The retirement of Justice Thurgood Marshall will leave the Supreme Court without its most ardent and unwavering champion of the underdog, of minorities, of the poor and the helpless, the hopeless and the friendless.
"It's a whole new court now," said David Bogen, a constitutional law professor at the University of Maryland law school. "With [former Justice William] Brennan and Marshall gone the liberal heart has been cut out."
The Baltimore-born Marshall was the last, often embattled, survivor of the liberal majority of the Warren Court. President Lyndon B. Johnson appointed him in June 13, 1967. He was the first black on the court. No black American has ever held a higher office in the government of the United States.
"He was a towering figure," Bogen said.
Marshall's impact on the United States was assured before he joined the court, said Walter Camiat, a Washington labor lawyer who was a law clerk with the justice during the court's 1984-85 term.
"He had had a career that had changed the nature of American society," Camiat said. "His whole career was dedicated to civil rights. He was the head of the whole legal movement that led to Brown vs. Board of Education."
Brown vs. Board of Education was the Supreme Court's 1954 desegregation decision that reversed the separate-but-equal doctrine that had sanctioned racial discrimination since the 19th century. Marshall was general counsel for the National Association for the Advancement of Colored People and he argued the case before the court.
"Brown vs. Board of Education was the culmination of decadeof litigation," Camiat said.
Few justices have had anything like his experience as a lawyer before the court. Marshall argued 32 Supreme Court cases -- and won 29 of them. He fought many more civil rights cases in lesser courts all over the country, often in Maryland.
He supervised preparation of desegregation cases at the University of Maryland graduate schools and in public schools in various Maryland counties. He would then argue them in court.
He often lost in the state courts. He expected to. But he'd win in the Supreme Court.
And Marshall alone among the justices could say he had defended a man charged with murder, observed Juan Williams, the author of the civil rights chronicle "Eyes on the Prize," in a magazine profile.
Typically, Marshall left behind a searing dissent in a death penalty case yesterday as he announced he was leaving the court.
The court had overruled two of its own precedents to say that victim impact statements and descriptions of the victim's character could be admitted as evidence in arguing a defendant should be sentenced to death.
The 6-3 majority, Marshall said, dispatched precedents "to their graves." The court had only recently held that victim impact statements violated Eighth Amendment provisions against cruel and unusual punishment. Such evidence might sway juries to death sentences based on the victim's suffering rather than
the defendant's guilt, the court had said.
"Neither the law nor the facts [of the precedents] underwent any change," Marshall wrote in his dissent. "Only the personnel of this court did. . . .
"The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration." he said. "Cast aside today are those condemned to face society's ultimate penalty. Tomorrow's victims may be minorities, women or the indigent."
The majority, he wrote, will squander the authority and legitimacy of the court "as a protector of the powerless.
The latter were words he used frequently in the last decade as he saw the liberal majority of his early years on the court eroded by appointments of the Reagan and Bush administrations.
Now that Brennan is gone and Marshall is leaving, constitutional scholars note that the "liberals" left on the court are Justices Harry A. Blackmun and John Paul Stevens, named by Richard Nixon and Gerald Ford, respectively.
Marshall had based his own longstanding and unwavering opposition to the death penalty on those very Eighth Amendment prohibitions he was defending yesterday. He had frequently been a solitary dissenter in death penalty cases. Before Brennan left the court last year, they often shared dissent.
He never strayed from a position come hell or high water," said Judge John R. Hargrove, one of two black judges on the U.S. district court in Baltimore. When he was a young lawyer in the 1950s, Hargrove worked on NAACP cases supervised by Marshall.
"He dissented because he honestly believed in his position," Hargrove said.
Camiat, Marshall's former law clerk, said, "He felt he was somebody that the underdog, the poor, the common people could rely on to make sure the humanity of things didn't get lost. He wanted his jurisprudence to be based on the real lives of the people involved.
"He certainly felt disappointment at the direction the court was going and that there was less and less sensitivity toward the underdogs in society, toward victims of injustice."