Justice Thurgood Marshall A Reminiscence

JUSTICE THURGOOD MARSHALL: А REMINISCENCE When I received the news that Justice Thurgood Marshall had died, 1 felt both sadness and а kind of shock. 1 was saddened, that а man who had devoted his life to civil rights and social progress had died so soon after his retirement, without much opportunity to enjoy а calmer, less turbulent life. And it was startling to realize that he is no longer with us. It is difficult even to conceive of American law in the second half of the 20th century without the voice, and the presence, of Thurgood Marshall. During the 1981-1982 Term, 1 clerked for Justice Marshall. Thurgood Mar­ shall was not simply а fine Justice. Не was not simply а superb lawyer. Не was not simply а generous, decent human being. Thurgood Marshall was а man who changed the world we live in. Не changed the way we think about civil rights. Не changed the way we think about law. In this brief space, 1 will offer some memories of my experience clerking for Justice Marshall, and I will try to provide some perspective on Justice Mar­ shall's extraordinary accomplishments. Clerking with Justice Marshall from 1981-1982 was remarkaЫe in many ways. First, 1 recall our lively discussions of cases. For every case, just prior to argument, the four law clerks would sit down with the Justice and explain how we thought the case should соте out, and what questions he might want to ask. We were often insistent; we would tel1 him how he "had" to vote. When­ ever he heard that, he would pretend to Ье incensed, and he'd tel1 us, "There are only two things I have to d�tay Ыасk, and die." Our discussions were freewheeling. We clerks would usually take the liberal view that we believed in or that we thought he would believe in. Justice Mar­ shall would usually disagree with us strenuously, call us "knuckleheads," and ridicule our arguments. At first we were perplexed. Over time, we realized that he was provoking us to articulate the best arguments for our position. The strategy worked. А second special aspect of working for Justice Marshall were his stories. As soon as we began clerking, in mid-summer, we began to hear them. Unlike his wealthier colleagues with summer homes, Justice Marshall came into the office almost every day. We therefore had the opportunity to hear а steady stream of tales, many about the Civil Rights Movement. Justice Marshall was never preachy. But he brought his points home. Не gave us some sense of what it was like to Ье а civil rights lawyer back in the ЗО's, 40's, and S0's. For example, Justice Marshall told of а fairly typical work method when he challenged desegregation in Southern towns. His colleague would drive, and he would sit in the back seat, typing the papers to Ье filed in court the next morning. Often he would stay at the homes of the Ыасk plaintiffs. (At that time, of course, motels and hotels were not open to Ыacks.) More than once, he was literally run out of town Ьу whites who discovered what he was up to. Justice Marshall told these stories without conceit; they were just the facts of his life, of his education into American law. Justice Marshall also told а story about being hospitalized for pneumonia when Richard Nixon was President. Nixon inquired to the medical staff about Justice Marshall's health. With the first couple of inquiries, Justice Marshall was appreciative. But as the inquiries continued, Justice Marshall started get­ ting suspicious about Nixon's motivation. Why was Nixon so curious about the longevity of а liberal Supreme Court Justice? Finally, Justice Marshall asked the hospital staff to send а very brief note back to Nixon. The note consisted of two words: "Not yet." 1 am often asked what it was like to work with а man of such stature and accomplishment. What was Justice Marshall really like? Justice Marshall could Ье gruff, intimidating, or aloof. When I clerked for him, he was cer­ tainly Ьitter about the conservative direction of the Court. But with time, his softer, generous side emerged. Не invited the clerks to his house several times. For each of the clerks, he paid out of his own pocket for an engraved, bound volume of all opinions we had worked on during the term. Не knew all the staff of the Court on а first-name basis-the custodians, the library staff, the guards, the parking attendants. And he was devoted to his family. What was Thurgood Marshall's legacy as а lawyer? As а Supreme Court Justice? With respect to his legacy as а lawyer, I'll merely state the obvi­ ous-the nation owes Brown v. Board of Education1 to Thurgood Marshall. Не masterminded the legal strategy that persuaded the Supreme Court to dis­ mantle the "separate but equal" doctrine. And one should not underestimate the difficulty of that task. The strategy required careful groundwork. Even after Marshall had devoted years to developing other precedents, precedents that one might think made the Brown ruling unavoidaЫe, the Court was ini­ tially badly split in its deliberations over the Brown decision. If not for Mar­ shall's earlier judicial victories and his arguments in Brown, 1 believe that the Supreme Court could not have rendered а unanimous decision in Brown, at least not in 1954.2 With respect to Marshall's legacy as а Supreme Court Justice, he was а powerful voice for civil rights, especially the rights of the dispossessed. His voice was consistent over the years, whatever the contemporary political cli­ mate. lt was а voice of experience, of understanding. lt was the voice of а lawyer who had been run out of town because of his skin color, а lawyer whose • 347 u.s. 483 (1954). For general background, see Brown v. Board of Education (1975). 1 I RICHARD KLUGER, SIMPLE JUSТICE: ТнЕ HISTORY OF AND BLACK AMERICA'S STRUGGLE FOR EQUALIТY clients the state had put to death. lt was а human voice. Many of Justice Marshall's most famous opinions are dissents. His dissent in San Antonio Independent School District v. Rodriguez8 is а wonderful example of his strengths as а Justice. In that case, the majority upheld а school finance scheme despite its significant impact on access of the poor to an equal education. In dissent, Justice Marshall made two important points. First, he convincingly demonstrated that the multi-tiered Equal Protection analysis that the Supreme Court had been employing was largely smoke and mirrors: the different levels of scrutiny obscured the fact that the Court usually bal­ anced а host of factors in order to decide whether discrimination violates the Constitution. But second, and just as important, Justice Marshall asserted that а balancing test is better because it captures the real world and is not simply an abstraction. Such а test tries to measure the ways in which the financing scheme actually impedes poor people from obtaining а quality education. Time and time again, Justice Marshall came back to this theme: law is state power imposed on real people. Не was much less interested in doctrinal nice­ ties than in whether the law made а tangiЫe difference in people's lives. His consistent, vivid reminders of the concrete social context of legal decisions are рrоЬаЫу his most enduring legacy as а Supreme Court Justice. Contrary to the popular view, Justice Marshall was not а doctrinaire, knee­ jerk liberal. Consider Loretto v. Te/eprompter Manhattan CATV Corp., 4 а case decided the year of my clerkship. Justice Marshall surprised many observers Ьу writing а relatively conservative majority opinion finding that any permanent physical occupation of property constitutes а "taking" requiring just compensation.D Of course, Justice Marshall was one of the most liberal Justices of the past thirty years, but his views on any given case could not Ье taken for granted. Justice Marshall's majority opinions are generally less memoraЫe than his dissents. Not many of his majority opinions would Ье considered landmarks.8 One obvious reason was the ideological composition of the Court while Mar­ shall was Justice. Had Justice Marshall served for 23 years with Earl Warren, one can Ье sure that his influence on the shape of the law would have been much greater. Another reason was Justice William Brennan's greater senior­ ity, which permitted Brennan to write а greater number of important majority opinions.7 8 411 U.S. !, 70 (Marshall, J., dissenting) (1973). • 458 u.s. 419 (1982). 6 The case held that а law requiring а landlord to permit а саЫе company to attach а Ьох and саЫеs to the the landlord's building is а taking of property, even if the physical intrusion is only minor and serves important puЫic purposes. 8 Of course, there are important exceptions. E.g., Stanley v. Georgia, 394 U.S. 557 (1969) (holding that the private possession of obscene matter in one's home cannnot Ье made а crime). 7 One example during the year of my clerkship is Plyler v. Doe, 457 U.S. 202 (1982) (holding that а state law violated equal protection Ьу requiring children of illegal aliens 1 will remember Thurgood Marshall as а great Justice, а great lawyer, а great storyteller, а great man. Immanuel Kant once defined dignity as that which has no price. Thurgood Marshall had dignity. Не answered to no one. Не followed his convictions, not for praise or puЬlicity, but because he believed, because he cared. We should all learn to care so much.