Thurgood Marshall (1908–1993)
Early Life and Career as Civil Rights Advocate Preeminent civil rights lawyer, federal appellate judge (1962–1965), solicitor general (1962–1965), and associate justice of the Supreme Court (1967–1991), Thurgood Marshall was the most visible and effective civil rights litigator of the twentieth century. While making historic contributions to equal protection jurisprudence, Marshall also expanded the judicial recognition of core constitutional protections of individual civil liberties.
Thurgood MarshallBorn into an African-American family in Baltimore, Marshall shortened his birth name ‘‘Thoroughgood’’ to Thurgood as a boy. He vividly remembered early experiences with racism and later described Baltimore as the most segregated city in the country. His father, a food service worker, counseled active resistance to racism and encouraged an interest in politics and law.
He graduated with honors from Lincoln University in Pennsylvania and enrolled at the law school at Howard University, which Charles Hamilton Houston had recently transformed from a municipal school specializing in training African-American lawyers to represent African Americans into a dynamic institution devoted to raising the profile of black lawyers and on training a new generation of lawyers to fight for equal rights.
After graduating first in his class from law school in 1933, Marshall opened a law office in Baltimore, but the economic depression and limited legal opportunities for African-American lawyers forced him to moonlight as a file clerk. He played a leading role in reviving the Baltimore chapter of the National Association for the Advancement of Colored People (NAACP).
Within months of graduating from law school, Marshall was actively seeking legal opportunities to challenge Maryland’s segregated university system. NAACP challenges to Jim Crow laws were supported by the Garland Fund administered by Roger Baldwin (founder of the American Civil Liberties Union). In 1935, Marshall and Charles Hamilton Houston sued in Maryland state court for an order directing Maryland’s state law school to admit Donald Murray, an African-American graduate of Amherst College whose application had been denied. They won at the trial and the appellate levels, establishing that the state’s obligation to provide legal education could not be satisfied by sending Murray to an out-of-state school.
In 1936, Marshall joined Houston as staff counsel at the NAACP office in New York. He developed rapidly into an effective litigator and public speaker, serving as the NAACP’s sole full-time lawyer for several years after Houston left in 1938, and presiding as chief counsel over a growing legal staff until 1961. Soon after his arrival, the NAACP’s legal office was separately reorganized to maintain its tax-exempt status as the Legal Defense Fund.
As NAACP litigator, Marshall coordinated and participated in many of the leading Civil Rights Cases of the mid-twentieth century. He acquired a reputation as a master trial lawyer and consummate appellate advocate. Counting his later work as solicitor general, he argued more than thirty cases before the Supreme Court.
Marshall also influenced NAACP strategy. For many years the American Civil Liberties Union informally forwarded race cases to the NAACP. Initially, the NAACP restricted its defense of criminal defendants to individuals who were innocent and the victims of racial discrimination. While Marshall was sensitive to the political cost of representing wrongdoers, he recognized the importance of individual rights. The NAACP mounted a broad opposition to peonage and successfully challenged Coerced Confessions in Chambers v. Florida, 309 U.S. 227, 241 (1940); Canty v. Alabama, 309 U.S. 629 (1940); and White v. Texas, 309 U.S. 631 (1940)—cases that laid the foundation for the Supreme Court’s later ruling in Miranda v. Arizona, 348 U.S. 436 (1966).
The NAACP obtained signal victories in state courts, such as when California courts ruled that closed-shop unions could not exclude African Americans. It presented creative constitutional arguments supporting the expansion of minority rights. For example, in Morgan v. Virginia, 328 U.S. 373 (1946), Marshall successfully argued that the commerce clause prohibits segregated facilities on interstate public transportation; in Shelley v. Kramer, 334 U.S. 1 (1948), the Supreme Court expanded its view of state action to ban the judicial enforcement of private agreements prohibiting property sales to African Americans. During Marshall’s leadership, the NAACP mounted successful challenges to laws excluding African Americans from voting, persuading the Supreme Court to adopt a broader view of state action in a series of decisions definitively repudiating the constitutionality of white Democratic primaries.
NAACP legal strategy in the 1930s focused heavily on education with twin tactics of challenging unequal pay for black teachers and the exclusion of qualified black applicants from graduate and professional programs. Employing the prevailing constitutional doctrine of ‘‘separate but equal,’’ Marshall won many equalization cases challenging the lower salaries of African-American teachers. Following his success in desegregating Maryland’s law school, he mounted successful challenges in other states to the nonexistent or substantially unequal educational opportunities for African-American graduate and professional students.
Marshall always understood that segregated facilities, regardless of their quality, were designed to isolate African Americans and stigmatize them as an inferior race. In the 1940s, he began direct challenges to the constitutional foundations of legalized segregation. Public support grew after World War II for the NAACP’s opposition to segregation, and the Justice Department began to file briefs supporting the NAACP in some cases. In Sweatt v. Painter, 339 U.S. 629 (1950), the Supreme Court did not expressly outlaw segregation, but it held that Texas must admit a qualified African-American applicant to its historically white law school because its new all-black law school was not ‘‘equal.’’ The Court’s opinion suggested that segregated professional schools might never be truly equal, hinting that the Court might be prepared to overrule the doctrine of ‘‘separate but equal.’’
Marshall directed legal strategy in and personally argued and reargued the cases that resulted in the definitive end to the Supreme Court’s approval of segregated public schools in Brown v. Board of Education, 347 U.S. 483 (1954). Southern politicians adopted a policy of massive resistance, defying their constitutional obligation to dismantle state-run segregated programs. The Arkansas governor closed the Little Rock public schools rather than integrate them. Marshall took the case before the Supreme Court in Cooper v. Aaron, 358 U.S. 1 (1958). The Supreme Court unanimously required Arkansas to reopen its schools and issued a forceful opinion vindicating the constitutional right of children to attend integrated schools and prohibiting Arkansas’ attempt to violate that right by indirect means.
Political resistance indefinitely postponed the realization of the rights secured by many of Marshall’s courtroom victories, and unlawful remnants of dual school systems remained in operation at the time of his death. Nevertheless, his legal victories altered the framework of legal debate, limiting the power of legislative bodies openly to discriminate against racial minorities through the pretext of separate but equal facilities, and opened a wide range of opportunities for individuals that were previously denied to them based on their race.
In the 1950s, Marshall became a prominent spokesman for civil rights, traveling and speaking throughout the country. In 1960, he visited Kenya and then spent seven weeks in London helping draft the new constitution for Kenya. He wrote the whole schedule of rights, which provided strong protections for the white minority and established free legal remedies for landowners whose lands were improperly taken.
Marshall’s civil rights career provided a role model for other public interest lawyers. The NAACP’s successes led it to be targeted by hostile state politicians. Its ultimate vindication before the Supreme Court in NAACP v. Button, 371 U.S. 415 (1963), established an important precedent recognizing public interest litigation as an expressive activity and as a vehicle for securing rights protected by the First Amendment.
In 1961, President Kennedy nominated Marshall to the U.S. Court of Appeals for the Second Circuit. After delays caused by southern senators, he was confirmed later that year. He sat on the court until 1965 and authored more than 130 opinions. His opinion in Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), expanded the scope of the double jeopardy clause and announced the theme of later opinions that courts must be ‘‘faithful to the evolution of our societal values.’’
President Johnson appointed Marshall solicitor general in 1965. He served for two years in that capacity, arguing eighteen cases to the Supreme Court. In 1967, Johnson nominated Marshall to be an associate justice on the Supreme Court. He played an active role on the court until his retirement in 1991, first contributing to the Court’s liberal majority under Chief Justice Earl Warren and then frequently dissenting against the conservative turn of the Burger and Rehnquist Courts.
Justice Marshall championed important expansions of civil liberties. In Stanley v. Georgia, 394 U.S. 557 (1969), he wrote the opinion that recognized that the First Amendment protects the right to possess certain materials: ‘‘this right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society.’’ He dissented in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), when the Court upheld government regulations that prevented homeless advocates from organizing sleeping camps on park property. He objected to the narrowing of the ‘‘least restrictive means’’ test by the majority in Ward v. Rock Against Racism, 491 U.S. 781 (1989). In Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), he wrote the opinion establishing that shopping malls should be treated as public areas for purposes of free-speech rights. He dissented as a conservative majority limited and eventually overruled Logan Valley Plaza in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and Hudgens v. NLRB, 424 U.S. 507 (1976).
In appeals from desegregation orders and in later cases questioning Affirmative Action programs, Justice Marshall consistently maintained that deeply entrenched patterns of racial discrimination made it reasonable for states and the federal government to adopt broad remedial programs aimed at ending the continuing effects of discrimination. He insisted that the history and the purposes of the equal protection clause permitted such programs. He wrote stinging dissents in Regents of University of California v. Bakke, 438 U.S. 265 (1978), and other cases criticizing the Court’s refusal to sustain Affirmative Action programs.
The justice’s experience with the unequal application of Capital Punishment led him to oppose it from an early age. On the Court he and Justice William Brennan consistently maintained that the death penalty violated the Eighth Amendment prohibition against cruel and unusual punishment. In the face of legislative efforts restoring Capital Punishment, he argued forcefully in his dissent in Gregg v. Georgia, 428 U.S. 153 (1976), that Capital Punishment violates evolving standards of informed citizens, that such punishment is inherently irrational, and that it is evil because it assumes ‘‘the total denial of the wrongdoer’s dignity and worth.’’
Sympathetic to the economic goals of the New Deal and the social reform goals of Johnson’s Great Society programs, Justice Marshall exercised judicial restraint in reviewing government and state actions that he believed were reasonable or benevolent in motive. He defended the constitutionality of broad limits on campaign spending in his separate opinion in Buckley v. Valeo, 424 U.S. 1 (1976), and he joined the dissent in Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985), where the Supreme Court held that Alabama could not discriminate against nonresident insurance companies by imposing higher taxes.
At the same time, he was sensitive to the ways that laws could mask hostility to disfavored groups or individuals, and he engaged in more active judicial review of claims advanced by the powerless and disadvantaged. He wrote the opinion holding that states could not prevent citizens from voting who had not resided in state for one year (Dunn v. Blumstein, 405 U.S. 330, 1972). He employed equal protection arguments to strike down a Chicago ordinance that prevented picketing near schools except for labor disputes (Police Department of Chicago v. Mosley, 408 U.S. 92, 1972). He did not believe that legal procedures that were not supported by any reason or policy other than long-standing tradition were compatible with due process. He wrote the opinion in Shaffer v. Heitner, 433 U.S. 186 (1977), which required that state court jurisdiction must in all cases satisfy general constitutional standards of reasonableness and fairness.
As a former trial lawyer, Justice Marshall recognized the special importance of the Sixth Amendment right to counsel. He opposed the onerous standards erected by the Supreme Court to prove ‘‘ineffective assistance of counsel’’ because he understood that these prevented meaningful review of cases in which criminal defendants did not receive adequate counsel at trial.
In Fourth Amendment cases he routinely voted with civil libertarians in requiring warrants and limiting exceptions to warrant requirements. In his dissent in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), he argued that consensual-search exceptions to the warrants should require informing suspects of their right to refuse to consent. In Florida v. Bostick, 501 U.S. 429 (1991), he similarly dissented from a decision admitting a dragnet search in which he perceived elements of police coercion.
Justice Marshall was a reliable supporter of First Amendment rights, though some scholars have questioned whether he developed a theoretically consistent approach to the First Amendment. Professor Smith concludes, ‘‘Whether he approached a case from a realist or a formalist position, the end result was nearly always a call for more liberty.’’ Professor Wells theorizes that the justice’s sympathy for First Amendment claims reflected his commitment to ‘‘the value of speech in promoting individual self-realization in a democratic society.’’
Justice Marshall worked to move the Court away from the prevailing formalism in its equal protection analysis that routinely affirmed disparate state treatments of classes not defined by race. Mark Tushnet, Justice Marshall’s biographer and former clerk, maintains that the justice’s most important contribution to constitutional doctrine was his ‘‘sliding-scale’’ theory of equal protection rights. Under prevailing equal protection analysis, legal distinctions based on race are suspect and are constitutional only when they clearly advance a compelling and legal state policy. In contrast, legal distinctions on other grounds are constitutional when they are supported by any lawful state policy. Justice Marshall proposed a more flexible standard that provided real protection for other disfavored persons besides racial minorities and that also respected valid state political goals.
In dissenting opinions he offered the vision of broader constitutional rights, including equal educational opportunity and access to medical treatment. He dissented from a decision permitting the exclusion of women from draft registration and from a decision approving laws that mandated retirement at a certain age.
Marshall’s career exhibited an unflagging recognition that a free society, ‘‘true democracy,’’ required genuine equality. Accordingly, he viewed the Fourteenth Amendment guarantee of equal protection and the incorporation of the Bill of Rights under the due process clause as providing ‘‘a new, more promising basis for justice and equality’’ for all.
Marshall married Vivian (‘‘Buster’’) in 1929. She died of lung cancer in February 1955. He married Cecilia Suyatt in December 1955 and they had two children, Thurgood, Jr. and John.
Despite the passage of time and the eclipse of progressive and egalitarian values on the Supreme Court, Justice Marshall’s reputation endures among civil libertarians and legal theorists. He is venerated by the marginalized communities to whom he gave a voice. While his immediate effect on the Supreme Court was limited, his legacy endures in the vision of the power of constitutional law to secure freedom in a democratic political system marked by deep racial and social divisions.
MICHAEL H. HOFFHEIMER
References and Further Reading
- Ball, Howard. A Defiant Life: Thurgood Marshall and the Persistence of Racism in America. New York: Crown Publishers, Inc., 1999. Bland, Randall Walton. Private Pressure on Public Law: The Legal Career of Thurgood Marshall. Prot Washington, Kennikat Press, 1973.
- ———. Thurgood Marshall: Crusader for Liberalism: His Judicial Philosophy 1908–1993. Bethesda, MD: Academica Press, 2001.
- Green, Bruce A., and Daniel Richman, Of Laws and Men: An Essay on Justice Marshall’s View of Criminal Procedure, Arizona State Law Journal 26 (1994): 369.
- Marshall, Thurgood, Reflections on the Bicentennial of the U.S. Constitution, Harvard Law Review 101 (1987): 1.
- ———. Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences. Mark V. Tushnett, ed. Chicago: Lawrence Hill Books, 2001.
- ———. Supreme Justice: Speeches and Writings. J. Clay Smith, Jr., ed. Philadelphia: University of Pennsylvania Press, 2003.
- Mello, Michael. Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall. Boston: Northeaster University Press, 1996.
- Smith, J. Clay, Jr., Justice Thurgood Marshall and the First Amendment, Arizona State Law Journal 26 (1994): 461–478.
- Steiker, The Long Road up From Barbarism: Thurgood Marshall and the Death Penalty, Texas Law Review 71 (1993): 1131.
- Tushnett, Mark V. Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961. New York: Oxford University Press, 1994.
- ———. Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991. New York: Oxford University Press, 1997.
- Wells, N. Douglas, Thurgood Marshall and ‘‘Individual Self- Realization’’ in First Amendment Jurisprudence, Tennessee Law Review 61 (1993): 237–287.
- Williams, Juan. Thurgood Marshall: American Revolutionary. New York: Random House, 1998.
Cases and Statutes Cited
- Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968)
- Brown v. Board of Education, 347 U.S. 483 (1954)
- Buckley v. Valeo, 424 U.S. 1 (1976)
- Canty v. Alabama, 309 U.S. 629 (1940)
- Chambers v. Florida, 309 U.S. 227, 241 (1940)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
- Cooper v. Aaron, 358 U.S. 1 (1958)
- Dunn v. Blumstein, 405 U.S. 330 (1972)
- Florida v. Bostick, 501 U.S. 429 (1991)
- Gregg v. Georgia, 428 U.S. 153 (1976)
- Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965)
- Hudgens v. NLRB, 424 U.S. 507 (1976)
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
- Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985)
- Morgan v. Virginia, 328 U.S. 373 (1946)
- NAACP v. Button, 371 U.S. 415 (1963)
- Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)
- Regents of University of California v. Bakke, 438 U.S. 265 (1978)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
- Shaffer v. Heitner, 433 U.S. 186 (1977)
- Shelley v. Kramer, 334 U.S. 1 (1948)
- Stanley v. Georgia, 394 U.S. 557 (1969)
- Sweatt v. Painter, 339 U.S. 629 (1950)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989)
- White v. Texas, 309 U.S. 631 (1940)