Jonathan P. Baird

As we contemplate the appointment of a new Supreme Court justice, I was thinking of the qualities I would like to see in a nominee. A passion for justice, broad legal experience, an appreciation of civil liberties, awareness of class, racial and sexual oppression, concern for the underdog, open-mindedness, compassion and demonstrated bravery – that is a good start.

When I think of what lawyer in my lifetime has embodied those qualities, the first name that comes to mind is Thurgood Marshall. When I started law school in the 1980’s, he was still on the Supreme Court.

What made Marshall so special? I would have to say it was the uniqueness of his career as a lawyer. It is not an exaggeration to say he was the architect of the strategy to take down legal segregation in the United States. Over many years and many landmark cases, Marshall scored victory after victory. He won 29 out of 32 cases he argued before the U.S. Supreme Court.

He has been called the Founding Father of the new America.

No way can I do justice to the list of important cases Marshall handled as a lawyer. While you have to start with Brown v. Board of Education, there are numerous other Supreme Court cases he handled. To name a few: in Smith v. Allwright (1944), Marshall invalidated Texas’s whites-only primary; in Shelly v. Kraemer (1948), he defeated racially restrictive real estate covenants; in Sweatt v. Painter (1950), he forced the integration of the University of Texas law school.

As a young man, Marshall did not have it easy. When not in school, he constantly worked. He held jobs as a railroad waiter, assistant law school librarian, waiter at a country club and he had a night job as a clinic clerk at the Baltimore City Department of Health.

Although he went to law school at Howard University in Washington D.C., he was then too poor to live in the city. He lived in Baltimore and commuted to D.C. six days a week on the train.

Starting as a lawyer in private practice in Baltimore, he handled a wide range of cases – divorces, personal injury, car accidents, murder and rape cases. He got much experience representing criminal defendants in jury trials.

Marshall lost a case in 1934 where his client, a young black man named James Gross, was convicted of first degree murder. Gross had driven the getaway car but had not pulled the trigger. The State of Maryland executed Gross, by hanging. That experience deeply affected Marshall and turned him into an opponent of the death penalty.

In 1936, Marshall went to work for the NAACP under the tutelege of Charlie Houston, a lawyer who was passionately committed to using the law to oppose segregation. Houston had previously been the dean at Howard University and he recognized Marshall’s talent. He groomed and recruited Marshall to become an NAACP lawyer.

Marshall repeatedly handled cases in the deep South when it was extremely dangerous for any Black attorney to practice there. He came very close to getting lynched himself. He constantly faced death threats from the Ku Klux Klan. It is hard to imagine more difficult circumstances. Marshall tried cases in front of all-white juries with spectators who would openly advise that any lawyer who defended blacks would end up dead.

Marshall liked to tell the story of the Groveland Boys case. The story of this case is brilliantly told in a book, Devil in the Grove, written by Gilbert King. In 1949, in Groveland, Florida, four black men were accused of raping a 17 year old white woman. As King wrote:

” The case was key in Marshall’s perception of himself as a crusader for civil rights, as a lawyer, willing to stand up to racist judges and prosecutors, murderous law enforcement officials and the Klan in order to save the lives of young men falsely accused of capital crimes – even if it killed him. And Groveland nearly did.”

Marshall’s biographer, Juan Williams, presents him as a very gregarious, down-to-earth man who could mingle well in any social strata. Marshall liked to joke and was a great story teller. In spite of all the pressure he was under, Marshall chose a hedonistic, non-worrying philosophy. Williams quoted Marshall:

“I intend to wear life like a very loose garment, and never worry about nuthin’.”

In 1961, President John F. Kennedy appointed Marshall to the Second Circuit Court of Appeals. At that time in the early 1960’s, the federal bench was nearly all-white. Before being tapped for the U.S. Supreme Court by President Johnson, Marshall also served as Solicitor General. He was the first African American to hold that position. It is hard to imagine a wider range of experience for any nominee to the High Court.

Marshall’s confirmation hearing for the Supreme Court in 1967 was an epic showdown where he confronted Southern segregationist senators like Strom Thurmond and John McClellan who were opposed to having any Black person on the Supreme Court.

In his confirmation hearing, Marshall presented his view of the Constitution as a living document. Later in his life at the bicentennial of the Constitution, Marshall gave a famous speech in which he further explicated his view:

“…I do not believe the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “the Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.”

Marshall spent 24 years on the Supreme Court. As the Court evolved, Marshall had an increasingly difficult time building consensus with more conservative justices. He often dissented along with his ally, Justice William Brennan.

Now, when you look at qualities being considered for Supreme Court nominees, it is enough if you went to Harvard or Yale, have extreme right wing views and are relatively young. It does not appear to matter if you have never tried a case. In every respect, Marshall serves as a powerful counter-example.