Thurgood Marshall (63 page)

Marshall was in fact hearing from Carter officials that it would be smart for him to cooperate with the president’s plan. Although the president never personally called, Marshall said, he took the messages to be coming straight from the Oval Office. According to Marshall, some Carter emissaries, whom he would not name, came to his chambers. “He sent people to me to ask me to resign. I told them my usual. The expression is one I love,
Fuck yourself!
”

The tension between Marshall and McCree exploded into a public
spectacle during May 1978. A banquet was held in the main hall of the Supreme Court building, with beautifully decorated tables placed among the large marble columns. The honoree was Dan Friedman, an assistant solicitor general who had recently been named chief judge of the U.S. Court of Claims. Several Supreme Court justices were there, including Marshall. Solicitor General McCree was the master of ceremonies for the black-tie affair.

At one point McCree began to list the former solicitors general. He called out the name of Marshall’s predecessor and the name of Marshall’s successor. He had skipped Marshall’s name entirely. “He had not yet mentioned Thurgood Marshall,” said Dores McCree, Wade McCree’s wife, in an interview, “when all of a sudden, we heard this rustling of noise. We heard someone jump up and say, ‘I’m here, I’m here, I’m a judge too, you know.’

“And Marshall got up and stalked out of the room,” she continued. “And the shock of everybody, you could not ignore it, you could not overlook it.” According to Mrs. McCree, her husband planned to save Marshall’s introduction for last because Marshall had served as a judge, as solicitor general, and finally as a Supreme Court justice. “He was to be the crowning glory, he was to be the pièce de résistance, he was the person Wade wanted to emphasize the most,” she said. “But Thurgood couldn’t wait; he thought he’d been bypassed and overlooked. He just stalked out in this big huff, and everybody said, ‘Oh, he’s been drinking again.’ ”
¹⁶

The guest of honor, Dan Friedman, who had worked with Marshall at the Solicitor General’s Office, went rushing after the justice. “I went down to his chamber to ask him to come back. He refused,” Friedman recalled in an interview. Marshall told him, “I’m not putting up with this.” In his rage Thurgood had left Cissy behind. She made desperate apologies for her husband’s behavior before hurriedly exiting.
¹⁷

A few weeks later Dores McCree and Cissy Marshall met at a luncheon of the Supreme Court justices’ wives. Justice Stewart’s wife had invited Mrs. McCree to the lunch, and Mrs. McCree took the opportunity to apologize to Mrs. Marshall. Afterward, the two women walked up to Justice Marshall’s chambers. When they walked into the office, Mrs. McCree began to apologize. “It was as if I had never spoken,” she said. “He didn’t respond, didn’t say a word, not one word.”

A month later there was a party for Marshall’s seventieth birthday. The event was held at the Washington home of Wiley Branton, who had
been Marshall’s cocounsel in the Little Rock Central High School case. Invitations had long ago been sent to the justices. Also invited were McCree and Marshall’s former colleagues at the NAACP as well as good friends such as federal judge Damon Keith. McCree showed up with a gift for Marshall and the hope that he could repair the relationship and possibly get Marshall’s blessing to be his successor. He carefully approached the justice, but Marshall quickly turned away and set the gift aside.

“Marshall had not quite rejected it but had snubbed his present,” recalled Louis Claiborne, Marshall’s former colleague in the Solicitor General’s Office who was now working for McCree. Turning to Claiborne out of frustration, McCree said, “Why is that man so angry with me? I haven’t done anything.” Claiborne, with a lawyer’s detachment, replied, “Well, surely you’ve figured out that he thinks you’re just waiting for him to die or resign so you can succeed him.”
¹⁸

* * *

Marshall’s feeling that he was being disrespected came at the same time that he was under assault inside the Court. Since October 1977 the Court had been preoccupied with a critical case that touched directly on Marshall’s lifelong effort to bring more black students into the nation’s professional schools. The case involved a young white man, Allan Bakke, who sued the University of California at Davis because minority students with lower grades had been admitted to the medical school, while Bakke had been denied admission. The school had set aside sixteen slots solely for students from “economically or educationally disadvantaged” backgrounds, most often black students. Bakke complained that the policy amounted to a quota for minorities and discriminated against him, violating his Fourteenth Amendment right to equal protection.

The case drew front-page attention the moment Bakke filed suit. His argument crystallized the national divide over affirmative action plans. Polls showed there was a widespread backlash against giving preference to blacks in hiring or education, with some saying the preference would reward unqualified applicants. A California state court ruled in Bakke’s favor and ordered him admitted to the medical school, but that order was overturned by the state supreme court. Finally Bakke appealed to the U.S. Supreme Court.

The case energized Marshall. He was back at center stage after a string of defeats at the hands of the conservative majority. The nation’s
obligation to make up for its racist, exclusionary history was the heart of his career. Marshall expected to take the lead on this case and believed his colleagues, even the conservatives, would defer to him.

In conference there was no clear majority. Marshall made three arguments to his colleagues. First, he said the nation’s legacy of slavery was still being felt and blacks had not yet “arrived.” Second, he noted that the Constitution had never been color blind. He pointed out that in
Plessy v. Ferguson
, the landmark 1896 case, the Court had set forth a separate-but-equal doctrine, branding blacks as second-class citizens. Third, Marshall said the Court should not view the university as trying to exclude Bakke. Instead, he argued that affirmative action was intended to include black people who had suffered from the nation’s history of state-sanctioned racial discrimination.

By the end of the conference, Marshall wrote on his yellow legal pad that he needed just one vote to win a 5–4 victory on the
Bakke
case. He wrote the initials of three justices as sharing his opinion—Brennan, Stewart, and Powell. The swing vote, Marshall concluded, belonged to Justice White, who had voted with Marshall on several earlier desegregation cases. “We heard that after the first conference, it wasn’t entirely clear how it was going to come out,” recalled Phillip Spector, one of Marshall’s clerks that term.
¹⁹

Marshall began a full-court press to win White’s vote. White was a fascinating character. His broad shoulders and huge hands hinted that he was not another bookish lawyer. He had been an All-American football star at the University of Colorado before playing professionally for the Pittsburgh Steelers. In his first year as a pro, he led the league in rushing and quit only because he had a Rhodes scholarship. He later graduated with honors from Yale Law School before clerking for Chief Justice Vinson. White was also a judicial moderate who was sensitive to racial issues. Marshall began lobbying for his vote on
Bakke
using emotional arguments about the continued damage done to black people by racism.

“I guess I listened to him pretty carefully on race matters because I had known about Marshall before he became a judge and I knew his work on the Second Circuit and as S.G., but I really wasn’t prepared for the impact he would make,” said White in an interview years later. “He spoke with such conviction. It was conviction that came out of experience. He could embellish his points with examples that would scare you to death, experiences he had trying cases in the South.”
²⁰

White agreed to vote with him, so Marshall thought he had the fifth
vote necessary to form a majority approving of the university’s affirmative action plan. But while Marshall had been engaged with White, Justice Powell had decided to switch his vote. Chief Justice Burger had personally appealed to him to vote against quotas and for Bakke.

Justice Powell’s switch was based on his discomfort with the idea that sixteen seats in the medical school had been set aside on the grounds that they went to those with “disadvantage.” He agreed with Marshall that racial discrimination had severely damaged the nation’s black citizens and that there was no ignoring race. But Powell, responding to Burger’s appeal, also agreed that quotas were unacceptable. After the initial conference, in which he agreed with most of what Marshall argued, Powell concluded that a vote for the university would be a vote to legalize the use of racial quotas. Nothing Marshall could argue about the history of racism in the United States was sufficient to get over Powell’s objections to quotas. Meanwhile, Burger acted to make sure Powell would remain part of the 5–4 majority voting against the university He assigned Powell to write the opinion.

Marshall, sensing he was beaten on this key case, fired off an angry memo to the other justices:

Justice Powell, unlike Justice White, was not convinced. But he understood the importance of his black colleague’s argument and took it into account in writing the majority opinion. Powell emphasized in his draft that he had no problem with the university’s decision to take race into account. But after reading Powell’s draft, a bitter Marshall wrote back that he would dissent “in toto.”

However, Marshall did not completely dissent from Powell’s final
draft. Realizing that he needed to confirm Powell’s judgment that race could be a factor in considering an applicant, Marshall voted with him on that one, key, point. But Marshall strongly dissented from the rest of Powell’s majority opinion, which ruled that the sixteen seats set aside amounted to an unconstitutional use of a racial quota.

In his emotional dissent, Marshall wrote:

Marshall didn’t say it in his dissent, but compounding his frustration was the fact that Jewish leaders, his former allies at the NAACP, had used their political strength to support Bakke. Quotas had been used for much of American history to limit the number of Jews at schools and in top jobs. That ugly history led Jewish groups to oppose the use of all quotas, even though the U.C. Davis plan did not limit slots for Jews or anyone else. Marshall felt this division in the liberal coalition gave Bakke his victory.

“Well, the trouble with Bakke to my mind was that the Jewish people backed it,” Justice Marshall said in an interview over a decade after the decision. “And that gave me great problems. I wanted to win it. And there were times when I almost won it. They were playing with the word ‘quota.’ Worried about the word as if they can’t handle the words. We can all handle words.”

Particularly galling to Marshall was the suggestion made by some of
his fellow justices during the arguments over
Bakke
that poor whites as well as blacks should benefit from any program intended to help the disadvantaged. “There’s not a white man in this country who can say he never benefited by being white,” Marshall said with certainty.

* * *

The
Bakke
defeat left a deep scar on the seventy-year-old Marshall. He took it as a personal affront, a signal that he, the only black justice, no longer had a major influence on the nation’s legal approach to race relations. Marshall’s isolation, combined with his recent illnesses, his sense of being threatened by the Carter people, and his drinking, began to bring out a grumpy, gruff, even rude and imperious side to his character. Friends, people who worked with him, and his fellow justices reported at about this time that Marshall seemed depressed.

The public saw his pained personality, too. As the highest ranking black man in American government, Marshall had made a rule of lambasting black militants for their failure to obey laws and work hard. Now he changed his tune. Marshall made one of his rare public appearances at Howard University Law School. He agreed to attend only because his good friend Wiley Branton was being installed as dean of his alma mater. For the first time he did not focus on opportunities for well-prepared black students. Instead he spoke about the continuing presence of racists who were still ready to defeat any black person.