Thurgood Marshall, Badass Lawyer

October 1, 2015  |  The Atlantic

In the 1930s, African Americans in Texas were not allowed to vote in the Democratic Party primary. The Democrats had a stranglehold on state politics, so the exclusion effectively deprived blacks of the franchise. A 1923 statute had made the ban explicit; when the Supreme Court struck down the law in 1927, slippery local officials began turning away black voters on their own authority, reasoning that the Court had not specifically forbidden that. The editor of the Austin Statesman cheered, describing “the Texas negro” as “popular in his place—that of hewer of wood and drawer of water.” After decades of voter suppression, Thurgood Marshall of the NAACP Legal Defense Fund rolled up his sleeves and got out his briefcase. “There is only one way to handle that bunch,” he wrote to a black newspaper editor in 1940, “and that is to take them into court. This we must do.”

That was Marshall’s style, fearless and indefatigable. If Martin Luther King Jr. was the moral and spiritual leader of the civil-rights movement, Marshall was its general, and he wanted results. Instead of making speeches, he made law. As the NAACP’s top attorney from 1938 to 1961, he argued 32 civil-rights cases before the Supreme Court, winning 29—among them Smith v. Allwright (1944), which invalidated Texas’s white primary. Other landmark victories included Shelley v. Kraemer (1948), which outlawed racially restrictive real-estate covenants; Sweatt v. Painter (1950), which integrated the University of Texas’s law school; and, of course, Brown v. Board of Education, which overturned the separate-but-equal doctrine.

Marshall had seen segregation firsthand, growing up in Baltimore. His father had worked as a railroad porter and a country-club steward. Soon after graduating first in his class from Howard University’s law school, Marshall marched into the South to represent criminal defendants, soldiers, and laborers in jury trials. He coordinated the NAACP’s national legal strategy in countless lawsuits and hounded the FBI to prevent or respond to racial violence. When he learned of a racist product on the shelf, like Whitman’s Pickaninny Peppermints, Marshall fired off a note to its manufacturer; he answered bigoted newspaper stories with letters to the editor. More than once, he almost got himself killed.

Although Marshall has a strong claim to being King’s equal as a civil-rights leader, his reputation could use a little polish. Marshall spent the last 24 years of his career on the Supreme Court, and while he certainly earned the job, it did not suit him. The Court’s cloistered halls muffled his belly-laughs-and-backslaps personality. His leading biographer, Juan Williams, devotes only 54 pages of his 400-page book to Marshall’s unhappy years in chambers, and those are not flattering. Studies of the Court in the 1970s and ’80s reveal an embittered man cut off from the outside world and dispirited by the ascendant conservatism of the Burger and Rehnquist Courts. Marshall was not effective in building coalitions with conservative justices—he wrote more dissents than majority opinions. He developed an unnerving habit of baiting his colleagues in a slave-boy dialect. During Elena Kagan’s confirmation hearings, in 2010, conservatives treated her prestigious clerkship for Marshall as a stain on her résumé.

The journalist Wil Haygood rehabilitates Marshall with Showdown, a book about one of the overlooked episodes of his career: the battle over his confirmation as the first African American nominee to the Court, in the summer of 1967, two years after he’d been appointed solicitor general. In coming to Marshall’s defense, Haygood joins Michael Long, the editor of a collection of Marshall’s early letters, a volume that begins with a forceful introductory essay equating Marshall with King. Haygood’s decision to focus on this turning point in Marshall’s life proves ingenious. Rather than discussing Marshall’s service on the Court in detail, he focuses on the gifts and accomplishments that got him there. He highlights two in particular. Marshall could display dignity and restraint in the face of unbearable provocation. He could also roar.

Lyndon B. Johnson nominated Marshall to the Court after engineering a vacancy: He appointed Justice Tom Clark’s son Ramsey as U.S. attorney general, creating a conflict of interest that prompted the justice to retire. Haygood overstates the case in saying that Johnson opened up the seat specifically for Marshall, but the president and his solicitor general enjoyed each other’s company. Williams writes, “The two men loved to drink bourbon and tell stories full of lies.” Once nominated, Marshall faced a group of nasty characters in the Senate. The chairman of the Judiciary Committee, James Eastland of Mississippi, was a notorious racist whose father had famously lynched a black couple. Eastland himself owned a plantation that employed more than 100 black sharecroppers. His daughter had been crowned Miss Confederacy 1956.

Other old bulls on the committee included John McClellan, Sam Ervin, and Strom Thurmond, a proud bigot who sired a child with a black maid and then paid hush money to his biracial daughter for years. During a notorious cross-examination, Thurmond brought Jim Crow into the hearing room by subjecting Marshall to nothing less than a literacy test, shrilly posing arcane questions (for instance, who were the members of the congressional committee that reviewed the Fourteenth Amendment in 1866?). Marshall kept his temper and repeatedly answered, “I don’t know, sir.” Later, Ted Kennedy asked Thurmond whether he could name the committee members. He couldn’t.

The committee’s southerners used two main tactics to try to bring down the nominee. They portrayed him as soft on crime and a little bit pink. Because Marshall was no Communist, questions about criminal procedure prevailed. There were some baffling moments, as when Ervin sought to hang the Court’s recent Miranda decision—requiring the famous warnings to criminal suspects—around Marshall’s neck, perhaps forgetting that Marshall, as solicitor general, had argued against the warning requirement. But when Ervin contended that Miranda could not possibly apply in cases where defendants confessed voluntarily, Marshall, who had seen southern police departments at work, spoke up. “I tried a case in Oklahoma where the man ‘voluntarily’ confessed after he was beaten up for six days,” he said pointedly. “He ‘voluntarily’ confessed.”

Despite strict instructions from the White House to keep his cool, Marshall found other opportunities to puncture the sanctimony of the southern committee members. During one exchange, Ervin criticized the Supreme Court’s decision in Escobedo v. Illinois, which ordered the suppression of a murder suspect’s confession made outside the presence of his attorney, whom he had repeatedly requested. As Ervin worked himself into a lather, Marshall deftly pivoted from constitutional theory to the facts in the record: “Bear in mind that in the Escobedo case, the lawyer was standing outside trying to get in.” Marshall had allies on the committee in Senators Kennedy, Joseph Tydings, and Phil Hart. But sitting in the hot seat for five days, he was mostly on his own.

He would have liked to be able to give as good as he got. No one was better than Marshall at patiently, and sometimes thunderously, exposing the hypocrisies of Jim Crow. During the Brown arguments, the attorney general of Virginia complained piously that the NAACP wished to “press this crown of thorns upon our brow and hold the hemlock up to our lips.” Marshall retorted to the Court: “You have heard references to one state’s ‘greatest and most cherished heritage,’ and when you look for it, you find that greatest and most cherished heritage is to segregate colored people.” His opponents resisted integration in noble tones of high principle, but Marshall relentlessly brought the discussion back to segregation’s ugly reality.

Haygood does the reader a service in describing the scene outside the committee room. The confirmation hearings took place during a tumultuous summer. The Supreme Court had issued its controversial decision in Loving v. Virginia, striking down laws prohibiting interracial marriage, just one month before Marshall’s hearings began. The provocative movie Guess Who’s Coming to Dinner was in production. (Seeking to highlight Marshall’s own interracial marriage, Thurmond repeatedly asked the nominee about “miscegenation.”) Race riots broke out in Detroit and Milwaukee. It was an explosive backdrop for the historic nomination.

Despite Haygood’s dramatic telling, the Senate’s confirmation of Marshall was never in serious doubt—by 1967 the southern Democrats had less muscle than passion. In the end, the Judiciary Committee approved the nomination with an 11–5 vote, and the full Senate confirmed Marshall, 69–11. Johnson had focused his relentless lobbying on winning the abstentions rather than the votes of southern Democrats.

Although his gifts were better suited to the jury trial than to life on the bench, Justice Marshall nevertheless contributed something profound to the Supreme Court. As one admirer put it early in Marshall’s career:

It’s very important that we Negroes have a man who is at home in the Supreme Court and equally at home with the man on the street. Thurgood can talk on terms of equality with a social scientist like Sweden’s Gunnar Myrdal, but he talks the argot of Harlem with the man on the street corner. He creates confidence on all levels of Negro life.

During Marshall’s best years, when he was a civil-rights attorney, confidence was his watchword. Thurgood Marshall was many things, but fearful was not one of them. He refused to be intimidated by racist violence, and he confronted the vestiges of the Confederacy head-on, ending legal segregation in America. He had the better argument, and he knew it.