Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall.

WHEN the young Thurgood Marshall was a law student at Howard University in the early 1930s, he often cut classes to watch former Solicitor General John W. Davis argue cases before the Supreme Court. Davis, then a Wall Street lawyer at the peak of his career, was the leading oral advocate of the day. On those occasions, Marshall later recalled, "I'd ask myself, 'Will I ever, ever... ?' and every time I had to answer, 'No, never.'" Davis was his beau iddal of a lawyer. Two decades later, Thurgood Marshall, at the height of his powers, argued and won the most celebrated Supreme Court case of the twentieth century, Brown v. Board of Education. His adversary: the eighty-year-old John W. Davis. Marshall had been a gracious opponent (forbidding his associates to make snide remarks about Davis) and Davis was noble in defeat (writing a friend that it was good for the country that the Warren Court's decision had been unanimous).

By 1954, when the historic schooldesegregation case was decided, Marshall's own place in the pantheon of American lawyers was already assured. He was the architect of the legal assault on segregated housing, public accommodations, and schools, and on all-white Democratic primaries. In later years, he could look back on winning 29 of the 32 cases he argued before the Supreme Court for the NAACP, 14 of the 19 cases he argued as Solicitor General, and 24 years of service as the first black Justice on the nation's highest tribunal.

Carl Rowan's Dream Makers, Dream Breakers recounts in rich detail Marshall's rise from unruly youth to civilrights hero, master legal strategist, judge on the Second Circuit Court of Appeals, Solicitor General of the United States, and Supreme Court Justice. Like a landscape painter who draws the viewer in by placing human figures in the foreground, Rowan melds history with biography, interspersing his account of Marshall's life and work with events in the struggle for racial justice in which Marshall played such a crucial role. The heroes of the narrative, the "dream makers," include, besides Marshall, Charles Hamilton Houston, Eleanor Roosevelt, Harry Truman, and Earl Warren. Among the villains are Orval Faubus, Strom Thurmond, J. Edgar Hoover, George Wallace, Jesse Helms, and "the most ruthless dream breaker," Richard Nixon.

In its biographical aspect, the book is an unabashed appreciation of the author's long-time friend. As history, it is a straightforward account of the decisions, strategies, struggles, and executive, legislative, and judicial actions that shaped American race relations from the time of Marshall's birth in 1908 to his retirement from the Supreme Court in 1991.

Like the outpouring of tributes that appeared after the Justice's retirement and his recent death, Rowan's book emphasizes that part of Marshall's life (1936 to 1961) devoted to civil-rights activism and strategy, passing rather lightly over his more problematic performance as a Supreme Court Justice. It is left for later biographers to explain why a man who was widely regarded as one of the most talented lawyers of his time was held in relatively low professional esteem as a judge.

Rowan seems right to discount law clerks' self-serving criticisms, of the type unearthed by Woodward and Bernstein in their 2979 best-seller, The Brethren. Marshall is portrayed there as an indolent and often uncomprehending judge, disdainful of legal technicalities, delegating research and opinion-writing to his clerks, telling them only half in jest, "I'll do whatever Bill [Brennan] does." Rowan's own interviews with Marshall clerks led him to a bottom line not very different from Woodward and Bernstein's--that, though Marshall might have delegated more than most of his brethren, the sentiments and the results were always Marshall's own. Regrettably, as Judge Richard Posner and others have pointed out, the practice of turning work that is properly judicial over to recent law graduates is widespread in the over-burdened federal court system. Few judges can now say, as Justice Louis Brandeis once did, "The reason they respect Supreme Court Justices so much is that we are the only people in Washington who do our own work."

The reason that even Marshall's most fervent admirers are expansive concerning his merits as a lawyer while confining themselves to bland generalities about his judging resides in the fact that different branches of the legal profession require different sorts of skills and personal qualities. The traits that are conducive to success in trying cases or arguing appeals are significantly different from those that make for excellence in judging. It must have been difficult for Thurgood Marshall, at age 53, after a lifetime of vigorous advocacy, to begin a second career which required him to renounce the role of impassioned pleader for that of impartial arbiter on the Second Circuit Court of Appeals. His transition was interrupted four years later, moreover, when President Johnson appointed him Solicitor General. Marshall was 59 when he took his seat on the United States Supreme Court.

He carried to that position the qualities that had served him and his causes well-his intelligence, his sense of justice, and the penetrating insight of one who had been excluded from privileges the other judges took for granted. He also brought the skills and mind-set of a crusading litigator. Irving Kaufman, Marshall's colleague on the Second Circuit bench, recalls, "My most abiding memory of Thurgood on this court was his ability to infuse his judicial product with the elements of the advocate's craft."

The problem with that blending of roles, though, is that our legal system promises every litigant, rich or poor, black or white, male or female, a judge who (in the words of the judicial oath) will "administer justice without respect to persons" and "impartially discharge" his or her duties "agreeably to the Constitution and laws of the United States." Thurgood Marshall himself had suffered much at the hands of judges who relentlessly advocated their personal visions of the good society.

Rowan provides a revealing glimpse into Marshall's behind-the-scenes advocacy in his discussion of the Court's controversial 1973 abortion decision. According to Rowan, "Marshall became a special advocate, or 'defense attorney,' inside the Court for poor women, black or white, but especially for minority women, who were likely to know both racial discrimination and poverty." Marshall's contribution to Roe v. Wade is one "that most American's still don't know about because it took place in that secret Supreme Court world of 'brokering' and gentlemanly power plays." It was Marshall, Rowan recounts, who insisted that the woman's "absolute right" to abortion be protected "way into the second trimester.'' Remarkably, Rowan maintains that Marshall's collaboration in Roe and the abortion cases that followed and expanded on it represents the crowning achievement of his judicial career:

Most Court watchers never dreamed that

Marshall's crowning moments on the

Court would involve, not the issue of

race, but of any woman's right to make

her own decisions as to whether and

when she would bring a child into this

world. You will not understand Marshall

or his world, unless you see how he oper-

ated in a political and social milieu that

was--and is--poisoned by passions over

the abortion rights of women. The Court

records indicate that no Justice ever sup-

ported a woman's right to choice as un-

compromisingly as Marshall did.

Apparently Marshall (and Rowan) were unable to discern a sinister side of the abortion-rights movement: its sibling relationship with the anti-immigration groups who see abortion and border controls as the major defenses against an expanding, threatening, welfare-consuming--and nonwhite--underclass-The full-page ads of these organizations run a few pages apart in trendy magazines, but they are linked financially and ideologically.

In any event, Linda Greenhouse had the order of his distinctions just right in her New York Times obituary: Marshall was a "pillar of the civilrights movement, architect of the legal strategy that ended the era of official segregation, and the first black Justice of the Supreme Court." Rowan seems to agree, writing that "it is not unreasonable to assume that history will regard him primarily as 'Mr. Civil Rights.'"

Rowan portrays Marshall in his last years as angry at the course the Court seemed to be taking. He was bitterly disappointed that Brown v. Board of Education and the one-man-one-vote cases had done so little to wipe out racial injustice. The fact is, though, that Thurgood Marshall, perhaps more than any other civil-rights leader, was responsible for the remarkable achievement of depriving racial prejudice of any respectability whatsoever in American society. He helped to create a world that John W. Davis's generation of Southerners had been unable to imagine. The very year that Marshall retired, a young writer, Melissa Fay Greene, reflected on these matters in Praying for Sheetrock, her moving account of the gradual empowerment of the black community in McIntosh County, Georgia: "Of course, it is not enough, but it is a beginning. The descendants of the Scottish settlers start to view the descendants of the African slaves, not as aliens in their midst, and not as servants, but as neighbors, colleagues, partners, fellow Americans, and increasingly, as leaders."

That same year, too, a black Georgian from Pinpoint took the seat vacated by Thurgood Marshall on the United States Supreme Court. Clarence Thomas's heroes were not great advocates, but great judges such as Learned Hand and Benjamin Nathan Cardozo. For Clarence Thomas, the Constitution is not just a bulwark of individual and minority rights, but a remarkable design for representative government; constitutional text, structure, and tradition are not mere legal technicalities, but the very essence of a regime of ordered liberty.

With the wildly varying concepts of fairness that currently compete for ascendancy in our increasingly diverse society, it is more essential today than ever before to select judges who can resist the temptation to promote partisan causes from the bench. We may therefore, if we are hopeful, look forward to the day when Clarence Thomas earns the same degree of honor as a judge that Thurgood Marshall achieved as a lawyer. Just as Marshall learned from and transcended Davis, Thomas may. help--in ways that Marshall's generation did not imagine--to make America a better, fairer, place than it was when Marshall left it.

Meanwhile, it is pleasant to imagine those gracious adversaries, Thurgood Marshall and John W. Davis, sipping bourbon together and swapping stories in lawyers' Valhalla.