The Great Dissenter

Supreme Court Justice Thurgood Marshall often bucked the tide

THURGOOD MARSHALL may not have been one of the legal giants of the United States Supreme Court - like Louis Brandeis or even his longtime friend and colleague William Brennan - but he was a social and moral force almost unparalleled in the history of American jurisprudence.

Justice Marshall used his high perch on the court to constantly remind his fellow Americans that they fell short of the great vision of equal justice for all, but that they still had the capacity to do better by the have-nots of society.

This is the pervading theme in "Thurgood Marshall: Justice for All," which will have special value to the scholar and the chronicler of the Supreme Court and America's legal system. But this book also has broad general interest, particularly for those who are striving to understand more about the evolution of civil rights in the US and the rationale of one of its great champions.

In what is now a famous affirmative-action case, University of California Regents v. Bakke, Marshall bluntly assessed how the US legal system treated blacks:

"The racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.

"The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot."

In this direct, sometimes abrasive way, the nation's first black justice made his call for social equality through some majority opinions, but usually through stinging dissents.

Marshall's conditioning came as a civil-rights lawyer who had fought against segregation for a quarter of a century as counsel for the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund. He won 29 of 32 cases in argument before the Supreme Court.

Joining the high tribunal in 1967 as an appointee of President Lyndon Johnson, Marshall continued his quest for civil and human rights from the bench. He spent much of his judicial career fighting off rights retrenchment until his retirement in late 1991.

Justice Brennan, upon Marshall's leaving of the Court, said: "More than any other recent member of the Court, [he] leaves a legacy of powerful dissents protesting the curtailment of defendants' rights - dissents with a vision of fairness and order that is stirring in its clarity."

With Brennan, Marshall led a stalwart liberal minority that was repeatedly outvoted, particularly in the 1980s, by a Reagan-appointed conservative majority.

But the doom and gloom for civil-rights causes predicted by many didn't come about abruptly and, in some instances, not at all. The feisty, sometimes irascible, Marshall, in fact, led the way in broadening women's rights in the workplace, held the line on the Exclusionary Rule and Miranda warnings that protected the rights of the accused, and kept intact (at least until recently) the core of Roe v. Wade, which sets guidelines for legal abortions.

Marshall was seldom eloquent, but he got right to the point. Perhaps his career-long battle against capital punishment was the centerpiece of his thrust against social injustice. America's poor, usually blacks, were executed in disproportionately high numbers, Marshall constantly pointed out. And this was a blight on the nation. He saw the death penalty as excessive and unnecessary. He held that it violated the Constitution's Eighth and Fourteenth Amendments as "cruel and unusual" punishment.

Marshall eventually lost his fight for abolition of the death penalty. But during a temporary victory (in Furman v. Georgia, 1972), he did wax eloquent:

"The measure of a country's greatness is its ability to retain compassion in time of crisis.

"In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve `a major milestone in the long road up from barbarism' and join the approximately 70 other jurisdictions in the world which celebrate their regard for civiliz ation and humanity by shunning capital punishment."

Almost half of this volume by Roger Goldman (with David Gallen) is made up of Marshall's opinions, many of them in dissent. They range from issues dealing with due process and obscenity to ordinances against picketing and long hair, press freedom, the insanity plea, land use, and school-segregation remedies. The early pages of the book retrace Marshall's precourt attacks on separatism and discrimination in education, housing, transportation, jobs, and public facilities.

Essays by former colleagues, including law clerks, attempt to assess the measure of the man. One by journalist Juan Williams, originally written for the Washington Post Magazine in 1990, perhaps best captures the Marshall legacy.

"In black America," writes Williams, "Thurgood Marshall has become a doubly potent symbol: the protector fighting for the rights of individuals in a white-majority society still stained with racism, and the personification of black achievement. No black American has ever held a higher government office, and none will until a black person is elected president."

Johnson's appointment of Marshall to the Supreme Court was seen by many as a "political" move, perhaps a gesture to blacks and, at the time, an acknowledgment of the power of the civil-rights movement.

Whatever the reason, history will doubtless record that while Johnson must bear some of the burden and blame for Vietnam, he deserves due credit for his choice of Marshall for the world's most effective judicial panel.

* Curtis J. Sitomer, who covered the Supreme Court and justice issues for the Monitor for many years, is manager of publications for the Christian Science Committee on Publication.

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