Obituary: Thurgood Marshall
Tuesday 26 January 1993
AT THE NEWS conference held on the occasion of his retirement in 1991, the former US Supreme Court Justice Thurgood Marshall was asked, 'Sir, do you think black people are better off today than they were when you joined the Court?' Marshall was appointed in 1967. 'In the first place,' growled the 83-year-old jurist, 'I'm not a 'black people', I'm Afro-American . . .'
The humiliated reporter had some reason to be confused. In the course of Marshall's six decades as a lawyer, government official and judge, the status of African Americans underwent a series of revolutionary shifts in many more ways than the name by which they are known. And many of the most substantial changes were wrought in large part by Thurgood Marshall himself.
Marshall's legal battle plan was to argue, in the 1950s, that discrimination was stunting the careers of blacks who wanted to pursue professional careers. He brought these cases to court because he figured white judges would sympathise with bright, ambitious young blacks. After many successes in changing the admission policies of universities, Marshall brought a test case involving state primary schools before the high court.
In 1954, as director and counsel of the National Association for the Advancement of Colored People's Legal Defense and Educational Fund, Marshall sued the Board of Education of Topeka, Kansas, on the grounds that its practice of providing 'separate but equal' schooling to black and white children was unjust. The black children's schools were tumbledown shacks and what books they had were cast-offs from the white schools. Marshall argued that school systems all over the US ran the separate systems in a way that was grossly unequal. He rejected the strategy previously promoted by other black jurists, which asked for equal funding for separate systems, on the grounds that equality could only be assured if there was one system for all. His victory in that case, known as 'Brown vs Board of Education', revolutionised the nation by rendering segregation effectively illegal.
Thurgood Marshall was born in Baltimore, Maryland, the great-grandson of a slave. His mother, a schoolteacher, and his father, a waiter, scraped together money for his education but, after working his way through a degree from Lincoln University, he was excluded from the University of Maryland Law School because of its all- white policy. Instead, he graduated first in his class at Howard University, the nation's pre-eminent black university. (Today, the University of Maryland's Law School library is named after Justice Marshall.)
Before President Johnson appointed him to the Supreme Court, Marshall had served as an appeals court judge for President Kennedy and then as the Solicitor General, who presents the federal government's case to the Supreme Court. He argued 39 cases before the Supreme Court, winning 32 of them, and wrote 112 opinions as an appeals court judge, none of which was subsequently overturned.
Although ending public discrimination on the grounds of race was his greatest achievement, Marshall also wrote many other precedent-setting opinions. He held that workers had a right to picket a shopping plaza because it was a 'public forum'; that a person had a first-amendment right to read or view whatever he wanted 'in his own house', which included pornographic material; that capital punishment was always an injustice (once, when the then associate justice William Rehnquist complained that a prisoner's appeals had cost too much of the taxpayer's money, Marshall snapped: 'It would have been cheaper to shoot him after he was arrested, wouldn't it?'); and that state prisons were constitutionally obliged to provide 'adequate law libraries or adequate (legal) assistance'.
One argument that he lost concerned the manner in which public schools are funded in the US. Typically, school systems derive the bulk of their funds from property taxes, which means rich areas have better-funded schools. Marshall argued that it was 'the right of every American to an equal start in life, so far as . . . education is concerned', and that the property-tax system was state- condoned discrimination in favour of the rich. The Supreme Court majority outvoted Marshall on this in 1973 and the issue has not been argued since.
In the past decade, Marshall's last as a justice, the majority of Supreme Court justices were appointees of the conservative presidents Nixon, Reagan and Bush, and the Court held that laws guaranteeing blacks certain positions in schools or access to government funds, known as affirmative- action laws, were themselves racist. Marshall wrote powerful dissenting opinions in these cases arguing that the history of subjugation and discrimination against African Americans was so horrendous and damaging that there was no alternative but to enforce restitution. His disdain for President Reagan was forthright. 'I wouldn't do the job of dogcatcher for Ronald Reagan,' he said in 1989. In this recent period Marshall was embittered by the reversal of some of his great social victories, and by the condemnation he received form some younger, more radical African-American activists.
Beneath the gruff and cutting front, Marshall was a consummate storyteller. His friend and colleague Justice William Brennan wrote in the Harvard Law Review: 'The locales (of his stories) are varied - from dusty courtrooms in the Deep South, to a confrontation with General MacArthur in the Far East, to a drafting session for the Kenyan Constitution . . . 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 made us - his colleagues - confront walks of life we had never known.'
One story Marshall told was of his days as a 'hell-raiser' in school. 'Instead of making us copy out stuff on the blackboard . . . when we misbehaved,' he recalled, 'our teacher (made) us learn parts of the Constitution. I made my way through every paragraph.' At law school, his mentor was Charles Houston, the first black American to win a case before the Supreme Court. 'Houston insisted that we be social engineers rather than lawyers,' Marshall said.
Several Supreme Court justices have acknowledged that Marshall's real-life tales of the injustice routinely suffered by blacks and the poor opened their eyes and changed their views in deciding cases on their docket. Some observers of the Court believe that it was Marshall's bitter complaints over the Court's trend towards dismantling of its prior commitment to social justice that prompted two centrist justices - Sandra Day O'Connor and Anthony Kennedy - to change their positions and thus end the ultra-conservative majority.
In the past year, three books on Marshall's life have been published. The author Carl Rowan tells of how 'the Judge', as he preferred to be called, responded when it was suggested that the 200th anniversary of the US Constitution be celebrated by having the Supreme Court sit in Philadelphia as it had in 1787. 'If you're gonna do what you did 200 years ago,' Marshall said, 'somebody's going to have to give me short pants and a tray so I can serve coffee.'
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