Thurgood Marshall

January 26, 1993

Much of the commentary on the death of Justice Thurgood Marshall has paid full tribute to his historic significance but rated his service on the Supreme Court as merely average. We ourselves would rate Justice Marshall well above average.

This is not just pride in a native son. There is more to a justice than votes and written opinions. Thurgood Marshall made an immense, unique contribution to many of the decisions other justices wrote. He did this in pre-opinion conferences and draft briefs. "His was the voice of authority," as Justice William Brennan put it in the Harvard Law Review. "He spoke from first-hand knowledge of the law's failure to fulfill its promised protections for so many Americans. It was also the voice of reason, for Justice Marshall had spent half a lifetime using the tools of legal argument to close the gap between constitutional ideal and reality."

Justice Brennan was a Marshall ally. The conservative Justice Sandra O'Connor made the same point in the Stanford Law Review: "Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth." In a sense, Justice Brennan was more of a "liberal" and Justice O'Connor was less of a "conservative" because of Thurgood Marshall.

But just to think of Thurgood Marshall as an above average or even great Supreme Court jurist is to do him an injustice. He was the most influential lawyer of this century. He was the principal and most effective advocate of the idea that under the Constitution there could be no such thing as "separate but equal" facilities or institutions -- the doctrine that had in effect separated Americans into separate but unequal groups since the 1896 Supreme Court ruling in Plessy vs. Ferguson.

Until the mid 1930s, the civil rights movement's goal was merely to try to force states to live up to the "equal" part of that formula. Largely because of Mr. Marshall, the legal strategy became to destroy the very notion of separate but equal. Patiently, persistently, professionally, he and his team of attorneys created first the foundation and then the edifice of Brown vs. Board of Education.

In that 1954 decision a unanimous Supreme Court finally ruled that "separate" was "inherently unequal." The decision was, said Yale Law School Dean Louis Pollak, "the most important American governmental act of any kind since the Emancipation Proclamation." Mr. Marshall, who came out of the Baltimore civil rights movement, argued that case before the court and prevailed over the most prestigious courtroom lawyer of the day, John W. Davis, the 1924 Democratic presidential nominee.

Just as slavery would have ended without Abraham Lincoln, segregation would have ended without Thurgood Marshall, but not nearly as soon. That accomplishment alone would make Baltimore's Thurgood Marshall a towering historic figure and a great man.

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