Remembering a SCOTUS Legend
51 years ago today, the great-grandson of a slave was sworn in as the first black justice on the Supreme Court of the United States. Thoroughgood Marshall (who reportedly rechristened himself “Thurgood” in second grade), a proponent of civil rights and a jurist who believed in the constitution as a living document, would serve on the court for 24 years.
Thurgood Marshall was born on July 2, 1908, in Baltimore, Maryland. He was the second child born to Norma Arica Williams, an elementary school teacher, and William Canfield Marshall, a waiter and country club steward. His family enjoyed a comfortable, middle-class existence. Marshall’s parents placed great emphasis on education, encouraging Thurgood and his brother to think and learn. Whenever Thurgood got into trouble at school, he was made to memorize sections of the U.S. Constitution. This well-intended punishment would serve him well in his later legal career.
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President John F. Kennedy (1917–1963) nominated Marshall in September 1961 for judge of the Second Court of Appeals. Marshall was confirmed by the Senate a year later after undergoing extensive hearings. Three years later Marshall accepted an appointment from President Lyndon Johnson (1908–1973) as solicitor general. In this post Marshall successfully defended the United States in a number of important cases concerning industry. Through his office he now defended civil rights actions on behalf of the American people instead of (as in his NAACP days) as counsel strictly for African Americans. However, he personally did not argue cases in which he had previously been involved.
In 1967 President Johnson nominated Marshall as associate justice to the U.S. Supreme Court. Marshall’s nomination was strongly opposed by several southern senators on the Judiciary Committee, but in the end he was confirmed by a vote of sixty-nine to eleven. He took his seat on October 2, 1967, becoming the first African American justice to sit on the Supreme Court. During his time on the Supreme Court, he remained a strong believer in individual rights and never wavered in his devotion to end discrimination. He was a key part of the Court’s progressive majority that voted to uphold a woman’s right to abortion (a woman’s right to end a pregnancy). His majority opinions (statements issued by a judge) covered such areas as the environment, the right of appeal of persons convicted of drug charges, failure to report for and submit to service in the U.S. armed forces, and the rights of Native Americans.
In addition to his time on the court, Marshall is also remembered for his role as an advocate in some of the most well known cases of his era. Notably, he appeared before the Court on behalf of Oliver Brown in the landmark segregation case Brown v. Board of Education of Topeka, and later on behalf of the United States as Solicitor General in Miranda v. Arizona, from whence came the famous “Miranda rights”.
In a time in which partisanship rules the day and confirmation hearings have become an all out war, that Marshall was confirmed 69-11 seems remarkable. Two notable “nay” votes: Senator Robert Byrd, who would later claim to regret his stance opposing civil rights, and Senator Strom Thurmond, who apparently did not.
As we await the fate of the currently pending nomination, take a minute to remember one of the most celebrated and accomplished justices in the history of our country.
I wish we had more justices like Marshall. Howard U, private practice, civil rights litigator, solicitor general. He had a good feel for how the law works in real life versus how it works in theory. A sharp contrast from the prep school-Ivy League-political/academia pipeline we have now.Report
If Thurgood Marshall isn’t one of your heroes, and you’re an American citizen, you need to re-evaluate your definition of the word “hero.”Report
I’ve been thinking in the opposite direction. Ignoring any present candidate or sitting justice, who is the worst person to have ever been a Supreme Court Justice? We have some notably bad presidents, with whom I am familiar, but it stands to reason there have been a few stinkers on the Court. But who are they? I have no idea, though I think these stories tend to be suppressed in the name of maintaining the Court’s standing. You know, “respect the institution”.Report
How do you evaluate worst? I am not a fan of the Gilded Age courts which allied itself in the interest of corporations and the monied interests under abstract theories of “liberty” and “freedom of contract.” Justice McKrenna (appointed by Wilson) was a miserable racist and anti-Semite whom refused to sit next to Brandeis (also appointed by Wilson) and Cardozo (appointed by Hoover) because they were Jewish.
Plenty of party loyalists have made it on the Supreme Court. Truman is an underrated President but his Supreme Court picks were less than inspired. The Gilded Age Supreme Court was packed with Railroad Lawyers.
There are plenty of people who would take some of my favorites and call them horrible justices. These include Warren, Brennan, Blackmun, and Douglas.
I think we have this myth that the Supreme Court is a non-political and non-partisan institution. I do not know if this is a true statement or not. There are ways we can contort the big decisions to make them look like non-partisan, non-political JUSTICE but this is a process involving lots of hindsight and retconning.
Maybe we would be more honest if we admitted that the judiciary can be and often is a political institution.Report
Well, ok. Let’s take Dred Scott. Nobody thinks that was a good decision these days, but the SCOTUS voted for it 7-2 and Roger Taney wrote the opinion. Does that make Roger Taney in the running for worst Justice, just like Andrew Jackson and Andrew Johnson are on my short list of “worst presidents”?
But I was more thinking about personal issues – criminal acts and so on. William Howard Taft was massively corrupt. Nixon lied, wiretapped, and stole his way to victory.
Is there any record of all of Justices behaving in this way? I just don’t know, though my understanding of what humans are says that probably, yeah, there were a few.Report
I’m on record regarding my opinions of Taney (and his now-removed statue).
As for worst Justice? For your consideration – James McReynolds. I can think of fewer more openly anti-Semitic Justices: he refused to shake Louis Brandeis’ hand in congratulations, would not speak with Brandeis for a year after he was seated, frequently walked out of chambers when Brandeis was speaking, and refused to sign a condolence card to Brandeis’ wife when his colleague died. He led a contingent of his colleagues to lobby against the appointment of Benjamin Cardozo so as to “not afflict the Court with another Jew.” Aside from that, he often skipped deliberations and sluffed off work to go duck hunting, on occasion causing delays in the issuance of opinions.Report
I recently listened to a podcast about an event at which the descendants of both Dred Scott and Roger Taney got together for a reconciliatory meeting. It was quite moving. It was especially interesting to hear Taney’s descendant talk about the conflict of feeling both deep pride and deep shame in his ancestor.Report
Forgot I had a link:
https://www.baltimoresun.com/news/maryland/politics/bs-md-scott-taney-reconciliation-20170306-story,amp.htmlReport
Well worth the read. Thank you!Report
Thanks, Em. I’m definitely going to watch this.Report
To be clear that link is just to a story about it. The podcast I referred to is “More Perfect”, episode from October 2 2017 called “American Pendulum II”.Report
Thanks. I’ll look it up.Report
Perhaps you mean McReynolds and not McKenna? McKenna was appointed by McKinley.
I’m chary of claiming the “Gilded Age” court was aligned lock, stock, and barrel with corporate and moneyed interests. I mean, yes, you can find a train of cases that seem to support the interests of corporations, but the decisions don’t strike me as so unrelentingly pro-corporate. “Liberty of contract” arguments were used to strike down the New York bakers’ law, but not the Utah miners law (and there’s some pushback now against the view that Lochner exercised such a stranglehold against state-based regulation….I’m not particularly qualified to judge those claims, but they strike me as strong enough to deserve being engaged). In Munn v. Illinois, some state regulation was upheld even though at first glance one might have expected a negative commerce clause argument to prevail. The court invalidated the antitrust law’s application to the American Sugar Refinery Company, but approved the prosecution against Northern Securities. The Santa Clara decision seems at first glance to create a “corporations are people deserving of rights” attitude, but I understand the reality is more complex than that (again, I’m not enough of a lawyer–actually, not a lawyer at all–to comment knowledgeably about that, but take a look at this talk on cspan).
It’s probably true that most of the “Gilded Age” justices had been railroad lawyers. But I’m not sure how many lawyers weren’t at some point railroad lawyers. I understand Lincoln had sometimes represented railroad companies. (I don’t know that, but it’s something I’ve heard.) If Elizabeth Warren were appointed to the court, an opponent might cite some of the high profile corporate interests she had represented in the past, but that wouldn’t by itself mean she’d be an unquestioning defender of their interests on the court.
I’m not saying my points disprove what you’re saying. They certainly aren’t a definitive refutation. But to me, to say the Gilded Age court served the interests of corporations and moneyed interests–and to leave it at that–strikes me as a question-begging caricature. It’s question-begging because it assumes that because we know the outcome, we’ve demonstrated the court brought it about, and it’s a caricature because it ignores the contingencies the court had to deal with.Report
Nice.
Not so nice – the twenty Senators that abstained.
Awkward – the title of the confirmation vote
Curious – the abstentions weren’t all ‘old school’ Southern Democrats. Neither Muskie nor McGovern voted either.Report
Some of that might have been vote trades. I.e. I won’t vote if you don’t vote.Report
Nor Gene McCarthy, nor Mike Mansfield. Nor Richard Russell, surprising on the other side.
The only No vote by the GOP was Thurmond, because the South was still Solid.Report
One of the bright spots is Spong’s vote from Virginia, who was an anti-segregationist and anti-(Harry) Byrd machine guy – and promptly lost his first re-election opportunity to a Republican (one of those ‘first Republican since Reconstruction’ victories) in Nixon’s ’72 wave.Report