Thurgood Marshall (62 page)

Marshall was hailed by many in the press and legal circles for his dissent. Even inside the Court, one of Justice Burger’s clerks, John Oakley, sent a note to Marshall, congratulating him for taking a stand: “I believe your opinion will in time be acknowledged as one of the great dissents in the history of the court, not only because its erudition is inspired by humanism, but also because it must eventually become the law of the land.”
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The next year, 1974, another critical school case came to the Court. As white middle-class families fled Detroit, they had created an overwhelmingly black school district in the city. Any attempt to bus students within Detroit’s city limits to integrate schools was doomed because of the shortage of white students. Lawyers for Detroit’s black parents wanted the courts to approve a plan to merge the mostly black urban and the mostly white suburban school districts to allow for integration. The state resisted, and the black parents sued. After the parents won in the lower court and appeals court, the Supreme Court reversed the rulings. It decided that federal courts were wrong to violate school district boundaries and hold suburban areas responsible for segregation in the city.

Marshall took the unusual step of reading a part of his dissent from the bench. Sitting in front of the red velour curtains that lent a hush to the chamber, he spoke with the singular voice of the NAACP lawyer who had ended legal segregation in American schools in 1954: “In
Brown v. Board of Education
, this court held that segregation of children in public schools on the basis of race deprives Negro children of equal educational opportunities and therefore denies them the equal protection of the laws.… After twenty years of small, often difficult steps toward that great end [of school integration], the court today takes a giant step backwards.”

Marshall added that the state of Michigan had a duty to eliminate, “root and branch,” every aspect of racism. Arguing that integration was
difficult given the nation’s history of segregation, he said it would be easy to carve the nation’s cities into two, with whites on one side and blacks on the other. “But it is a course, I predict, our people will ultimately regret,” he concluded. “I dissent.”
⁷

Although Marshall was on the losing side of 5–4 votes in both these cases, he did not feel defeated so much as engaged in a fight. While he was emotionally and intellectually caught up with this battle, there were heated fights outside the Supreme Court too. The nation was in a frenzy over a growing scandal threatening the Nixon presidency.

The story began in 1972, when the Nixon White House approved a break-in of Democratic campaign headquarters in the Watergate office complex in Washington. When some of the burglars were arrested, the administration tried to distance itself from the crime, but several of the president’s aides were implicated and convicted. An independent prosecutor subpoenaed tapes of Nixon’s conversations about the matter, but the president refused to release them. He claimed “executive privilege” until federal courts ruled against him. The president appealed to the Supreme Court.

The high court ruled unanimously against Nixon, ordering him to release the tapes. Marshall, given his ties to President Johnson, had never been a Nixon fan. And in his conversations with other justices, he was especially angry at Nixon’s claim that only the president could determine if it were in the national interest to release the tapes. When the first draft of the Court’s opinion was circulated among the justices, Marshall wrote a tough-minded note to its author, Chief Justice Burger, a Nixon appointee. Marshall wanted the Court to hammer home the point that Nixon’s claims about acting in the national interest were egotistical blather. The Court did take a hard stand. A month later, Nixon resigned.

* * *

As the 1970s wore on, Marshall’s health continued to deteriorate. Early in 1975 Marshall was in Las Vegas when he came down with a bad fever and severe respiratory infection. Still smoking two packs of cigarettes a day, Marshall saw his infection quickly develop into pneumonia. He flew to Washington and went directly to a room at Bethesda Naval Hospital. Justice Douglas had suffered a stroke and was also off the bench. With Marshall hospitalized the Court was down to seven justices, and both of the ailing justices were among the liberal minority. Marshall would miss
a month on the bench. Doctors warned him to quit smoking and lose weight (he was now way over 230 pounds), but he could do neither.

In June 1975 Marshall was well enough to travel to Baltimore for one of the few speeches he was willing to give in an increasingly cloistered life. The occasion was the fiftieth anniversary of his graduation from Douglass High School, and Marshall was the commencement speaker. Standing before 450 mostly black students, he blasted away at contemporary black youth culture, with its heavy focus on black pride and talk about black power. “I don’t care how many Afros you wear or how many dashikis you carry on your shoulders, you will never get anything unless you are able to compete with everybody else at the same level and be superior,” Marshall said. As for Washington affairs, he urged the students not to be cynical about politics because of Watergate. “We’ve got to get involved in the machinery of this country because if we will not, somebody else will be running it.”
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Over the next year Marshall’s work on the Court centered on one issue: the death penalty. He had helped to engineer the 5–4 ruling in the 1972
Furman
case, which outlawed capital punishment because of arbitrary sentencing. Now the Florida, Georgia, and Texas legislatures had put in place guidelines for sentencing criminals to death in an attempt to make executions more consistent and end any racial bias in sentencing.

In the 1972 case Marshall had been absolutely opposed to the death penalty. He viewed it as cruel and unusual punishment and therefore unconstitutional. But that argument had persuaded only his fellow liberal justices, Brennan and Douglas. To get the votes of Justices White and Stewart, Marshall had argued that the death penalty was being applied inconsistently in different courtrooms and to different defendants.

Now, in
Gregg v. Georgia
, that argument no longer held water because of the new state statutes. Also, Justice Douglas had been replaced by the quiet, bow-tie-clad John Paul Stevens, a moderate from Chicago who was appointed by President Gerald Ford. To gain the five votes he needed, Marshall recounted stories in the judges’ conferences about his own experiences defending poor black men in front of all-white juries. He talked about being the only one of the justices ever to have defended a client in a death penalty case and how he considered it a victory to see innocent clients sentenced to only life in prison because it meant they had escaped the electric chair.

This time his stories and arguments failed to sway the Court’s moderates.
Justices White and Stewart voted against him, as did Justice Stevens. They joined Justices Rehnquist, Powell, and Blackmun, and Chief Justice Burger in a 7–2 vote to reinstate the death penalty. Marshall’s only supporter in dissent was his good friend William Brennan.

In a frustrated voice, Marshall read his dissent from the bench on his sixty-eighth birthday. He maintained his hard line and concluded that there was no case in which the death penalty could be viewed as anything but “unconstitutional because it is excessive.”
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The decision was more than a defeat. It signaled a new isolation for Marshall. He and Brennan were now removed from the mainstream; they were off on the Court’s left wing, and their arguments were becoming distant voices as the conservative majority charged right. The days of Marshall as an active force in the Court’s thinking seemed to be slipping away, and he was deeply troubled by his loss of standing among his new peers. But for Marshall as well as Brennan, there was little room for accommodating the right wing on issues such as the death penalty.

“We seemed quite often, as we do to this day, to be the lone dissenters in many cases,” Brennan said later in an interview. “I mean if you’re against the death penalty there’s no possible way you can accommodate. You can’t.” Brennan said it was not a matter of being stubborn, but expressing heartfelt positions which is “a responsibility expected of a justice.”
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Many years later Marshall, too, saw the
Gregg
case as the instant he lost touch with the Court. He still had no idea how seven justices could have voted to allow the death penalty to be imposed on convicts. “My colleagues?” Marshall said in exasperation during an interview. “I don’t know why they vote for the death penalty. I’ve told them about a thousand times.” During the interview Marshall was asked if he would reject the death penalty even if a person killed his mother or someone in his family. Without hesitation he replied: “That’s right.”

After reading his dissent on a Friday morning, Marshall went home but continued to stew over his loss. That Sunday he woke up with chest pains at 4:00
A.M
. and started walking around his home. By 7:00, Marshall later said, he “started to get worried” and called a doctor, who told him to go to a hospital. When he got to Bethesda, he asked the doctor, “Is this it?” The doctor replied, “It sure is.” He had suffered a heart attack. Over the next three days he had two milder attacks.
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During the following two months, Marshall was either in the hospital or lying on his back at home. Doctors pleaded with him to quit cigarettes
and prescribed a forty-pound weight loss, but he could not. The heart attacks spurred a new round of reports that Marshall was going to retire. The question around the Court was whether President Ford could successfully nominate someone for the seat before the fall election.

Lyle Denniston, the Supreme Court reporter for the
Washington Star
, forecast that Ford would have to name “a black with a national reputation” and suggested that person might be William Coleman, Ford’s transportation secretary. Marshall again told reporters he had no intention of leaving the Court, even if his friend Bill Coleman was set to replace him.
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In the fall of 1976, the former Georgia governor Jimmy Carter defeated Ford, and the Democrats gained control of both the White House and the Congress. That combination created new pressure for Marshall to retire. He could be assured that Democrats would have the opportunity to name his replacement. But Marshall told friends that he and Cissy had a deal. “When I start to get senile she’s going to tell me, then I’ll retire.”

It was a rough time for a sick man to be on the Court. The 1976 term put Marshall under tremendous pressure as a new debate erupted over abortion. These cases, under the heading
Maher v. Roe
, centered on instances in which healthy but poor women with normal fetuses wanted abortions and asked state governments to fund them through Medicaid. The issue went to the heart of Marshall’s logic on why abortion should be legal. He felt a poor woman—just as a rich woman—should be given the best possible care when she made the difficult choice to abort a pregnancy.

As he had failed to persuade his colleagues in the latest death penalty cases, Marshall failed to get any justices to join Brennan and Blackmun (the author of the
Roe
decision) in supporting government-funded abortions for healthy women. This was not the active Marshall filled with stories, making arguments, and walking around to lobby his colleagues. This was a less engaged man, lacking the energy or the inclination to argue with people who disagreed with him.

In his dissent, however, Marshall was in full throat, condemning his colleagues for turning their backs on the poor: “The [state laws restricting abortions] challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives. Many thousands of unwanted minority and mixed race children now spend blighted lives in foster homes, orphanages and ‘reform’ schools.… The effect will be to relegate millions of people to lives of poverty and despair.”
¹³
Marshall’s comments were extreme, even offensive to some of
his fellow justices. He wrote as if lecturing people who were beneath him. His rhetoric about the lives of poor children and minority children also seemed dark and tortured. This was an unhappy and angry man.

By now Justice Marshall rarely got outside the Court or his suburban home. His poor health gave him an easy excuse for turning down any invitation. He was also exiled from the nation’s legal establishment. White lawyers in the top firms and law schools had never been convinced that he was a strong legal mind, and their snide private digs at him began getting into the public debate. Archibald Cox, whom Marshall had replaced at the Solicitor General’s Office, told a reporter: “Marshall may not be very bright or hard-working but he deserves credit for picking the best law clerks in town.”
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All the while Marshall continued to hear that the Carter White House was looking at people they could name to the Court once he announced his retirement. Now the most often named candidate was the nation’s second black solicitor general, Wade McCree. McCree had not only followed in Marshall’s footsteps by becoming solicitor general but had also served as a federal appeals court judge.

Griffin Bell, Carter’s attorney general, acknowledged in a later interview that he had advised the president that Marshall should step down and McCree be nominated as his replacement. “I told President Carter that [Justice Marshall] ought to leave,” Bell said, explaining that his age and health were limiting his effectiveness on the Court. “The president was going to appoint Judge McCree.”
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Some of Bell’s aides spread word of the attorney general’s conversations with Carter. Bell said he soon heard from several of his assistants that Marshall’s response was that McCree was never going to take his seat. Bell’s aides were upset at what they took to be Marshall’s low personal assessment of McCree. “What Marshall was saying was that he didn’t want
anybody
replacing him,” Bell recalled. “He wanted to stay as long as he could function. Some people thought that was a bad sign.”