What Thurgood Marshall Taught Me

[maestrob]

COMMENT: This is quite long, but really worth the time you'll spend reading it.

He became the first Black Supreme Court justice, and the stories he told his clerks — like me — revealed how he helped break down America’s color line.

By Stephen L. Carter
Published July 14, 2021
Updated July 15, 2021

There’s a story Thurgood Marshall loved to tell about the day the Supreme Court handed down its landmark 1958 decision in Cooper v. Aaron, ordering the integration of the public schools of Little Rock, Ark., and openly chastising state officials for seeking to interfere with the decrees of federal judges.

Marshall argued the case, and the justices unanimously took his side. “The constitutional rights of respondents,” wrote the court, “are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.” Black people — or Negroes, as he would have said — were jubilant. After the decision was announced, Marshall climbed into a taxicab in New York, heading to a celebration. The Black driver had no idea who his passenger was, but seeing a well-dressed man of his own race, he asked if he’d heard about the verdict.

Marshall grunted an affirmative.

“What a great day for our people!” the driver enthused.

Marshall agreed.

The driver broke into a smile. “God bless Martin Luther King!” he cried.

Marshall would chuckle as he recited the punchline. He wasn’t complaining. Even back in the 1950s, he’d had several lifetimes worth of recognition. But like all his stories, this one was intended to make a point: It was a reminder of how, in the popular image of the civil rights movement, protests are everything, and the law is a sideshow.

Like that cabdriver, we’ve overlooked vital chunks of history. Most of those people nowadays who consider Marshall a hero cherish his votes on the Supreme Court. They admire him not for who he was but for his usefulness to their causes.

And he was indeed a reliable vote for broad, liberal interpretations of the Constitution on issues ranging from racial justice to abortion rights. Early in his tenure, he helped establish the modern understanding of the right to privacy, authoring the court’s unanimous 1969 opinion in Stanley v. Georgia, which upheld the freedom to possess pornographic materials for private use, a decision celebrated at the time, with a certain sexist nostalgia, as the “man’s home is his castle” case. And although in the end Marshall did not prevail, he remained until his last day on the court its leading voice for the abolition of the death penalty.

Yet there is something tragic and illiberal in evaluating other people according to their usefulness to our causes. In the particular case of Thurgood Marshall, remembering him only for his votes, or even for the remarkable success of his work as the leading civil rights litigator in the nation’s history, deprives us of the opportunity to admire the fullness of his humanity.

This June marked the 30th anniversary of Marshall’s announcement that he was retiring from the bench. And although the realization makes me dizzy, it’s been over four decades since he hired me as one of his law clerks for the 1980 term of the Supreme Court.

On and off for the next dozen years, I sat at the feet of the man his clerks used to call the Judge and listened, enthralled, to his stories. During the year I worked for him, the late afternoon was often story time, when he would settle in a convenient chair and, eyes bright with memory, share details of his extraordinary career. On later visits to the court, I would sit in his sunny, capacious office, eager to hear more. And during the last year of his life, the two of us spent a great deal of time together in the smaller upstairs chambers assigned to him upon his retirement, because he had asked me to serve as the interviewer for his official oral history for the Federal Judicial Center. Our conversations lasted countless hours but also all too few. The recordings remain sealed, but even outside the audio taping, we talked. Or, rather, the Judge talked; I listened and learned.

Marshall was among the great storytellers, heir to an American tradition stretching back to Lincoln and beyond. He told stories to teach lessons — and also like Lincoln, he never told the same story quite the same way twice. The message was what mattered.


So let’s consider some of his stories, and the lessons they taught. The first concerns a lawsuit that arose in the 1960s while Marshall was a judge on the United States Court of Appeals for the Second Circuit. The plaintiff was well known in New York’s federal courts because she filed complaints regularly, the sort of complaints that claim that the government has installed electrodes in the plaintiff’s brain to steal her ideas for television shows — things like that.

Her lawsuits were always thrown out, her appeals always dismissed without a hearing. Anyone who has worked around the courts knows there’s no other way to handle a litigant in the throes of delusion.

At this time, the chief judge of the circuit was J. Edward Lumbard. As Marshall told the story, Lumbard, without a word to anyone else, put the woman’s appeal on the calendar for oral argument. Nothing like this had happened before. Nobody could figure out what was going on.

On the day set for oral argument, the United States attorney sent along “the Most Junior Junior Assistant” with instructions to say 10 very precise words, and no more.

The clerk called the case. The plaintiff, representing herself, got up to make her argument. She rambled incoherently as the three-judge panel sat impassively.

When her allotted 15 minutes had elapsed, the plaintiff returned to her seat. Judge Lumbard, who was presiding, turned to the Most Junior Junior Assistant United States attorney and invited him to respond.

The Most Junior Junior Assistant stepped to the lectern. With great confidence, the young man recited the 10 very precise words he had been instructed to say:

“May it please the court, we rest on our brief.”

With that, the Most Junior Junior Assistant sat down. He had done his job, and although he had uttered only 10 words, he could put on his résumé that he had argued a case before the United States Court of Appeals.

And what had his argument been? In the grandiloquent language of the law, the Most Junior Junior Assistant had stated that the appellant’s case was so utterly frivolous, so completely lacking in merit, that there was no need for the appellee to respond. To rest on one’s brief is tantamount to a wink and a nod: We all know you’re going to rule our way, so why bother to pretend?

Almost always, the party resting on its brief is allowed by the court to do so.

But not this time.

Lumbard glowered. He got to his feet, unheard of from a judge in the middle of argument. Lumbard was not a physically towering man, but when he stood on the raised dais and glared down at the Most Junior Junior Assistant, he seemed 10 feet tall. His voice thundered:

“Are you trying to tell me, young man, that after this woman, in the exercise of her fundamental constitutional right to petition her government for the redress of grievances, has come into this courtroom to argue her case, her own government will not even do her the dignity of a response? Get up here and argue, sir!”

And so the Most Junior Junior Assistant returned to the lectern and after a bit of fumbling began, nervously, to repeat what the government had argued in its brief. After a few minutes, Judge Lumbard told the young man that he could sit.

A couple of weeks later, the court dismissed the appeal without comment, leaving mysterious the reason the case had been placed on the calendar. But that wasn’t the end of the story. Here’s the kicker:

The woman never filed another lawsuit.

Marshall had a simple explanation: She was satisfied. She had been heard, and she had seen the chief judge of the Court of Appeals yell at the government’s lawyer on her behalf. She felt vindicated.

You might say: Oh, well, it was all just symbolic. After all, she lost the case.

That objection misses the point Marshall was trying to make. At one level, the story is a cautionary tale about access to the courts. Few rights, years of litigation had taught him, are more precious. Southern judges and legislators sought constantly for ways to toss out the N.A.A.C.P.’s lawsuits — or keep them from being filed. Not until 1963, after Marshall was appointed a federal appellate judge, did the Supreme Court strike down a particularly devious Virginia statute that manipulated the definition of improper solicitation to make it nearly impossible for civil rights lawyers to line up clients.

Unsurprisingly, Marshall’s own opinions reflected a broad approach to the issue of access. In Bounds v. Smith (1977), Marshall wrote for a 6-3 Supreme Court majority that the “fundamental constitutional right of access to the courts” requires not only that prison inmates “be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them,” but that penitentiaries also provide either “adequate law libraries” or free legal assistance.

Still, the Judge could be a stickler over filing deadlines and other arcane procedural rules. He would remind us of the hoops the Jim Crow judges made him and the other N.A.A.C.P. lawyers jump through. He figured that the least today’s lawyers could do, facing far less onerous challenges, was get their papers to court on time.

At another level, the story about Lumbard is a cautionary tale about the importance, in a democracy, of being heard. In particular, those who govern must always be prepared to listen, even to the views of those so different they seem crazy.

Now and then, the Judge liked to say, the crazy people are right.

Not that Marshall was ever supposed to be on the Court of Appeals, any more than he was ever supposed to be a justice of the United States Supreme Court. Jim Crow’s protectors did everything in their power to keep both prizes from his grasp. To this day, the 1967 battle over Marshall’s confirmation to the Supreme Court remains one of the two most vicious in our history — the other being the 1916 fight over the nomination of Louis Brandeis, in which the opposition to the first Jewish justice included seven former heads of the American Bar Association, the president of Harvard and former U.S. Attorney General George Wickersham, who described Brandeis’s supporters as a “bunch of Hebrew uplifters.” But because there was no television — cameras were not introduced until 1987 — we engage in collective forgetting.

I’ve written elsewhere in detail about what happened when Marshall was nominated. Here, let it suffice to say that part of the opposition was aimed at proving that he was a Communist sympathizer or at least a dupe with questionable connections. Another part was intended to show, in the words of one senator, the Mississippi Democrat James Eastland, that the nominee was “prejudiced against white people in the South.” But the largest chunk was aimed — predictably — at proving that the first Black nominee was ... not smart enough. Never mind that he graduated first in his class at Howard University School of Law. Never mind his remarkable record as an advocate. (Marshall won 29 of the 32 cases he argued before the Supreme Court.) He was Black, so by definition he could not possibly be up to the job. That Marshall’s hearings weren’t televised was a blessing, because had this nonsense been broadcast to the nation, goodness knows how the vote would have come out.

He’d remind us that he was the only justice who’d ever been in handcuffs.

Of course, the opposition, led by Southern Democrats, worried most about how he would vote as a justice. Back then, the liberal position in our politics was that such inquiries were beyond the purview of the Senate. Fred Graham, writing in The Times, argued that because there existed widespread agreement that it was “improper” to discuss “the nominee’s ideological position on current issues,” the hearings tended “to degenerate into exercises in political flapdoodle that detract from the dignity of both the Senate and the nominee.”

Marshall agreed. At his confirmation hearings, when pressed by opponents on controversial Supreme Court decisions, he took refuge repeatedly in the principle that he should not discuss cases that might come before him. This was no confirmation conversion. Marshall adopted this view long before there existed the remotest prospect that he himself would one day sit on the court. In 1937, he joined the N.A.A.C.P. in supporting the confirmation of Hugo Black, when some people worried that his former opposition to anti-lynching legislation — or more important, his rumored Ku Klux Klan membership — would lead him to vote against civil rights plaintiffs. (It didn’t.) In 1949, as the left geared up for an all-out effort to prevent the appointment of Tom Clark, who as attorney general maintained the government’s list of dangerous subversives, Marshall dissented. (Marshall could scarcely have imagined that 18 years later, he himself would be Clark’s successor.) In our conversations, the Judge never wavered from the view that the likely votes of a potential justice were none of the Senate’s business.

Which is not to say that Marshall himself didn’t care. At the time we began the oral-history interviews in 1992, the hearings on Clarence Thomas’s nomination to succeed him had recently concluded. Most of what the Judge had to say about Thomas was off the record. Still, it’s hardly news that he would have preferred a successor with views somewhat closer to his own. But there was one point he emphasized repeatedly, harking back, perhaps, to his own bitter experience:

Grilling the nominee about potential votes was a terrible idea.

A racist image of Marshall as lazy and disengaged lingers, fed perhaps by his cartoonish portrayal in “The Brethren,” a behind-the-scenes account of the Supreme Court by the journalists Bob Woodward and Scott Armstrong that was published the year before I began my clerkship. The Marshall of the book rarely gave the cases before him much thought and was more interested in soap operas than the work of the court. The Judge was wounded, but not because most of what the book had to say about him was absurd. His skin had always been thick. He had endured far worse — and not only from the Dixiecrats who fought viciously but unsuccessfully to keep him off the Supreme Court.

In 1961, for example, when President Kennedy nominated him to a seat on the United States Court of Appeals for the Second Circuit, the American Bar Association declined to give him its highest rating. Marshall shrugged off the predictable insult from an organization that just 11 years earlier refused to admit Black members. During his nearly four years on the appellate bench, he wrote 112 majority opinions without a single reversal.

But insults weren’t the worst of it. The first major civil rights case he ever tried, against the University of Maryland’s lily-white law school, prompted death threats. He pressed on and won. (The color bar had been firmly in place when Marshall, a Baltimore native, applied to law school, and decades later he was still bitter.) During the decades he spent crisscrossing the South and Midwest, trying civil rights and criminal cases, often for little or no remuneration, menacing letters and phone calls became commonplace.

The intimidation was more than mere background noise. On a dark Tennessee night in November 1946, Marshall came within mere minutes of being lynched. (More on that in a moment.) Years later, during his confirmation hearings for the Court of Appeals, he would face angry grilling over his public suggestion that the Ku Klux Klan was in league with the devil. He didn’t back down.

So although the Judge was surely bothered by his portrayal in “The Brethren,” he was ultimately too experienced and tough to be annoyed by a handful of stereotypes. His pain stemmed rather from a sense of betrayal. His chambers were warm, and he treated his clerks like family. Over the years, he took us into his confidence. At his home in Virginia, his wife served us marvelous dinners. The Judge himself beat us soundly at pool. The secrecy of the internal work of the chambers was a sacred trust. Marshall always believed in keeping his word. The clerks whom he suspected of speaking to the reporters had broken theirs. (I refused to speak or write publicly about the Judge until the mid-1980s, when he gave me explicit permission.)


About that near-lynching. The story has been told so often that it’s easy to forget why Marshall repeated it. Short version: Marshall and two other lawyers were in Columbia, Tenn., to try the case of two Black men who in self-defense had fired on a mob of white hooligans. As they left the city with the Judge at the wheel, the police pulled them over. Marshall was arrested and charged with drunken driving. They put him in the back seat of a police car. On each side was a deputy, gun drawn. The car took the turnoff for Duck River, where many a Black corpse had been hidden. Reliving that night, Marshall was solemn. He thought his time had come. He learned later that a white mob was indeed waiting for him at Duck River.

What saved his life was that the other lawyers, in a remarkable show of bravery, followed the police. Realizing that there was no way to spirit Marshall secretly to the end planned for him, the officers gave up and returned to the highway. Back in Columbia, he was hauled before a justice of the peace. (Sometimes Marshall said magistrate; other times, judge.)

At this point in the story, Marshall’s eyes would glow once more with their usual delight. The justice of the peace said Marshall would go free if he could pass one little test. The justice, a teetotaler, declared that he could smell alcohol miles away. He invited Marshall to breathe in his face — and immediately found him not guilty.

Marshall would laugh and laugh when he told this story. But for once the rest of us didn’t laugh along. We had thought we understood the struggle to which the Judge had devoted his life. By bringing the shadow of death into the room, he had reminded us all of the stakes.

And whenever the Supreme Court heard a case involving the rights of criminal suspects, he’d remind us that he was the only Justice who’d ever been in handcuffs — or sat on the wrong side of an interrogation table.

Another story, in its own way equally horrifying, was set in the 1940s, inside a pool hall somewhere in the Deep South. Marshall sat at a table, drinking with friends, when a Black man he didn’t know approached and, hesitant, asked for a word. Marshall invited him to sit, but the man preferred to stand.

“I hear you’re a lawyer,” the stranger said. “Is that right?”

“That’s right.”

“You’re educated? You’ve been to college?”

“I have.”

“So, do you know anything about this resurrection business?”

“A bit.”

“Well, I hope you have some influence. Because if I come back after I die? I want you to arrange for me to come back as a rat or a pig or even a bug. Anything. Just don’t let it be a Negro.”

When the Judge told that story, he never laughed. Instead, he grew introspective — and would, for once, explain himself. To Marshall, the tale illustrated what the struggle was really about. School desegregation or employment equality or voting rights, all were important, but none were ends in themselves. They were goals in the service of creating a world in which Black people would no longer see themselves the way the stranger in the pool hall did.

Yet despite the insults, despite the threats, despite the risks to his own life, the Judge found in his heart little room for hatred. Many of his tales involved what he called “playing cards and drinking whiskey.” And who were his card-playing, whiskey-drinking partners? Usually his friends and colleagues, but now and then — to hear the Judge tell it — they were some of the most notorious segregationists of the era. Marshall would sit with them in back rooms across the South, making deals.

Marshall particularly liked to tell the story of playing cards one night with a notorious segregationist governor. Marshall reminded the governor that no Black nurses were employed at any of the state hospitals — including the colored hospital. If nothing changed, there would probably be a lawsuit.

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The governor considered. ‘OK, Thurgood,” he said. “I’ll fix it. You won’t like the way I fix it, but I’ll fix it.”

A few days later, the trustees of the state hospital system met. The governor, an ex officio member, put in a rare appearance. And the way Marshall told me the story, the governor stood before the trustees and said something like this: “I was visiting the hospital the other day. I went over to the colored ward, and there, to my astonishment, I saw the flower of Southern womanhood tending to every need of colored men — ”

At that point the governor was interrupted by an uproar. That very day, the trustees voted unanimously to hire the first Black nurses in the state’s history. The governor called Marshall on the phone and said: “See? I told you, you wouldn’t like how I’d fix it.”

Offensive, to be sure, but that made no difference to Marshall. Although I’ve long wondered whether the story might be apocryphal, it illustrates his central ethic. Marshall’s goal was to get things done. “You could do business with him” — that was his highest praise.

Sitting in those smoke-filled back rooms, he did business with lots of people whose identities would stun a modern audience. Decades later, he still remembered many of the infamous segregationists of the age with respect, and even a kind of distant affection. People, he would say, are complicated.

I once asked him what he thought of John W. Davis, the prominent lawyer who argued the other side in one of the consolidated cases known collectively as Brown v. Board of Education. Davis, the 1924 Democratic presidential candidate, is the Davis for whom the prestigious Wall Street law firm Davis Polk & Wardwell is named. He was also an old-school West Virginia gentleman — and a dyed-in-the-wool segregationist.

Naturally, I assumed that the Judge would heap hellfire and damnation upon Davis’s head.

I was mistaken.

“John W. Davis?” Marshall said with a smile. “A good man. A great man, who just happened to believe in that segregation.”

Marshall wasn’t being facetious. He was making a point, one he made over and over. To the Judge, those who disagreed with him on the most important moral issue of the 20th century in America did not thereby lose their humanity.

How is that possible? Because he was able to reach across that deep moral divide and find commonalities with those on the other side. Only rarely did he see his opponents as evil; most were simply misguided. People, he knew, can be complicated.

Consider Davis. He believed passionately in the cause of “states’ rights” and had an ardent faith in a Constitution interpreted according to the original understanding. But his politics didn’t always lean toward the right. He denounced the Ku Klux Klan in the 1920s when the group was powerful in the Democratic Party. He had represented West Virginia coal miners who were prosecuted for little more than protesting in violation of a court order. Right around the time of the Brown decision, during the most oppressive years of the McCarthy era, Davis worked with the estimable Lloyd Garrison to fight the order stripping the physicist Robert Oppenheimer, father of the atomic bomb, of his security clearance, because of supposed Communist sympathies.

Complicated indeed.

I often hear people dismiss Marshall’s warmth toward his opponents as merely a “tactic” — the necessary if uncomfortable move of the era. No doubt his attitude contained an element of that. But to treat Thurgood Marshall’s gregarious humanity, his ability to see past differences, as a notable act of insincerity, a kind of minstrel show in the service of the freedom struggle, is to peer at one of the towering figures of history through the same distorting lens that accounts for the smallness of today’s political vision. I spent enough time with the Judge to be certain that his warmth toward his opponents was genuine, characteristic of a man who so delighted in his fellow human beings that it was difficult to earn his enmity. That our commonalities are greater than our differences is a cliché, but Marshall believed it to his core.

His belief in America was strong, and his distaste for communism equally so. Nevertheless, he opposed punishment for the blacklisted screenwriters, directors and producers known as the Hollywood 10, a choice that could have cost him dearly in 1967, when opponents of his nomination to the Supreme Court used his support for the constitutional rights of those whose views he disliked as evidence of his radical sympathies. But for Marshall free speech was a near absolute, a right to be enjoyed by those whose ideas were most pernicious.

The Judge never believed in measuring speech by its potential for danger. In 1969, the radical Belgian economist Ernest Mandel was invited to speak at Stanford University. Mandel was an unapologetic Marxist, and the Nixon administration denied him an entry visa. When a majority of the Supreme Court declined to intervene, Marshall authored a thundery dissent: “Americans cannot be denied the opportunity to hear Dr. Mandel’s views in person because their government disapproves of his ideas.”

The Black radicals of his day the Judge dismissed as a sideshow. ‘Tell me one thing he ever did for anybody,’ he’d say of Malcolm X.

Marshall also “disapproved” of Mandel’s ideas. He hated most forms of radicalism, left or right. To the Judge, Communists and Klansmen each constituted dangers to democracy, but he insisted upon their right to be heard. Small wonder that in 1977, he provided the key fifth vote to allow the Nazis to march in Skokie. (Though in the end they thought better of the idea.)

In his dissent in Ernest Mandel’s case, Marshall quoted Brandeis: “The fitting remedy for evil counsels is good ones.” The fact that those who might be interested could find the scholar’s views in print was “no substitute for live, face-to-face discussion and debate.”

That isn’t to say that Marshall was uncritical, even of theoretical allies. He was angry about President John F. Kennedy’s decision to postpone introducing civil rights legislation to avoid harming the rest of his agenda and would later question his dedication to the cause of equality. He had his differences with Lyndon Johnson as well but gave him credit for pressing forward with the civil rights laws, even with the knowledge that it would most likely end his political career. Johnson was also the kind of hard-drinking, storytelling back-room bargainer Marshall liked.

The Black radicals of his day the Judge dismissed as a sideshow. “Tell me one thing he ever did for anybody,” he’d say of Malcolm X — and in various interviews said worse. But we can understand Marshall’s fury. After all, Malcolm X had called him a “handkerchief-head” who did as his white masters told him. Particularly rankling was the fact that Malcolm had on one occasion given an angry crowd Marshall’s home address.

Even the mass protest wing of the civil rights movement, nowadays celebrated as its linchpin, met with Marshall’s skepticism. Years later, he continued to wonder aloud how he was supposed to keep insisting that the segregationists had no choice but to comply with the edicts of the courts when those on his side claimed the right to disobey laws they considered unjust. For Marshall, law possessed a talismanic quality, representing all that was best in American democracy.

Yet the Judge was hardly blind to the imperfections of the legal system. In a much-quoted 1981 dissent, he condemned the “simplistic penological philosophy that, if we lock the prison doors and throw away the keys, our streets will somehow be safe.” In a 1978 speech at Howard University, he criticized American apologists who were fond of pointing out that South Africa treated Black people worse: “So what! We are not in South Africa. We are here.” Still, he considered law the crucial tool for the betterment of society, a lifelong credo perhaps best expressed in a 1968 address in Chicago. “The changes which are to be won must be won,” he told the audience, “but they must be achieved through law.” As for those who considered legal change too slow, Marshall politely disagreed: “The law is not always the fastest or the shortest road to justice, but we must take it nevertheless.”

His faith in human reasonableness was nearly as great, and at times it could make him sound naïve. In 1956, he told The New Yorker that he could not imagine that widespread resistance to integration would continue in the face of court orders, a prospect he labeled “the end of the country.” A year later, as Jim Crow’s battle for survival grew more turbulent, he did a television interview with Mike Wallace. A few minutes into the video, Wallace poses this question: “Do you feel any sympathy for, any understanding of the Southerner, the white Southerner who is forced suddenly to change not only his attitude but his whole way of life?”

Marshall was being invited, on national television, to condemn those who had fought the equality of his people over every tiny inch of ground. But he sat calmly, then offered this reply: “I have as much sympathy as I could have for anybody. I recognize it is a tough problem. It’s a problem that at times would seem to the average Southern white man as being insoluble. I recognize it, and I for one would do everything in my power — so would the N.A.A.C.P. — to work it out in a way that would be satisfactory to both sides’ concerns.”

But this wasn’t naïveté. It was a mark of the genuine grace with which he viewed other people. And it was his ability to find that human connection, to reach out across the greatest moral divide of the 20th century, that enabled the Judge to accomplish so much while maintaining his fundamental dignity and decency. Without that quality, he would have been just another lawyer.

When Marshall was offered advice he didn’t like, he often responded with a brisk witticism: “There’s only three things I have to do: stay black, pay taxes and die.” He was only half-joking. If there was one thing the Judge hated, it was being told what to do. He always went his own way.

An example: When I went to work for him in the summer of 1980, the Judge was still using “Negro” to refer to the race. He hated the term “black” — back then spelled with a lowercase B — which had often been an opprobrious way of talking about the people to whose fight for equality he’d devoted his life. Whenever anyone raised the question (and for the most part nobody dared), he would answer that he’d spent his life fighting for the capital N in “Negro” and wasn’t going to let “a bunch of kids” (sometimes put more strongly) tell him what he should call himself.

Today we scarcely recall the titanic struggle over capitalizing “Negro.” The New York Times, for instance, didn’t make the change until 1930, when Marshall was already in his 20s. A number of newspapers waited until after Brown was decided.

A couple of years before his retirement, the Judge switched to “Afro-American,” but he never seemed comfortable with the term. Across the many hours we spent together during the final year of his life, “Negro” remained his descriptor of choice. He’s the reason I don’t consider the word an insult. As for always going his own way — he helped teach me that too, even though our mutual devotion to intellectual independence now and then led us into disagreement.

Not that he could always go his own way. Jim Crow prevented it. That was the point of another favorite Marshall story. This one was set in various places — once Mississippi, another time South Carolina, yet another Oklahoma — and involved the time Marshall was trying a case in a small, segregated town. He was standing at the train station — or was it the bus station? — when a sheriff’s deputy approached. “Son,” the deputy said — or was it “Boy”? — anyway, the rest of the tale is what matters: “The sun has never set on a live nigger in this town.” At that point, with his audience sick with disgust and full of dread, the Judge would laugh: “So I tucked my constitutional rights in my pocket and got the hell out of Dodge!”

You have to pick your moments, he was saying. Or at least, in the places he tried cases, he had to. That was why he was careful not to defy local segregation laws: He was in town, he used to say, not on his own behalf but on behalf of his clients. He was willing to suffer a little in the cause of alleviating their far greater suffering.

But the moments he picked! Consider City of Memphis v. Greene (1981), in which the majority refused to disturb the city’s decision to build a barrier that kept Black traffic from traversing an all-white neighborhood. Reading Marshall’s dissent, you can hardly miss the echoes of that deputy who told him to get out of town before sunrise: A “group of white citizens has decided to act to keep Negro citizens from traveling through their urban ‘utopia,’ and the city has placed its seal of approval on the scheme.”

The Judge always had a felicitous turn of the simplest phrase, what I thought of as the pinpricks, the sharp little barbs that made big points: like the November 1981 oral argument in a death-penalty case, when Justice William Rehnquist asked why taxpayers should have to foot the bill for what the petitioner preferred, a life sentence together with psychiatric care. Marshall, who rarely spoke in the courtroom, leaned toward his microphone and intoned, “Well, it would be cheaper just to shoot him when you arrested him, wouldn’t it?” The unusually sharp exchange made the news. (Marshall’s side prevailed.)

Or the time a clerk sent a memorandum to let the Judge know that an appeal had been filed in a case raising an issue dear to his heart. We assumed he’d want the court to hear the argument. The memo advised that he “Join 3” — meaning, provide the required fourth vote to hear the appeal if three other justices were interested. The note was returned with the words “Join 8!” in red, heavily underlined — signifying that Marshall wanted the Supreme Court nowhere near the issue until he had a lot more than four votes on his side.

Or the time I asked him why he was so adamant in opposition to capital punishment. “Same reason I’m against war,” he said, deadpan. “Thou shalt not kill.” Then the familiar laugh: “I still eat meat, though.”

And even the occasion of our first meeting, in the spring of 1978. I was still a law student, and Marshall came up to Yale to preside over the final round of the moot-court competition. Just before dinner, his wife, Cissy, introduced us. “Thurgood,” she said with her beautiful smile, “this is Eunice Carter’s grandson.” (Eunice, my grandmother, had been a prosecutor in New York and a friend and neighbor of the Marshalls.) The Judge gave me a skeptical look. “So what?” he said, and stalked away.


This was not, as you might suppose, an act of rudeness; at least I’ve never taken it so. Marshall’s retort was, instead, a rejection of the idea that success should be a matter of what connections you have. He was not about to treat me any differently from anyone else just because he knew my deceased grandmother decades earlier.

One last pinprick: When, after his retirement, the Judge invited me to serve as interviewer for his official oral history, I called the chambers and asked why.

“Because I like to live dangerously,” he said.

About that first meeting while I was a law student. After dinner, Marshall stood up to say a few words.

The hero of the story was an unnamed man who went to Las Vegas for a gambling weekend. And it wouldn’t be a good story — the Judge said — unless he lost all his money.

So he did.

When you lose all your money, the story continued, two things happen. You get hungry, and you need to use the restroom. (Yes, in some of his tellings, the Judge described this need more colorfully.)

So our hero, having lost all his money, went into the restroom, only to discover that you had to pay to use the stalls. Twenty-five cents. Alas, he didn’t have a dime to his name.

Fortunately, at that moment, a stranger happened into the men’s room, saw our hero’s dilemma and gave him a quarter. Our hero was about to pay the quarter to open a stall when he noticed that one of the doors had been left open. He could enter free.

And so he did.

When our hero emerged from the restroom, he was standing on the casino floor with 25 cents to his name. So he did what anybody would do. He put the quarter in a slot machine. And it wouldn’t be a good story unless he hit the jackpot.

So he did.

He kept stuffing quarters into the slot machine, and he kept on winning. He took a break and wandered the casino floor. He played roulette, he played blackjack. And it wouldn’t be a good story if he didn’t have the most amazing two days anyone had ever had at that casino.

So he did.

When our hero quit 48 hours later, he had a net worth in the millions of dollars.

And he swore off gambling for life.

He invested the money with a brilliant broker who must have been able to see the future, because our hero’s fortune just kept multiplying. Unfortunately, we don’t know what investment strategy he used. We do know that 30 years after that night at the casino, our hero had become one of the wealthiest people in the country.

At that point, our hero came to a momentous decision. He called the press together and told the assembled reporters the story of how he had made his fortune, beginning with that night in Las Vegas. Then he made a public promise that if his “benefactor” came forward, he’d receive half of our hero’s fortune.

The press went wild. Claimants turned up by the thousands. Our hero hired a top firm of private detectives to screen them. After a few months, the head of the agency called him up. “We’ve found the man,” he said.

“Are you sure?” our hero asked.

“We’re sure. We’ve checked out every detail of his story, and he’s passed a lie-detector test.”

“Bring him right over.”

So the head of the detective agency brought the man to our hero’s office. Our hero came out from behind his big desk and looked the man up and down.

“So you’re my benefactor?”

“Yes.”

“You know, you do look familiar. Remind me. What did you do for me exactly?”

“I handed you that quarter in the restroom 30 years ago.”

Our hero shook his head. “You’re not my benefactor,” he snapped. “If I’d used that quarter the way you intended me to use it, I’d be just as poor now as I was that day. My benefactor is the man who left the door of the stall open!”

The audience laughed and laughed, not least because the Judge, an old-fashioned spellbinder, paused or gestured at well-chosen instants. But like all Marshall’s stories, this one also made a point. We’ll never know the names of all the people who fought to open doors for us. We’ll never know the names of people who walk through doors we ourselves had to kick and shove to get through — sometimes while getting our hands dirty. Our job is to keep working to open them anyway, not for thanks or glory but for the sake of doing what is right. And in the complexity and strife of America’s remarkable 20th century, no one did more to open doors for others than Thurgood Marshall.

The year I spent clerking for the Judge coincided with the late-20th-century revolution of the right, when Ronald Reagan swept into the White House in a landslide that brought along, for the first time in decades, a Senate controlled entirely by Republicans. The nation was stunned, but the business of the court continued. On the morning after the election, the justices were scheduled to sit. As I left the chambers to take my seat in the curtained alcove set aside for clerks, I spotted Justice William Brennan, looking hopefully up at the Judge as if seeking deliverance from the results of the previous night.

Was it really true — a stricken Brennan asked his fellow liberal lion — that Strom Thurmond would now be chairman of the Judiciary Committee?

Thurmond, the South Carolina segregationist, had been the principal antagonist at Marshall’s confirmation hearings. And at that moment there was every reason to think that the edifice of rights the Judge had spent his life building would soon be under assault. But he made no reply to Brennan’s anguished question. Instead, he slipped a consoling arm around his old friend’s shoulders and led him toward the robing room.

By the time Marshall finally retired, a bit over a decade later, the assault was well underway. But he never lost his good humor, and even accepted accolades from old adversaries. In 1912, after accidentally admitting three Black lawyers, the American Bar Association adopted a resolution affirming that “it has never been contemplated that members of the colored race should become members.” The rule was not abandoned until 1943. But it took until 1950 — just four years before Brown v. Board of Education was decided — before the group finally resumed accepting Black members. In August 1992 — the last summer of Marshall’s extraordinary life — the A.B.A. named him the first recipient of an award named in his honor. The award was bestowed at a banquet in San Francisco. I was privileged to be among the speakers.

By then the Judge was plainly ailing, but he sat patiently through the endless encomiums, doing his best to smile through the pain. When my turn came, I repeated several of his favorite tales, closing with the same Las Vegas story he told on the night we first met. When I was done, I turned his way to thank him for all the doors he had so brilliantly opened during his unparalleled career. Truth be told, I could hardly finish for the tears.

We never completed the oral history. Although we strove mightily and wound up with more than 20 hours of tapes, we knew we were racing a clock neither of us dared mention. Yet even as age and illness stole the Judge’s vitality, in our meetings he remained as cheery as ever. Whatever he might have shared with his intimates, each time I walked through the door of his office, he greeted me with the same twinkle in his eye. On the rare occasions when I ventured to ask after his health, he would turn the question into a joke: “If I’d known I was going to live so long, I would’ve never given up smoking and drinking.”

But although he was tired and would occasionally grimace in obvious discomfort, he was, for the most part, the same peppy and optimistic man I remembered. It was as though he was determined through force of will to teach those around him even how to deal with impending death.

Our final sessions came in the fall of 1992. We had finished the material on his career before the Supreme Court and were starting on his life as a justice. We were supposed to resume the interviews in January 1993, the week before the inauguration of President Bill Clinton, where the Judge had promised to swear in Vice President Al Gore. Then a call from Marshall’s chambers postponed our next meeting: He was a little under the weather.

For once the Judge had broken his word, because he didn’t make the inauguration either. He died a few days later. Before his funeral, he lay in state in the Great Hall of the Supreme Court building, and we who served as law clerks over the years took turns standing watch at the coffin as the public filed past, mourning the passing of a giant.

The Supreme Court has never been the same.


The oral history remains sealed — an effort to comply with the Judge’s wishes. But I think I can fairly say, without violating my confidentiality agreement, that no earth-shattering disclosures are locked away. When the recordings and transcripts are opened to researchers, the curious will find only more evidence of just how extraordinary a human being Thurgood Marshall was.

For some people nowadays, Marshall would tick lots of wrong boxes. He admired historical figures he’d be lectured for refusing to revile. He was too close to the F.B.I. and law enforcement, he didn’t much care for the radical left, he disdained the word “Black.” And he teased his clerks with merciless affection, often in terms that in the current era would set Twitter roiling.

And yet we all adored him. The Judge was from an era when a person could get away with being larger than life — unlike the present day, when so much of our stultifying public discourse has come to be about joining in unearned moral superiority to look down our noses.

Marshall encouraged us to avoid that attitude — just one of his many life lessons. And let me admit to being emotionally invested. For a young man barely out of school, the Judge provided a steadying influence and a sterling example. Thurgood Marshall, whether he knew it or not, was like a second father to me. I loved that old man, and after all these years, scarcely a day goes by when I don’t experience as a fresh pain the hard truth that I will never again sit at his feet and listen to his stories.

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale and the author of 11 nonfiction books and six novels, including “The Emperor of Ocean Park,” which won an Anisfield-Wolf Book Award. Among his current projects is a book about the people outside his family from whom he learned the most; one of them was Thurgood Marshall.

https://www.nytimes.com/2021/07/14/maga ... ime-weight

[Rach3]

How times have changed.From NYT today, the Court now a threat :

For conservative Supreme Court justices, 80 is effectively retirement age.

After Anthony Kennedy turned 80, he stepped down at the first convenient moment — in 2018, when a Republican was in the White House and the court wasn’t already welcoming a first-year justice. Warren Burger and Lewis Powell both retired at 79, during Ronald Reagan’s second term. Sandra Day O’Connor left the court at 75, during George W. Bush’s presidency.

To put the pattern in its starkest terms, no modern conservative justice has forfeited the chance to be replaced by a Republican president after turning 80. That’s part of the reason that Democratic presidents have so rarely had the chance to flip a court seat: The conservative justices try not to let it happen.

Several liberal justices have taken a different approach. John Paul Stevens could have retired at age 80 during Bill Clinton’s presidency but did not. Ruth Bader Ginsburg, having been diagnosed with cancer, could have retired at 81 during Barack Obama’s presidency but did not. And Stephen Breyer, now 82, could have announced his retirement this summer, with Joe Biden in the White House and the Democrats narrowly controlling the Senate, but Breyer has not.

There is no one explanation for the pattern. It involves so few people that it may partly be a coincidence. Whatever the reasons, though, it has huge consequences for the country.

Personal vs. political
The aging liberal justices have essentially put a higher priority on their own personal interests than on their judicial ideals. And you can understand why a justice would be reluctant to leave the job. Many love the work — the camaraderie of the court, the attention they receive, the power they wield. Retirement, by comparison, can seem small and boring.

Maybe that’s why some justices have come up with dubious justifications for staying on the court. Breyer has argued that the courts are not political (a position at odds with vast amounts of evidence). Ginsburg claimed that Obama could not have won the confirmation of a similarly liberal nominee (even though he had already named Sonia Sotomayor, who’s more liberal than Ginsburg by common measures).

In these claims, you can almost hear the justices trying to persuade themselves that remaining on the court — perhaps until death — has no downsides for them. But it clearly does.

Ginsburg seemed to grasp this at the end of her life. Her dying wish was “that I will not be replaced until a new president is installed.” But it was too late. She had declined to let a Democratic president replace her when she had the chance, and instead Donald Trump chose the deeply conservative Amy Coney Barrett.

In the years ahead, Ginsburg’s decision may cost millions of American women access to abortion — as well as shape policy on voting rights, climate change, gun control, religion and other issues. If Breyer is eventually replaced by a Republican president, the court would move even further to the right.

Conservative justices have focused less on their own personal preferences when timing their retirements. Their attitude has been based more on realpolitik and political principle. One possibility is that they have been influenced by the cohesive conservative legal movement of the past few decades, embodied by the Federalist Society. The conservatives justices are more likely to act as if they are part of something larger.

The different attitudes toward retirement are not the only reason that conservatives dominate the court today. The refusal of Senate Republicans to let Obama replace Antonin Scalia, after Scalia died unexpectedly at 79, has played a big role, too. So has the pro-Republican bias of both the Electoral College and the Senate.

But it matters that liberal justices care less than their conservative colleagues about who replaces them. The only five justices to celebrate their 83rd birthdays on the bench in recent decades have been liberals. On Aug. 15, Breyer is set to become the sixth.

For more:

Breyer could retire next year, before the midterm elections. But Democrats’ Senate control is so narrow that even a single senator’s death or absence could prevent them from confirming a replacement — given Republican obstruction.

Judges must be “loyal to the rule of law, not to the political party that helped to secure their appointment,” Breyer argued in a recent speech. Otherwise, they undermine public faith in the law, he said.
Some have praised Breyer’s decision: “The louder the calls for retirement, the more he may resist,” The Wall Street Journal’s Kimberley Strassel wrote.

Others say Breyer is being naïve: “For him to continue to make the same gamble that Justice Ginsburg made and lost runs the risk of tainting his legacy as a justice and has the potential to be an anti-democratic disaster,” Paul Campos, a law professor, argued in The Times.

Mehdi Hasan of MSNBC asked: “Where on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another?”

[maestrob]

As much as i admired Justice Ginsburg, I agree that she should have retired while Obama was President. Justice Breyer should do the same.