Thurgood Marshall (66 page)

But Marshall pushed the issue even further. He wanted to get completely rid of the use of peremptory challenges. Ironically, that effort split the two-man liberal wing of the Court. Justice Brennan was not willing to do away with the long-standing right of lawyers to strike jurors whom they suspected might not be fair to their case.

Brennan, wanting to sign on to Marshall’s concurring opinion, finally wrote to ask him if he could accommodate his concern that lawyers not be unfairly hamstrung in jury selection. But Marshall refused his friend’s invitation to soften his stand. “I continue to believe that [allowing the use of peremptory strikes] will by its nature be ineffective in ending racial discrimination.… I see no reason to be gentle in pointing that out and I doubt that pulling my punches would make the situation any better.”
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Marshall’s unyielding position was similar to the stance he almost always took with his fellow justices in the 1980s. During that period, he spent as little time as he could at the Court, coming in around 10:00
A.M
.
and sometimes leaving by 3:00 P.M. He was less interested in engaging the other justices in conversation or even argument than in writing eyecatching dissents and occasionally making angry public comments about the direction of the Court. His detachment and anger deepened after he lost two key cases dealing with race,
Wygant v. Jackson Board of Education
and
McCleskey v. Kemp
.

In
Wygant
, a 1986 case, the Court ruled 5–4 that when teachers were being laid off, the board of education could not use race as a consideration to keep black teachers on the job while firing more senior white teachers. In the 1987
McCleskey
case, the Court ruled against Warren McCleskey, who had appealed his death sentence on the ground that capital punishment was given to blacks more often than to whites. McCleskey’s case was the first to challenge the death penalty in the Supreme Court on purely racial grounds. Justice Marshall argued that since blacks were more likely to get the death sentence, they were being given “cruel and unusual punishment,” in violation of the Eighth Amendment and their rights to equal protection. Again he lost 5–4. In both cases Marshall proved unable to persuade the swing vote, which belonged to Justice Powell.

In an interview Powell acknowledged that Marshall talked with him about the cases. And Powell conceded that Marshall sometimes became angry at his colleagues when they voted against him: “I think Thurgood was perhaps more demonstrative than the rest of us,” said Powell politely.
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Justice White, in a separate interview, said because of these setbacks Marshall became resentful of his colleagues in the mid-1980s. With a solid conservative majority in place, White said, Marshall “was not averse to writing strong dissents and speaking out that way in conference—I don’t blame him.”
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Marshall confided to his longtime friend Monroe Dowling, who was now living in Washington, that he was furious with the conservatives and was using the justices’ conferences to raise hell. “Thurgood would say how mean and unpleasant they could be. If it hadn’t been for Brennan, I guess they would have put him in jail. Thurgood called them everything but the son of God in conference.”
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Marshall began to make his unhappiness public in more speeches and interviews during the late 1980s. He had previously made some critical comments to fellow judges at Second Circuit conferences, but now he made speeches before wider audiences that featured harsher tones.

The first major outburst came in a speech commemorating the two
hundredth anniversary of the Constitution. Former Chief Justice Burger was the head of the bicentennial celebration, and no one expected Marshall to do anything but join his former colleague in the spirit of an all-American celebration. But Marshall’s attitude toward the bicentennial became apparent when he turned down Burger’s invitation to Philadelphia to take part in a proposed reenactment of the signing of the Constitution, with the justices playing the founding fathers. “If you are going to do what you did two hundred years ago,” he said, “somebody is going to have to give me short pants and a tray so I can serve coffee.”

He stepped on toes again at a convention of patent and trademark lawyers in Hawaii. Marshall said the original, unamended Constitution was “defective from the start” because it allowed slavery and denied women the right to vote.

In a defiant speech on what had seemed to be a motherhood-and-apple-pie subject, the justice said it took a “bloody Civil War” to abolish slavery and the nation was still struggling with the consequences of having been born with a Constitution that treated some citizens as less than human. He added that only the post-Civil War amendments guaranteeing equal rights and due process had saved the country. The authors of the Constitution “could not have imagined nor would they have accepted that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and a descendant of an African slave,” Marshall said.
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While he was in Hawaii, Marshall ran into his old NAACP colleague Bob Carter. The two had rarely spoken since they began feuding in the late 1950s. Now, with Cissy Marshall leading the way, they agreed to have dinner. Carter was a federal district judge in New York, a widely respected man and a veteran of the civil rights movement. Late in life the two had more in common than they would have guessed thirty years earlier.

Carter later said the Hawaii dinner was not a big deal even as it signaled that the two had come together again. “We were just pleasant with one another—there wasn’t any feeling in mind—it just was Thurgood and I were free. I don’t hold grudges long.” Similarly, Marshall found himself even wishing his former nemesis had been named to a higher court. After the dinner he felt that Carter “should at least have been on the Court of Appeals.”

When Marshall got home from Hawaii, his critical remarks about the Constitution were still in the news. And a few weeks later he broke with Supreme Court decorum by making personal comments about current
politics and personalities, including some on the Court, in an unprecedented televised interview with the columnist Carl Rowan. “Well, a couple of more decisions like that Georgia sodomy case and we won’t have any privacy left, but I’m going to raise my voice against it as long as I got breath,” he said, criticizing the ruling in
Bowers v. Hardwick
, a 1986 case in which the Court upheld a Georgia law making sodomy criminal.

Marshall was also extremely critical of Attorney General Edwin Meese’s Justice Department for trying to “undermine the Supreme Court itself.” He told Rowan that he no longer read legal briefs from the Justice Department because “they write political speeches and put the word ‘brief’ on them.” He offered a particularly venomous assessment of the current solicitor general, Charles Fried. Marshall said Fried represented only “the president and not the rest of the government.”

These comments sparked a lot of grumbling inside the Supreme Court and in legal circles. But around the nation they got less attention than Marshall’s uncensored judgments about American presidents. He said Roosevelt did not “do much for the Negro,” but Truman “did everything he could.” Marshall said Eisenhower did nothing but “try to undermine the [1954] school decision.” He reserved judgment of President Kennedy except to say that he “was held back by the Attorney General, his brother.”

Marshall’s highest praise went to President Johnson. He told Rowan that Johnson’s plans “were just unbelievable, the things he was going to do—but he was too far for Negroes and civil rights.” However, he had less kind words for Jimmy Carter, saying “his heart [was] in the right place … [but] he’s going to be a non-entity anyhow.”

Marshall’s worst rating for any president went to Ronald Reagan: “The bottom.… I think he’s down with [Herbert] Hoover and that group and [Woodrow] Wilson, when we didn’t have a chance.” When Rowan reminded the justice that Reagan was an extremely popular president, he responded: “Is he more popular than the average movie star?”
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The
Baltimore Sun
, Marshall’s hometown paper, expressed surprise at his lack of propriety. The
Sun
noted that the last Supreme Court justice to make such harsh comments about a sitting president was impeached and urged Marshall to practice “judicial lockjaw.”
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Reporters asked President Reagan about Marshall’s low assessment of his civil rights record during a state dinner at the White House. The president responded that as a child he was taught that “the greatest sin was prejudice,” and as governor of California and president he had
fought for civil rights. “I am just sorry that he is not aware of that,” Reagan said coldly.
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The president’s response apparently did not change Marshall’s mind. In an interview a few years later he continued to express contempt for Reagan: “I wouldn’t do the job of dogcatcher for Ronald Reagan.” The justice said Reagan’s administration had “started the downhill slide which is proceeding as planned in civil rights. You just get the feeling that it’s hopeless.”

In conversations with his best friend on the court, Justice Brennan, Marshall also said that during the Reagan years, he felt the court’s right-wing majority was guilty of casting votes that were racist. “It’s a fact,” Brennan said in an interview, that Reagan’s appointees to the court took a regressive stand on civil rights cases. “The principles that we had thought were settled are now upset. See, Thurgood, as I suggest, thinks that this shows innocently or otherwise that there’s still a streak of racism. I agree that there is. There’s no question. But I will not accept his feeling that that may also be true of our colleagues, that they are personally racist or that their votes reflect any racism.”

As Marshall got more crotchety and indifferent to arguments about ending affirmative action, he became a favorite target for conservatives. When the
National Review
magazine ran an article on how the Court had become home to older liberal justices who relied heavily on their clerks, they put a picture of a sleeping Marshall on the cover. “Is the fellow in the black robes, second from the left, actually listening?” the conservative author Terry Eastland asked. “Or has his mind drifted elsewhere, perhaps to what
TV Guide
offers that afternoon? And of the 15 or so opinions of the court assigned to him during the term, how many does he—not his clerks—actually write?”
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The article outraged Marshall’s supporters. “It’s utterly untrue, utterly, utterly, utterly untrue!” said Justice Brennan in an interview. “Thurgood would say, if he’d say anything, he would say I’m sure that it’s simply another illustration of the survival of racism.”

Marshall confided his hurt feelings about the article to Brennan, but in an interview he claimed never to have seen it. “I’ll bet you they never sent me a copy of it,” he railed. “If they still got their teeth they didn’t send it.”

By the late 1980s Marshall’s brusque manner was on display wherever he went. His friends and clerks treated him as a grand, frumpy old lion, a sage emperor who had earned the right to be gruff and indifferent to critics as well as friends. His family, clerks, and secretaries made excuses
for his behavior but privately worried about him. “Once in a while he’ll explode,” Cissy Marshall said in an interview when asked about her husband’s frustration with the conservative court and what remained of the civil rights movement. “I wish he would explode more and get it out of his system. But he keeps a lot in.”

Marshall’s pal Monroe Dowling said Cissy Marshall worked endlessly to keep her husband out of situations where he might embarrass himself in public or bring shame on the Court. Dowling recalled, “I think drinking diverted his attention sufficiently. Cissy worked her heart out, and she did the best she could to make him a great man.”

In September 1988, Marshall was honored in celebration of his eightieth birthday by the Congressional Black Caucus with a dinner at the Washington Hilton. Colin Powell, then the national security adviser; the former National Urban League Secretary Vernon Jordan; the former attorney general Ramsey Clark; and the newly appointed Supreme Court justice Anthony Kennedy were in the audience. Despite the outright adulation, Marshall was still in a difficult mood. When he stood up to speak, he pointed to a large, flattering photo of himself: “What worried me about this thing … doesn’t it look like a memorial? If I can put it in the best English available,
I ain’t dead yet!
” After a short speech he quickly left.
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* * *

To counter negative publicity about him, Marshall’s friends and family began urging him to write about his life. Marshall had stayed away from reporters until he sat down for the TV interview with Rowan in 1986. He had turned down interview requests from the networks, newspapers, and magazines, even his former law clerks. But after publication of
The Brethren
, he encouraged Stephen Carter, one of his former clerks, to write favorable pieces about him. “He felt that maybe it was time to have some people do some talking who were going to say good things about him,” said Carter.

After the headlines he created with the TV interview and the growing pressure for him to create a first-person record of his life, Marshall agreed to write his life’s story jointly with Rowan. The justice signed the contract and got a check for $100,000 from the publisher, Little, Brown. The two began to sit down for interviews but soon found themselves divided over the project. Rowan, having heard about Marshall’s tirades in the Supreme Court case conferences, wanted to focus on the confidential
conversations. And in recounting Marshall’s career as a lawyer, he wanted to focus on a case Marshall had lost, the Lyons murder case. Marshall was outraged. He told Rowan to leave him alone and sent the money back to the publisher.

“Well, he was very angry at Rowan for asking him to reveal conference secrets, and he said to me, ‘I can’t believe it, I could just see the
Washington Post
headlines: “First Nigger on the Court Opens up the Conference,” ’ ” said Susan Bloch, one of Marshall’s former clerks.
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