Thurgood Marshall (59 page)

The new justice did not isolate himself from Washington politics as he went about learning the job. President Johnson stayed in touch with him, sending the justice to Africa with Vice President Humphrey as co-leader of the U.S. delegation to Liberian president William Tubman’s inaugural. Johnson also invited Marshall to prayer breakfasts, White House luncheons, and some off-the-record meetings. Johnson’s presidency was going through a dizzying roller-coaster ride; the war in Vietnam was getting worse, and there were more antiwar protests and race riots at home. Johnson was also facing challengers for the 1968 Democratic nomination, with the biggest name on the horizon belonging to Bobby Kennedy.

A discouraged president sometimes turned to Marshall for private chats. His influence with the civil rights community and Johnson’s need to nail down the black vote in the primary in the face of a possible Kennedy candidacy, were key areas where Marshall could provide help. But with crisis aflame on every front, Johnson saw his campaign for a second term as futile. Despite Marshall’s support and promises of more help in the future, the president announced his decision not to seek reelection.

The political scene was thrown into chaos. Senators Robert Kennedy and Eugene McCarthy were mounting serious challenges to Johnson’s chosen successor, Vice President Humphrey. The sense of turmoil reached a new high on April 4, 1968, when Martin Luther King, Jr., was assassinated in Memphis, Tennessee. Marshall was at the Court when he heard about the shooting and the immediate explosion of riots across the nation.

He phoned the White House and the Justice Department to see what he could do. In the crisis atmosphere, however, there was no clear role for him to play. “The night Dr. King was murdered we were having a staff meeting,” Ramsey Clark recalled in an interview. “I went down to Memphis that night, and when I came back, Washington was on fire. When you flew in, you could see flames and smoke going all the way down the Potomac, ten miles or so.

“Thurgood was profoundly affected,” Clark continued. “Thurgood came and sat in—almost like a witness, he sat out in the front office. I said, ‘What are you doing?’ He said, ‘I just wanted to be here in case there is anything I could do.’ ”
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All Marshall could later recall about the time he spent sitting at the
Justice Department was that it was “a rough night.” The morning after the assassination Marshall attended a meeting in the White House Cabinet Room with the president, congressional leaders, and civil rights leaders, including Roy Wilkins of the NAACP and Whitney Young of the National Urban League. The president was worried about urban violence and began the meeting by reading a wire service story quoting Stokely Carmichael, the militant leader of the Student Non-Violent Coordinating Committee, as calling for black people to strike back at white America. After Defense Secretary Clark Clifford said he hoped he would not have to send troops into American cities, the president called on Marshall to speak.

According to Johnson’s notes, Marshall’s emphasis was on finding a way to end demonstrations because they could lead to more violence: “The important thing is to keep people out of the streets and change the mood in the country.”
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After the meeting, Marshall joined Johnson for a memorial service for King at the White House, followed by an Oval Office meeting with Johnson and Chief Justice Earl Warren.

Marshall’s relationship with King created emotional difficulty for him. He particularly disliked King’s criticism of President Johnson’s policies on the Vietnam War. And he had never been a fan of the marches and boycotts King used to protest segregation. Marshall had once mocked street protest by saying he was “a lawyer, not a missionary.”
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“I used to have a lot of fights with Martin about his theory about disobeying the law,” Marshall said in an interview years later. “I didn’t believe in that. I thought you did have a right to disobey the law, and you also had a right to go to jail for it, and he kept talking about Henry David Thoreau, and I told him that Thoreau wrote his book [“Civil Disobedience”] in jail. If you want to write a book, you go to jail and write it.”

But Marshall conceded that King had tremendous influence. “He came at the right time,” said Marshall. “It’s very interesting how people pop up at the right time.… I think he was great, as a leader. As an organizer he wasn’t worth shit.… He was a great speaker … but as for getting the work done, he was not too good at that.… All he did was to dump all his legal work on us [the NAACP], including the bills. And that was all right with him, so long as he didn’t have to pay the bills.”
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King’s death did not change Marshall’s attitude toward the activists in the streets. When Marshall went back to work at the Supreme Court after the April riots, a group of demonstrators from Resurrection City, a tent community near the Capitol, tried to march into the Supreme Court
building. Marshall was not sympathetic to their demonstration or their claim to be operating in King’s spirit. When they asked Marshall to come out and speak to them, he replied, “I have talked to people before they broke the law, and I’ve talked to people after they’ve broken the law, but I’ve never talked to people while they were breaking it.”

The activity in the streets and in national politics continued to overshadow Marshall’s profile as the first black justice on the nation’s high court. Segregationist George Wallace, the governor of Alabama, entered the 1968 presidential race as a favorite son of the Old South, further inflaming racial tensions. In June, Sen. Robert Kennedy, who had just won the California primary and appeared to be on his way to claim the Democratic nomination, was assassinated in Los Angeles.

And bringing the turmoil close to home, Chief Justice Earl Warren decided to resign at the end of June. His departure gave President Johnson the chance to appoint the next chief justice before the fall election. Johnson nominated his old pal Justice Abe Fortas for the top job, but Fortas was quickly attacked by conservatives. It was discovered that his former law partners had solicited money to fund a lecture series the justice had given at American University. The fact that Fortas was a Jew also complicated his nomination. Senator Eastland was overheard saying at a party: “After [Thurgood] Marshall, I couldn’t go back to Mississippi if a Jewish chief justice swore in the next president.”
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Marshall was supportive of Fortas as a fellow justice and fellow Johnson appointee. He sent him a note telling him to hang on despite the scandals and barbs. Marshall had never learned of the contempt with which Fortas had spoken about his intellect while Marshall was solicitor general. Fortas had also made derogatory comments about Marshall to other justices after Marshall had joined the Court. But Marshall had no idea that Fortas despised him.

As the scandals mounted, however, Marshall’s support for Fortas made no difference. Fortas was compelled to withdraw his nomination, and Warren continued to serve as the chief. The defeat of the Fortas nomination was a serious setback for Johnson’s already crumbling presidency.

Meanwhile, riots continued to break out in the big cities, and there was more and more talk of “Black Power.” It became the hip slogan for the militant black youth who viewed Marshall as an establishment voice. Justice Marshall’s uneasy relationship with black militants reached a boiling point when he spoke at the University of Wisconsin in late September 1968. A disruptive group of Black Panthers and antiwar protesters
threatened him, and Marshall became fearful. When he got back to Washington, he phoned the FBI. “[Justice Marshall] stated he was somewhat of a ‘practicing coward’ and that he had been deliberately harassed at the University of Wisconsin while attempting to make an appearance there,” a senior FBI agent, Cartha DeLoach, wrote to the assistant FBI director, Clyde Tolson. “They were vociferous and very active in their harassment. He indicated he became somewhat afraid for his safety.”
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Three days later Marshall had a six-minute off-the-record meeting with the president in the Oval Office, possibly to discuss the growing influence of black militants as well as what was going on at the Court with the failed Fortas nomination. The brevity of the talk between the normally chatty pair may have been caused by the many pressures on Johnson. Vice President Humphrey was in the middle of a desperate campaign for president against the Republican Richard Nixon. A little over a month later Nixon defeated Humphrey.

Marshall was upset by Johnson’s departure and Humphrey’s defeat. At a farewell party for Johnson sponsored by his black appointees, Marshall gave the president a desk set and thanked him profusely for taking the lead on getting the Civil Rights Act and Voting Rights Act passed. He also expressed gratitude to Johnson for appointing black people to government jobs previously reserved for whites. “The people in this room have just one purpose, to say thank you, Mr. President,” Marshall said. “You didn’t wait. You took the bull by the horns. You didn’t wait for the times, you made them.”
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Johnson responded to the affection from his middle-aged, middle-class black appointees by calling them “the vanguard” of the movement.
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A few months later, after Nixon had been sworn in as president, Marshall gave a widely covered speech in which he made it clear that, like President Johnson, he regarded the black adults who had been fighting segregation for decades—and not militant black college students—as the true leaders of the civil rights movement. “Why demonstrate if you don’t know what you’re demonstrating for?” he asked in the May 1969 speech at Dillard University in New Orleans. He derided most demonstrations as achieving little other than “getting onto television.” As for the militants’ call for Black Power and even an all-black state, Marshall scoffed: “Black separatism will breed nothing.… I know of a group of people that said we should have rigid separation, from cradle to grave. And do you know who that group was? The Ku Klux Klan.”

Throughout the speech Marshall criticized black people who used
race “as an excuse” for not taking care of their property or educating their children. And he hit hardest at militants who paraded around with guns and called violence as American as apple pie. He said rocks and firebombs would settle nothing because the nation would fall apart if the law did not punish people who used guns and rocks to take over. “I am a man of law, and in my book anarchy is anarchy is anarchy,” Marshall said. “It makes no difference who practices anarchy. It’s bad, and punishable and should be punished.”

Marshall told the students that well-educated black people were the key to future racial integration and equal rights. He said he had no objection to black studies programs and African culture courses, but he warned: “You’re not going to compete in the world with African culture alone. You’re going to compete in this world [only] when [your education] is a little better.”

His voice loud with passion, Marshall concluded by saying: “It takes no courage to get in the back of a crowd and throw a rock. Rather, it takes courage to stand up on your two feet and look anyone straight in the eye and say, ‘I will not be beaten.’ ”
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The speech hit a national nerve. Editorials and articles lauded Marshall for standing up to the militants and advocates of violence. The
Washington Star
ran a lead editorial, “Anarchy Is Anarchy,” which praised Marshall for speaking out and challenged other black leaders to follow his example. The paper also ran a political cartoon that depicted Marshall, in black robes, leaning down from his judge’s bench to hit a gun-toting “black separatist” on the head with his gavel. “Let’s come to order,” read the caption.
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While the world of politics and civil rights continued to thunder outside the Supreme Court, Marshall was making a relatively easy transition into the closed world of the Court. In his first years on the Court, Marshall signed very few dissents. Generally, he was voting with the liberal majority. Chief Justice Warren often had Marshall write the opinions in key cases. In
Stanley v. Georgia
, for example, Marshall wrote for a unanimous Court that police were wrong to prosecute a man for owning a pornographic film. He wrote that under the Constitution, the government could not prevent a citizen from privately watching or reading any material, including adult movies.

“[The defendant] is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home,” Marshall wrote. “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. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
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“I think grown people are entitled to do what they damn please,” Marshall said later, defending his position. “Ain’t nobody makes you look at it. Nobody takes a gun and says you’ve got to. Of course it hurts children, but keep it away from them. Liquor hurts children too, keep it away from them. Drugs hurt children, keep it away from them.”

In June 1969, at the end of his second year on the Court, Marshall wrote an important 7–2 ruling in
Benton v. Maryland
, which gave defendants protection against double jeopardy in state courts. The case was similar to
Hetenyi v. Wilkins
, the 1964 Second Circuit case in which Marshall had ruled that a murder suspect could not be prosecuted twice on the same charges. Now as a Supreme Court justice, Marshall’s ruling extended double jeopardy protection to every court in the nation.

Marshall’s ideological comfort on the Warren Court was reflected in the easy social life he led with the other justices. Once a week Marshall joined Brennan, an impish and liberal Irishman from New Jersey, and two federal judges, David Bazelon and J. Skelly Wright, for lunch at a warehouse that belonged to the liquor distributor Milton S. Kronheim.
The New York Times
described the lunches as casual affairs, at which politics were rarely discussed. Kronheim said the judges liked eating at his warehouse because they could relax without fear of eavesdroppers or reporters.