TIME: Almanac 1993/TIME Almanac 1993.iso/time/070891/0708104.000

Text File | 1992-08-28 | 7.4 KB | 154 lines

                                                                                NATION, Page 24

MARSHALL'S LEGACY

A Lawyer Who Changed America


As a Supreme Court Justice and a civil rights advocate who battled
racism daily, Thurgood Marshall took the law personally

By RICHARD LACAYO -- Reported by Priscilla Painton and Andrea
Sachs/New York


    Thurgood Marshall was the only member of the Supreme Court
who knew how it felt to be called a nigger. In the 1940s and '50s
when he roamed the courtrooms of the South as chief counsel for
the NAACP Legal Defense Fund, Marshall suffered all the
indignities of segregation. He once told a judge in North Carolina
he had eaten the same meal in the same restaurant where the judge
had dined the night before -- with one difference. "You had yours
in the dining room," said Marshall. "I had mine in the kitchen."

    Very little about the law was abstract to Marshall. He not
only suffered its worst failure, the long reign of legal
segregation, but he was also the architect of one of its
greatest triumphs. He was the victorious attorney in Brown v.
Board of Education, the 1954 landmark decision that prohibited
racial segregation in public schools. As a Justice, Marshall
sometimes helped to change American law. As a civil rights
lawyer he changed America.

    "He is truly a living legend," says Harvard law professor
Laurence Tribe. "It is hard to think of another lawyer in the
20th century who has played a more important role." In 1967,
when Lyndon Johnson chose him as the first black Supreme Court
Justice, Marshall was a man resolved to continue the revolution
he had helped to set in motion. But his 24 years on the court
were increasingly frustrating. The last Justice chosen by a
Democratic President, he joined the liberal court of Chief
Justice Earl Warren in its waning years. Over the next two
decades, as a succession of Republican appointees were named to
the court, Marshall found himself pushed into the role of
perennial dissenter. In the term just ended -- and several
before it -- he wrote not a single important majority decision.

    Before the conservative tide prevailed, however, Marshall
helped to ensure liberal victories in dozens of cases involving
issues he cared most about: civil liberties, affirmative action,
the rights of the accused, abortion, the death penalty. He read
the Constitution in the broad light of its Preamble, with its
spacious promises to "promote the general welfare, and secure
the blessings of liberty . . ." He took that to mean the most
important role of the Constitution was to ensure fair treatment
for the disadvantaged in a world where judges, police and
legislatures could not be counted on to exercise their power
fairly.

    Marshall's willingness to see broad promises where
conservatives saw narrow guarantees was precisely what made them
cheer his departure last week. "Marshall's jurisprudence was
Exhibit A of the judicial activism that conservatives have been
trying to do something about for the last 20 years," complained
Alan Slobodin of the Washington Legal Foundation. "He imposed
his personal views into clauses of the Constitution where it
wasn't authorized."

    There can be no doubt that Marshall's personal experience
shaped his view of the law. He was born in Baltimore in 1908,
when the city was as segregated as any in the deep South.
Because the University of Maryland law school barred blacks,
Marshall gave up hope of attending there. He went instead to the
all-black law school at Howard University, which in the 1930s
was being transformed under vice-dean Charles H. Houston into
a training ground for lawyers who would challenge segregation
in the courts. Houston became Marshall's mentor, firing the
determination of the younger man to confront segregation head
on. After graduation Marshall worked as a lawyer for the
Baltimore branch of the NAACP. One of his first major cases
forced the integration of the same University of Maryland law
school he had been unable to attend.

    In 1938 Marshall became legal director of the national
NAACP. He spent the next 20 years pursuing racial discrimination
cases all over the South and in the Supreme Court, where he
racked up a remarkable record: 32 cases argued, 29 won.

    "Marshall's greatest talent was getting a picture of the
big problem," says federal appeals court judge Leon A. Higgin
botham Jr., an old friend and former civil rights lawyer. "When
he argued the case for desegregating the University of Texas
law school, the attorney general of Texas talked about all the
great opportunities at Texas Southern, the state school for
blacks. Marshall just summed it all up by saying, `Is there
anyone here who, if they had the opportunity to go to the
University of Texas, would choose Texas Southern?' "

    As he traveled through the South, Marshall was routinely
threatened. More than once he found himself facing a white
racist with a gun. Undaunted, Marshall and his team laid the
legal groundwork for their victory in Brown. Working again with
Houston and other civil rights lawyers, Marshall had to convince
the court that the 14th Amendment would not allow segregation.
His problem was the court's long-held position that separate but
equal facilities were constitutional. "What they set out to do
was demonstrate that there was no such thing as equality with
separation -- that the very act of separation stigmatized
individuals," says Federal Appeals Court Judge Nathaniel Jones.

    Marshall's victory in Brown was not only the beginning of
the end for legal segregation: it also opened the way for later
claims to equal protection under the law by other minorities and
women. A generation of civil rights lawyers flocked to Marshall
throughout the 1950s, when he still possessed dark, wavy hair
and the stamina for long nights of poker and bourbon. He ran his
office in the earthy style he would later bring to the Supreme
Court, where he once shook up protocol-conscious Chief Justice
Warren Burger by greeting him in the halls with a shout of,
"What's shakin', Chiefie, baby?"

    Marshall was already considered a possibility for the
Supreme Court when John F. Kennedy appointed him to the Federal
Appeals Court in 1961. Southern Senators fiercely resisted the
nomination. At the confirmation hearings South Carolina Senator
Strom Thurmond tried to rattle Marshall by questioning him on
more than 60 obscure legal and historical matters. Marshall did
not have the answers for Thurmond, but he spoke persuasively
enough on the main issues to be confirmed by 69 votes to 11.
After Marshall had served four years on the bench, Lyndon
Johnson made him Solicitor General in 1965, a prelude to naming
him to the court two years later.

    Marshall's detractors called him an indifferent Justice,
prone to watching television in his chambers. (He once assured
his friend Justice William Brennan you could learn a lot about
life from soap operas.) By most accounts Marshall had spotty
interest in areas of the law beyond civil rights, criminal law
and free expression. But despite poor health in recent years --
his eyesight is failing, he wears a hearing aid, and he broke
his hip in a fall last year -- he was determined to keep his
seat as long as the likely replacement was another conservative
nominee. With cantankerous tongue in cheek, Marshall would tell
his clerks, "If I die, prop me up and keep on voting."