This Black History Month, we had a lot to celebrate. Black Americans have accomplished feats that seemed impossible just 50 years ago. According to the American Bar Association, 13.9 percent of attorneys are minorities, while 53.55 percent of judges of color are African American. Recent accomplishments of Black Americans are built on the foundations laid by many champions of Black jurisprudence, who worked to create space for African Americans on the bench. Arguably the most notable of these champions is Justice Thurgood Marshall.
Justice Marshall was born April 2, 1908 in Baltimore, Maryland to a middle class family that valued education. Urban legend contends that his father made him memorize portions of the Constitution as punishment for misbehaving in school, giving him knowledge that would eventually help him in his legal career. Marshall attended two historically black colleges, graduating from Howard Law School after an undergraduate career at Lincoln University in Pennsylvania. After his time at Howard, where he learned from prominent civil rights scholars, such as Charles Houston, Marshall returned to Baltimore to become an attorney for the NAACP.
Working for the NAACP Legal Defense Fund (LDF), Marshall was dedicated to amplifying the political goals of the Civil Rights Movement in the courtroom. During this era at the NAACP, Marshall was nicknamed “Mr. Civil Rights”, becoming the legal face of the Civil Rights Movement. In that position, Marshall built his resume taking civil rights violators to court. He wrote to a black newspaper editor in 1940 that “There is only one way to handle that bunch and that is to take them into court. This we must do.” An NAACP LDF attorney from 1938 to 1961, he argued 32 civil-rights cases and won 29 of them. He participated in monumental cases like the historic Brown v. Board of Education.
Justice Marshall is one of the most well-known Supreme Court Justices, occupying his seat on the bench from his 1967 Johnson-era appointment to his retirement in 1991. His activism both before and during his tenure had an enormous effect on the law, both in practice and in execution; his legacy as a strong liberal voice on the Court stands tall, even long after his passing in 1993. Justice Marshall engaged with monumental cases such as Bowers v. Hardwick, which struck sodomy laws as unconstitutional, and Texas v. Johnson, which conceived symbolic free speech.
It was in these cases that Justice Marshall’s complex judicial philosophy was laid bare: a man who felt that the most effective way to shape policy was to push the boundaries of the law forward, but still possessed some libertarian beliefs against government intervention into private sexual behavior and regulation of speech. Justice Marshall sat on the bench with like-minded judges such as Chief Justice Warren and Justice Brennan. He voted in the majority for cases like Roe v. Wade, which protected women’s reproductive rights, and Furman v. Georgia, which temporarily outlawed the death penalty. In his famous majority opinion in pornography case Stanley v. Georgia, Marshall said: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” This claim was challenged when President Nixon replaced two Supreme Court Justices with conservatives Justice Blackmun and Chief Justice Burger, dissolving the liberal bloc Justice Marshall rallied around. It was after this political shift that Justice Marshall became the voice of dissent he’d be known as until his retirement. By the end of his tenure Marshall wrote more dissents (363) than majority opinions (322).
Former Supreme Court clerk Karen Hastie Williams noted the power of Justice Marshall’s dissent: “Marshall’s opinions are characterized by his sensitivity to the effect of rules on people, a sensitivity which, in part, emanates from his experience as an advocate who was actively and personally involved in the struggles of the individuals that he represented.” Justice Marshall’s opinions spoke with the weight of a man whose jurisprudence had real-world consequences to his own life as a Black man. In his dissenting opinion in Regents of the University of California v. Bakke that eliminated racial quota systems in schools, Justice Marshall argued directly that he felt the Court was going back on its word. He said: “We are not yet all equals, in large part because of the refusal of the Plessy Court to adopt the principle of color-blindness.” His judicial philosophy was displayed in issues other than race as well: in United States v. Kras, a case that addressed the $50 fee for filing bankruptcy, Justice Marshall criticized the Court’s definition of what was “out of reach” for some Americans. He wrote, “…but no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are.” One of his most famous quotes regarding his judicial philosophy was: “You do what you think is right and let the law catch up.”
After 24 years at the Court, Justice Marshall’s declining health eventually forced him off of the bench. He was replaced by a President George H.W. Bush nominee, Clarence Thomas, who became the second Black Supreme Court Justice after a scandalous and uncertain confirmation.