Thanks to Marshall, Whites, Too, Are Better Off

CLARENCE PAGE

January 28, 1993|By CLARENCE PAGE

WASHINGTON — Washington.--Justice Thurgood Marshall was a delightful grump. He did not suffer fools gladly and could scold the naive like a tough schoolmarm.

So I watched with delight as he attempted to re-educate the crowd of mostly young and mostly white reporters who had gathered to cover his farewell press conference in 1991.

''Justice Marshall, do you think black people are better off as a result of your serving on the court?'' asked one young male reporter who looked barely old enough to shave.

''I am not a black people,'' the justice snapped, wheezing badly. ''I am an Afro-American!''

After the reporter struggled to rephrase his question, the retiring justice fumed: ''That is a question that has absolutely no relevance whatsoever. So are the whites! They, too, are better off!''

He was right, and you didn't have to be a liberal to think so. In a recent Stanford Law Review, Mr. Marshall received unusual tributes from two white Reagan-era appointees to the current Supreme Court.

Justice Sandra Day O'Connor wrote that Justice Marshall's ability to draw powerful messages from his own life experiences ''reminded us . . . that judges, as safeguarders of the Constitution, must constantly strive to narrow the gap between the idea of equal justice and the reality of social inequality. . . . No one could help but be moved by Justice Thurgood Marshall's spirit; no one could avoid being touched by his soul.''

She recalled how one of his anecdotes about a miscarriage of justice due to racial prejudice in a long-ago death-penalty case he had handled as a trial lawyer ''made clear what legal briefs often obscure: the impact of legal rules on human lives.''

Justice Anthony Kennedy acknowledged that he and Mr. Marshall often disagreed. Nonetheless, he wrote, Justice Marshall's opinions ''show a willingness to raise the moral issues which all decent societies must explore and attempt to resolve, whether through the courts or some other means.''

Yes, whites, too, are better off. All Americans are better off because of Thurgood Marshall's work. His critics try to disparage him as too liberal, too radical or too racially embittered. Yet, he came not to overthrow the Constitution but to fulfill its highest ideals.

Mr. Marshall knew that when the Framers of the Constitution wrote about the rights of minorities, they were not as concerned about the rights of the disadvantaged as they were worried about their own ability as a privileged minority to stand up against a propertyless majority.

That's why their originally ratified document was able to allow slavery, disallow the rights of women or Native Americans to vote and completely omit a Bill of Rights.

But Mr. Marshall was deeply impressed with the Constitution's built-in capacity to be revised. With that and his gift for passionate and persuasive argument, he used the keen sword of this nation's most cherished traditions to cut through the bindings of its most shameful traditions.

His experiences as an advocate for minority rights, sometimes up against lynch mobs, were unique on a court composed overwhelmingly of the same sort of privileged white males who wrote the Constitution.

But it was those experiences that gave him his liberal tilt on capital punishment, civil rights, reproductive rights, search-and-seizure and the rights of the accused.

When he used the court to bypass legislative processes in such volatile issues as abortion or capital punishment, he was accused of ''judicial activism'' because he didn't allow popularly elected legislatures to make such delicate decisions.

Guilty.

Sometimes it has taken court activism to force the public and legislatures to take a position on controversial issues they would just as soon avoid.

It was called ''judicial activism'' when the Supreme Court overturned school segregation in its landmark 1954 Brown v. Board of Education case, which a young Thurgood Marshall argued as chief lawyer for the NAACP Legal Defense and Educational Fund.

Yet it helped launch the civil-rights revolution that led to the Civil Rights Act of 1964 and the Voting Rights Act of 1965 -- both legislated by a popularly elected Congress.

Similarly, the ''activism'' of justices like Mr. Marshall on a wide range of other issues has helped make America's beacon of light and liberty shine a little brighter.

When political winds tilted the high court to the right, Justice Marshall would ask prospective law clerks, ''How do you like writing dissents?'' He gave those he hired plenty of dissents to write. He was too big a grump to be a consensus builder. More important, he had seen too much to allow him to compromise very much on principles he viewed as fundamental, and he seemed to view almost all of his principles as fundamental.

So he wrote dissents as if they mattered, as indeed they do. They matter to lower courts and future courts looking for the unique perspective only a Thurgood Marshall could bring. They matter to legislatures, governors and presidents looking, as Martin Luther King once preached, ''with divine dissatisfaction'' on the way things are and searching with hope for an enlightened vision of the way things could be.

Justice Thurgood Marshall died Sunday of heart failure. As someone once said of another civil-rights hero, Mississippi's Fannie Lou Hamer, it was the only time his heart ever failed him.

Clarence Page is a syndicated columnist.

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