Thurgood Marshall (67 page)

By July the
Legal Times
newspaper reported that Marshall told friends the book deal was dead. “All I can tell you is that I decided that the first-class materials for a book were not available,” Rowan told the paper. Marshall refused to explain why the deal was off, but the paper said his friends still hoped he would do the book with another writer.
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Marshall subsequently responded to a letter I wrote him requesting an interview with
The Washington Post Magazine
. In more than a dozen interviews over a six-month period in 1989, Marshall spoke about everything from his childhood to the
Brown
decision. The interviews took place in his office, where he had a small bust of Frederick Douglass on his desk along with pictures of his grandchildren. On the walls were animal skins and spears from his trips to Africa. On the shelf behind his desk was a small TV that he would turn on and watch while eating Campbell’s soup for lunch. His secretary, Jane McHale, would come in with messages, and if he wanted some hot tea, he would call for his assistant, Grafton Gaines.

By this time in his life, Marshall walked with the help of a cane. He wore white support socks because of circulatory problems. He was gruff but wonderfully full of opinions, attitudes, and a strong sense of irony about the ways of the world. At one point I asked him whether he had a problem with liquor. Without missing a beat he shouted: “Hell yes. Not enough! Not enough to go around.” Then his face turned serious, and he added, “It runs in my family.” When I asked why he often happily told stories about drinking too much, the justice confided that it was a strategy. “It keeps people off of you,” he said. “I figure if I can tell it, it ain’t nothing new.”

One day, after a clerk had come into the office to drop off a document, Marshall shook his head. “These guys, my law clerks,” he said laughing, “they get from $100,000 to $120,000 when they leave here.” Marshall clearly regretted that he had never made big money as a lawyer and his jibe had the edge of envy to it. But he said he had never given any
thought to leaving the Court and entering a lucrative private practice. “I’ve said it three or four times—I took the job for a tenure of life, I took it for life so I’m going to stay for life,” he added. On another day he described his tenacious effort to stay on the Court in this way: “I expect to die at the age of a hundred and ten, shot by a jealous husband.”

In 1989, after two terms of Reagan and the election of the Republican George Bush, Marshall’s politics were way out of touch with the American public. The divide was particularly evident in his views on crime. While much of the debate in Congress was about stiffer, mandatory sentences and applying the death penalty to more crimes, Marshall insisted that the rights of suspects and even convicted criminals needed strong protection.

One area in which Marshall was willing to limit individual rights was gun control. “Oh, I’m for complete gun control,” he said. “I don’t believe you have any right to carry a gun, except for policemen and law enforcement officers. But I don’t see why anybody else needs a gun. If he does, let him have it licensed.”

During another visit Marshall spoke of his disappointment with the current civil rights movement. He was particularly concerned that the nation’s commitment to the ideal of integration was no longer in evidence. Television and magazines were filled with young black people who were far more excited by talk of Malcolm X-style black nationalism than Thurgood Marshall’s lifelong work to bring about equality of the races and integration under law. “Oh hell yes, we’ve made progress since the 1950s,” Marshall said. “In my mind, no question. But since the 1970s you haven’t made as much as you should have made.”

One of the difficulties some younger, more race-conscious black Americans had with Marshall was that he was married to a woman of Filipino ancestry and his two sons had married white women. His grandchildren looked white. In an era of strong emphasis on blacks taking pride in being black, Marshall and his focus on integration was out of sync.

The
Washington Post Magazine
article brought a new round of attention to him and pleased Marshall. He spent the next several weeks autographing copies of his cover photo for colleagues, his staff, and Court personnel.

More media attention came to Marshall when he began using the term
Afro-American
in his legal opinions. In October 1989, Marshall filed a dissent in a death penalty case and for the first time used the expression. He told reporters that he chose not to use
African-American
because it was not in the dictionary—
Afro-American
was.

He had never used the term
black
, which had become a common label in the 1960s with the “Black Power” movement. He preferred the word
Negro
with a capital
N
, or on occasion
colored
. He said he was uncomfortable using the term because he remembered a time when calling someone “Black” would start a fight. Marshall said, “I don’t think you get pride by calling yourself this or that.… I think you get pride by studying your background … and finding that you have nothing to be ashamed of.”
²⁴

Just as Marshall was doing the interviews with the
Post
, he was caught up in his last major battle in defense of affirmative action programs. He filed strong dissents in two 1989 cases,
Ward’s Cove Packing Co. v. Atonio
and
Richmond v. J. A. Croson Co
.

In the first case the conservative majority ruled that people who claimed discrimination had to prove they were being treated in a biased manner. The Court declared that there was no convincing evidence of discrimination if one racial group disproportionately outnumbered another in management or any other area of a company’s operations. The majority opinion said such differences could be attributed to the level of education and training of the people in one group.

In the second case the majority ruled 6–3 that the city of Richmond could not have a 30 percent set-aside for black-owned companies in its municipal contracts. The conservatives argued that individual contractors, be they black or even Alaskan Aleuts, must first show that they had personally suffered discrimination in contracting before they could benefit from any set-aside.

Marshall, noting that Richmond had been the capital of the Confederacy and renowned for strict segregation, could not believe that his colleagues would doubt that blacks continued to suffer discrimination in the city. “[A] majority of this court signals that it regards racial discrimination as largely a phenomenon of the past.… I, however, do not believe this nation is anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful thinking, the majority today does a grave disservice …”

Although Marshall lost both cases and did little personally to try to win votes from the conservatives, he was still having an impact on his colleagues, according to one of the Court’s conservative newcomers, Antonin Scalia. “Marshall could be a persuasive force by just sitting there,” Scalia said in an interview. “He was always in the conference a visible representation of a past that we wanted to get away from, and you knew that as a private lawyer he had done so much to undo racism or at least its
manifestation in and through government. Anyone who spoke in conference on one of these race issues had to be looking at Thurgood when you’re speaking. You know you’re talking in the presence of someone who devoted his life to that matter. Therefore, you’d better be doggoned sure about it.… He wouldn’t have had to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”
²⁵

In Marshall’s mind the key to the Court’s future action on cases dealing with race was the Fourteenth Amendment, requiring equal protection and due process. He wanted the Court to “stop looking around for excuses not to enforce it.” By his own account during this period, Marshall failed to change votes on affirmative action and contract set-aside cases. In one interview a dejected Marshall conceded: “I haven’t done as much as I could—I don’t know why.”

The problem with the high court’s understanding of race, Marshall later added, was that few of the justices knew much about the lives of black Americans. “What do they know about Negroes?” he asked. “You can’t name one member of this Court who knows anything about Negroes before he came to this Court. Name me one. Sure, they went to school with one Negro in the class. Name me one who lives in a neighborhood with Negroes. They’ve got to get over that problem. What you have to do—white or black—you have to recognize that you have certain feelings about the other race, good or bad. And then get rid of ’em. But you can’t get rid of them until you recognize them.”

In 1990, Justice Brennan, who was still more willing to engage his colleagues than Marshall, led a fight to get a majority to support federal government set-asides for minorities on broadcasting licenses. Marshall was resigned to writing his dissent by this point, but Brennan won a majority by visiting with other justices and arguing that Congress had the power to improve the nation’s quality of life by having radio and TV stations in the hands of racially diverse owners.

A month after the ruling, in July 1990, Brennan, age eighty-four, suffered a minor stroke. That same month he retired. President Bush appointed a federal appellate and former New Hampshire state supreme court justice, David Souter, to replace him. Souter had a moderate to conservative record far different from Brennan’s. Justice Marshall, age eighty-two, was alone holding down the Court’s left wing.

After Souter’s nomination Marshall, in an unusual step, agreed to tape an interview with one of his favorite Washington TV correspondents,
Sam Donaldson of ABC’s newsmagazine show
PrimeTime Live
. Marshall, looking disheveled and speaking in short, mumbled sentences, was clearly upset about Brennan’s departure, telling Donaldson that Brennan “cannot be replaced.” Marshall specifically explained that there was now no one on the Court to engage the right wing because “no one here can persuade the way Brennan can persuade.”

When Donaldson mentioned Souter, Marshall turned sour and said: “When his name came down I listened to television and the first thing I called my wife and asked, ‘Have I ever heard of this man?’ She said no.… So I promptly called Brennan because it’s his circuit. And his wife answered the phone … she said he’s never heard of him either.”

Donaldson then asked the justice about President Bush. Marshall became even more dour. “It’s said that if you can’t say something good about a dead person don’t say it,” said Marshall. “Well, I consider him dead.”
²⁶

The interview stirred a Washington storm. Attorney General Richard Thornburgh said Marshall’s comments “saddened him.” Thornburgh said it was “the first time any Supreme Court justice has ever criticized, in our history, an appointment and indeed the president who made the appointment.” Senate Minority Leader Robert Dole told reporters that Marshall’s comments amounted to “cheap shots … [that were] partisan and demeaning.”
Newsweek
magazine later reported that many of Marshall’s friends found the justice’s performance on TV “embarrassing. ”
²⁷

Souter was easily confirmed (90–9), but the damage to Marshall was considerable. Questions about his physical health now extended to questions about his mental health. His public attack of a fellow justice created tensions inside the Court, even among justices who had always supported him.

A few days after the television interview, Marshall was in Chicago to give a speech at the American Bar Association when his cane got caught in a floor sign and he suffered a serious fall on his left shoulder. He did not break any bones but was sufficiently shaken and bruised that he canceled the speech and went back to Washington to see his doctor.

The next several months saw Marshall’s health continue to worsen. He walked with a pained, slow motion. His eyes teared almost constantly, and it was hard for him to read. His circulatory problems worsened, and his heart was weak. Meanwhile, President Bush’s popularity climbed to record-breaking heights after the U.S. military successfully pushed Iraq
out of Kuwait. Bush looked to be a shoo-in for another four years as president. The justice told friends he no longer thought he could stay on the Court until Democrats regained control of the White House.

Emotionally and physically on the decline, Marshall paid attention only to cases that had to do with the death penalty. Now that Brennan was gone, Marshall was the lone voice objecting to capital punishment. In a 1990 case he took a stand against victim impact statements—allowing crime victims to offer emotional testimony intended to encourage a jury to hand out death sentences. But it was another futile fight. Marshall lost when the conservative majority ruled 6–3, in
Payne v. Tennessee
, that victims should be able to testify.

At the last conference for the term in June 1991, Marshall privately told his colleagues that he was going to retire. He said he had already called Justice Brennan. There was silence as the other justices took in the meaning of their colleague’s words. Chief Justice Rehnquist got up and uncharacteristically hugged Marshall. Justice O’Connor cried. Other justices came up and held his hands.

The people in Marshall’s chambers were just as shocked and surprised. Scott Brewer, one of his clerks that term, said he never gave them any sign he was about to retire. As word spread among his clerks and assistants, the office filled with crying and hugs.

But the very next day, Marshall’s dissent in the Payne case came out, revealing the distance between Marshall and his colleagues. “Power not reason, is the new currency of this court’s decision making …” Marshall wrote.

That day Marshall sent President Bush an official letter announcing his retirement, a week short of his eighty-third birthday. He had been on the court for twenty-four years. In a final gesture he also walked down from his seat on the bench, removed his black robes, and stood in the lawyers’ well, the same place he had stood to argue
Brown
. With his son Thurgood Jr. and his daughter-in-law, Colleen Mahoney, behind him, the retiring justice vouched for their qualifications as lawyers and asked that they be admitted to the Supreme Court bar.