MARSHALL, THURGOOD (1908–)

Thurgood Marshall, the first black Justice of the Supreme Court, was born in Baltimore in 1908. After graduation from Lincoln University in Pennsylvania, Marshall attended Howard University Law School. Graduating first in his class in 1933, Marshall became one of charles h. houston's protégés. He began practice in Baltimore, where he helped revitalize the local branch of the National Association for the Advancement of Colored People (NAACP). Houston, who had become special counsel to the NAACP in New York, was developing a program of litigation designed to attack segregated education in the South; Marshall joined the NAACP staff as Houston's assistant in 1936.

Of all the Justices who have served on the Supreme Court, Marshall has the strongest claim to having contributed as much to the development of the Constitution as a lawyer as he has done as a judge. At the start of his career, race relations law centered on the separate but equal doctrine. In his initial years at the NAACP, Marshall brought a number of lawsuits challenging unequal salaries paid to black and white teachers in the South. After Marshall succeeded Houston as special counsel in 1938, he became both a litigator and a coordinator of litigation, most of it challenging segregated education. He also successfully argued a number of cases involving racial discrimination in the administration of criminal justice before the Supreme Court. When social and political changes during world war ii led to increased black militancy and support for the NAACP, Marshall was able to expand the NAACP's legal staff by hiring an extremely talented group of young, mostly black lawyers. Although he continued to conduct some litigation, Marshall gradually assumed the roles of appellate advocate and overall strategist. Relying on his staff to generate helpful legal theories, he selected the theory most likely to accomplish the NAACP's goals. This process culminated in the five lawsuits decided by the Supreme Court as brown v. board of education (1954). Marshall had used his staff to develop these cases and the legal theory that segregation was unconstitutional no matter how equal were the physical facilities. After the Supreme Court held that segregation was unconstitutional and that it should be eliminated "with all deliberate speed, " Marshall and the NAACP staff devoted much of their attention to overcoming the impediments that southern states began to place in the way of desegregation. These impediments included school closures and investigations and harassment of the NAACP and its lawyers.

Marshall left the NAACP in 1961, having been nominated by President john f. kennedy to a position on the united states court of appeals for the Second Circuit. His confirmation to that position was delayed by southern opposition for over eleven months. During Marshall's four years on the Second Circuit, he wrote an important opinion holding that the double jeopardy clause applied to the states, anticipating by four years the position that the Supreme Court would adopt in benton v. maryland (1969), a decision written by Justice Marshall. He also urged in dissent an expansive interpretation of statutes allowing persons charged with crimes in state courts to remove those cases to federal court. (See civil rights removal.) Marshall was nominated as solicitor general by President lyndon b. johnson in 1965. He served as solicitor general for two years, during which he supervised the disposition of criminal cases imperiled by illegal wiretapping. Johnson appointed him in 1967 to succeed Justice tom c. clark on the Supreme Court.

Justice Marshall's contributions to constitutional development have been shaped by the fact that for most of his tenure his views were among the most liberal on a centrist or conservative Court. As he had at the NAACP, and as have most recent Justices, Marshall relied heavily on his staff to present his views forcefully and systematically in his opinions.

For a few years after Marshall's appointment to the Court, he was part of the liberal bloc of the warren court. Despite the tradition that newly appointed Justices are not assigned important majority opinions, Justice Marshall wrote several important free speech opinions during his first two years on the Court. In stanley v. georgia (1969), he held that a state could not punish a person merely for possessing obscene materials in his home; the only justification for such punishment, guaranteeing a citizenry that did not think impure thoughts, was barred by the First Amendment. Amalgamated Food Employees Union v. Logan Valley Plaza (1968) recognized the contemporary importance of privately owned shopping centers as places of public resort, holding that centers must be made available, over their owners' objections, to those who wish to picket or pass out leaflets on subjects of public interest. Pickering v. Board of Education (1968) established the right of public employees to complain about the way in which their superiors were discharging their responsibilities to the public.

With the appointment of four Justices by President richard m. nixon, Justice Marshall rapidly found himself in dissent on major civil liberties issues. Stanley was limited by United States v. Reidel (1971) to private possession and not extended to what might have seemed its logical corollary, acquisition of obscene material for private use. Logan Valley Plaza was overruled in hudgens v. national labor relations board (1976), and Pickering was limited by a relatively narrow definition of complaints relating to public duties in Connick v. Myers (1983). Marshall became part of a small liberal bloc that could prevail only by attracting more conservative members, who could be kept in the coalition by allowing them to write the majority opinions. In the series of death penalty cases, for example, Justice Marshall stated his conclusion that capital punishment was unconstitutional in all circumstances, but when a majority for a narrower position could be found to overturn the imposition of the death penalty in a particular case, he joined that majority.

Thus, after 1970, Marshall rarely wrote important opinions for the Court regarding freedom of speech, criminal procedure, or equal protection. Two of his opinions in cases about the preemption of state law by federal regulations, Jones v. Rath Packing Co. (1977) and Douglas v. Seacoast Products (1977), seem likely to endure as statements of general principle. More often he was assigned to write opinions in which a nearly unanimous Court adopted a "conservative" position. For example, in Gillette v. United States (1971), Justice Marshall's opinion for the Court rejected statutory and constitutional claims to exemption from the military draft by men whose religious beliefs led them to oppose participation in some but not all wars. Undoubtedly because of his race and because of his desire to see a majority support positions helpful to blacks, Marshall rarely wrote important opinions in cases directly implicating matters of race, although he did write two significant dissents, one defending affirmative action in regents of the university of california v. bakke (1978), and another emphasizing blacks' lack of access to political power in mobile v. bolden (1980). But Justice Marshall's major contributions have come in areas where the experience of race has historically shaped the context in which apparently nonracial issues arise.

Marshall occasionally received the assignment in important civil liberties cases. His opinion in police department of chicago v. mosley (1972) crystallized the equality theme in the law of freedom of speech. There he emphasized the importance for free expression of the rule that governments may not regulate one type of speech because of its content, in a setting where speech with a different content would not be regulated: "[G]overnment may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views … Selective exclusions … may not be based on content alone, and may not be justified by reference to content alone." Unless it were prohibited, discrimination based on content would allow governments, which ought to be controlled by the electorate, to determine what the electorate would hear. Although the Mosley principle is probably stated too broadly, because differential regulation of categories of speech such as obscenity or commercial speech is allowed, still it serves as a central starting point for analysis, from which departures must be justified.

His opinion in Memorial Hospital v. Maricopa County (1974) synthesized a line of cases regarding the circumstances in which a state might deny benefits such as nonemergency medical care for indigents to those who had recently come to the state. If the benefit was so important that its denial could be characterized as a penalty for exercising the right to travel, it was unconstitutional.

Because of the relatively rapid shift in the Court's composition, most of Justice Marshall's major contributions to the constitutional development have come through dissents. Several major dissenting opinions by Justice Marshall have helped shape the law of equal protection. The opinions criticize a rigid approach in which classifications based on race and a few other categories are to be given strict scrutiny while all other classifications must be "merely rational." Marshall, in dissents in dandridge v. williams (1970) and san antonio independent school district v. rodriguez (1973), offered a more flexible approach. He argued that the courts should examine legislation that affects different groups differently by taking into account the nature of the group—the degree to which it has been discriminated against in the past, the actual access to political power it has today—and the importance of the interests affected. Under this "sliding scale" approach, a statute differentially affecting access to welfare benefits might be unconstitutional while one with the same effects on access to public recreational facilities might be permitted. A majority of the Court has not explicitly adopted the "sliding scale" approach, but Justice Marshall's sustained criticisms of the rigid alternative have produced a substantial, though not entirely acknowledged, acceptance of a more nuanced approach to equal protection problems.

asLogan Valley Plaza showed, Justice Marshall has urged, usually in dissent, an expansive definition of those actors whose decisions are subject to constitutional control. In jackson v. metropolitan edison co. (1974) the majority found that the decision of a heavily regulated utility to terminate service for nonpayment was not "state action" under any of the several strands of that doctrine. Justice Marshall's dissent argued that state involvement was significant when looked at as a whole and, more important, pointed out that on the majority's analysis the utility could, without constitutional problems, terminate service to blacks. On the assumption, confirmed in later cases, that the result is incorrect, Justice Marshall's argument effectively demonstrated that the "state action" doctrine is actually a doctrine about the merits of the challenged decision: if it is a decision that the Justices believe should not be controlled by the Constitution, there is no "state action," whereas if it is a decision that the Justices believe should be controlled by the Constitution, there is state action.

Finally, after joining the seminal opinion in goldberg v. kelly (1968), which held that the Constitution defined the procedures under which public benefits, the "new property" of the welfare state, could be taken away, Justice Marshall dissented in later cases where the Court substantially narrowed the scope of Goldberg. His position, in cases such as board of regents v. roth (1972), has been that everyone must be presumed to be entitled to those benefits, and that the presumption can be overcome only after constitutionality-defined procedures have been followed.

In most of the areas of law to which Justice Marshall's opinions have made significant contributions the linked strands of race and poverty appear. Discrimination by nominally private actors and suppression of speech on racial issues have played an important part in the black experience. Similarly, wealth and poverty as grounds for allocating public resources are classifications closely linked to race. Justice Marshall's desire to adopt a more flexible approach to equal protection law stems from his awareness that only such an approach would allow the courts to address difficulties that the ordinary routines of society cause for the poor. For example, his dissent in United States v. Kras (1973) objected to the imposition of a fifty dollar filing fee on those who sought discharges of their debts in bankruptcy. But it would be misleading to conclude that Thurgood Marshall's most important role in constitutional development was what he did as a Justice of the Supreme Court. Rather it was what he did as a lawyer for the NAACP before and after the decision in Brown v. Board of Education.

Mark Tushnet
(1986)

Bibliography

Kluger, Richard 1976 Simple Justice. New York: Knopf.