Thurgood Marshall Still Asks Us To Protect The Less Powerful
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by Daniel Johnson
Thurgood Marshall is arguably the most important figure in modern judicial and legal history. Founder of the Legal Defense Fund as well as its first president and Director-Counsel, the first Black judge to sit on the Second Circuit of Appeals, the first Black Solicitor General, and finally, the first Black Supreme Court Justice, his shadow looms large over not just the Supreme Court, but the entire country as a whole.
During much of his time as a Supreme Court Justice, Marshall, it may be argued, functioned as the conscience of the Supreme Court. Marshall served on the civil rights minded Warren Court and by that point, was well known as a sharp legal mind due to high profile wins in the Supreme Court chambers as a lawyer. His most notable victory, Brown v. Board of Education in 1954, a case challenging the constitutionality of racial segregation in public schools, which did more than strike down segregation and instead exposed the gap between what the Constitution promised and what the country allowed.
Some time after this, in 1961, President John F. Kennedy nominated him to serve on the U.S. Court of Appeals for the Second Circuit but he would not be confirmed or sit on the bench until 1962 due to a delay in the confirmation process after racist opposition from Southern senators. Three years later, in 1965, President Lyndon Baines Johnson successfully convinced Marshall to leave the court and become the first Black Solicitor General, remarking at his swearing in ceremony that Marshall “symbolizes what is best about our American society: the belief that human rights must be satisfied through the orderly processes of law. At the pinnacle of our system of law is the great Supreme Court of the United States, and the Solicitor General is our first advocate before that great court. So it is a cause of profound satisfaction to me that in Judge Marshall we shall have an advocate whose lifelong concern has been the pursuit of justice for his fellow man.”
Marshall was a good fit for the Warren Court, widely considered the most liberal Supreme Court in history. Although he entered during the tail end of that era (1953-1969), Marshall was an important member of the court who served until his retirement in 1991, two years before his death.
According to Oyez, like he did as a lawyer, Marshall’s tenure on the court was marked by a deep belief in judicial activism. Like Justice William Brennan, Marshall argued against the death penalty, in favor of upholding individual rights, the expansion of civil rights, and limiting the scope of criminal punishment.
Marshall dissented more, The Marshall Project notes, once he ascertained that the Court, which had once expanded civil rights, was moving to the right. A forthcoming book from Wendy B. Scott and Linda S. Greene, entitled I Dissent: The Dissenting Opinions of Supreme Court Justice Thurgood Marshall will collect and examine his jurisprudence.
As the Carolina Academic Press, the book’s publisher notes, “He (Marshall) pursued dissent to advocate fair and just treatment of subordinated groups, to posit the connection between substantive rights and governmental rights and governmental power, and to write a counter narrative of the experience and oppression of minorities, the poor, and women. This book captures the essence of Marshall’s jurisprudence, contrasts his positions with those of other justices, and persuasively argues that Marshall’s work presaged the development of Critical Race Theory.”
As Juan Williams, whose seminal biography on Justice Marshall, Thurgood Marshall: American Revolutionary, wrote in The Atlantic in 2023, Marshall’s legacy still reverberates. This was nowhere clearer or more prescient than in a disagreement on Affirmative Action which opened the doors for today’s waves of anti-DEI sentiment and policy, between Supreme Court justices Ketanji Brown Jackson and Clarence Thomas during that year. As Williams points out in his argument, the parroting of Black nationalism without the weight of it from Thomas led Jackson to sound in Williams’ estimation much like Marshall, who he noted told him privately that Thomas’ interpretation of the law was wrong, much like Jackson did via her dissent.
The Roberts Court recently moved to undo the Voting Rights Act of 1965, which in large part owes itself to the early work of Thurgood Marshall. The Voting Rights Act of 1965 is understood by many to be perhaps the most important piece of Civil Rights legislation passed in the 20th Century, it gave Black Americans a pathway to political power that had been long denied by the gap between what the law promised and what the country allowed.
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In its ruling in Louisiana v. Callais, the majority opinion of the Supreme Court is at once divorced from actual political reality and also seems as though it was designed to favor the Republican Party ahead of midterm elections. To that point, Jeff Landry, the Governor of the State of Louisiana, has taken the unprecedented step of declaring a state of emergency to halt its primary elections in order to redraw its election maps, which, naturally, resulted in the governors of Alabama, Tennessee and Mississippi to call for special sessions to redraw their own maps.
As Bradley Heard, the deputy legal director at the Southern Poverty Law Center told Prism Reports’ Biplob Kumar Das, “The court was blind to the fact that there is a higher correlation between race and party in the Deep South. It is ahistorical and completely ignores the context in which the Voting Rights Act was brought.”
He continued, “In the Deep South, a white-majority seat is almost ostensibly a Republican seat. At the time, the Supreme Court struck down Section 5, (the Supreme Court struck down that section in 2013) saying that you had Section 2 to protect Black and brown voters. Well now you see what happened to Section 2 without Section 5.”
Meanwhile, Supreme Court Justice Elena Kagan, one of three justices occupying the Roberts Court’s liberal wing noted, much like Marshall likely would have, that the Voting Rights Act was quite literally born of the blood of Civil Rights protestors.
“[The Voting Rights Act] was born of the literal blood of Union soldiers and civil rights marchers,” Kagan noted in a dissent to the court’s ruling. “It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality.”
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She continued, situating the ruling in the context of the conservative wing’s long pursuit of the destruction of the Voting Rights Act. “It has been repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress. Only they have the right to say it is no longer needed—not the Members of this Court. I dissent, then, from this latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”
Marshall would very clearly object to the Conservative meddling of that wing of this court, because his interpretation of the Constitution as a flawed document seemed to be driven by his progressive ideals of the purpose of the law itself. In a 1987 treatise which was also printed in the Vanderbilt University Law Review, Marshall noted that “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. The government they devised was defective from the start.”
Marshall’s words hold a particular weight as the country approaches its 250th anniversary and is poised to attempt to in his words “oversimplify, and over-look the many other events that have been instrumental to our achievements as a nation,” especially if the ways in which the current occupant of the White House and his cabal of sycophants tend to participate in what may graciously be called revisionist history and may less charitably be called the fantasies of a fascist administration.
If the particulars of Marshall’s jurisprudence are any indication, in particular, his measuring of what is fair and what is right, according to Richard H.W. Malloy, who examined Marshall’s body of work as a jurist in a 1999 paper for the Pepperdine Law Review; it is necessary that we stand against this impulse.
Malloy’s paper, “Thurgood Marshall and the Holy Grail—The Due Process Jurisprudence of a Consummate Jurist” examines Marshall’s work as a judge, which largely focused on Due Process, and concludes with Marshall’s own words.
In his dissent in United States v. Salerno, Thurgood Marshall writes, Throughout the world today there are men, women, and children interned indefinitely, because their governments believe them to be “dangerous.” He continues, “Our Constitution… has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves.”
Notably, in today’s socio-political climate, the last sentence is the one that most effectively sums up both Marshall’s jurisprudence and the questions of morality, of decency that we find ourselves wrestling with. Do we, as a society, have the courage to protect ourselves or are we willing to sacrifice each other until no one is left to save us?
Daniel Johnson is a freelance writer based in East Texas. His work can be found in Essence, Teen Vogue, Scalawag, Level, Black Youth Project, Black Enterprise, Texas Observer, and Prism.
