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Thurgood Marshall, 1967
Harvard Law Professor Mark Tushnet, who once clerked for Marshall and chronicled his career in two books, reflects on how today’s justices have strayed from his example.
Last week, my heart sank as I listened to the Supreme Court’s oral arguments over yet another attempt to gut what’s left of the Voting Rights Act. It was a law designed to protect the electoral power of Black Americans against the forces of white supremacy masquerading as states’ rights.
As the conservative justices twisted themselves into rhetorical knots to justify dismantling this cornerstone of democracy, I couldn’t help but think that the late civil rights icon and Supreme Court Justice Thurgood Marshall warned us this day would come by unintentionally prophesizing, “Liberty cannot bloom amid hate.”
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And then, my mind wandered back to a moment I’ll never forget.
In the late '80s or early '90s, I was walking home one evening from my job on Capitol Hill, past the Library of Congress, when out stepped Justice Thurgood Marshall. He was a giant in every sense of the word. I walked right up, shook his hand, and said hello. What I remember most vividly wasn’t what he said, but the sheer presence of him.
He was tall, commanding, and somehow both warm and formidable.
Years later, after his death in 1993, I bought books about him since he had crossed my path and I wanted to know more about him. It was Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 and then the follow-up, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991.
The author of the books was Mark Tushnet, now the William Nelson Cromwell Professor of Law at Harvard Law School, who once clerked for Justice Marshall. When I reached out to Tushnet to talk about the man I’d once met and the state of today’s court, he obliged, and in doing so, helped me see Marshall not just as the legend but as the man.
“He was larger than life,” Tushnet told me, though he admitted, with a chuckle, “I was way too young at the time to really appreciate it.” Tushnet said that Marshall was a man of contradictions, “basically in favor of the Vietnam War,” Tushnet said, “while many of his clerks, including me, were vehemently against it.”
Yet Tushnet said Marshall was also approachable, deeply human, and surprisingly sentimental. “Every day in the office, he would finish watching one of his soap operas,” Tushnet recalled. “He would then come into the clerk’s office and sit down and start telling stories about his life and things he’d experienced.”
Marshall, he said, “wanted to connect to people.” But “he actually found being on the court a little personally isolating because he had to cut off friendships with all the lawyers he’d been working with for decades.”
Tushnet also noted that Marshall, in his younger years, was “large and very good-looking,” with a grin that apparently caused more than a few swoons among the women of the NAACP. But charm alone didn’t get him where he went. “It was brilliance, strategy, and unshakable purpose,” Tushnet pointed out.
“The standard line,” Tushnet told me, “is that Marshall would appear in U.S. history books even if he’d never been appointed to the Supreme Court, because he was the guiding force behind the litigation that ended up with Brown v. Board of Education. He organized the litigation. He was a superb oral advocate.”
The 1954 Supreme Court ruling in Brown v. Board of Education declared that racial segregation in public schools was unconstitutional, overturning Plessy v. Ferguson’s “separate but equal” doctrine. The unanimous decision, written by Chief Justice Earl Warren, became a cornerstone of the civil rights movement and affirmed that segregation violated the Equal Protection Clause of the Fourteenth Amendment.
And Marshall made that happen.
When Marshall stood before the court arguing that segregation violated the Constitution, “he knew exactly how to make arguments that would appeal to the people he was talking to, that is, the justices, and could explain to them why he was right in a very effective way,” Tushnet said.
It’s hard to overstate what Brown v. Board meant, not only for Black Americans but for the moral soul of the country. “Marshall’s work laid the foundation for much of the later expansion of civil rights,” Tushnet said, “not only with respect to what he would have called Negroes or African Americans, but for the wider population of subordinated people in the country.”
Lyndon Johnson appointed him solicitor general in 1965, making him the first Black American ever to hold the role. “It was generally understood,” Tushnet explained, “tThat the appointment was the burnishing of his credentials to be appointed to the Supreme Court.”
Johnson, ever the political chess master, made sure of it. He elevated Ramsey Clark to attorney general, which forced Clark’s father, Supreme Court Justice Tom Clark, to retire to avoid a conflict of interest. “That opened up the vacancy,” Tushnet said,.“And Marshall got the position, which was what President Johnson wanted to do from the beginning.”
That appointment, in 1967, made Marshall the first Black Supreme Court Justice in U.S. history.
And yet, listening to the current Court dismantle civil rights protections he helped build, I could almost hear Marshall’s deep, resonant voice booming from the bench, incredulous, perhaps angry, and bitterly disappointed.
“Of course he would be incredibly dismayed about what’s been happening,” Tushnet said. “Marshall had a blistering dissent in City of Richmond v. J.A. Croson Co., where the court struck down a minority set-aside program meant to address the lingering effects of discrimination.”
“Richmond, the capital of the Confederacy, had finally done the right thing, and now the Supreme Court was stopping it, and Marshall’s dissent was strong,” Tushnet added.
Marshall’s dissent read like a history lesson and a moral reckoning, and, tragically, a prophecy. “He would have felt that this was sort of what you could expect from white folks,” Tushnet reflected. “Basically, you couldn’t rely on them. They might help you if it was in their interest, but not because they were dedicated in principle to protecting racial and other minorities.”
When I asked about Chief Justice John Roberts’s oft-repeated claim that the court is “color-blind,” Tushnet responded emphatically. “Oh, yeah, there’s no question about it. Marshall would have called him out on that.”
Tushnet recalled one of Marshall’s favorite lines:. "He once said something to the effect of ‘I’ve never had to look at the back of my hand to find out what color I was.’ He was living as a Black man in America, and he knew that reality. He also knew that law wasn’t neutral.”
That’s perhaps Marshall’s greatest legacy and his most urgent warning. He believed that law was not an abstract ideal but a living instrument of justice or oppression, depending on who wielded it.
“He would say the court’s behavior shows how it can’t be neutral,” Tushnet said. “Simply calling balls and strikes, as Roberts puts it, but it’s really about taking sides. And it should take the right side.”
When I asked Tushnet what Marshall might think of the court’s current trajectory, its deference to executive overreach, its hostility to voting rights, its moral blindness, he didn’t hesitate in his response. “If Trumpism prevails, then the court will go on doing what it’s been doing, supporting Trumpism,” Tushnet explained. “If Democrats manage to get back into power, they’re almost certainly going to try to do something to reform the court, because they now see it as an ally of the Republican Party.”
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And what of Justice Ketanji Brown Jackson, whose searing dissents have become rallying cries for progressives? Would Marshall have matched her strongly worded dissents? “Probably yes,” Tushnet said, “Marshall’s opinions would have been just as forceful. But he was of an older generation. He had made his career by figuring out how to talk to and persuade white people. That might have generated a different kind of rhetoric than Justice Jackson’s, more in sorrow than in anger.”
Still, it was that combination of brilliance and grace, defiance and diplomacy, that made Thurgood Marshall who he was. “He managed, against very strong odds, to turn the legal system into a protection of racial minorities rather than an oppressor of them,” Tushnet pointed out.
If only this court would honor Marshall’s legacy instead of working to destroy it.
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