Marshalling Justice

By MICHAEL G. LONG

Although he is remembered as the first African-American SupremeCourt Justice, Thurgood Marshall in his day was one hell of a civil rightslawyer. As general counsel to the NAACP from 1938 to 1961 he argued 32 casesbefore the Supreme Court, winning an astounding 29. These seminal precedentsinclude Smith v. Allwright (1944)(invalidating Texas’s all-white Democratic primary); Shelley v. Kraemer (1948) (outlawing racist real estate covenants);and Brown v. Board of Education (1954) (prohibiting racial discrimination in public schools). Marshall argued19 more cases at the Court as the nation’s first black Solicitor General,winning 14 of them. With this record he surpasses even John Roberts, thecurrent Chief Justice of the United States and one of the most celebratedappellate lawyers of our time, who argued 39 cases and won 25. And Roberts didn’thave to worry about getting lynched on his way home from court.

If Marshall’s time on thebench eclipses his civil rights advocacy, so too does the long shadow cast byMartin Luther King. Michael Long, the editor of this inspiring collection of Marshall’s early civil rightsletters, seeks from the first line of his introductory essay to make sure theoverlooked Marshall receives his due. Marshall and King, he argues, were twinpillars holding up the modern civil rights movement, equal in stature. Tensionnevertheless separated the two giants: Marshall, who committed his life to therule of law, disapproved of King’s campaign of civil disobedience. In the eyesof posterity, King’s legacy was enhanced by his tragic assassination, whereasMarshall lived out a long decline on the Court, cut off from the blackcommunity, beset by health problems, and forced by a conservative majority intothe impotence of perpetual dissent.

MarshallingJustice rewinds the tape toreveal Marshall at his best, full of energy, outrage, and savvy as he counseledclients and witnesses, demanded action from Southern authorities, argued withcolleagues over tactics and strategy, and kidded around. Here he is in 1941,relishing the treat of cross-examining white witnesses during an Oklahomatrial:

They all became angry atthe idea of a Negro pushing them into tight corners and making their lies soobvious. Boy, did I like that—and did the Negroes in the courtroom like it. Youcan’t imagine what it means to these people down there who have been pushedaround for years to know that there is an organization that will help them. Theyare really ready to do their part now. They are ready for anything.

Marshall took on every type of racial injustice, representingblack students, soldiers, criminal defendants, homeowners, voters, and ordinarycitizens. He challenged businessmen to rename repulsive products like “Whitman’sPickaninny Peppermints” and “Nigger Head Stove Polish.” Heclashed mightily with good ol’ boy editors in the Southern press. One of thebook’s most arresting features is the contrast between Marshall’s assuredlawyerliness and the near-illiterate letters he received from would-be clients.One senses from the cover photograph on this book the relief they must havefelt to have a brilliant, confident champion headed their way: in the pictureMarshall strides forward, hand in pocket, legal papers ready, looking anythingbut afraid.

Part of his job involvedcountering crass bigotry with cool reason. To the Secretary of War he wrote:

There can be no argumentor belief that a white man who is given a transfusion of blood plasma from aNegro thereby becomes a Negro any more so than the injection of horse serumwould make a human being become a horse or the injection or snake serum wouldchange a human being into a water moccasin.

Yet if the arguments wereeasy, the tactics were not. Setting up a successful lawsuit takes planning andskill, and Marshall took pains to establish a perfect record for cases he knewwere headed to the Supreme Court. He preserved arguments and made objections toensure that no wrinkle of procedure or jurisdiction would obstruct the merits. Someof the letters show colleagues harshly editing briefs Marshall had drafted, butthese should not be overblown: even the best attorney’s work is challenged andrevised, especially when the stakes are high.

The key to Marshall’ssuccess as a lawyer was being just radical enough. On some issues he would notbudge: disdaining moderates who tried to make the best of “separate butequal” facilities, he pressed relentlessly for full integration. But healso knew that playing ball was sometimes in the movement’s interests. He stoodbehind Harry Truman, who waited too long to move on race issues but then moveddecisively. He maintained a surprisingly open line with J. Edgar Hoover andcooperated with the FBI’s attempts to root out subversives in the NAACP. (Thiscurious relationship reveals both Marshall’s distrust of communists and hisrecognition of Hoover as a dangerous enemy. Hoover still spied on him.) Heformed a working, but not uncritical, alliance with the Justice Department. Aboveall Marshall played the long game, and with cunning, vision, and immenseresolve, became one of the twentieth century’s greatest Americans.

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