations about sexual harassment and racial politics. Feminist groups, already opposed to him because of his stand on abortion, bombarded both Thomas and the all-male panel of senators as members of an old boys’ club that just did not “get it.” The NAACP, which had not opposed Thomas, now came under pressure to stop his confirmation.

  In his chambers Marshall watched the tawdry TV drama unfold with pain. He did not much care about Hill’s charges but felt the Court was being damaged by TV’s crass and steamy coverage of the serious business of a Supreme Court nominee’s confirmation. If his own hearings had been televised, with charges of Communist association, hatred of whites, and incompetence flying around, Marshall was sure he would not have been confirmed. Stephen Carter, one of his former clerks who spoke with him at the time, said Marshall “thought TV coverage was a very poisonous thing.”

  Also, the aged justice saw the selection of a young black conservative with views contrary to his own as a slap in the face from President Bush—whom Marshall had excoriated on national TV only a year before.

  “It hurt Thurgood deeply,” said Monroe Dowling. “He said, ‘Think of them comparing him with me.’ He just cussed—‘They think he’s as good as I am’—and to him the comparison was odious.”

  Bill Coleman watched some of the hearings with Marshall. “If you want to suffer through the most miserable time, sit in Justice Marshall’s chambers with the television on during the time of the Thomas hearings,” he said. “I think that if he’d ever felt that the guy to replace him was going to be Thomas, he would have stayed on.… He just thought it was terrible that a person with that small ability and with that lack of commitment, would be on the Court at all, much less to take the seat that he had vacated.”

  Despite the hearings, Thomas was confirmed in a close vote, 52–48. When Thomas joined the Court he did the usual round of courtesy calls for brief conversations with the other justices. But his introduction to Marshall was most memorable. The meeting with Marshall lasted more than two hours, with Marshall doing all the talking, telling stories about his days as a civil rights lawyer as well as his time on the Court. Marshall also offered a tip to the newcomer: treat the other justices like a family, where ideological differences do not amount to personal differences.

  “It could not have been a pleasant experience for him to see his seat filled by someone who did not have his view on the matters that were the closest to his heart,” said Justice Scalia, who is closely allied with Thomas. “But Marshall handled it with dignity and with class, as he did everything else.”

  As a retired justice Marshall kept an office on an upper floor of the Supreme Court with one clerk and his longtime secretary, Jane McHale. The key issue he faced was what to do with his papers. He had long boasted that he planned to burn them because he did not want anyone poking around in them. The Library of Congress had approached him as early as 1965 to ask for them. Marshall had always turned them away. But the passing years and persistent requests that he tell his story had appealed to his ego and softened his position. He was particularly touched by the attention the newspapers and networks had given his retirement. Without explanation he called James Billington, the Librarian of Congress, and invited him over. Marshall announced he had decided to leave the papers to the library on the condition that they be made public only after he died.

  His heart trouble soon put him in a wheelchair. It was a struggle to get around, but in January 1992 he was able to spend a week as a visiting judge on the Second Circuit Court of Appeals. In August the American Bar Association gave him its highest award.

  Marshall, still in a wheelchair, made brief remarks in a raspy voice. He finished by reading from a poem by his college classmate Langston Hughes.

  O, let America be America again—

  The land that never has been yet—

  And yet must be—the land where every man is free.

  The land that’s mine—the poor man’s, Indian’s, Negro’s, ME—

  Who made America,

  Whose sweat and blood, whose faith and pain,

  Whose hand at the foundry, whose flow in the rain,

  Must bring back our mighty dream again.…

  O, yes,

  I say it plain,

  America never was America to me,

  And yet, I swear this oath—

  America will be!

  At the end of the poem Marshall added his own signature, offering a churchlike “Amen!” Jack Valenti, who had worked as an aide to President Johnson, saw Marshall at around that time and was shocked by his friend’s appearance. “He looked so tired, and so worn and so sick,” said Valenti. “I felt this terrible sadness, because I really—I don’t think anyone is irreplaceable, but some people leave a larger gap in the society than others. And I thought, My God, he’s mortal, and he’s going to die. It’s just a question of when.”29

  By the late fall of 1992 Marshall was rarely leaving his house as his medical problems worsened. Ralph Winter, who stayed in close touch, recalled that Marshall was now unhappy because he was living in pain. “I think cancer was discovered at the end,” said Winter. “He was very uncomfortable.” In the November election President Bush was upset by the governor of Arkansas, William Clinton, giving the Democrats control of the White House for the first time in twelve years. It was a year too late for Marshall. Al Gore, Clinton’s running mate, asked Marshall to swear him in, and Marshall agreed. But by January, the justice had deteriorated further and did not have the energy to do it.

  Gloria Branker, one of Marshall’s former secretaries, went to visit him at his home in late January. He was in bed. “Do you want to sit up?” she asked him. No, he replied. Then she asked, “Don’t you want to try?” No, he said again. A grim look crossed her face, and she said, “It would be good, Thurgood.” He said, “Why?”

  Branker spoke to him for a few more minutes without any reply. Then he puckered his lips as if to give her a kiss. “I knew that was the signal for me to leave,” she said, “and I knew that was the last time I would see him. He had given up.”30

  The next day, January 21, Marshall was taken to Bethesda. Three days later, at 2:00 P.M. on a cold Sunday afternoon, the eighty-four-year-old died.

  CHAPTER 33

  Resurrection

  A LINE OF MOURNERS stretched down the white marble steps of the Supreme Court, onto the street, and around the corner. It was cold, below twenty degrees, and getting colder as the late January sun went down, but the mourners kept coming. They formed a thin, shivering line, every breath visible by the freezing dark of sunset. But still they came. Eventually, the c
hief justice ordered that the building be kept open late into the night so that people could continue to file by Thurgood Marshall’s flag-draped casket as it lay in state in the Court’s Great Hall.

  The simple pine casket, set on a bier that had once held President Lincoln’s body, had been carried into the Court that morning as all the living justices stood on the marble steps to form an honor guard. Justice Souter had to help his predecessor, Justice Brennan, who had difficulty walking since suffering his stroke. The casket was set next to an oil painting of Marshall. His former clerks flew in from around the country and took turns standing guard by the casket. Eighteen thousand people walked by that day, some stopping to weep. Others left roses, and even an original copy of Marshall’s brief in the Brown case.

  The next morning the National Cathedral overflowed with more than 4,000 people, including the president and vice president. Justice Marshall’s funeral service was televised live and nationwide by several networks. Chief Justice Rehnquist spoke first and noted that the words above the entrance to the Supreme Court read “Equal Justice Under Law.” In slow, deep tones, the chief justice said: “Surely no one individual did more to make these words a reality than Thurgood Marshall.”

  Vernon Jordan, the powerful Washington lawyer, stirred the large crowd when he rose to speak. With his velvety baritone booming through the high-vaulted main chapel, Jordan’s words brought tears to the eyes of the mourners: “We thank you, Thurgood … your voice is stilled but your message lives. Indeed, you have altered America irrevocably and forever. ”1