Thurgood Marshall | |
|---|---|
 Official portrait, 1976 | |
| Associate Justice of the Supreme Court of the United States | |
| In office October 2, 1967 – October 1, 1991 | |
| Nominated by | Lyndon B. Johnson |
| Preceded by | Tom C. Clark |
| Succeeded by | Clarence Thomas |
| 32ndSolicitor General of the United States | |
| In office August 23, 1965 – August 30, 1967 | |
| President | Lyndon B. Johnson |
| Preceded by | Archibald Cox |
| Succeeded by | Erwin Griswold |
| Judge of theUnited States Court of Appeals for the Second Circuit | |
| In office October 5, 1961 – August 23, 1965 | |
| Nominated by | John F. Kennedy |
| Preceded by | Seat established |
| Succeeded by | Wilfred Feinberg |
| Personal details | |
| Born | Thoroughgood Marshall (1908-07-02)July 2, 1908 Baltimore, Maryland, U.S. |
| Died | January 24, 1993(1993-01-24) (aged 84) Bethesda, Maryland, U.S. |
| Resting place | Arlington National Cemetery |
| Political party | Democratic |
| Spouses | |
| Children | |
| Education | |
| Occupation |
|
| Known for | First African-American Supreme Court justice |
Thoroughgood "Thurgood"Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as anassociate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's firstAfrican-American justice. Before his judicial service, he was an attorney who fought for civil rights, leading theNAACP Legal Defense and Educational Fund. Marshall was a prominent figure in the movement to endracial segregation in American public schools. He won 29 of the 32 civil rights cases he argued before the Supreme Court, culminating in the Court's landmark 1954 decision inBrown v. Board of Education, which rejected theseparate but equal doctrine and held segregation in public education to be unconstitutional. PresidentLyndon B. Johnson appointed Marshall to the Supreme Court in 1967. A staunch liberal, he frequently dissented as the Court became increasingly conservative.
Born inBaltimore, Maryland, Marshall attendedLincoln University and theHoward University School of Law. At Howard, he was mentored byCharles Hamilton Houston, who taught his students to be "social engineers" willing to use the law to fight for civil rights. Marshall opened a law practice in Baltimore but soon joined Houston at theNAACP in New York. They worked together on the segregation case ofMissouri ex rel. Gaines v. Canada; after Houston returned to Washington, Marshall took his place as special counsel of the NAACP, and he became director-counsel of the newly formed NAACP Legal Defense and Educational Fund. He participated in numerous landmark Supreme Court cases involving civil rights, includingSmith v. Allwright,Morgan v. Virginia,Shelley v. Kraemer,McLaurin v. Oklahoma State Regents,Sweatt v. Painter,Brown, andCooper v. Aaron. His approach to desegregation cases emphasized the use of sociological data to show that segregation was inherently unequal.
In 1961, PresidentJohn F. Kennedy appointed Marshall to theU.S. Court of Appeals for the Second Circuit, where he favored a broad interpretation of constitutional protections. Four years later, Johnson appointed him as theU.S. Solicitor General. In 1967, Johnson nominated Marshall to replace JusticeTom C. Clark on the Supreme Court; despite opposition fromSouthern senators, he was confirmed by a vote of 69 to 11. He was often in the majority during the consistently liberalWarren Court period, but after appointments by PresidentRichard Nixon made the Court more conservative, Marshall frequently found himself in dissent. His closest ally on the Court was JusticeWilliam J. Brennan Jr., and the two voted the same way in most cases.
Marshall's jurisprudence was pragmatic and drew on his real-world experience. His most influential contribution to constitutional doctrine, the "sliding-scale" approach to theEqual Protection Clause, called on courts to apply a flexiblebalancing test instead of a more rigidtier-based analysis. He fervently opposed thedeath penalty, which in his view constitutedcruel and unusual punishment; he and Brennan dissented in more than 1,400 cases in which the majority refused to review a death sentence. He favored a robust interpretation of theFirst Amendment in decisions such asStanley v. Georgia, and he supported abortion rights inRoe v. Wade and other cases. Marshall retired from the Supreme Court in 1991 and was replaced byClarence Thomas. He died in 1993.
Thoroughgood[a] Marshall was born on July 2, 1908, inBaltimore, Maryland, to Norma and William Canfield Marshall.[2]: 30, 35 His father held various jobs as a waiter in hotels, in clubs, and on railroad cars, and his mother was an elementary school teacher.[3]: 41, 45 The family moved toNew York City in search of better employment opportunities not long after Thurgood's birth; they returned to Baltimore when he was six years old.[3]: 50 He was an energetic and boisterous child who frequently found himself in trouble.[2]: 37 Following legal cases was one of William's hobbies, and Thurgood oftentimes went to court with him to observe the proceedings.[2]: 37 Marshall later said that his father "never told me to become a lawyer, but he turned me into one ... He taught me how to argue, challenged my logic on every point, by making me prove every statement I made, even if we were discussing the weather."[2]: 38
Marshall attended the Colored High and Training School (laterFrederick Douglass High School) in Baltimore, graduating in 1925 with honors.[3]: 69, 79 [4]: 34 He then enrolled atLincoln University inChester County, Pennsylvania, the oldest college for African Americans in the United States.[2]: 43 The mischievous Marshall was suspended for two weeks in the wake of ahazing incident, but he earned good grades in his classes and led the school's debating team to numerous victories.[2]: 43–44, 46 His classmates included the poetLangston Hughes.[3]: 88 Upon his graduation with honors in 1930 with a bachelor's degree in American literature and philosophy,[2]: 46 Marshall—being unable to attend the all-whiteUniversity of Maryland Law School—applied toHoward University School of Law in Washington, D.C., and was admitted.[3]: 107 At Howard, he was mentored byCharles Hamilton Houston, who taught his students to be "social engineers" willing to use the law as a vehicle to fight for civil rights.[2]: 56 [5]: 1499 Marshall graduated in June 1933 ranked first in his class, and he passed the Marylandbar examination later that year.[4]: 59, 61
Marshall started a law practice in Baltimore, but it was not financially successful, partially because he spent much of his time working for the benefit of the community.[5]: 1499 He volunteered with the Baltimore branch of theNational Association for the Advancement of Colored Persons (NAACP).[6]: 477 In 1935, Marshall and Houston brought suit against the University of Maryland on behalf ofDonald Gaines Murray, an African American whose application to the university's law school had been rejected on account of his race.[2]: 78 [3]: 237–238 In that case—Murray v. Pearson—JudgeEugene O'Dunne ordered that Murray be admitted, and theMaryland Court of Appeals affirmed, holding that it violatedequal protection to admit white students to the law school while keeping blacks from being educated in-state.[3]: 231, 246, 256 The decision was neverappealed to theSupreme Court of the United States and therefore did not apply nationwide, but it pleased Marshall, who later said that he had filed the lawsuit "to get even with the bastards" who had kept him from attending the school himself.[1]: 47
In 1936, Marshall joined Houston, who had been appointed as the NAACP's special counsel, in New York City, serving as his assistant.[6]: 477 [7]: 19 They worked together on the landmark case ofMissouri ex rel. Gaines v. Canada (1938).[6]: 477 WhenLloyd Lionel Gaines's application to theUniversity of Missouri's law school was rejected on account of his race, he filed suit, arguing that his equal-protection rights had been violated because he had not been provided with a legal education substantially equivalent to that which white students received.[2]: 92–93 After Missouri courts rejected Gaines's claims, Houston—joined by Marshall, who helped to prepare the brief—sought review in the U.S. Supreme Court.[2]: 94 [7]: 70 They did not challenge the Court's decision inPlessy v. Ferguson (1896), which had accepted the "separate but equal" doctrine; instead, they argued that Gaines had been denied an equal education.[2]: 12, 94 In an opinion by Chief JusticeCharles Evans Hughes, the Court held that if Missouri gave whites the opportunity to attend law school in-state, it was required to do the same for blacks.[7]: 70
Houston returned to Washington in 1938, and Marshall assumed his position as special counsel the following year.[7]: 26 He also became the director-counsel of theNAACP Legal Defense and Educational Fund Inc. (the Inc Fund), which had been established as a separate organization for tax purposes.[7]: 27 In addition to litigating cases and arguing matters before the Supreme Court, he was responsible for raising money, managing the Inc Fund, and conducting public-relations work.[7]: 27 Marshall litigated a number of cases involving unequal salaries for African Americans, winning nearly all of them; by 1945, he had ended salary disparities in major Southern cities and earned a reputation as a prominent figure in the civil rights movement.[5]: 1500 He also defended individuals who had been charged with crimes before both trial courts and the Supreme Court.[5]: 1500 Of the thirty-two civil rights cases that Marshall argued before the Supreme Court, he won twenty-nine.[8]: 598 He andW. J. Durham wrote the brief inSmith v. Allwright (1944), in which the Court ruled thewhite primary unconstitutional, and he successfully argued bothMorgan v. Virginia (1946), involving segregation on interstate buses, and acompanion case toShelley v. Kraemer (1948), involving racially restrictivecovenants.[9]: 31–32, 42–43, 53–57
From 1939 to 1947, Marshall was a member of the Board of Directors of theAmerican Civil Liberties Union. During that period, he aligned with the faction which favored a more absolutist defense of civil liberties. Most notably, unlike the majority of the Board, he was consistent in his opposition to Roosevelt'sExecutive Order 9066, which put Japanese Americans into concentration camps. Also, in contrast to most of the Board, Marshall charged that the prosecution of thirty-two right wing opponents of Roosevelt's pre-war foreign policy in the Sedition Trial of 1944 violated the First Amendment.[10]
In the years after 1945, Marshall resumed his offensive against racial segregation in schools.[5]: 1501 Together with his Inc Fund colleagues, he devised a strategy that emphasized the inherent educational disparities caused by segregation rather than the physical differences between the schools provided for blacks and whites.[5]: 1501 The Court ruled in Marshall's favor inSipuel v. Board of Regents of the University of Oklahoma (1948), ordering that Oklahoma provideAda Lois Sipuel with a legal education, although the justices declined to order that she be admitted to the state's law school for whites.[7]: 129–130 In 1950, Marshall brought two cases involving education to the Court:McLaurin v. Oklahoma State Regents, which wasGeorge W. McLaurin's challenge to unequal treatment at theUniversity of Oklahoma's graduate school, andSweatt v. Painter, which wasHeman Sweatt's challenge to his being required to attend a blacks-only law school in Texas.[2]: 142–145 The Supreme Court ruled in favor of both McLaurin and Sweatt on the same day; although the justices did not overrulePlessy and the separate but equal doctrine, they rejected discrimination against African-American students and the provisions of schools for blacks that were inferior to those provided for whites.[2]: 145–146
Marshall next turned to the issue of segregation in primary and secondary schools.[6]: 478 The NAACP brought suit to challenge segregated schools in Delaware, the District of Columbia, Kansas, South Carolina, and Virginia, arguing both that there were disparities between the physical facilities provided for blacks and whites and that segregation was inherently harmful to African-American children.[5]: 1502 Marshall helped to try the South Carolina case.[5]: 1502 He called numerous social scientists and otherexpert witnesses to testify regarding the harms of segregation; these included the psychology professorKen Clark, who testified that segregation in schools causedself-hatred among African-American students and inflicted damage that was "likely to endure as long as the conditions of segregation exist".[4]: 201–202 The five cases eventually reached the Supreme Court and were argued in December 1952.[1]: 119 In contrast to the oratorical rhetoric of his adversary—John W. Davis, a former solicitor general and presidential candidate—Marshall spoke plainly and conversationally.[5]: 1502 He stated that the only possible justification for segregation "is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as possible. And now is the time, we submit, that this Court should make clear that that is not what our Constitution stands for."[11]: 195–196 On May 17, 1954, after internal disagreements and a 1953 reargument, the Supreme Court handed down its unanimous decision inBrown v. Board of Education, holding in an opinion by Chief JusticeEarl Warren that: "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."[2]: 165, 171, 176, 178 When Marshall heard Warren read those words, he later said, "I was so happy I was numb".[4]: 226
The Court inBrown ordered additional arguments on the properremedy for the constitutional violation that it had identified; inBrown II, decided in 1955, the justices ordered that desegregation proceed "with all deliberate speed".[1]: 135–137 Their refusal to set a concrete deadline came as a disappointment to Marshall, who had argued for total integration to be completed by September 1956.[4]: 237 [6]: 478 In the years following the Court's decision, Marshall coordinated challenges to Virginia's "massive resistance" toBrown, and he returned to the Court to successfully argueCooper v. Aaron (1958), involvingLittle Rock's attempt to delay integration.[5]: 1504 Marshall, who according to the legal scholarMark Tushnet "gradually became a civil rights leader more than a civil rights lawyer", spent substantial amounts of time giving speeches and fundraising;[5]: 1503 in 1960, he accepted an invitation fromTom Mboya to help draftKenya's constitution.[4]: 284–285 By that year, Tushnet writes, he had become "the country's most prominent Supreme Court advocate".[5]: 1505
PresidentJohn F. Kennedy, who according to Tushnet "wanted to demonstrate his commitment to the interests of African Americans without incurring enormous political costs", nominated Marshall to be a judge of theUnited States Court of Appeals for the Second Circuit on September 23, 1961.[12]: 9–10 The Second Circuit, which spanned New York, Vermont, and Connecticut, was at the time the nation's prominent appellate court.[12]: 10 When Congress adjourned, Kennedy gave Marshall arecess appointment, and he took the oath of office on October 23.[12]: 10
Even after his recess appointment, Southern senators continued to delay Marshall's full confirmation for more than eight months.[1]: 181–183 A subcommittee of theSenate Judiciary Committee postponed his hearing several times, leading SenatorKenneth Keating, a New York Republican, to charge that the three-member subcommittee, which included two pro-segregation Southern Democrats, was biased against Marshall and engaged in unjustifiable delay.[4]: 298 [12]: 10 The subcommittee held several hearings between May and August 1962; Marshall faced harsh questioning from the Southerners over what the scholar Howard Ball described as "marginal issues at best".[1]: 182 After further delays from the subcommittee, the full Judiciary Committee bypassed it and, by an 11–4 vote on September 7, endorsed Marshall's nomination.[12]: 12 Following five hours of floor debate, the full Senate confirmed him by a 56–14 vote on September 11, 1962.[1]: 181–183
On the Second Circuit, Marshall authored 98 majority opinions, none of which were reversed by the Supreme Court, as well as 8 concurrences and 12 dissents.[13]: 216 He dissented when a majority held in theFourth Amendment case ofUnited States ex rel. Angelet v. Fay (1964) that the Supreme Court's 1961 decision inMapp v. Ohio (which held that theexclusionary rule applied to the states) did not apply retroactively, writing that the judiciary was "not free to circumscribe the application of a declared constitutional right".[1]: 184 InUnited States v. Wilkins (1964), he concluded that theFifth Amendment's protection againstdouble jeopardy applied to the states; inPeople of the State of New York v. Galamison (1965), he dissented from a ruling upholding the convictions of civil rights protesters at theNew York World's Fair.[2]: 240–241 Marshall's dissents indicated that he favored broader interpretations of constitutional protections than did his colleagues.[4]: 311
Marshall's nomination to the office ofSolicitor General was widely viewed as a stepping stone to a Supreme Court appointment.[12]: 19 Johnson pressured Southern senators not to obstruct Marshall's confirmation, and a hearing before a Senate subcommittee lasted only fifteen minutes; the full Senate confirmed him on August 11, 1965.[2]: 251–252 [1]: 190 As Solicitor General, Marshall won fourteen of the nineteen Supreme Court cases he argued.[9]: 133 He later characterized the position as "the most effective job" and "maybe the best" job he ever had.[12]: 19 Marshall argued inHarper v. Virginia State Board of Elections (1966) that conditioning the ability to vote on the payment of apoll tax was unlawful; in a companion case toMiranda v. Arizona (1966), he unsuccessfully maintained on behalf of the government that federal agents were not always required to inform arrested individuals of their rights.[4]: 320, 323 He defended the constitutionality of theVoting Rights Act of 1965 inSouth Carolina v. Katzenbach (1966) andKatzenbach v. Morgan (1966), winning both cases.[2]: 259–261
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In February 1967, Johnson nominatedRamsey Clark to beAttorney General.[12]: 25 The nominee's father wasTom C. Clark, an associate justice of the Supreme Court of the United States.[9]: 150 Fearing that his son's appointment would create substantialconflicts of interest for him, the elder Clark announced his resignation from the Court.[12]: 25 For Johnson, who had long desired to nominate a non-white justice, the choice of a nominee to fill the ensuing vacancy "was as easy as it was obvious", according to the scholarHenry J. Abraham.[14]: 219 Although the President briefly considered selectingWilliam H. Hastie (an African-American appellate judge from Philadelphia) or a female candidate, he decided to choose Marshall.[12]: 25 Johnson announced the nomination in theWhite House Rose Garden on June 13, declaring that Marshall "deserves the appointment ... I believe that it is the right thing to do, the right time to do it, the right man and the right place."[9]: 151 [12]: 25
The public received the nomination favorably, and Marshall was praised by prominent senators from both parties.[9]: 151, 153 TheSenate Judiciary Committee held hearings for five days in July.[9]: 153 Marshall faced harsh criticism from such senators as Mississippi'sJames O. Eastland, North Carolina'sSam Ervin Jr., Arkansas'sJohn McClellan, and South Carolina'sStrom Thurmond, all of whom opposed the nominee's liberal jurisprudence.[1]: 195 In whatTime magazine characterized as a "Yahoo-type hazing", Thurmond asked Marshall over sixty questions about various minor aspects of the history of certain constitutional provisions.[1]: 196 By an 11–5 vote on August 3, the committee recommended that Marshall be confirmed.[4]: 337 On August 30, after six hours of debate, senators voted 69–11[b] to confirm Marshall to the Supreme Court.[1]: 197 [15] He took the constitutional oath of office on October 2, 1967, becoming the first African American to serve as a justice of the Supreme Court of the United States.[4]: 338
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Marshall remained on the Supreme Court for nearly twenty-four years, serving until his retirement in 1991.[7]: 314 The Court to which he was appointed—theWarren Court—had a consistent liberal majority, and Marshall's jurisprudence was similar to that of its leaders, Chief Justice Warren and JusticeWilliam J. Brennan Jr.[5]: 1507 Although he wrote few major opinions during this period due to his lack of seniority, he was typically in the majority.[4]: 344 [16]: 335 As a result of four Supreme Court appointments by PresidentRichard Nixon, however, the liberal coalition vanished.[16]: 335 The Court under Chief JusticeWarren Burger (theBurger Court) was not as conservative as some observers had anticipated, but the task of constructing liberal majorities case-by-case was left primarily to Brennan; Marshall's most consequential contributions to constitutional law came in dissent.[5]: 1508 The justice left much of his work to hislaw clerks, preferring to determine the outcome of the case and then allow the clerks to draft the opinion themselves.[1]: 215 He took umbrage at frequent claims that he did no work and spent his time watching daytimesoap operas;[1]: 203 according to Tushnet, who clerked for Marshall, the idea that he "was a lazy Justice uninterested in the Court's work ... is wrong and perhaps racist".[17]: 2109 Marshall's closest colleague and friend on the Court was Brennan,[1]: 210–211 and the two justices agreed so often that their clerks privately referred to them as "Justice Brennanmarshall".[c][19]: 10 He also had a high regard for Warren, whom he described as "probably the greatest Chief Justice who ever lived".[1]: 210
Marshall consistently sided with the Supreme Court's liberal bloc.[20]: 347 According to the scholar William J. Daniels: "His approach to justice was Warren Court–stylelegal realism ... In his dissenting opinions he emphasized individual rights, fundamental fairness, equal opportunity and protection under the law, the supremacy of the Constitution as the embodiment of rights and privileges, and the Supreme Court's responsibility to play a significant role in giving meaning to the notion of constitutional rights."[13]: 234–235 Marshall's jurisprudence was pragmatic and relied on his real-world experience as a lawyer and as an African American.[16]: 339 He disagreed with the notion (favored by some of his conservative colleagues) that the Constitutionshould be interpreted according to the Founders' original understandings;[21]: 382 in a 1987 speech commemorating the Constitution's bicentennial, he said:[22]: 2, 5
... I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was 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, that we hold as fundamental today ... "We the People" no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of "liberty", "justice", and "equality", and who strived to better them ... I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.
As the Court became increasingly conservative, Marshall found himself dissenting in numerous cases regarding racial discrimination.[5]: 1511 When the majority held inMilliken v. Bradley that a lower court had gone too far in orderingbusing to reduce racial imbalances between schools in Detroit, he dissented, criticizing his colleagues for what he viewed as a lack of resolve to implement desegregation even when faced with difficulties and public resistance.[2]: 344–345 In a dissent inCity of Memphis v. Greene that according to Tushnet "demonstrated his sense of the practical reality that formed the context for abstract legal issues", he argued that a street closure that made it more difficult for residents of an African-American neighborhood to reach a city park was unconstitutional because it sent "a plain and powerful symbolic message" to blacks "that because of their race, they are to stay out of the all-white enclave ... and should instead take the long way around".[12]: 91–92 Marshall felt thataffirmative action was both necessary and constitutional;[1]: 257 in an opinion inRegents of the University of California v. Bakke, he commented that it was "more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible".[12]: 131 Dissenting inCity of Richmond v. J.A. Croson Co., he rejected the majority's decision to strike down an affirmative-action program for government contractors, stating that he did "not believe that this Nation is anywhere close to eradicating racial discrimination or its vestiges".[12]: 139–143
Marshall's most influential contribution to constitutional doctrine was his "sliding-scale" approach to the Equal Protection Clause, which posited that the judiciary should assess a law's constitutionality by balancing its goals against its impact on groups and rights.[16]: 336 Dissenting inDandridge v. Williams, a case in which the majority upheld Maryland's $250-a-month cap on welfare payments against claims that it was insufficient for large families, he argued thatrational basis review was not appropriate in cases involving "the literally vital interests of a powerless minority".[12]: 98–99 In whatCass Sunstein described as the justice's greatest opinion, Marshall dissented when the Court inSan Antonio Independent School District v. Rodriguez upheld a system in which local schools were funded mainly through property taxes, arguing that the policy (which meant that poorer school districts obtained less money than richer ones) resulted in unconstitutional discrimination.[1]: 224–225 [12]: 100–101 His dissent inHarris v. McRae, in which the Court upheld theHyde Amendment's ban on the use ofMedicaid funds to pay forabortions, rebuked the majority for applying a "relentlessly formalistic catechism" that failed to take account of the amendment's "crushing burden on indigent women".[12]: 102–103 Although Marshall's sliding-scale approach was never adopted by the Court as a whole, the legal scholarSusan Low Bloch comments that "his consistent criticism seems to have prodded the Court to somewhat greater flexibility".[23]: 527
Marshall supported the Warren Court's constitutional decisions on criminal law, and he wrote the opinion of the Court inBenton v. Maryland, which held that the Constitution's prohibition of double jeopardy applied to the states.[16]: 337 After the retirements of Warren and JusticeHugo Black, however, "Marshall was continually shocked at the refusal" of the Burger andRehnquist Courts "to hold police and those involved in the criminal justice system responsible for acting according to the language and the spirit of fundamental procedural guarantees", according to Ball.[1]: 286 He favored a strict interpretation of the Fourth Amendment's warrant requirement and opposed rulings that made exceptions to that provision;[24]: 112 inUnited States v. Ross, for instance, he indignantly dissented when the Court upheld a conviction that was based on evidence discovered during a warrantless search of containers that had been found in an automobile.[1]: 291–292 Marshall felt strongly that theMiranda doctrine should be expanded and fully enforced.[24]: 112 In cases involving theSixth Amendment, he argued that defendants must have competent attorneys; dissenting inStrickland v. Washington, Marshall (parting ways with Brennan) rejected the majority's conclusion that defendants must prove prejudice inineffective assistance of counsel cases.[12]: 187–188 [24]: 112
Marshall fervently opposedcapital punishment throughout his time on the Court, arguing that it wascruel and unusual and therefore unconstitutional under theEighth Amendment.[2]: 318 He was the only justice with considerable experience defending those charged with capital crimes, and he expressed concern about the fact that injustices in death-penalty cases could not be remedied, often commenting: "Death is so lasting."[5]: 1514–1515 InFurman v. Georgia, a case in which the Court struck down the capital-punishment statutes that were in force at the time, Marshall wrote that the death penalty was "morally unacceptable to the people of the United States at this time in their history" and that it "falls upon the poor, the ignorant, and the underprivileged members of society".[5]: 1515 When the Court inGregg v. Georgia upheld new death-penalty laws that required juries to consideraggravating andmitigating circumstances, he dissented, describing capital punishment as a "vestigial savagery" that was immoral and violative of the Eighth Amendment.[1]: 305 Afterwards, Marshall and Brennan dissented in every instance in which the Court declined to review a death sentence, filing more than 1,400 dissents that read: "Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, we would grantcertiorari and vacate the death sentence in this case."[12]: 175
According to Ball, Marshall felt that the rights protected by theFirst Amendment were the Constitution's most important principles and that they could be restricted only for extremely compelling reasons.[1]: 316 In a 1969 opinion inStanley v. Georgia, he held that it was unconstitutional to criminalize the possession ofobscene material.[16]: 335 For the Court, he reversed the conviction of a Georgia man charged with possessing pornography, writing: "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."[1]: 317 InAmalgamated Food Employees Union Local 400 v. Logan Valley Plaza, he wrote for the Court that protesters had the right to picket on private property that was open to the public—a decision that was effectively overruled (over Marshall's dissent) four years later inLloyd Corporation v. Tanner.[1]: 323–324 He emphasized equality in his free speech opinions, writing inChicago Police Dept. v. Mosley that "above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content".[5]: 1513 Making comparisons to earlier civil rights protests, Marshall vigorously dissented inClark v. Community for Creative Non-Violence, a case in which the Court ruled that the government could forbid homeless individuals from protesting poverty by sleeping overnight inLafayette Park; although Burger decried their claims as "frivolous" attempts to "trivialize" the Constitution, Marshall argued that the protesters were engaged in constitutionally protectedsymbolic speech.[4]: 378 [1]: 326–327
Marshall joined the majority inTexas v. Johnson andUnited States v. Eichman, two cases in which the Court held that the First Amendment protected the right to burn the American flag.[1]: 332–333 He favored the totalseparation of church and state, dissenting when the Court upheld inLynch v. Donnelly a city's display of anativity scene and joining the majority inWallace v. Jaffree to strike down an Alabama law regarding prayer in schools.[1]: 343–346 On the issue of thefree exercise of religion, Marshall voted with the majority inWisconsin v. Yoder to hold that a school attendance law could not be constitutionally applied to theAmish, and he joined JusticeHarry Blackmun's dissent when the Court inEmployment Division v. Smith upheld a restriction on religious uses ofpeyote and curtailedSherbert v. Verner'sstrict scrutiny standard.[1]: 351–353 In the view ofJ. Clay Smith Jr. and Scott Burrell, the justice was "an unyielding supporter of civil liberties", whose "commitment to the values of the First Amendment was enhanced from actually realizing the historical consequences of being on the weaker and poorer side of power".[25]: 477
In Marshall's view, the Constitution guaranteed to all citizens theright to privacy; he felt that although the Constitution nowhere mentioned such a right expressly, it could be inferred from various provisions of theBill of Rights.[1]: 356 He joined the majority inEisenstadt v. Baird to strike down a statute that prohibited the distribution or sale ofcontraceptives to unmarried persons, dissented when the Court inBowers v. Hardwick upheld ananti-sodomy law, and dissented from the majority's decision inCruzan v. Director, Missouri Department of Health that the Constitution did not protect an unconditionalright to die.[1]: 358–364 On the issue of abortion rights, the authorCarl T. Rowan comments that "no justice ever supported a woman's right to choice as uncompromisingly as Marshall did".[11]: 323 He joined Blackmun's opinion for the Court inRoe v. Wade, which held that the Constitution protected a woman's right to have an abortion,[2]: 342 and he consistently voted against state laws that sought to limit that right in cases such asMaher v. Roe,H. L. v. Matheson,Akron v. Akron Center for Reproductive Health,Thornburgh v. American College of Obstetricians & Gynecologists, andWebster v. Reproductive Health Services.[26]: 203
During his service on the Supreme Court, Marshall participated in over 3,400 cases and authored 322 majority opinions.[1]: 401 He was a member of the unanimous majority inUnited States v. Nixon that rejected President Nixon's claims of absoluteexecutive privilege.[27]: 78 Marshall wrote several influential decisions in the fields ofcorporate law andsecurities law, including a frequently-cited opinion regardingmateriality inTSC Industries, Inc. v. Northway, Inc.[28]: 25 His opinions involvingpersonal jurisdiction, such asShaffer v. Heitner, were pragmatic and de-emphasized the importance of state boundaries.[5]: 1514 According to Tushnet, Marshall was "the Court's liberal specialist inNative American law"; he endeavored to protect Native Americans from regulatory action on the part of the states.[16]: 338 He favored a rigid interpretation of procedural requirements, saying in one case that "rules mean what they say"—a position that in Tushnet's view was motivated by the justice's "traditionalist streak".[12]: 185–186
Like most Supreme Court justices, many of Marshall'slaw clerks went on to become prominent lawyers and legal scholars. His clerks included future Supreme Court justiceElena Kagan, U.S. circuit judgeDouglas H. Ginsburg, and legal scholarsCass Sunstein,Mark Tushnet, andMartha Minow.
Marshall wedVivian "Buster" Burey on September 4, 1929, while he was a student at Lincoln University.[3]: 101, 103 They remained married until her death from cancer in 1955.[2]: 180 Marshall marriedCecilia "Cissy" Suyat, an NAACP secretary, eleven months later; they had two children:Thurgood Jr. andJohn.[2]: 180–181 Thurgood Jr. became an attorney and worked in theClinton administration, and John directed theU.S. Marshals Service and served asVirginia's secretary of public safety.[29]
Marshall was an active member of theEpiscopal Church and served as a delegate to its 1964 convention, walking out after a resolution to recognize a right to disobey immoral segregation laws was voted down.[12]: 180 He was aPrince Hall Mason, attending meetings and participating in rituals.[12]: 180 He refused to attend the Supreme Court's annual Christmas party believing that it infringed upon the separation of church and state.[1]: 343
JusticeSandra Day O'Connor, who served with Marshall on the Supreme Court for a decade, wrote that "it was rare during our conference deliberations that he would not share an anecdote, a joke or a story"; although O'Connor initially treated the stories as "welcome diversions", she later "realized that behind most of the anecdotes was a relevant legal point".[30]: 1217–1218
Marshall did not wish to retire—he frequently said "I was appointed to a life term, and I intend to serve it"—but he had been in ill health for many years, and Brennan's retirement in 1990 left him unhappy and isolated on the Court.[1]: 377–378 [31]: 156, 158 The 82-year-old justice announced on June 27, 1991, that he would retire.[6]: 480 When asked at apress conference what was wrong with him that would cause him to leave the Court, he replied: "What'swrong with me? I'm old. I'm getting old and coming apart!"[1]: 379
PresidentGeorge H. W. Bush (whom Marshall loathed) nominatedClarence Thomas, a rightist who had served in the Reagan and Bush administrations, to replace Marshall.[1]: 379 His retirement took effect on October 1.[32]: 951
Marshall served as avisiting judge on the Second Circuit for a week in January 1992, and he received theAmerican Bar Association's highest award in August of that year.[4]: 394–395 His health continued to deteriorate, and, on January 24, 1993, at theBethesda Naval Medical Center, he died ofheart failure.[4]: 395 [31]: 159 He was 84 years old.[4]: 396
Marshalllay in repose in the Great Hall of the Supreme Court,[31]: 159 and thousands thronged there to pay their respects;[6]: 480 more than four thousand attended his funeral service at theWashington National Cathedral.[4]: 397 The civil rights leaderVernon E. Jordan said that Marshall had "demonstrat[ed] that the law could be an instrument of liberation", while Chief JusticeWilliam Rehnquist gave a eulogy in which he said: "Inscribed above the front entrance to the Supreme Court building are the words 'Equal justice under law'. Surely no one individual did more to make these words a reality than Thurgood Marshall."[33] Marshall was buried atArlington National Cemetery.[4]: 398
According to the scholar Daniel Moak, Marshall "profoundly shaped the political direction of the United States", "transformed constitutional law", and "opened up new facets of citizenship to black Americans".[34]: 411 For Tushnet, he was "probably the most important American lawyer of the twentieth century";[5]: 1498 in the view of the political scientistRobert C. Smith, he was "one of the greatest leaders in the history of the African-American struggle for freedom and equality".[35]: 218 A 1999 survey of black political scientists listed Marshall as one of the ten greatest African-American leaders in history; panelists described him as the "greatest jurist of the twentieth century" and stated that he "spearheaded the creation of the legal foundations of the civil rights movement".[36]: 129, 132 Scholars of the Supreme Court have not rated Marshall as highly as some of his colleagues: although his pre–Supreme Court legal career and his staunch liberalism have met with broad approval, a perception that he lacked substantial influence over his fellow justices has harmed his reputation.[37]: 407–408, 439 In Abraham's view, "he was one of America's greatest public lawyers, but he was not a great Supreme Court justice".[14]: 222 A 1993 survey of legal scholars found that Marshall was ranked as the seventeenth-greatest justice of the Supreme Court—a rating that, while still lower than that of his fellow liberal justices, was substantially higher than was recorded in an earlier survey.[37]: 408
Marshall has received numerous tributes.[38]: 20 The state of Maryland renamed Baltimore's airport theBaltimore/Washington International Thurgood Marshall Airport in 2005, and the University of Maryland'slaw library is named in his honor.[38]: 20 [39]: 617 Buildings named for Marshall include New York's 590-foot-highThurgood Marshall United States Courthouse (renamed in 2001), where he heard cases as an appellate judge, andthe federal judicial center in Washington.[40][41]: 859–860 He is the namesake of streets and schools throughout the nation, including notablyThurgood Marshall College at theUniversity of California, San Diego.[38]: 20 Marshall posthumously received thePresidential Medal of Freedom from PresidentBill Clinton in 1993,[42]: 253 and theUnited States Postal Service issued acommemorative stamp in his honor in 2003.[43] He was depicted bySidney Poitier in the 1991 television movieSeparate but Equal,[44]: 335 byLaurence Fishburne inGeorge Stevens Jr.'s Broadway playThurgood,[45] and byChadwick Boseman in the 2017 filmMarshall.[40]
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| New seat | Judge of theUnited States Court of Appeals for the Second Circuit 1961–1965 | Succeeded by |
| Preceded by | Solicitor General of the United States 1965–1967 | Succeeded by |
| Preceded by | Associate Justice of the Supreme Court of the United States 1967–1991 | Succeeded by |
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