Marshall Bore Civil Rights Banner In Supreme Court
MANY of the greatest victories for the rights of racial minorities in the United States this century have been courtroom victories.
No one has been more significant in that legal history than Thurgood Marshall. Long before he served as the first and only black member of the Supreme Court - from 1967 until 1991 - he was the lawyer who argued the landmark Brown v. Board of Education case before the high court in 1954.
The decision forced racial desegregation in more than a dozen states, banned separate-but-equal racial school policies, and still forces school desegregation all over the country.
As chief counsel for the legal strategy of the National Association for the Advancement of Colored People through the 1940s and 1950s, Mr. Marshall engineered the litigation strategy that the civil rights movement used to break down segregation.
By the time Marshall died this past weekend, he had grown increasingly angry and frustrated over recent trends in court decisions. As Presidents Reagan, then Bush, consolidated conservative majorities on the Supreme Court, he wrote bitter dissents in decision after decision.
His most noted role on the court was as a sort of reality check on how the law looked from the point of view of the disenfranchised. Court-watchers describe the "earthiness" and streetwise sense he brought to the dialogue of the court after his appointment by President Johnson.
Marshall's pioneering work as a lawyer, as much as anyone's, brought an end to the legal separation of the races in schools and public places.
The Supreme Court, under Chief Justice Earl Warren, was ready to hear Marshall's arguments and transformed the role of the court into an active agent of social change. The Brown desegregation decision, wrote University of Chicago law professor Dennis Hutchinson in the Oxford Companion to the Supreme Court, "ignited a legal and social revolution in race relations and constitutionalism."
Some of Marshall's most significant opinions concerned free-speech cases. He favored very strong protections against government regulation of speech. Most recently, he was in the majority of a 5-to-4 decision in a 1989 decision that ruled flag-burning to be constitutionally protected speech.
He was steadfastly opposed to the death penalty as unconstitutional, at least partly because of the racial inequities he perceived in its practice. "A Negro who kills a white man runs a far greater risk of being executed than a white man who kills a Negro," he said in a 1984 speech.
His views, like his manner, were blunt. He was no uncritical admirer of the Founding Fathers and the Constitution as they wrote it. After all, he was curmudgeonly enough to note during the 1989 bicentennial celebration of the document that it sanctioned slavery.
The strength of the Constitution, he observed, was not in the intentions of it framers but in the later Americans who strove to expand its concepts. "The true miracle of the Constitution was not the birth of the Constitution but its life," he wrote in a 1987 Harvard Law Review article.
That same year, an official in the Reagan administration named Clarence Thomas wrote a law review article describing how the civil rights movement had gone wrong. He traced the problem back to the rationale behind the Brown desegregation decision.
In 1991, Mr. Thomas replaced Marshall as the lone black justice on the Supreme Court. No liberals even vaguely matching Marshall's stripes remain on the court.