Marshall, Thurgood

Marshall was the first African American to serve on the Supreme Court. As a justice, he established a record for supporting the voiceless American, developing a profound sensitivity to injustice. He promoted affirmative action and is often remembered for his dissents in areas such as the Constitution’s guarantee of equal protection.

Marshall was named for his paternal grandfather, a former slave who changed his name to Thoroughgood when he joined the U.S. Army during the Civil War. Marshall’s mother, Norma Arica Marshall, was one of the first AfricanAfrican Americans;higher education[higher education] Americans to graduate from Columbia Teachers College in New York City. His father, William Marshall, instilled in him from youth an appreciation for the Constitution and the rule of law. His father was also the first African American to serve on a grand jury in Baltimore in the twentieth century.African Americans;on the Court[Supreme Court]Johnson, Lyndon B.;nominations to the CourtAfrican Americans;on the Court[Supreme Court]

Thurgood Marshall

(Joseph Lavenburg, National Geographic, courtesy the Supreme Court of the United States)

After completing high school in 1925, Thurgood followed his brother, William Aubrey Marshall, in attending the historically black Lincoln University in Chester, Pennsylvania. While in college Marshall participated in a successful sit-in at a local movie theater. Protesters occupied whites-only seats to force the theater to cease making black patrons sit in a segregated balcony section.

In 1930 Marshall applied to the University of Maryland Law School but was denied admission because heAfrican Americans;higher education[higher education] was black. He then sought admission and was accepted at the Howard University Law School in Washington, D.C., that same year. At Howard, Marshall came under the influence of the new dean, Charles Hamilton Houston, who instilled in all his students the desire to apply the tenets of the Constitution to all Americans. Foremost in Houston’s outlook was the need to overturn the Supreme Court ruling, Plessy v. Ferguson (1896), which established the legal doctrine of separate but equal, which formed the legal basis for segregation. Marshall graduated first in his class in 1933, and his first major case came in that same year when he successfully sued the University of Maryland to admit a young African American Amherst University graduate named Donald Gaines Murray. Marshall practiced law for three years in Baltimore and in 1936 moved to New York City where he became a staff lawyer of the National Association for the Advancement of Colored PeopleNational Association for the Advancement of Colored People;Marshall, Thurgood[Marshall, Thurgood] (NAACP).

Early Successes

At the NAACP, Marshall helped develop and implement a strategy to fight racial segregation throughout the United States. Marshall won almost all the cases he argued before the Court on behalf of the NAACP. In Chambers v. Florida[case]Chambers v. Florida[Chambers v. Florida] (1940), he persuaded the Court to overturn a criminal conviction based on a coerced confession. In Smith v. Allwright[case]Smith v. Allwright[Smith v. Allwright] (1944), Marshall convinced the Court to strike down a Texas practice, known as the white primary, which excluded African Americans from participating in primary elections. In Shelley v. Kraemer[case]Shelley v. Kraemer[Shelley v. Kraemer] (1948), the Court agreed with Marshall that courts could not enforce restrictive covenants, private agreements not to sell land to blacks.

InAfrican Americans;higher education[higher education] Sipuel v. Board of Regents of the University of Oklahoma[case]Sipuel v. Board of Regents of the University of Oklahoma[Sipuel v. Board of Regents of the University of Oklahoma] (1948) and Sweatt v. Painter[case]Sweatt v. Painter[Sweatt v. Painter] (1950), Marshall won unanimous decisions forcing the universities of Oklahoma and Texas to integrate their law schools. Marshall’s greatest courtroom victory came in Brown v. Board of Education[case]Brown v. Board of Education[Brown v. Board of Education];Marshall, Thurgood[Marshall, Thurgood] (1954), a case that involved racial segregation in public schools. He argued that the equal protection clause of the Fourteenth Amendment to the Constitution requires that states treat all citizens alike, regardless of race. When Justice Felix Frankfurter asked Marshall to define “equal,” Marshall answered, “Equal means getting the same thing, at the same time, and in the same place.” Before Martin Luther King, Jr., came onto the national scene in 1955, Marshall was commonly referred to as “Mr. Civil Rights,” and was probably the country’s most prominent champion of African American advancement.

In 1961 President John F. KennedyKennedy, John F.;Marshall, Thurgood[Marshall, Thurgood] appointed Marshall to the Second U.S. Circuit Court of Appeals. However, a group of southern senators held up Marshall’s confirmation for months, and he served initially under a special appointment made during a congressional recess. While serving on the Second Circuit, Marshall wrote 112 decisions on immigrant rights, limitation of government intrusion in cases involving illegal search and seizure, double jeopardy, and right to privacy issues. The Supreme Court did not reverse any of Marshall’s ninety-eight majority decisions. In fact, several of his dissenting opinions written while serving on the Second Circuit were eventually adopted as majority opinions by the Court. Marshall served on the Second Circuit until 1965 when President Lyndon B. JohnsonJohnson, Lyndon B.;Marshall, Thurgood[Marshall, Thurgood] appointed him solicitor general of the United States. Before his subsequent nomination to the Court in 1967, Marshall won nineteen of the twenty-one cases he argued before the Court on behalf of the government.

As Supreme Court Justice

After Justice Tom C. Clark retired in 1967, President Johnson nominated Marshall to the Supreme Court. On August 30, 1967, the Senate confirmed Marshall’s nomination. Marshall served on the Court until advanced age and failing health caused him to resign on June 28, 1991.

Marshall strongly believed that a judge’s central function is to act as a neutral arbiter of disputes that arise under the law. He further believed that judges were bound through their code of ethics to avoid even the appearance of impropriety or partiality. Yet as he once said, he did not think the wisdom, foresight, and sense of justice demonstrated by the Framers of the Constitution to be profound. He found the government created by the Constitution to be “defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” He said the credit for a good government belonged to “those who refused to acquiesce in outdated notions of ’liberty,’ ’justice,’ and ’equality,’ and who strived to better them.” He believed that an African American child born in Mississippi had the same rights as any white child in the United States.

From Majority to Minority

During his early years on the Court, Marshall was a member of the Court’s majority, led by Chief Justice Earl Warren and later by Justice William J. Brennan, Jr. For twenty-four years, in a few notable opinions for the Court and many dissents, Marshall continually supported organized labor, racial minorities, the advancement of women, the broadening of rights to freedom of expression, and the narrowing of police authority. He declared in Police Department of Chicago v. Mosley[case]Police Department of Chicago v. Mosley[Police Department of Chicago v. Mosley] (1972), in language that has become a standard citation for constitutional lawyers, that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought free from government censorship.” Marshall also wrote the majority opinion in Stanley v. Georgia[case]Stanley v. Georgia[Stanley v. Georgia] (1969), overturning a Georgia ordinance that made private possession of obscene material a crime. He spoke once again for the Court in Grayned v. Rockford[case]Grayned v. Rockford[Grayned v. Rockford] (1972), striking down an antipicketing ordinance that had been used against civil rights demonstrators.

Marshall spent, however, twenty-two of his twenty-four years, and especially his last ten years on the Court, in the minority. Therefore most of his opinions were dissenting, on such issues as abortion, affirmative action, and zoning. Surprisingly, Marshall wrote few opinions on civil rights cases. He had to recuse himself from many of the civil rights cases because he had worked on them before coming to the Court. Marshall dissented in Florida v. Bostick[case]Florida v. Bostick[Florida v. Bostick] (1991) from the Court’s decision that police could make random sweeps and searches of passengers in buses and trains. Marshall wrote, “A passenger unadvised of his rights and otherwise unversed in constitutional law has no reason to know that the police cannot hold his refusal to cooperate against him.”

One of Marshall’s best-known dissents is a sixty-three page opinion in San Antonio Independent School District v. Rodriguez[case]San Antonio Independent School District v. Rodriguez[San Antonio Independent School District v. Rodriguez] (1973). The Court held, five to four, that the Constitution’s guarantee of equal protection was not violated by the property tax system used in Texas and most other states to finance public education. Marshall accused the majority of “unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”

In his role as a dissenter, Marshall tried to educate others, to alter their worldviews. When someone once remarked to Marshall about his writing mostly dissents while on the Court, he responded that Justice Louis D. Brandeis did the same thing during his tenure on the Court and later Justice Brandeis’s dissents became the law.

Further Reading

  • As good a starting point as any is a collection of Marshall’s own speeches and writings: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (Chicago: Lawrence Hill Books, 2001). Among the many good biographies of Marshall are Randall Walton Bland’s Justice Thurgood Marshall: Crusader for Liberalism: His Judicial Biography, 1908-1993 (Bethesda. Md.: Academica Press, 2001) and Juan Williams’s Thurgood Marshall: American Revolutionary (New York: Random House, 1998). The latter is a careful and engrossing account of Thurgood Marshall’s life that emphasizes his work as counsel for the NAACP. Michael D. Davis and Hunter R. Clark’s Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (Secaucus, N.J.: Carol Publishing, 1994) examines Marshall’s views on some of the most sensitive and politically charged social issues–abortion, capital punishment, women’s rights, and affirmative action–and provides intriguing details on his relationships with John F. Kennedy, Martin Luther King, Jr., and others. James S. Haskins’s Thurgood Marshall: A Life for Justice (New York: H. Holt, 1991) emphasizes Marshall’s enormous contributions to the Civil Rights movement and his unending commitment to the achievement of racial and social justice. Carl T. Rowan presents a riveting and absorbing portrait of Marshall’s career from the early Jim Crow years in Baltimore to Marshall’s twenty-four-year tenure on the Court in Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (New York: Welcome Rain, 2002). Roger Goldman and David Galien have compiled a collection of fifteen opinions and dissents of this national defender of individual liberties and civil rights, as well as personal recollections of Marshall’s closest associates in Thurgood Marshall: Justice for All (New York: Carroll and Graf, 1992). Other recommended works include Howard Ball’s A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (New York: Crown Publishing, 1998); Rae Bains’s Thurgood Marshall: Fight for Justice (Mahwah, N.J.: Troll Communications, 1993); and Seamus Cavan’s Thurgood Marshall and Equal Rights (Brookfield, Conn.: Millbrook Press, 1994); and James T. Patterson’s “Brown v. Board of Education”: A Civil Rights Milestone and Its Troubled Legacy (New York: Oxford University Press, 2002).

Brandeis, Louis D.

Brown v. Board of Education

Equal protection clause

Florida v. Bostick

Legal Defense Fund, NAACP

National Association for the Advancement of Colored People (NAACP)

Plessy v. Ferguson

San Antonio Independent School District v. Rodriguez

Separate but equal doctrine

Shelley v. Kraemer

Smith v. Allwright

Stanley v. Georgia

Thomas, Clarence