Thurgood Marshall: Passion on the High Court

JAMES J. KILPATRICK

January 25, 1993|By JAMES J. KILPATRICK

It takes a passionate man to write a passionate book. That fact of literary life colors Carl Rowan's just-published biography of Thurgood Marshall. Carl feels passionately about Mr Marshall, and Mr. Marshall is the most passionate justice ever to serve on the high court.

''Dream Makers, Dream Breakers'' (Little, Brown) is the zesty product of Mr. Rowan's 40-year friendship with the 84-year-old retired justice. The book is a swell read. There is not an ounce of scholarship in it. Not a single footnote interrupts the surging text; not a single case is fully cited. This is history unrefined, rich in anecdote, alive with dialogue.

Mr. Rowan makes no attempt at an evenhanded appraisal of Mr. Marshall's remarkable career. He has not come to harry Mr. Marshall, but to praise him. Mr. Marshall embodies the very spirit of freedom. He has been an unforgettable force. He has made America ''infinitely better for everyone.''

A more objective view might find in Thurgood Marshall the very embodiment of a cynical theory: Men tend to rise to the level of their incompetence. Within the narrow field of civil rights, Mr. Marshall was the greatest advocate who ever tried a case in court. In arguing the school segregation cases of 1952 and 1953, he was quite simply overwhelming.

The towering reputation he gained from that case prompted John F. Kennedy to name him to the Court of Appeals for the 2nd Circuit in 1961. On that prestigious bench his performance was generally undistinguished. In 1965 Lyndon Johnson appointed Mr. Marshall to serve as solicitor general, and once again he was back in his element as partisan counsel. In 1967 Johnson nominated Mr. Marshall as the court's first black justice. After a bitter fight, the Senate confirmed him.

Mr. Rowan's exuberant adulation to one side, Mr. Marshall cannot honestly be ranked among the ''great'' justices of all time. In the same way that Gerald Ford was a fine congressman but a ho-hum president, so Mr. Marshall was a skilled advocate but a mediocre judge. His passion was not for law. His passion was for justice.

Mr. Rowan puts it this way: ''Marshall dealt with legalisms only when the constrictures of his profession forced him to. His preference was to talk about the law and about justice in terms of every person's understanding of what is decent and fair.''

Mr. Marshall wrote 322 majority opinions during his 24 years on the bench. None was a landmark. Only a handful significantly shaped the law, and only one, Stanley v. Georgia, will forever be linked with his name.

The case involved Robert Eli Stanley, a suspected bookmaker. Police obtained a warrant and searched his home. They found little evidence of gambling, but in an upstairs desk drawer they found three rolls of hard-core film. They arrested Mr. Stanley on a charge of possession of obscene material.

The case reached the Supreme Court in 1969. Mr. Marshall wrote powerful opinion finding the Georgia law unconstitutional. Mr. Stanley was ''asserting the right to read or observe what he pleased -- the right to satisfy his intellectual and emotional needs in the privacy of his own home.'' His arrest amounted to ''a drastic invasion of personal liberties.''

In another free speech case, Austin v. Michigan Chamber of Commerce in 1990, Mr. Marshall came down on the other side of the First Amendment. He held for a 6-3 majority that Michigan corporations could not use corporate funds for independent political activity. ''Corporate wealth can unfairly influence elections.''

Mr. Marshall's opinion provoked a savage dissent from Justice Antonin Scalia, who denounced Mr. Marshall's ''Orwellian announcement that too much speech is an evil that the democratic majority can proscribe.'' Mr. Scalia saw ''a blatant restriction upon core political speech.''

Mr. Marshall's last two years on the court, Mr. Rowan says, ''became the most frustrating, angering, disillusioning years of Marshall's entire legal life.'' The cases assigned him for majority opinions were jurisprudential dogs. Mr. Marshall exhausted his waning energies in passionate dissents. Chronically ill, increasingly grumpy, he sat glumly through oral arguments, injecting only an occasional point-scoring question.

On June 27, 1991, outraged by the court's split decision in Payne v. Tennessee, a death sentence case, Mr. Marshall erupted with a Vesuvian dissent: ''Power, not reason, is the new currency of this court's decision-making.'' Then he quit.

James J. Kilpatrick is a syndicated columnist.

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