Randall L. Kennedy
Professor of Law, Harvard University
Former Law Clerk to Justice Thurgood Marshall

Randall L. Kennedy

I grew up in a household in which Thurgood Marshall's name was invoked reverently. Born in 1954, the year that Brown v. Board of Education was decided, I am the son of African American refugees of South Carolina. My parents fled the state in 1957 to escape South Carolina's open, unembarrassed, and brutal pigmentocracy - the exclusion of blacks from positions of power or prestige, governmental indifference towards racially-motivated violence, and the confinement of blacks to inferior facilities. My parents talked openly with me and my siblings about the oppression they had sought to escape, or at least minimize, by moving to Washington, D.C. But they also praised memorably outstanding figures who bravely confronted the Jim Crow regime - people such as James M. Hinton and Modjeska Simkins, stalwarts of the South Carolina branch of the National Association for the Advancement of Colored People (NAACP), A. Philip Randolph, leader of the Pullman Porters' union, Paul Robeson, the entertainer-activist, Jackie Robinson, the star athlete who crashed professional baseball's color bar, and Reverend Martin Luther King, Jr., the champion of the Montgomery Bus Boycott. Among these heroes, none stood taller in my parents' estimation than Thurgood Marshall - the long-time chief attorney for the NAACP, the first African American Solicitor General of the United States, and the first black person to sit on the United States Supreme Court.

My Father especially enjoyed telling us about the time he went to see Marshall argue Elmore v. Rice in 1947. George Elmore was a black South Carolinian who sought to vote in the state's Democratic Party primary. In those days, the Democratic Party monopolized statewide electoral politics in South Carolina (and in all of the former Confederate states). Whoever won the Democratic Party primary for Governor or Senator was assured of winning the general election. Precisely because of the Democratic Party primary's importance, the leading whites in South Carolina politics conspired to bar blacks from it. They defended this racial exclusion on the ground that the Democratic Party was not an agency of state power, but instead a private organization to which federal constitutional restrictions did not apply. For a while federal law favored their position. In 1944, Marshall persuaded the Court to change the law. In Smith v. Alwright, the Court ruled that the Texas Democratic Party primary was so intertwined with supportive state law that it could properly be seen as a quasi governmental institution and thus subject to federal constitutional constraints. The Court concluded that the Texas Democratic Party could no longer lawfully use a racial criterion to exclude blacks from its primary.

South Carolina officials nervously responded by erasing from the state's statute books all laws governing primary elections. They believed that doing so would immunize the South Carolina white primary against the Smith decision by making the state primary a truly "private" affair. In 1947, however, Marshall successfully rebutted that contention. He convinced federal judges in South Carolina to order the Democratic Party to cease barring voters from its primary elections for racial reasons.

My father said that in the courtroom Marshall was a calm and confident man who evinced an easy-going cordiality alongside a dignified insistence that his argument prevail. Marshall commanded more deference, my father said, than any other attorney present. And he recalled that everyone, even opposing counsel, referred to Marshall as "Mr." Marshall - a noteworthy facet of his legend, since many southern whites refused to address any black man as "Mr." So-and-So. Segregationist etiquette apparently wavered in the face of Marshall's imposing presence - a reflection of his undeniable skill, and a morale-lifting victory in itself for blacks accustomed to casual denigration.

Another way in which titles are relevant to an understanding of what Thurgood Marshall has meant to many Americans involves the affectionate moniker that many blacks lovingly bestowed upon him in the 1940s and '50s. They called him "Mr. Civil Rights." They did so in recognition of Marshall's seemingly indefatigable work to end racial injustice.

Thurgood Marshall is rightly remembered most for his exploits in courtrooms. Sometimes he represented black defendants in criminal trials before hostile white juries. More often he represented clients before state and federal appellate judges, particularly the Justices of the U.S. Supreme Court. In Morgan v. Virginia (1946), he convinced the Court to reaffirm that state officials violate federal law when they impose racial segregation in inter-state transportation. In Patton v. Mississippi (1947), he persuaded the Court to reverse the conviction of a black defendant convicted by a jury from which Negroes had been excluded on a racial basis. In Hurd v. Hodge (1948), he convinced the Court to rule that the federal constitution forbids judges from evicting people who buy homes covered by racially restrictive covenants.

But litigation was not the only means by which Marshall contributed to the cause of racial justice. In speeches, pamphlets, and articles he persuasively clarified events that were often purposefully shrouded in misinformation. In 1943, for example, a race riot in Detroit resulted in 34 deaths, scores of serious injuries, and millions of dollars in property damage. The NAACP dispatched Marshall to determine what had actually transpired. He did so in an authoritative report aptly titled "The Gestapo in Detroit, " showing beyond reasonable dispute that local police had joined a mob of whites in terrorizing black neighborhoods.

Marshall raised money for the NAACP in countless meetings in churches, lodges, schools, and funeral homes. He cajoled, inspired, and sometimes shamed blacks into exercising their formal rights. In dealings with maids as well as doctors, cabbies as well as professors, he disciplined anger, steeled resolve, and lifted spirits. No wonder that black folk were known to ward off despair by saying to themselves with prayerful defiance: "Hold on, Thurgood's coming!"

Marshall's most significant legal victories as an attorney were the landmark 1954 Supreme Court decisions Brown v. Board of Education and Bolling v. Sharpe. In Brown, the Court invalidated laws in South Carolina, Virginia, Kansas, and Delaware that permitted or required officials to separate colored children from white children in primary and secondary schooling. In Sharp, the Court invalidated a similar federal policy applicable to the school children of the District of Columbia.

Although Marshall battled invidious racial discriminations in all major spheres of social life, he grappled with none more intensely and persistently than the race line in schooling. His first big civil rights victory arose from a case he brought on behalf of Donald Murray, a black man who sued the University of Maryland for refusing to admit him to its law school on account of his race. Although Maryland only had one public law school - for whites only - officials claimed that they provided "separate but equal" facilities to black citizens of the state by giving those who wanted a legal education a stipend to attend some other law school that did admit Negroes - even if the school was out of state. Marshall argued that the state's arrangement was inadequate. In response, in 1936, the Maryland Court of Appeals ordered that Murray be admitted.

Murray was an important development in Marshall's career. It gave him special satisfaction because just a few years earlier he had wanted to attend the University of Maryland Law School. A native of Baltimore, Marshall would have appreciated the convenience of attending the law school closest to home. Barred from doing so, he attended Howard University Law School instead (where he graduated at the top of his class and fell under the sway of Charles Hamilton Houston, the mentor of an impressive roster of distinguished civil rights attorneys.) Murray also reinforced Marshall's reputation as a rising star; soon after his triumph in Maryland Marshall moved to New York to work for the NAACP full-time. In 1938, he became the organization's legal chief.

Murray also served as of a model for a string of school desegregation lawsuits that preceded Brown. In Murray, Marshall did not challenge the constitutionality of separate but equal schooling. Rather, he convinced the Maryland courts that the state had failed to provide equal schooling for blacks. He refrained from attacking the constitutionality of segregation per se not because he accepted its validity; Marshall simply recognized that at that time, a direct challenge would have been futile, or even counter-productive. Although segregation was, from the outset, an invidious racial discrimination aimed at recording a governmental judgment as to the racial inferiority of Negroes, it was long viewed as merely an innocent, or at least permissible, racial distinction. Some of the leading jurists of the twentieth century, including Justices Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Louis Brandeis, accepted this atrocious fiction.

Throughout the 1930s and '40s, Marshall tried to squeeze as much equality as possible from the separate but equal formula. He filed numerous lawsuits, for example, on behalf of black teachers who demanded the same pay as their similarly-situated white peers. The aim of these suits was not only to win concessions on behalf of people who were victims of racial discrimination. The aim was also to make the provisioning of dual systems of public education prohibitively expensive. White supremacists responded by continuing to maintain segregation on the cheap. To pre-empt the sort of ruling announced in Murray, several states created professional schools for blacks virtually overnight. Marshall challenged the sufficiency of these responses, noting that these instant institutions were by no means equal to the established schools reserved for whites. In the most important of these cases, Marshall attacked the validity of actions taken by state authorities who created an instantaneous law school for blacks in Texas.

The Supreme Court agreed with Marshall. In Sweatt v. Painter (1950), the Court ruled that the new law school set aside for blacks was not only obviously unequal in terms of readily quantifiable assets such as the size of the library and the faculty. The Court also concluded that the new "black" law school in Texas was unequal because of non-quantifiable considerations such as the reputation of a school and the prestige of its alumni. Moreover, the Court recognized that a law school set aside for blacks could hardly be deemed the equal of a law school set aside for whites in a society in which whites constituted the vast majority of judges, attorneys, jurors, and legislators.

The Court's decision in Sweatt v. Painter emboldened Marshall and his colleagues to attack segregation itself. Thus, in Brown v. Board of Education and Bolling v. Sharpe, Marshall went beyond arguing merely that schools set aside for blacks were inferior to those set aside for whites. In addition, he asserted that the very act of setting aside schools for colored people would always and inevitably condemn such schools to an inferior status in the minds of the public (whites and colored alike), because the implicit purpose of segregation was to place an official stigmatizing brand upon people of color, marking them off as unfit to share facilities with whites. The Supreme Court finally agreed in 1954. "In the field of public education," it declared, "the doctrine of separate but equal has no place."

In 1967, after serving stints as a judge on the federal court of appeals and as United States Solicitor General, Thurgood Marshall was nominated by President Lyndon Johnson to a seat on the Supreme Court, a position to which he ascended after a tough confirmation battle with segregationists in the United States Senate. In 1984, I had the great opportunity and privilege of working for Justice Marshall as one of his four law clerks. Law clerks advised Justice Marshall on what cases he should urge the Court to hear, researched issues raised by the cases, suggested ways in which he should vote, and wrote opinions under his supervision.

I thoroughly enjoyed working for Justice Marshall. I especially enjoyed listening to the many stories he exuberantly told about struggles in which he had participated, dramas he had witnessed, and people he had known. Justice Marshall would regale us for hours about the generosity of Duke Ellington, the courageousness of Lyndon Johnson, the vices of W.E. B. Du Bois, the greatness of Roy Wilkins, the majesty of Lena Horne, the misguidedness of Paul Robeson, and the racism of Douglass McArthur. But Marshall's storytelling, wonderful though it was, never obscured his primary focus, which was on the daunting mountain of work that the Justices confront every Supreme Court term. He was an exacting taskmaster who allowed nothing to stand in the way of producing the legal work that he saw as his duty and mission.

Marshall did not care about formalities when dealing with his clerks. Thus, unlike certain members of the Court, he did not insist that we refer to him as "Justice;" indeed, his clerks typically called him "Judge." (In moments of great pressure I slipped and simply called him "Boss.") Justice Marshall cared intensely, however, about the quality of the work we produced for him. Early on he made it clear that he expected the work to be done excellently and on time. He also made it clear that if one of us disappointed him, he would take it out on all of us - a method of collective discipline that had the effect, if not the intent, of making all of the clerks keenly attentive to the doings of each of the clerks. I once asked him why he was hyper-obsessive about the timeliness and appearance of written work. Marshall's answer indicates the lingering effects of the harsh regime under which he grew to maturity. He told me that he had once heard a court official say to an attorney that he could always tell when he received a "nigger brief" because of the misspellings. The Justice recalled that he had resolved at that moment never to allow himself or anyone with whom he was associated to submit any writing that could be dismissed in such a fashion.

Some critics have asserted that Justice Marshall paid insufficient care to his duties as a member of the Court. I think here in particular of a caricature that appeared in The National Review which depicted the Justice asleep in his chambers. The best response to such allegations is to refer to the corpus of Marshall's writings as a Justice. Although it is true that he showed less interest in commercial matters than some of his colleagues, it is also true that he consistently delivered high-level work on subjects - federal taxation, for example - outside of those that exerted the strongest pull on his energies. As for the issues that matter most to the proper functioning of a pluralistic and individualistic democracy - freedom of expression, decent limits on policing and punishments, protections against illicit prejudices - Marshall rendered opinions (all too often dissents) that eloquently gave voice to the best in American constitutional traditions.

On the last day that I worked for Justice Marshall, I invited my father to the Court so that he could meet the man he had long idolized. It gave me great pleasure and pride to be able to introduce my dad to Mr. Civil Rights.

Other essays on Thurgood Marshall:

The Brown Decision and its Discontents by Waldo E. Martin, Jr.
Brown v. Board of Education by Leon Friedman