Thurgood Marshall

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... I do not believe that 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, that we hold as fundamental today ... "We the People" no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of "liberty", "justice", and "equality", and who strived to better them ... I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.

Equal protection and civil rights

Justices of the Supreme Court of the United States, 1976. Marshall is in the bottom row, first from the right. US Supreme Court 1976.png
Justices of the Supreme Court of the United States, 1976. Marshall is in the bottom row, first from the right.

As the Court became increasingly conservative, Marshall found himself dissenting in numerous cases regarding racial discrimination. [5] :1511 When the majority held in Milliken v. Bradley that a lower court had gone too far in ordering busing to reduce racial imbalances between schools in Detroit, he dissented, criticizing his colleagues for what he viewed as a lack of resolve to implement desegregation even when faced with difficulties and public resistance. [2] :344–345 In a dissent in City of Memphis v. Greene that according to Tushnet "demonstrated his sense of the practical reality that formed the context for abstract legal issues", he argued that a street closure that made it more difficult for residents of an African-American neighborhood to reach a city park was unconstitutional because it sent "a plain and powerful symbolic message" to blacks that "that because of their race, they are to stay out of the all-white enclave ... and should instead take the long way around". [11] :91–92 Marshall felt that affirmative action was both necessary and constitutional; [1] :257 in an opinion in Regents of the University of California v. Bakke , he commented that it was "more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible". [11] :131 Dissenting in City of Richmond v. J.A. Croson Co. , he rejected the majority's decision to strike down an affirmative-action program for government contractors, stating that he did "not believe that this Nation is anywhere close to eradicating racial discrimination or its vestiges". [11] :139–143

Marshall's most influential contribution to constitutional doctrine was his "sliding-scale" approach to the Equal Protection Clause, which posited that the judiciary should assess a law's constitutionality by balancing its goals against its impact on groups and rights. [16] :336 Dissenting in Dandridge v. Williams , a case in which the majority upheld Maryland's $250-a-month cap on welfare payments against claims that it was insufficient for large families, he argued that rational basis review was not appropriate in cases involving "the literally vital interests of a powerless minority". [11] :98–99 In what Cass Sunstein described as the justice's greatest opinion, Marshall dissented when the Court in San Antonio Independent School District v. Rodriguez upheld a system in which local schools were funded mainly through property taxes, arguing that the policy (which meant that poorer school districts obtained less money than richer ones) resulted in unconstitutional discrimination. [1] :224–225 [11] :100–101 His dissent in Harris v. McRae , in which the Court upheld the Hyde Amendment's ban on the use of Medicaid funds to pay for abortions, rebuked the majority for applying a "relentlessly formalistic catechism" that failed to take account of the amendment's "crushing burden on indigent women". [11] :102–103 Although Marshall's sliding-scale approach was never adopted by the Court as a whole, the legal scholar Susan Low Bloch comments that "his consistent criticism seems to have prodded the Court to somewhat greater flexibility". [23] :527

Criminal procedure and capital punishment

Marshall supported the Warren Court's constitutional decisions on criminal law, and he wrote the opinion of the Court in Benton v. Maryland , which held that the Constitution's prohibition of double jeopardy applied to the states. [16] :337 After the retirements of Warren and Justice Hugo Black, however, "Marshall was continually shocked at the refusal" of the Burger and Rehnquist Courts "to hold police and those involved in the criminal justice system responsible for acting according to the language and the spirit of fundamental procedural guarantees", according to the scholar Howard Ball. [1] :286 He favored a strict interpretation of the Fourth Amendment's warrant requirement and opposed rulings that made exceptions to that provision; [24] :112 in United States v. Ross , for instance, he indignantly dissented when the Court upheld a conviction that was based on evidence discovered during a warrantless search of containers that had been found in an automobile. [1] :291–292 Marshall felt strongly that the Miranda doctrine should be expanded and fully enforced. [24] :112 In cases involving the Sixth Amendment, he argued that defendants must have competent attorneys; dissenting in Strickland v. Washington , Marshall (parting ways with Brennan) rejected the majority's conclusion that defendants must prove prejudice in ineffective assistance of counsel cases. [11] :187–188 [24] :112

Marshall fervently opposed capital punishment throughout his time on the Court, arguing that it was cruel and unusual and therefore unconstitutional under the Eighth Amendment. [2] :318 He was the only justice with considerable experience defending those charged with capital crimes, and he expressed concern about the fact that injustices in death-penalty cases could not be remedied, often commenting: "Death is so lasting." [5] :1514–1515 In Furman v. Georgia , a case in which the Court struck down the capital-punishment statutes that were in force at the time, Marshall wrote that the death penalty was "morally unacceptable to the people of the United States at this time in their history" and that it "falls upon the poor, the ignorant, and the underprivileged members of society". [5] :1515 When the Court in Gregg v. Georgia upheld new death-penalty laws that required juries to consider aggravating and mitigating circumstances, he dissented, describing capital punishment as a "vestigial savagery" that was immoral and violative of the Eighth Amendment. [1] :305 Afterwards, Marshall and Brennan dissented in every instance in which the Court declined to review a death sentence, filing more than 1,400 dissents that read: "Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, we would grant certiorari and vacate the death sentence in this case." [11] :175

First Amendment

According to Ball, Marshall felt that the rights protected by the First Amendment were the Constitution's most important principles and that they could be restricted only for extremely compelling reasons. [1] :316 In a 1969 opinion in Stanley v. Georgia , he held that it was unconstitutional to criminalize the possession of obscene material. [16] :335 For the Court, he reversed the conviction of a Georgia man charged with possessing pornography, writing: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." [1] :317 In Amalgamated Food Employees Union Local 400 v. Logan Valley Plaza , he wrote for the Court that protesters had the right to picket on private property that was open to the public—a decision that was effectively overruled (over Marshall's dissent) four years later in Lloyd Corporation v. Tanner. [1] :323–324 He emphasized equality in his free speech opinions, writing in Chicago Police Dept. v. Mosley that "above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content". [5] :1513 Making comparisons to earlier civil rights protests, Marshall vigorously dissented in Clark v. Community for Creative Non-Violence , a case in which the Court ruled that the government could forbid homeless individuals from protesting poverty by sleeping overnight in Lafayette Park; although Burger decried their claims as "frivolous" attempts to "trivialize" the Constitution, Marshall argued that the protesters were engaged in constitutionally protected symbolic speech. [4] :378 [1] :326–327

Marshall joined the majority in Texas v. Johnson and United States v. Eichman , two cases in which the Court held that the First Amendment protected the right to burn the American flag. [1] :332–333 He favored the total separation of church and state, dissenting when the Court upheld in Lynch v. Donnelly a city's display of a nativity scene and joining the majority in Wallace v. Jaffree to strike down an Alabama law regarding prayer in schools. [1] :343–346 On the issue of the free exercise of religion, Marshall voted with the majority in Wisconsin v. Yoder to hold that a school attendance law could not be constitutionally applied to the Amish, and he joined Justice Harry Blackmun's dissent when the Court in Employment Division v. Smith upheld a restriction on religious uses of peyote and curtailed Sherbert v. Verner 's strict scrutiny standard. [1] :351–353 In the view of J. Clay Smith Jr. and Scott Burrell, the justice was "an unyielding supporter of civil liberties", whose "commitment to the values of the First Amendment was enhanced from actually realizing the historical consequences of being on the weaker and poorer side of power". [25] :477


In Marshall's view, the Constitution guaranteed to all citizens the right to privacy; he felt that although the Constitution nowhere mentioned such a right expressly, it could be inferred from various provisions of the Bill of Rights. [1] :356 He joined the majority in Eisenstadt v. Baird to strike down a statute that prohibited the distribution or sale of contraceptives to unmarried persons, dissented when the Court in Bowers v. Hardwick upheld an anti-sodomy law, and dissented from the majority's decision in Cruzan v. Director, Missouri Department of Health that the Constitution did not protect an unconditional right to die. [1] :358–364 On the issue of abortion rights, the author Carl T. Rowan comments that "no justice ever supported a woman's right to choice as uncompromisingly as Marshall did". [10] :323 He joined Blackmun's opinion for the Court in Roe v. Wade , which held that the Constitution protected a woman's right to have an abortion, [2] :342 and he consistently voted against state laws that sought to limit that right in cases such as Maher v. Roe , H. L. v. Matheson , Akron v. Akron Center for Reproductive Health , Thornburgh v. American College of Obstetricians & Gynecologists , and Webster v. Reproductive Health Services . [26] :203

Other topics

During his service on the Supreme Court, Marshall participated in over 3,400 cases and authored 322 majority opinions. [1] :401 He was a member of the unanimous majority in United States v. Nixon that rejected President Nixon's claims of absolute executive privilege. [27] :78 Marshall wrote several influential decisions in the fields of corporate law and securities law, including a frequently-cited opinion regarding materiality in TSC Industries, Inc. v. Northway, Inc. [28] :25 His opinions involving personal jurisdiction, such as Shaffer v. Heitner , were pragmatic and de-emphasized the importance of state boundaries. [5] :1514 According to Tushnet, Marshall was "the Court's liberal specialist in Native American law"; he endeavored to protect Native Americans from regulatory action on the part of the states. [16] :338 He favored a rigid interpretation of procedural requirements, saying in one case that "rules mean what they say"—a position that in Tushnet's view was motivated by the justice's "traditionalist streak". [11] :185–186

Personal life

Marshall, his wife Cissy, and their children John (bottom left) and Thurgood Jr. (bottom right), 1965 Thurgood Marshall and family, 1965.png
Marshall, his wife Cissy, and their children John (bottom left) and Thurgood Jr. (bottom right), 1965

Marshall wed Vivian "Buster" Burey on September 4, 1929, while he was a student at Lincoln University. [3] :101,103 They remained married until her death from cancer in 1955. [2] :180 Marshall married Cecilia "Cissy" Suyat, an NAACP secretary, eleven months later; they had two children: Thurgood Jr. and John. [2] :180–181 (Thurgood Jr. became an attorney and worked in the Clinton administration, and John directed the U.S. Marshals Service and served as Virginia's secretary of public safety. [29] ) Marshall was an active member of the Episcopal Church and served as a delegate to its 1964 convention, walking out after a resolution to recognize a right to disobey immoral segregation laws was voted down. [11] :180 He was a Prince Hall Mason, attending meetings and participating in rituals. [11] :180 Justice Sandra Day O'Connor, who served with Marshall on the Supreme Court for a decade, wrote that "it was rare during our conference deliberations that he would not share an anecdote, a joke or a story"; although O'Connor initially treated the stories as "welcome diversions", she later "realized that behind most of the anecdotes was a relevant legal point". [30] :1217–1218

Retirement, later life, and death

Marshall's gravestone at Arlington National Cemetery Thurgood Marshall, First African-American Supreme Court Justice.jpg
Marshall's gravestone at Arlington National Cemetery

Marshall did not wish to retire—he frequently said "I was appointed to a life term, and I intend to serve it"—but he had been in ill health for many years, and Brennan's retirement in 1990 left him unhappy and isolated on the Court. [1] :377–378 [31] :156,158 The 82-year-old justice announced on June 27, 1991, that he would retire. [6] :480 When asked at a press conference what was wrong with him that would cause him to leave the Court, he replied: "What's wrong with me? I'm old. I'm getting old and coming apart!" [1] :379 President George H. W. Bush (whom Marshall loathed) nominated Clarence Thomas, a conservative who had served in the Reagan and Bush administrations, to replace him. [1] :379 His retirement took effect on October 1. [32] :951 Marshall served as a visiting judge on the Second Circuit for a week in January 1992, and he received the American Bar Association's highest award in August of that year. [4] :394–395 His health continued to deteriorate, and, on January 25, 1993, at the Bethesda Naval Medical Center, he died of heart failure. [4] :395 [31] :159 He was 84 years old. [4] :396 Marshall lay in repose in the Great Hall of the Supreme Court, [31] :159 and thousands thronged there to pay their respects; [6] :480 more than four thousand attended his funeral service at the National Cathedral. [4] :397 The civil rights leader Vernon E. Jordan said that Marshall had "demonstrat[ed] that the law could be an instrument of liberation", while Chief Justice William Rehnquist gave a eulogy in which he said: "Inscribed above the front entrance to the Supreme Court building are the words 'Equal justice under law'. Surely no one individual did more to make these words a reality than Thurgood Marshall." [33] Marshall was buried at Arlington National Cemetery. [4] :398

Appraisal and legacy

The Thurgood Marshall United States Courthouse, renamed in Marshall's honor in 2001 Marshall-courthouse1.jpg
The Thurgood Marshall United States Courthouse, renamed in Marshall's honor in 2001

According to the scholar Daniel Moak, Marshall "profoundly shaped the political direction of the United States", "transformed constitutional law", and "opened up new facets of citizenship to black Americans". [34] :411 For Tushnet, he was "probably the most important American lawyer of the twentieth century"; [5] :1498 in the view of the political scientist Robert C. Smith, he was "one of the greatest leaders in the history of the African-American struggle for freedom and equality". [35] :218 A 1999 survey of black political scientists listed Marshall as one of the ten greatest African-American leaders in history; panelists described him as the "greatest jurist of the twentieth century" and stated that he "spearheaded the creation of the legal foundations of the civil rights movement". [36] :129,132 Scholars of the Supreme Court have not rated Marshall as highly as some of his colleagues: although his pre–Supreme Court legal career and his staunch liberalism have met with broad approval, a perception that he lacked substantial influence over his fellow justices has harmed his reputation. [37] :407–408,439 In Abraham's view, "he was one of America's greatest public lawyers, but he was not a great Supreme Court justice". [14] :222 A 1993 survey of legal scholars found that Marshall was ranked as the seventeenth-greatest justice of the Supreme Court—a rating that, while still lower than that of his fellow liberal justices, was substantially higher than was recorded in an earlier survey. [37] :408

Marshall has received numerous tributes. [38] :20 The state of Maryland renamed Baltimore's airport the Baltimore/Washington International Thurgood Marshall Airport in 2005, and the University of Maryland's law library is named in his honor. [38] :20 [39] :617 Buildings named for Marshall include New York's 590-foot-high Thurgood Marshall United States Courthouse (renamed in 2001), where he heard cases as an appellate judge, and the federal judicial center in Washington. [40] [41] :859–860 He is the namesake of streets and schools throughout the nation. [38] :20 Marshall posthumously received the Presidential Medal of Freedom from President Bill Clinton in 1993, [42] :253 and the United States Postal Service issued a commemorative stamp in his honor in 2003. [43] He was depicted by Sidney Poitier in the 1991 television movie Separate but Equal, [44] :335 by Laurence Fishburne in George Stevens Jr.'s Broadway play Thurgood, [45] and by Chadwick Boseman in the 2017 film Marshall. [40]

See also


  1. Marshall was originally named "Thoroughgood" (his paternal grandfather's name), but he changed it to the briefer "Thurgood" when he was in the second grade. [1] :13
  2. Thirty-two Republicans and thirty-seven Democrats voted to confirm Marshall; one Republican (Thurmond) and ten Southern Democrats voted against him. [9] :156 On the urging of Johnson, twenty Southerners did not cast a vote. [4] :337
  3. In non-unanimous cases decided by an eight- or nine-justice court, Marshall and Brennan voted the same way 91.67% of the time during the Warren Court, 87.33% of the time during the Burger Court, and 94.86% of the time during the Rehnquist Court. [18] :638,642,646

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  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Ball, Howard (1998). A Defiant Life: Thurgood Marshall and the Persistence of Racism in America. New York: Crown Publishers. ISBN   978-0-517-59931-0.
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Davis, Michael D.; Clark, Hunter R. (1992). Thurgood Marshall: Warrior at the Bar, Rebel on the Bench. Secaucas, New Jersey: Carol Publishing Group. ISBN   978-1-55972-133-2.
  3. 1 2 3 4 5 6 7 8 Gibson, Larry S. (2012). Young Thurgood: The Making of a Supreme Court Justice. Amherst, New York: Prometheus Books. ISBN   978-1-61614-571-2.
  4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Williams, Juan (1998). Thurgood Marshall: American Revolutionary. New York: Times Books. ISBN   978-0-8129-2028-4.
  5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Tushnet, Mark (1997). "Thurgood Marshall". In Friedman, Leon; Israel, Fred L. (eds.). The Justices of the United States Supreme Court: Their Lives and Major Opinions. Vol. 4. New York: Chelsea House. pp. 1497–1519. ISBN   978-0-7910-1377-9.
  6. 1 2 3 4 5 6 7 Bloch, Susan Low (1993). "Thurgood Marshall". In Cushman, Clare (ed.). Supreme Court Justices: Illustrated Biographies. Washington, DC: CQ Press. pp. 476–480. ISBN   978-1-60871-832-0.
  7. 1 2 3 4 5 6 7 8 Tushnet, Mark V. (1994). Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961. New York: Oxford University Press. ISBN   978-0-19-508412-2.
  8. Schultz, David; Vile, John R., eds. (2005). The Encyclopedia of Civil Liberties in America. Abingdon, UK: Routledge. pp. 260–261. ISBN   978-0-7656-8063-1.
  9. 1 2 3 4 5 6 7 Bland, Randall W. (1993). Private Pressure on Public Law: The Legal Career of Justice Thurgood Marshall, 1934–1991 (Revised ed.). Lanham, Maryland: University Press of America. ISBN   978-0-8191-8736-9.
  10. 1 2 Rowan, Carl T. (1993). Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall. Boston: Little, Brown & Co. ISBN   978-0-316-75978-6.
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  12. 1 2 "'The Long Siege': Thurgood Marshall's Other Court Nomination Battle". Rediscovering Black History (U.S. National Archives). January 5, 2016. Retrieved November 3, 2022.
  13. 1 2 Daniels, William J. (1991). "Justice Thurgood Marshall: The Race for Equal Justice". The Burger Court: Political and Judicial Profiles. Urbana, Illinois: University of Illinois Press. pp. 212–237. ISBN   0-252-06135-7.
  14. 1 2 Abraham, Henry J. (1999). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. Lanham, Maryland: Rowman & Littlefield. ISBN   0-8476-9604-9.
  15. "Senate Vote 240" (PDF). The Congressional Record . 113: 24656. August 30, 1967. Retrieved August 30, 2022.
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  17. Tushnet, Mark (August 1992). "Thurgood Marshall and the Brethren". Georgetown Law Journal . 80 (6): 2109–2130.
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Further reading

Thurgood Marshall
Official portrait, 1976
Associate Justice of the Supreme Court of the United States
In office
October 2, 1967 October 1, 1991
Legal offices
Preceded by
Seat established by 75 Stat. 80
Judge of the United States Court of Appeals for the Second Circuit
Succeeded by
Preceded by Solicitor General of the United States
Succeeded by
Preceded by Associate Justice of the Supreme Court of the United States
Succeeded by