You can be sure that the angels speeding the way for the great Justice got an earful. In a decision released the day after Thurgood Marshall left us, far better for his unyielding vision, the Supreme Court again spoke in the voice of indifference, again shaped the law untempered by justice. The voice was that of the Chief Justice, and what he said was that Leonel Herrera, a deathrow inmate who claimed he had new evidence showing he was innocent, could not obtain a Court hearing, because federal courts "sit to ensure that individuals are not imprisoned in violation of the Constitution not to correct errors of fact."
Marshall will roar over the irony in this one. "Oh, yes," the sense of his reply might go for he would have used language more shrewdly than I can possibly imitate "we'11 save his life if the police improperly obtained a warrant, or if his lawyer was truly ineffective, or maybe even if the judge charged the jury erroneously or the prosecution withheld evidence. These are mistakes that invoke the Constitution. But that he might be innocent. That his brother may have been the murderer. Now this, you say, this doesn't violate a constitutional right. This doesn't make a lack of due process, you say. This isn't cruel and unusual punishment? Just one of those 'errors of fact,' right? So we can kill him, right?"
It wouldn't be just a matter of the death penalty, the loathsome nature of which Marshall knew firsthand, that set him against the nonsense the Court dispensed in the Herrera case. Nor misguided liberalism: Neither his public statements nor his private conversation betrayed the slightest sentimentality toward criminals. And certainly not naivete. There were few client dodges or lawyer tactics that Marshall couldn't spot. You simply couldn't pull the wool over eyes that had seen what his had seen. He was a lawyer who knew lynchings, race riots, kangaroo courts, perjured testimony and rigged juries as well as the subtler arts of complacent, elegant advocacy. The movement that brought him to a marble palace of justice had its origin in steamy Southern towns, where he might prepare a witness in the rowdy office above a juke joint.
The decisive fagot for Marshall would be that even a Constitution born in racism was redeemable if one used the values at its core to deal humanely with the life around us. He once said that while we have a great Constitution today, "it didn't start out that way." Only the interpretations of Justices like Louis Brandeis, Earl Warren and William Brennan (and Marshall himself) replaced cramped formalism with decency. Constitutional lawyers still agonize over this sort of thing. Stray too far, they worry, and democracy will be lost. Perhaps, but trade too much fairness for efficiency or disregard the plight of the outcast or pretend that law is the same as justice and you may lose the human rights that democracy is supposed to preserve.
Thurgood Marshall was the greatest lawman of the age. He did it with a lack of pretension and a gift of humor that shaped but never detracted from the seriousness of his concerns. It might be said of him that he never forgot that in the final analysis errors of fact are the only errors that really count.
Thurgood Marshall thought that Robert F. Kennedy was "a cold, calculating character" and that the Rev. Dr. Martin Luther King Jr. was a great leader but not "worth diddley squat" as an organizer. And he considered Lyndon B. Johnson "a lovely guy," for whom he had profound sympathy.
Those were among the assessments, offered by Justice Marshall 16 years ago in audiotaped interviews with the Oral History Project at Columbia University, of the many public figures he had met in his long career as civil rights hero, Federal appeals judge, Solicitor General and Supreme Court Justice. Transcripts of the tapes, sealed by agreement until Justice Marshall's death, were issued by the university last week, the day after he died of heart failure at the age of 84.
The transcripts are filled with colorful reminiscences, including those of the civil rights battles of the 1960's.
'No Warm Feelings'
Although speaking fondly of Dr. King for the most part, Justice Marshall did find fault with him. "I thought he was great as a leader," the Justice said. "As an organizer, he wasn't worth diddley squat. But very few leaders are."
Justice Marshall expressed some bitterness at what he saw as Dr. King's willingness to delegate his legal battles to the NAACP Legal Defense and Educational Fund, which Justice Marshall had served as director-counsel for more than 20 years.
"With Martin Luther King's group, all he did was to dump all his legal work on us, including the bills," the Justice said.
Justice Marshall called President John F. Kennedy "a very sweet man" but said of his brother Robert: "Bobby was like his father. He was a cold, calculating character. 'What's in it for me?' I mean, not like his brother. He had no warm feelings. None at all."
Justice Marshall recalled that early in the Kennedy Administration he was close to being appointed to his first Federal judgeship and that he hoped to serve on an appeals court. Robert Kennedy, the Attorney General and the President's closest adviser, offered him a post only as a district judge, who, unlike an appeals judge, must preside at trials.
'My Fuse Was Too Short'
"I told Bobby Kennedy that I was not district judge material," the Justice said, "because my fuse was too short. I lose my temper. And that wasn't good."
Justice Marshall said that Kennedy had responded: "You don't seem to understand. It's this or nothing."
"I said, 'Well, I do understand,' " the Justice recalled. " 'The trouble is that you are different from me. You don't know what it means, but all I've had in my life is nothing. It's not new to me, so goodbye.'
" The prospective judge got what he wanted: a seat on the United States Court of Appeals for the Second Circuit, in Manhattan.
'He Died of a Broken Heart'
Justice Marshall expressed both admiration and sympathy for President Johnson, who appointed him Solicitor General in 1965 and to a seat on the Supreme Court in 1967.
"I think if he'd been re-elected, he'd have been still alive today," Justice Marshall said in the interview, recorded four years after the President's death. "He died of a broken heart. What a lovely guy."
Johnson was forced to abandon his hopes for re-election in 1968 because of public protest over the Vietnam War. Justice Marshall recalled that after leaving the Presidency in January 1969 Johnson occasionally telephoned him, sometimes depressed.
"He would call me for the express purpose of getting out of it," the Justice said. "He would say, 'No moaning at the bar,' or something like that. And then he'd say, 'O.K., now, go have a drink.' I'd say, 'Providing you do.'
" Absent from the transcripts are Justice Marshall's thoughts about the Supreme Court. But he did say that decisions in voting rights cases would be extremely important for blacks.
"I think that's the only wave of the future," he said. "I shouldn't talk too much about it, because we have many cases on it."
Thurgood Marshall, pillar of the civil rights revolution, architect of the legal strategy that ended the era of official segregation and the first black Justice of the Supreme Court, died today. A major figure in American public life for a half-century, he was 84 years old.
Toni House, the Court's spokeswoman, said Justice Marshall died of heart failure at Bethesda Naval Medical Center in Maryland at 2 P.M.
Justice Marshall, who retired from the High Court in 1991, had been scheduled to administer the oath of office to Vice President Al Gore on Wednesday, but his failing health prevented him from doing so.
Thurgood Marshall was a figure of history well before he began his 24-year service on the Supreme Court on Oct. 2, 1967.
During more than 20 years as director-counsel of the NAACP Legal Defense and Educational Fund, he was the principal architect of the strategy of using the courts to provide what the political system would not: a definition of equality that assured black Americans the full rights of citizenship.
Landmark Triumph in 1954
As a civil rights lawyer, Mr. Marshall devised the legal strategy and headed the team that brought the school desegregation issue before the Court. An experienced Supreme Court advocate by that time, he argued the case himself in the straightforward, plain-spoken manner that was the hallmark of his courtroom style. Asked by Justice Felix Frankfurter during the argument what he meant by "equal," Mr. Marshall replied, "Equal means getting the same thing, at the same time, and in the same place."
He won many other important civil rights cases, including a challenge to the whites-only primary elections in Texas. This device was commonly used by white Southern politicians to disenfranchise blacks.
He also won a major Supreme Court case in which the Court declared that restrictive covenants that barred blacks from buying or renting homes could not be enforced in state courts.
'Heroic Imagination' In a Ruthless World
Mr. Marshall, who was born and reared in Baltimore, was excluded from the all-white law school at the University of Maryland. Later he brought successful lawsuits that integrated not only that school but also several other state university systems. He received his legal education at the law school of Howard University in Washington, D.C., the nation's pre-eminent black university, where he graduated first in his class in 1933 and made the personal and intellectual connections that shaped his future career.
Years later, the University of Maryland named its law library for him, and the City of Baltimore honored him by placing a bronze likeness, more than eight feet tall, outside the Federal courthouse.
"To do what he did required a heroic imagination," Paul Gewirtz, one of Justice Marshall's former law clerks, wrote in a tribute published after the Justice retired from the Court.
The article by Mr. Gewirtz, the Potter Stewart Professor of Constitutional Law at Yale Law School, continued: "He grew up in a ruthlessly discriminatory world a world in which segregation of the races was pervasive and taken for granted, where lynching was common, where the black man's inherent inferiority was proclaimed widely and wantonly. Thurgood Marshall had the capacity to imagine a radically different world, the imaginative capacity to believe that such a world was possible, the strength to sustain that image in the mind's eye and the heart's longing, and the courage and ability to make that imagined world real."
Yet Justice Marshall was not satisfied with what he had achieved, believing that the Constitution's promise of equality remained unfulfilled and that his work was therefore unfinished.
A Voice of Anger And Disappointment
For much of his Supreme Court career, as the Court's majority increasingly drew back from affirmative action and other remedies for discrimination that he believed were still necessary to combat the nation's legacy of racism, Justice Marshall used dissenting opinions to express his disappointment and anger.
In 1978, for example, in the Bakke case, in which the Court found it unconstitutional for a state-run medical school to reserve 16 of 100 places in the entering class for black and other minority students, Justice Marshall filed a separate 16-page opinion tracing the black experience in America.
"In light of the sorry history of discrimination and its devastating impact on the lives of Negroes," he wrote, "bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to insure that America will forever remain a divided society."
He dissented in City of Richmond v. Croson, a 1989 ruling in which the Court declared unconstitutional a municipal ordinance setting aside 30 percent of public contracting dollars for companies owned by blacks or members of other minorities. The Court majority called the program a form of state-sponsored racism that was no less offensive to the Constitution than a policy officially favoring whites.
In his dissenting opinion, Justice Marshall said that in reaching that conclusion "a majority of this Court signals that it regards racial discrimination as largely a phenomenon of the past, and that government bodies need no longer preoccupy themselves with recpdfying racial injustice."
He added: "I, however, do not believe this nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, the majority today does a grave disservice not only to those victims of past and present racial discrimination in this nation whom government has sought to assist, but also to this Court's long tradition of approaching issues of race with the utmost sensitivity."
'Great Dissenter' As Political Prophet
Although he wrote a number of important majority opinions for the Court, his most powerful voice was in dissent, and not only in the area of racial discrimination. Like his friend and closest ally, Justice William J. Brennan Jr., who retired the year before he did, Justice Marshall believed that the death penalty was unconstitutional under all circum- stances. He dissented from all decisions in which the Court upheld application of the death penalty, and he wrote more than 150 dissenting opinions in cases in which the Court had refused to hear death penalty appeals.
In an article published after his retirement, Kathleen M. Sullivan, a Harvard Law School professor, called Justice Marshall "the great dissenter."
"We may read his eloquent admonitions in dissent as prophecies for another (perhaps distant) era when the political pendulum swings again," Professor Sullivan wrote. "With his departure goes part of the conscience of the Court a reminder of the human consequences of legal decisions."
While the phrase "first black Supreme Court Justice" was attached so often to his name that it appeared to be part of his official title, it was a partial definition at best, scarcely encompassing the unusual range of legal experience that Justice Marshall brought to the Court.
By the time President Lyndon B. Johnson named him to succeed Justice Tom C. Clark, who had retired, Mr. Marshall had argued 32 cases before the Supreme Court and won 29 of them. He argued 14 of those cases as a private lawyer and 18 as Solicitor General of the United States, the Federal Government's chief advocate in the Supreme Court. President Johnson had named him to that position in 1965, two years before nominating him to the Supreme Court.
From 1961 to 1965, Thurgood Marshall was a Federal appeals court judge, named by President John F. Kennedy to the United States Court of Appeals for the Second Circuit, in Manhattan. He wrote 112 opinions on that court, none of which was overturned on appeal. Several of his dissenting opinions were eventually adopted as majority opinions by the Supreme Court.
He had at first been hesitant to accept President Kennedy's offer of a seat on the appeals court, fearing that his allies in the civil rights movement would think that he was deserting the struggle. "I had to fight it out with myself," he said in an interview some years ago. "But by then I had built up a staff a damned good staff an excellent board, and the backing that would let them go ahead. And when one has an opportunity to serve the Government, he should think twice before passing it up."
The Thurgood Marshall whom the public saw in his old age was a gruff, lumbering figure, his pace slowed by extra pounds and shortness of breath, his eyesight impaired by glaucoma. Outspoken and impolitic, he stirred up minor storms by making cutting remarks in public, highly unusual for a Supreme Court Justice, about major public figures.
"I wouldn't do the job of dogcatcher for Ronald Reagan," he said in an interview in 1989. The next year, referring to President Bush, he said in a televised interview: "It's said that if you can't say something good about a dead person, don't say it. Well, I consider him dead."
Behind the Mask, A Fine Storyteller
In the courtroom Justice Marshall's face was an inscrutable mask. He said little during the argument sessions, growling occasionally at lawyers who were struggling lamely through their arguments and sometimes training his sarcasm on his own colleagues. During a death penalty argument in 1981, William H. Rehnquist, then an Associate Justice, suggested that the inmate's repeated appeals had cost the taxpayers too much money. Justice Marshall interrupted, saying, "It would have been cheaper to shoot him right after he was arrested, wouldn't it?"
But those who knew him well said that behind the mask was a man with an earthy sense of humor, a spellbinding storyteller with an anecdote from his own long life for every occasion.
Justice Brennan, in a tribute to his friend published in the Harvard Law Review, wrote about Justice Marshall's storytelling abilities. "The locales are varied from dusty courtrooms in the Deep South, to a confrontation with General MacArthur in the Far East, to the drafting sessions for the Kenyan Constitution," Justice Brennan wrote. "They are brought to life by all the tricks of the storyteller's art: the fluid voice, the mobile eyebrows, the sidelong glance, the pregnant pause and the wry smile."
The stories were meant not only to entertain but also to serve "a deeper purpose," Justice Brennan said. "They are his way of preserving the past while purging it of its bleakest moments," he said. "They are also a form of education for the rest of us. Surely, Justice Marshall recognized that the stories made us his colleagues confront walks of life we had never known."
Many of his stories recalled the hostility, the harassment and, not infrequently, the danger he had faced as a civil rights lawyer, traveling some 50,000 miles a year throughout the South representing black clients and unpopular causes. One story he told was of being arrested on a trumped-up charge of drunken driving while leaving a Tennessee town in which he and a colleague had just won an acquittal for a black defendant.
As Justice Marshall recounted the incident in an interview, he was brought before a magistrate, who told him: "If you're not drunk, will you take my test? Will you blow in my face? I'm a teetotaler and I can smell the least bit of whisky."
"He was a short man," recalled Justice Marshall, who was himself 6 feet 2 inches tall and weighed well over 200 pounds. "I put my hands on his shoulders and breathed just as hard as I could into the man's face." The case was dismissed.
"We drove to Nashville," the Justice added. "And then, boy, I really wanted a drink!"
Thurgood Marshall was born in Baltimore on July 2, 1908. His mother, the former Norma Williams, was a teacher. His father, William Marshall, had once worked as a Pullman car waiter and later became a steward at the exclusive, all-white Gibson Island Club on Chesapeake Bay. A great-grandfather had been taken as a slave from the Congo to the Eastern Shore of Maryland, where the slaveholder eventually freed him.
Mr. Marshall was named for his paternal grandfather, who had chosen the name "Thoroughgood" when he enlisted as a private in the Union Army during the Civil War. His grandson later explained that he adopted the spelling "Thurgood" in grade school because he "got tired of spelling all that out."
He described himself as a "hell-raiser" in school, a circumstance that gave him exposure to the Constitution and lifelong respect for it. "Instead of making us copy out stuff on the blackboard after school when we misbehaved, our teacher sent us down into the basement to learn parts of the Constitution," he once recalled. "I made my way through every paragraph."
In high school years in Baltimore, he worked as a delivery boy for a women's clothing store after classes. He waited on tables to help pay the tuition at Lincoln University in Chester, Pa., where he said he "majored in hell-raising." He was expelled once for hazing freshmen, but after being readmitted he became a star debater and graduated with honors in 1930.
His mother wanted him to become a dentist, a safe and lucrative career for a black professional in those days, but he was determined to become a lawyer. Enrolling at Howard University Law School meant a long daily commute from Baltimore because he could not afford housing at the school. His mother pawned her wedding and engagement rings to pay the law school's entrance fees.
At Howard he met a man who would influence the course of his life, Charles Hamilton Houston, then the law school's vice dean. Mr. Houston, a Harvard Law School graduate who later served as chief counsel to the National Association for the Advancement of Colored People and who became the first black lawyer to win a case before the Supreme Court, imbued his students with the goal of using the law to attack institutional racism. "Charlie Houston insisted that we be social engineers rather than lawyers," Justice Marshall said in an interview published in the American Bar Association Journal in 1992.
The Justice often credited Mr. Houston, who died in 1950 at the age of 54, as his mentor. Referring to the 1954 Brown v. Board of Education decision, he said in the bar association interview: "The school case was really Charlie's victory. He just never got a chance to see it."
A Basic Strategy To End Segregation
After earning his law degree Mr. Marshall opened a law office in Baltimore. The nation was in the fourth year of the Depression. He found himself handling civil rights cases for impoverished clients and was soon $1,000 in debt. But his courtroom victories, including his successful challenge to segregation at the University of Maryland Law School, began to be noticed. In 1936 Mr. Houston, by then the chief counsel of the N.A.A.C.P., recruited him for a $2,600-a-year job on the organization's legal staff in New York. Two years later, when Mr. Houston returned to Washington, Mr. Marshall succeeded to the chief counsel's title but continued to work closely with his mentor.
Pursuing a long-range strategy to eradicate segregation, the two men concentrated first on graduate and professional schools, believing that white judges were most likely to be offended by segregation in that setting and to sympathize with the ambitious young black college graduates who were the plainpdffs in the cases. As successes mounted, the two turned their attention to segregation in public high schools and elementary schools.
"Under Marshall, the N.A.A.C.P.'s legal staff became the model for public interest law firms," Mark Tushnet, one of the Justice's biographers who was also one of his law clerks, wrote in the American Bar Association Journal. "Marshall was thus one of the first public interest lawyers. His commitment to racial justice led him and his staff to develop ways of thinking about constitutional litigation that have been enormously influential far beyond the areas of segregation and discrimination."
In its public school cases, the initial focus of the N.A.A.C.P., and later of the NAACP Legal Defense and Educational Fund, which became a separate entity in the 1940's, was to seek to equalize the resources available to the all-black schools in segregated systems. Mr. Marshall persuaded the organization's board to abandon that approach and to refuse to take on any cases that did not challenge the fact of segregation itself.
The new policy was controversial within the N.A.A.C.P. and prompted resignations by several black lawyers on whom the organization had relied to handle cases in the South. Mr. Marshall was not deterred, and took on many of the cases himself. He traveled constantly and was in charge of as many as 450 cases at a time. "I was on the verge of a nervous breakdown for a long time, but I never quite made the grade," he once said.
Robert L. Carter, an associate of Mr. Marshall's from those days who later became a Federal district judge in New York, recalled their travels through the South in an article published in The Harvard Law Review.
"Having grown up in Maryland, Marshall had a slight Southern accent," Mr. Carter wrote. "But when our opponents were Southern lawyers, which was virtually all the time, his accent would become much more pronounced. Before and after the case was called, Marshall would joke with the opposing counsel or exchange some pleasantry, all in a Southern accent so broad that he sounded as if he had lived all his life in the deep rural South. The practice irritated me at first. The very lawyers Marshall's Southern drawl would put at ease were defending a system we detested."
Mr. Carter wrote that he gradually understood that his friend "was attempting to communicate to these men that, although we were on opposite sides of an emotionally charged lawsuit, we were lawyers representing our clients and had no personal quarrel with each other."
'The Right Man And the Right Place'
By 1961, when President Kennedy named him to the Federal appeals court, Thurgood Marshall was the best known black lawyer in the United States. A group of Southern senators held up his confirmation for months, and he served initially under a special appointment made during a Congressional recess. Six years later, President Johnson said that placing Judge Marshall on the Supreme Court was "the right thing to do, the right time to do it, the right man and the right place."
Liberals still dominated the Court in the closing years of Chief Justice Earl Warren's tenure, and Justice Marshall fit in comfortably with such colleagues as Justices Brennan and William O. Douglas. In his early years on the Court, Justice Marshall cast only a handful of dissenting votes.
Inexorably, the ideological landscape changed. By the time Justice Marshall announced his retirement, on June 27, 1991, he had served longer than all but one of the sitting Justices Byron R. White, who was named by President Kennedy in 1962 and was more liberal than any of them. In his final term he dissented in 25 of 112 cases.
Among Justice Marshall's important majority opinions for the Court was Amalgamated Food Employees Union v. Logan Valley Plaza, in 1968, which held that a shopping center was a "public forum" much like an old downtown city street, from which the private owners could not exclude picketers.
His majority opinion in Stanley v. Georgia, in 1969, held that the private possession of pornography could not be subject to prosecution. "If the First Amendment means anything," he wrote in that case, "it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."
He wrote the majority opinion in Bounds v. Smith, a 1977 case holding that state prison systems are constitutionally obliged to provide inmates with "adequate law libraries or adequate assistance from persons trained in the law."
A Vigorous Dissent In a Schools Case
One of his best known dissents was a 63-page opinion in a 1973 case, San Antonio School District v. Rodriguez. The majority in that case held, by a 5-to-4 vote, that the Constitution's guarantee of equal protection was not violated by the property tax system used by Texas and most other states to finance public education. Under the system districts with generous tax bases can afford to provide better schools than less wealthy districts.
In his dissenting opinion, Justice Marshall accused the majority of an "unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens."
He argued that the right to an education should be regarded as a "fundamental" constitutional right, and that state policies that have the effect of discriminating on the basis of wealth should be subject to especially searching judicial scrutiny.
"In my judgment," he wrote, "the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record."
Justice Marshall had often said that he did not plan to retire, so his decision at the end of the 1990-91 term took both the Court and the country by surprise.
One person familiar with the Court recalled that when Justice Marshall informed his colleagues of his plan, at the Justices' final private conference of the term, even the members of the Court who had clashed with him long and often on matters of law and policy were deeply moved. Exclaiming "Oh, Thurgood!" Chief Justice Rehnquist embraced Justice Marshall in a bear hug. Justice Sandra Day O'Connor wept.
Justice Marshall, a few days shy of his 83d birthday, gave health as the reason for his retirement. At a news conference the next day he was asked, "What's wrong with you, sir?"
"What's wrong with me?" Justice Marshall replied. "I'm old. I'm getting old and coming apart."
Justice Marshall's first wife, the former Vivien Burey, whom he married in 1929, died of cancer in February 1955. In December of that year he married Cecilia Suyat, known as Cissy. They had two sons, Thurgood Jr., legislative-affairs coordinator for the Office of the Vice President and previously a lawyer on the staff of the Senate Judiciary Committee, and John, a member of the Virginia State police.
ON SEGREGATION "The trouble with the doctrine of separate but equal [is that it] assumes that two things are equal." Argument before the Supreme Court in Brown v. Board of Education (1954)
ON FREE SPEECH "The mere fact that speech is accompanied by conduct does not mean that the speech can be suppressed under the guise of prohibiting the conduct." Amalgamated Food Employees v. Logan Valley Plaza (1968)
ON PRIVACY "If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Stanley v. Georgia (1969)
ON DESEGREGATION "Today's holding, I fear, is more a perceived reflection of a public mood that we have gone far enough in insuring the Constitution's guarantee of equal justice than it is a product of neutral principles of law. . . . It may be the easier course to allow our great metropolitan areas to be divided up into two cities one white, the other black but it is a course, I predict, our people will ultimately regret." Dissent in Milliken v. Bradley (1974)
ON THE RIGHT TO COUNSEL "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer." Dissent in Stick land v. Washington (1983)
ON PRECEDENT "Power, not reason, is the new currency of this Court's decision making. . . . The implications of this radical new exception to the doctrine of stare deceases are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case." Dissent in Payne v. Tennessee (1991) .
Retired Supreme Court Justice Thurgood Marshall, the first black to serve on the nation's highest court and a key figure in the civil rights movement, died yesterday of heart failure at 84.
Marshall, a feisty liberal who stepped down from the high court in July, 1991, because of failing health, died at 2 p.m. at Bethesda Naval Medical Center in Maryland, according to Supreme Court spokeswoman Toni House.
Laurence Tribe, a constitutional scholar and professor at Harvard Law School, called Marshall "the greatest lawyer in the 20th Century."
As longtime legal director for the NAACP, Marshall successfully led the fight before the Supreme Court to abolish segregation in public schools and in 1954 argued and won the landmark Brown vs. Board of Education that outlawed "separate but equal" school systems.
As a justice of the Supreme Court for 24 years, he wrote strongly worded opinions against racial discrimination and capital punishment. His opinions upheld affirmative action programs designed to help blacks and other minorities overcome the legacy of discrimination.
Marshall suffered health problems over the years. He was hospitalized with a blood clot in his foot in 1987 and with bronchitis in 1984. He suffered a heart attack in 1976 and twice had pneumonia.
He had been scheduled to swear in Al Gore as vice president at last Wednesday's inauguration, but he was hospitalized and the duty went to Justice Byron White. Tributes to Marshall began flowing quickly after his death was announced.
"He was a giant in the quest for human rights and equal opportunity in the whole history of our country," President Bill Clinton said in a statement. "Every American should be grateful for the contributions he made as an advocate and as a justice of the United States Supreme Court."
"His victories went beyond those pertaining to race," said A. Leon Higginbotham, chief judge emeritus of the 3rd U.S. Circuit Court of Appeals. "For if he had not won the Brown case, the door of equal opportunity would have been more tightly closed also to women, other minorities and the poor."
Chief Justice William Rehnquist said last night that Marshall made "important contributions" during his tenure, "but he will be remembered every bit as much for what he did before he came to the Court - for his untiring leadership in the legal battle to outlaw discrimination."
The Rev. Jesse Jackson said of Marshall: "For most of us who grew up under segregation, we have never known a day without Thurgood Marshall hovering over us to protect us."
Retired Justice William J. Brennan, a liberal colleague who often agreed with Marshall in court opinions, said Marshall's "commitment to making the Constitution a vehicle to protect the equal rights of all has no match in American history. I shall miss him terribly."
Marshall was appointed to the court on June 13, 1967, by President Lyndon B. Johnson, and was at home with the court's liberal activists under then-Chief Justice Earl Warren. But that changed as the liberals slipped into the minority as appointees of presidents Richard M. Nixon, Ronald Reagan and George Bush gave the court a more conservative cast.
By the 1980s,, he often was in the minority and Marshall wrote most of his opinions in dissent.
In 1974, he dissented sharply from a ruling invalidating a plan for busing pupils across school district lines to achieve racial integration.
He was again in the minority in 1986 when the court voted 6-3 to permit Norfolk, Va., to end the crosstown busing of elementary school students to achieve racial segregation.
One of his sharpest dissents came in 1977 when the court ruled that states were under no legal obligation to pay for "non-therapeutic" abortions for women on welfare.
"I am appalled at the ethical bankruptcy of those who preach a right to life that means, under present social policies, a bare existence in utter misery for so many poor women and their children," he said.
Among the most important decisions written by Marshall for the high court were those saying that shopping center owners' rights to restrict demonstrations were limited; that a teacher cannot be fired for speaking out truthfully on public issues; that possessing obscene material within the privacy of one's own home cannot be made a crime.
The great-grandson of a slave, Marshall was born July 2, 1908, in Baltimore, the son of William and Norma Marshall. His father was a headwaiter in private clubs. His mother was a schoolteacher.
"My father," he once said, "never told me to become a lawyer. But he turned me into one by teaching me to argue, to prove every statement I made, and by challenging my logic at every point." Marshall said that while in school, he was required to memorize a portion of the Constitution whenever he misbehaved. "Before I left that school, I knew the whole thing by heart," Marshall once said.
He graduated from Lincoln University in Chester, Pa., where he earned his tuition as grocery clerk, dining car waiter and baker. He enrolled in Howard University Law School in Washington. He graduated at the top of his class in 1933 and began practicing law in Baltimore. Three years later, he went to work for the NAACP.
Marshall, who sometimes travelled 50,000 miles a year fighting cases throughout the south, served as the NAACP's chief counsel for 21 years. He won 29 of the 32 cases that he argued as a lawyer before the high court.
In 1961, President Kennedy named Marshall to a federal appellate court in New York. Four years later President Johnson named him the nation's first black solicitor general, the government's chief advocate before the Supreme Court.
Then, in 1967, Johnson chose him to replace retiring Justice Tom Clark on the Supreme Court.
In a 5-4 decision in 1972 that struck down capital punishment laws then on the books, Marshall was one of two justices who declared that the death penalty was unconstitutional under any circumstances.
The court reinstated capital punishment in 1976 and Marshall often spoke of his universal opposition to it. In a 1984 speech at the New York University law school, he said the death penalty was being imposed with "startling unfairness."
"The most glaring of the inequities in the administration of the death penalty concerns the race of victims and defendants," he said. "A Negro who kills a white man runs a far greater risk of being executed than a white man who kills a Negro."
A.E. Dick Howard, law professor at University of Virginia and former Supreme Court law clerk, said, "He was a larger than life figure on the court. He was the most human of justices, a touch earthy, he loved people at parties, he was a great raconteur, fully a great human being."
Marshall had long insisted that he would serve out his lifetime tenure on the high court, but in 1991 he announced that he had changed his mind. "I'm old," he said. "I'm falling apart."
He was succeeded by federal appeals Judge Clarence Thomas, another black but a conservative, whose confirmation hearings were marred by a bitter controversy over 10- year-old sexual harassment allegations raised by former aide Anita Hill.
Stephen Saltzburg, a law professor at George Washington National Law Center in Washington, and a former clerk to Marshall, recalled his days as a clerk, when Marshall would tell him what it was like to travel through the south as a black lawyer at the time of segregation. "I don't think many people realize how dangerous it was for him."
Marshall is survived by his wife, Cecilia, whom he married 37 years ago; two sons, Thurgood Jr., who is on Gore's staff, and John William; two granddaughters and two grandsons. Funeral arrangements were pending last night.
1940: Became legal director for NAACP Legal Defense and Education Fund, a position he held for more than 20 years. He won many civil rights victories, and all but three of the 32 cases he argued before the Supreme Court
1954: Argued successfully for the NAACP in landmark Brown vs. Board of Education, the decision in which racially segregated public education was outlawed.
1961: Nominated to federal appellate court in New York by President John Kennedy.
1965: Named U.S. Solicitor General by President Lyndon Johnson.
1967: Appointed by Johnson as first black on high court.
1972: Marshall's opinions often evoked great emotion. When the Court struck down state death penalty laws, he said in a concurring opinion: "There is but one conclusion that can be drawn (from the history of capital punishment) -the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment" to the Constitution. The court reinstated capital punishment in 1976.
June, 1991: Announced retirement due to failing health. Succeeded by Clarence Thomas.
America Pays Tribute
The death yesterday of retired Supreme Court Justice Thurgood Marshall was greeted with an outpouring of tributes.
The Rev. Jesse L. Jackson, civil rights leader: The country has lost a national treasure with the death of Thurgood Marshall. This attorney, scholar and solicitor general; this man of justice on the Supreme Court . . . for a quarter of a century, will never be replaced or duplicated."
New York Gov. Mario Cuomo: "He will come to be known as one of the greatest patriots in American history."
Hazel Dukes, president of the New York State Conference of NAACP Branches and a member of the NAACP national board: "He was a towering person, with a lot of stirring attributes, but yet he was a real human being."
Chief Justice William Rehnquist: " . . . he will be remembered every bit as much for what he did before he came to the court - for his untiring leadership in the legal battle to outlaw discrimination. All of us who served with him were better for his counsel and for his friendship."
Retired Associate Justice William J. Brennan: "Thurgood Marshall's commitment to making the Constitution a vehicle to protect the equal rights of all has no match in American history."
Gov. Mario Cuomo: "Thurgood Marshall made our nation a stronger and more just society by demanding that we obey our own Constitution and enshrine equality under law not just as rhetoric, but as reality. He will come to be known as one of the greatest patriots in American history."
Mayor David N. Dinkins: "Among the many giants of this century - and in particular to me - he was one of the tallest and noblest . . . what Dr. Martin Luther King Jr. would have referred to as a drum major for justice . . . the architect of perhaps the most important case in the country's past 100 years - Brown versus the Topeka Board of Education . . . [and] probably the most influential civil-rights leader of our time."
Norman Siegel, New York Civil Liberties Union: "Thurgood Marshall was an excellent civil rights lawyer . . . [who] set a standard for civil rights lawyers that all of us today will try to emulate. He taught us how to win, despite great odds. He taught us how to never give up and most important how to overcome."
Kenneth Clark, psychologist on Brown vs. Board of Ed: "He was one of the finest people I knew, who believed in justice and stability and decency among human beings. Something that's not generally known: He had a very fundamental sense of humor."
Rep. Charles Rangel (D-Harlem): "He was certainly the conscience of the Supreme Court and African-Americans young and old felt more secure when he was there. He's going to be missed because he represented so many people, regardless of color. He's irreplaceable."
Retired Supreme Court Justice Thurgood Marshall, a relentless voice for minorities whose six-decade legal career was emblematic of the civil rights revolution, died yesterday of heart failure.
He was 84 years old and had been retired since June 1991. Marshall had been in failing health in recent months. He died at the National Naval Medical Center in Bethesda, where he had been since Thursday. He had planned to administer the oath of office to Vice President Gore last Wednesday, but could not because of his condition.
Marshall, who was born in Baltimore the son of an elementary school teacher and yacht- club steward, went on to become one of the most important figures in civil rights history, first as a lawyer for the National Association for the Advancement of Colored People (NAACP) and then as the first black Supreme Court justice. He was known for both his sense of humor and his impatience over the ongoing struggle of blacks in America.
"He was somebody who had absolutely no sense of his own importance," said Louis Michael Seidman, a former Marshall clerk who is now a Georgetown University constitutional law professor. "He held an unusual combination of reverence for the American justice system and a realization that his people were excluded."
In 1967, President Lyndon B. Johnson appointed Marshall to the court. During his 24- year tenure, he was the only black justice. He was replaced by Clarence Thomas, also a black man, but one who adopted a judicial approach that is the opposite of Marshall's liberalism.
Marshall's record on the court was consistent: Always the defender of individual rights, he sided with minorities and the underprivileged; he favored affirmative action and supported abortion rights; and he always opposed the death penalty.
But he was not the liberal leader that retired Justice William J. Brennan Jr. once was. He did not strive for consensus, and as a result was the author of few significant majority opinions.
In a statement, President Clinton said Marshall was "a giant in the quest for human rights and equal opportunity in the whole history of our country."
Chief Justice William H. Rehnquist said Marshall will be remembered as much for his work before coming to the court as afterward, for "his untiring leadership in the legal battle to outlaw racial discrimination."
Before Marshall joined the court, he had distinguished himself as the country's first black solicitor general, serving in that post from 1965 to 1967 and taking a lead in promoting the Johnson administration's civil and constitutional rights agenda.
Marshall came to national prominence as the chief lawyer for the NAACP Legal Defense and Educational Fund, when he argued a series of 1954 school desegregation cases known collectively as Brown v. Board of Education. The Supreme Court ruled in those cases that segregation in public schools was unconstitutional.
As a lawyer, Marshall also took the lead in litigation that ended white-only primary elections and explicit racial discrimination in housing contracts.
His greatest cause was defendants' rights, and when he left the court two years ago, he was the last of the justices to oppose the death penalty.
People close to him said frustration with the court's conservative turn in recent years prompted his retirement.
But at a news conference at the time, Marshall blasted suggestions that his retirement stemmed from anger about the future of the conservative-dominated court.
"What's wrong with me?" Marshall said impatiently. "I'm old. I'm getting old and coming apart."
Such was the style of a man who could be eloquent or, when he wanted, slip into slang and black dialect. When he was asked what he was going to do in retirement, he said, "Sit on my rear end."
He was 6-foot-2, a physically imposing man who always appeared to be coming out of his black robes, and had a distinctive gravelly voice. He said he wanted to be remembered this way: "That he did what he could with what he had."
Marshall's roots were unlike those of any other justice before him. He was born July 2, 1908. The great-grandson of a slave brought to America from Africa's Congo region, Marshall was named after a paternal grandfather, who had chosen the name "Thorough Good" for himself when enlisting in the Union army during the Civil War. Marshall later changed it to Thurgood.
His mother was an elementary school teacher and his father a steward at an all-white yacht club on the Chesapeake Bay.
Marshall attended Douglas High School in Baltimore, working as a delivery boy for a women's store after school. He later confessed to having been a bit of a cutup in high school and college. He recalled that in high school he often was punished by being sent to the basement and forced to memorize "one paragraph of the Constitution for every infraction. . . . In two years, I knew the whole thing by heart," he said.
Marshall attended the all-black Lincoln University in Pennsylvania, earning money for tuition by waiting tables.
He obtained his law degree from Howard University in 1933, graduating first in his class.
Marshall attributed his interest in law to "arguing with my dad. We'd argue about everything." He also credited his father with instilling in him a fighting spirit. "Son," he once recalled his father saying, "if anyone ever calls you a nigger, you not only got my permission to fight him, you got my orders to fight him."
Marshall remembered carrying out those orders one time when, as a delivery boy, he accidentally brushed against a woman on a Baltimore trolley car because he couldn't see over a stack of hat boxes he was carrying. A white man called him "nigger" and Marshall took him on.
Marshall began practicing law in Baltimore after graduating from Howard. One of his first civil rights cases was a successful effort to gain admission for a young black man to the University of Maryland Law School. Three years later, he was hired as an assistant to the national counsel for the NAACP and two years later became chief counsel.
In late 1939, he created the NAACP Legal Defense and Educational Fund, and as its head from 1940 to 1961 he worked within the legal system to improve minority rights.
Traveling around the country, he won dozens of civil rights victories. He recalled in recent years how he was often run out of town by whites who despised his work for black liberation.
Marshall won all but three of the 32 cases he argued before the Supreme Court, including the 1954 Brown ruling. That landmark decision ended "separate but equal" school systems. He achieved Brown through a series of court cases over several years, methodically dismantling the foundations of segregation.
He also was at the lead in the integration of the Little Rock, Ark., Central High School in 1957, as well as crafting successful legal arguments against poll taxes, racial restrictions in housing and white primary elections.
In 1961, President John F. Kennedy selected Marshall for the U.S. Court of Appeals for the 2nd Circuit. The nomination initially was opposed by southern Democrats in the Senate, who claimed he lacked legal qualifications for the job. But Marshall was approved several months later, becoming the second black judge to sit on the 2nd Circuit.
Marshall served on the appeals court until 1965, when Johnson appointed him solicitor general of the United States, the government's top lawyer at the Supreme Court. Johnson had several civil rights victories at the court while Marshall was solicitor general, including high court approval for the 1965 Voting Rights Act.
Marshall also provided the government's backing to a case that led to the overturning of a California constitutional amendment prohibiting open housing legislation.
On June 13, 1967, at 11 a.m., Marshall called his wife, Cecilia, from the White House. "Take a deep breath and sit down slowly," he reportedly told her. Then Johnson's voice came on the line and told her Marshall had just been nominated to the Supreme Court.
The Senate confirmed Marshall 69 to 11 on Aug. 30, 1967, making him the first black justice in the court's 178-year history. He faced criticism from only a few southern senators, who attacked his "activist" temperament.
But Marshall was to join like-minded brethren. The court was then led by Chief Justice Earl Warren, who already had begun a judicial and social revolution.
Through the 1970s, Marshall was more regularly a steady vote for the opinions of liberal- leaning justices than author of major opinions himself.
In 1972, when the court struck down capital punishment as it was then being practiced, he wrote one of the most definitive statements on the death penalty:
"Death is irrevocable. Life imprisonment is not. Death, of course, makes rehabilitation impossible. Life imprisonment does not. In short, death has always been viewed as the ultimate sanction. . . . In striking down capital punishment, this court does not malign our system of government. On the contrary, it pays homage to it. . . . In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute."
In that landmark ruling, Furman v. Georgia, the court set out procedural safeguards that states must follow if they wish to impose the death penalty, and since then a majority of the states have reinstituted capital punishment.
It was to be Marshall's dissents, particularly in death penalty cases, thundering with indignation, that gained most attention. He was suspicious of police searches and interrogation. He took a similar liberal tack in other areas, disdaining restrictions on speech, government expenditure benefitting religion and the weakening of environmental regulations.
In a partial concurrence in University of California Regents v. Bakke that endorsed a broader remedial use of race-conscious programs, he wrote in 1978: "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 persuasive 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.
"At every point from birth to death, the impact of the past is reflected in the still- disfavored position of the Negro. In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society."
Legal scholars say that Marshall's most important doctrinal contribution likely came in a dissent to the 1973 San Antonio Independent School District v. Rodriguez. In that Texas case a five-justice majority said an education is not a fundamental right guaranteed by the Constitution.
In an opinion by Lewis F. Powell Jr., the court said the constitutional guarantee of equal protection does not require that courts apply the strictest level of scrutiny to state decisions on how to finance public schools.
Marshall favored a different standard for determining whether state or federal laws violated equal protection guarantees, and his sliding scale approach influenced the court in later years to give greater scrutiny to government decisions and more broadly read equal protection guarantees.
In the years closer to his retirement, Marshall increasingly assumed a defensive role.
Until his close friend Brennan retired in 1990, it was just the two of them who would dissent from any decision that would lead to the execution of a defendant. He considered the death penalty immoral in principle and discriminatory in application.
"I'll never give up," he said in an interview in December 1983. "On something like that, you can't give up and you can't compromise. It's so morally correct."
On the day he resigned June 27, 1991 Marshall fired a parting shot that embodied his vigilance for criminal defendants and minorities generally.
It was in a dissent in Payne v. Tennessee, a case in which a narrow majority upheld the use of "victim impact" statements in death penalty cases, overruling two earlier cases that had prohibited such evidence from being introduced.
Marshall believed that the focus on a victim's character and his family's suffering would shift jury attention from whether the defendant was guilty to the victim's character and be difficult for the defendant to rebut.
Objecting to the conservative majority's overturning of precedent, Marshall wrote, "Tomorrow's victims may be minorities, women or the indigent. Inevitably, this campaign to resurrect yesterday's 'spirited dissents' will squander the authority and legitimacy of this Court as a protector of the powerless."
Marshall's overall health and his eyesight began to deteriorate in recent years. He had had a heart attack in 1976. He wrote fewer opinions and appeared to have difficulty reading from the bench the ones he did write.
He was hospitalized in 1987 with a blood clot in his right foot, and had been in and out of hospitals since. But he never lost any of his exuberance.
Shortly before Marshall retired, Justice Byron R. White quipped to a law clerk, "In my 25 years here, Justice Marshall has told 1,000 stories and never the same one twice."
And friends say Marshall never forgot that he was black.
In his 1991 farewell news conference, he was asked whether he considered blacks, in the words of the Rev. Martin Luther King Jr., "free at last."
"Well, I'm not free. All I know is that years ago, when I was a youngster, a Pullman porter told me that he had been in every city in this country . . . and he had never 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. I agree with him."
Marshall's first wife, Vivian Burney, died in February 1955. He married Cecilia A. Suyat in late December of that year. He is survived by his wife, Cecilia, and their two sons, Thurgood Marshall Jr. and John William Marshall, all of Northern Virginia, and four grandchildren.
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This publication was designed and developed by Dr. Edward C. Papenfuse and prepared with the assistance of Lynne MacAdam. Publication No. 6259. MSA SC 2221-16 © 1994, Maryland State Archives, rev. 1999
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