Thurgood Marshall (69 page)

“It brought tears to my eyes to see people lined around the block, waiting to come into this building to walk up to where his casket lay, just to peek,” said Justice O’Connor. “Every sort of person came through that day. I was so moved by what I saw.” O’Connor paused as emotion welled up in her. Her voice quivered and cracked as she said that at the end of his life Marshall had no idea that people would go out of their way to remember him.
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This affection shown Marshall upon his death stood in sharp contrast to the indifferent public reception he had received for most of his time on the high court. He felt undervalued because he thought the white legal community did not appreciate his legal skills. And he felt dismissed by younger, more militant blacks. To top it off, Marshall’s signature battle, the push to integrate black people into white America, had also come under attack.

In the thirty-nine years between his triumph in the
Brown
case and his death, Marshall saw the nation go from complete segregation through halting attempts at integration to occasional resegregation. When he first joined the high court in the late 1960s, almost two thirds of black students were in integrated schools. When he died, however, two thirds of black students were back in mostly segregated schools.

The rise of conservative, white Republican politics under President Reagan in the 1980s had pushed black Americans to the left, where they
were isolated and became disillusioned about the promise of integration. Voluntary resegregation among black Americans, middle class as well as poor, came into vogue. Enrollment rose in historically black schools. Blacks of all classes created new black suburban and urban neighborhoods instead of attempting to integrate white areas. Even among students at elite colleges and universities, there was a rush toward segregation, with some creating separate housing and dining facilities for different ethnic and racial groups. In that framework Marshall had become an anachronistic figure, not in touch with the raw emotional power of popular black leaders such as Jesse Jackson. And Marshall was far from the anger and defiance of polarizing Black Muslim Louis Farrakhan, who openly espoused a completely segregated black nation.

Ironically, though, by the time Marshall died, several powerful forces, many produced by his lifelong work promoting equal rights, conspired to resurrect him as a national hero. First, as a lawyer Marshall had forced colleges and graduate schools to open their doors, producing more black professionals. As a federal judge he had become a champion of programs to expand business contracts and wealth for that black middle class. This rise in education and affluence among black Americans led to an unparalleled peak of black political power. At the time of his death, the number of blacks in Congress had reached record heights, forty in the House and one in the Senate.

This new, politically powerful black middle class was large enough to demand respect for the death of a major black figure. These younger black people were not Marshall’s generation, and because of his reclusiveness, they did not know him well as a popular figure. But it was in their political self-interest in a conservative era to use his death to generate support for policies—such as affirmative action—that Marshall had championed as the highest-ranking black American ever to serve in the national government. Liberal and moderate white Americans also wanted to celebrate him. For them Marshall was a positive black figure, a law-abiding, educated man, a strong counter to the hateful black perspective of a Farrakhan.

But even among those celebrating Marshall’s life for their own reasons, it went largely unremarked that Marshall had provided the grand design, a vision that led to a new structure of race relations in the United States. His demands for integration and his legal strategies were at the heart of the twentieth century’s battle to end legal segregation. As a child of turn-of-the-century Baltimore, he grew up in a Jim Crow world of
strict segregation in stores, restaurants, and water fountains. But he was also heir to a Baltimore community where free black people actively asserted their rights to live with whites as equals.

The young Thurgood Marshall’s experiences in this unique city were the foundation for his advocacy of equal treatment. It led him to realize that the law was the only tool for resolving the damning racial problems confronting America in the aftermath of legal slavery. Marshall eventually took those ideas into the courts, creating new laws, ending Jim Crow segregation, and reshaping American race relations. His legal work in the
Brown
decision is now heralded by both conservatives and liberals. In the words of Duke law professor and former solicitor general Walter Dellinger,
Brown
stands as “the most important legal, political, social and moral event in twentieth-century American domestic history.”

“When I think of great American lawyers, I think of Thurgood Marshall, Abe Lincoln, and Daniel Webster,” said Thomas Krattenmaker, a professor at Georgetown University Law Center. “He is certainly the most important lawyer of the twentieth century.”
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“He, in my opinion, did more to establish equal justice under the law than Martin Luther King or any other single individual,” said the former associate justice Lewis Powell. “No American did more to lead our country out of the wilderness of segregation than Thurgood Marshall.”
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The scope of Marshall’s achievement in American law, however, was wider than the black American civil rights movement. His every argument spoke to individual rights for all. Protections for black Americans or any other minority, in Marshall’s vision, were a function of the inviolable constitutional principle of individuals. When Marshall spoke about the nation’s future, he projected that when the law put blacks and whites on equal footing, racial discrimination would be submerged in a greater sea of protections for individuals. As Marshall once said, black Americans are not members of the Negro race but individuals in the human race.

As Marshall won case after case advancing the rights of black Americans, he left behind him case law protecting the rights of
all
citizens to vote in primaries, to protest, to live in any neighborhood, go into any park, get on any bus.

And once he was on the Supreme Court, Marshall’s rulings, both majority opinions and dissents, reflected an expansive view of the Constitution as essentially a manifesto of individual liberty. He was a guardian of free speech, even obscenity, for individuals and the press. He argued that a woman’s right to have an abortion was protected as a matter of privacy
under the Constitution. He supported prisoners’ rights to have unlimited appeals of rulings and unfailingly opposed the power of the state to impose the death penalty on anyone.

On cases dealing with school desegregation and affirmative action, Justice Marshall also cast his opinions as statements of individual rights, not simply as a class action for all black people. For example, his support of busing to integrate schools, even across jurisdictional boundaries, was based on the need to protect the rights of individual children who were being denied access to the best schools. And he viewed affirmative action as a matter of individual rights for black Americans, victims of discrimination who needed remedial action to be made whole.

“Thurgood Marshall stood for the broadest interpretation of almost all the provisions of the Constitution,” said Chief Justice William Rehnquist. “He was a very stout champion of individual rights. And he was an equally stout champion of minority rights.”
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His critics, however, argued that Marshall was to blame for an America that had become a battleground for lawyerly arguments over competing special interests and increased racial and ethnic divisions. Critics, for example, saw affirmative action as a contest of rights. They insisted that any preference based on race was a violation of every citizen’s right, regardless of race, to be treated equally.

Critics also argued that integration was not a cure for all that ailed black America. They contended that quality education, not integration, should have been the goal of
Brown
. Marshall had held that integration assured black children access to equal resources. Integration, by itself, however, had not improved the education of black children. Poor black children, for example, were often left behind in run-down schools as whites and even the black middle class fled to the suburbs to escape forced integration plans. Also, tracking children according to test scores had led to separation of black and white children even in nominally integrated schools. The black children, who generally scored lower on placement tests, were put into classes for lower achievers, while white children were generally taught in classes for top learners. This was a new version of separate but equal.

Marshall’s response to the critics had never been to back away from the promise of the
Brown
decision. Instead he called for even greater efforts at integration, such as busing children across city and suburban boundaries and government equalization of funding among the checkerboard of affluent and poor school districts.

Critics said Justice Marshall’s prescriptions for dealing with continued racial inequities simply added to racial polarization in the nation. They denounced his regular votes on the high court for any plan to advance the interests of black Americans and said he failed to engage in arguments over how blacks and whites could promote their unity. “I think he [will] be thought of as a great legal advocate, but I don’t think he would have been thought of as a great legal thinker,” said Chief Justice Rehnquist. “If you are a legal thinker, more or less, you can’t just champion the cause of a particular litigant. You have to deal with broader rules of conduct and rules that govern society and figure out how they would affect everybody.”

“Justice Thurgood Marshall will be lucky to rank somewhere in the middle of the 105 Supreme Court justices who have served the United States,” said the conservative legal writer Terry Eastland in a
Baltimore Sun
column. Eastland said that Marshall voted with Justice Brennan 94 percent of the time and that he “wrote few opinions of major significance, either for the Supreme Court or in dissent. He was not an intellectual force.”
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Even critics who questioned Marshall’s work on the Court, however, did not doubt his pathbreaking work as a lawyer and that he had shattered the ramparts of Jim Crow segregation. That was the real story—how Marshall built the infrastructure of American race relations in the twentieth century. He did not set out to do it; he was relatively indifferent to racial issues as a comfortable child of the black middle class. Even after his racial consciousness was raised in law school, he was content to make money instead of making history.

Once he found his true work with the NAACP, however, Marshall became a genuine American revolutionary. He could lay claim to the rare mantle of Americans who literally transformed their nation and defined not only their era but what would come after them.

Where Marshall’s grand construct of American race relations most strongly comes into question is in affirmative action. On the Supreme Court, Marshall nurtured the activist proposition that the law could be extended to offer preferences and other remedies to certain classes of Americans who had been victimized by bigotry in the past. However, as rapidly rising rates of immigration bring ever higher numbers of racial and ethnic mixtures to the United States, the conversation over race is no longer just between a once enslaved black minority and a white majority Hispanics and Asians now share a larger percentage of the population
than blacks. This is a different America than Thurgood Marshall imagined. Even a rising rate of racial intermarriage has added substantial new numbers of people who spill out of the Census Bureau’s standard boxes of black, white, and other.

But despite the growing distance between his experience of race in America and the current reality, the nation still relies heavily on the protections and individual rights Thurgood Marshall put in place to maintain successful race relations.

As I am writing this in 1998 there is an unparalleled rush of immigrants entering the United States. As a result there is a growing nativist backlash based on the new arrivals’ reluctance to fully assimilate into American culture. That has led to calls to make English the nation’s official language and sparked complaints that immigrants are taking jobs and seats in the universities, while also occupying a larger percentage of welfare rolls.

It is true that this generation of immigrants is not leaping aboard the bandwagon of assimilation; they want to live with people from their native land and often want to build schools and churches that will allow them to retain their ethnic and racial identities despite the heat of the great American melting pot. But even as the immigrants celebrate their heritage, they nevertheless insist on their individual rights and protections as Americans. They have often come to America for the same reason that previous generations of immigrants came here. They want to escape political and social oppression, they want more opportunity for their children, and they expect that the law will give them the right to be treated as equals in the political and business world.

What allows immigrants to thrive in America, despite continuing racism, anti-immigrant politics, and their own tendency to segregate themselves, is the bedrock of individual rights and freedoms developed by Thurgood Marshall’s legal work.

Due to Thurgood Marshall’s lifework, those rights are not going to be diluted even though the nation is experiencing rising rates of segregation in neighborhoods and schools. The cutting issue today is whether different levels of wealth and opportunity will attach themselves to different classes, limiting economic mobility.

Immigrants with money are able to move into the best neighborhoods regardless of who else lives there. However, both immigrants and native-born Americans who lack education and skills increasingly find they have little hope of moving up in society. This new divide in America
still falls heavily on blacks and other people of color who are disproportionately poorer than whites. But this division is not based solely on race or immigrant status: The dividing line now is access to education and professional opportunities.