Marshall, Thurgood

Marshall, Thurgood (b. Baltimore, Md., 2 July 1908; d. Washington, D.C., 24 Jan. 1993; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1967–1991. Marshall, great‐grandson of a slave and the son of a dining car waiter and a schoolteacher, became the first African‐American justice of the U.S. Supreme Court. Marshall earned his B.A. from Lincoln University in 1930, then entered Howard University Law School, where he studied under Charles Hamilton Houston, the dean credited with transforming Howard into a laboratory for civil rights litigation.

After Marshall graduated first in his class from Howard in 1933, Houston enlisted him to help with the civil rights battles being waged by the National Association for the Advancement of Colored People (NAACP). Working full time, first as special counsel for the NAACP and then as director of the NAACP Legal Defense and Educational Fund, Marshall masterminded the litigation strategy that challenged racial oppression in education, housing, transportation, electoral politics, and criminal justice. Ultimately, Marshall was responsible for achieving twenty‐nine Supreme Court victories, including numerous landmark cases such as Smith v. Allwright (1944), Shelley v. Kraemer (1948), and Brown v. Board of Education (1954), in which the Court finally concluded that the doctrine of separate but equal was inherently unequal and unconstitutional.

In 1961, President John F. Kennedy nominated Marshall to be circuit judge on the U.S. Court of Appeals for the Second Circuit. After a lengthy, hostile battle waged by Southern senators, Marshall was finally confirmed. In his four years on the circuit, Marshall wrote several important opinions, including one applying the Double Jeopardy Clause to the states, a position the Supreme Court later adopted in Benton v. Maryland (1969), with Marshall writing for the Court. In 1965, President Lyndon Johnson named Marshall to be the first African‐American solicitor general of the United States.

Two years later, Johnson appointed Marshall to be associate justice of the U.S. Supreme Court, to occupy the seat vacated by Tom C. Clark. During his long tenure, Marshall wrote many significant decisions in a wide variety of fields, including federal jurisdiction, federal preemption, antitrust, and the rights of Native Americans. But Marshall's most significant contributions were in constitutional law, where he made his mark with powerful majority opinions as well as passionate dissents.

Among Marshall's most noted First Amendment opinions were Stanley v. Georgia (1969), which held that individuals have a right to possess obscene materials in their own homes; Police Department of Chicago v. Mosley (1972), which established the important principle that government may not constitutionally favor some types of speech over others; and Linmark Associates, Inc. v. Township of Willingboro (1977), which held that a municipality could not constitutionally ban the use of “for sale” signs simply because it feared their use might contribute to “blockbusting” and “white flight.”

Marshall's contributions in matters of equal protection came primarily through dissenting opinions. Two powerful dissents, in Dandridge v. Williams (1970) and San Antonio Independent School District v. Rodriguez (1973), criticized the rigidity of two‐tiered equal protection analysis in which classifications based on race and other suspect categories were subjected to strict scrutiny while all other classifications had to be merely “rational.” Marshall proposed a more flexible, “sliding scale” theory under which courts would examine the nature of the group, the extent to which it previously had been subjected to discrimination, and the importance of the interests affected by the legislation. Although the Court did not adopt Marshall's theory, his consistent criticism seems to have prodded the Court to somewhat greater flexibility.

In addition, Marshall's passionate views on affirmative action were powerfully articulated. In a 1986 speech to the Second Circuit, Marshall urged Americans to “[F]ace the simple fact that there are groups in every community which are daily paying the cost of the history of American injustice. The argument against affirmative action is … an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the laws, requires us to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will be borne by those who are least able to pay.”

These views may well have influenced a majority of the Court to conclude in Regents of the University of California v. Bakke (1978), and most recently again in *Grutter v. Bollinger (2003), that it is constitutionally permissible for institutions of higher education to consider race on a limited basis in order to achieve a diverse student population.

Probably the most personally agonizing subject for Marshall was capital punishment. When the Court upheld revised death‐penalty statutes in Gregg v. Georgia (1976), Marshall began the practice of dissenting in every death penalty case, including each time the Court denied a petition for certiorari in a case involving the death penalty.

Marshall's life experiences enabled him to make sure his colleagues always knew whose ox was being gored. He was never reticent to make his views known. When the country was enthusiastically celebrating the bicentennial of the Constitution in 1989, Marshall noted that, with its acceptance of slavery, the Constitution was initially defective. Credit for its present stature belongs, he observed in the Harvard Law Review in 1987, not to the framers but “to those present who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them. The true miracle of the Constitution,” observed Marshall, “was not the birth of the Constitution, but its life” (p. 5).

Bibliography

Richard A. Kluger , Simple Justice (1976).
Thurgood Marshall , Reflections on the Bicentennial of the United States Constitution, Harvard Law Review 101 (1987): 1–5.
A Tribute to Justice Marshall, symposium in Harvard Blackletter Journal 6 (1989): 1–140.

Susan Low Bloch