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Tributes.

Thurgood Marshall, I thought, would always be there.

My life has been rounded by his. I was born in 1954, scant months after his advocacy led to the stunning victory in Brown v. Board of Education,(1) and so I grew up in the world he had helped to build. I arrived at college just as the Warren Court,which he joined only near its end, began to fragment. I was privileged to serve as his law clerk at the very instant when liberalism ran into the stone wall of electoral distate--the reagan landslide of 1980. And now, upon his retirement, I am at last coming to grips with my pahtial estrangement from the liberal establishment to which Marshall has always been a hero.

Thurgood Marshall has long been my hero, too. Few black Americans would say otherwise. Not long ago, I chatted with an elderly taxi driver, a beautiful black man who popped up one day like a Greek chorus, to help me keep my head on straight. The driver explained to me that I was too young to remember what it was like in the old days. He told me that for his generation, rooting for Thurgood Marshall was like rooting for Joe Louis--the heavyweight out to battle and demolish one white hope after another. Marshall was the man to call whenever the racists struck. Marshall, the lawyer, using the white man's weapons to fight back the white man's system. Marshall, the symbol. Marshall, the hero.

John Ely, in dedicating Democracy and Distrust to Earl Warren, writes, "You don't need many heroes if you choose carefully." Point taken--but choosing Thurgood Marshall as my hero didn't require much care. He was simply there. I met him for the first time in the spring of 1978, when he came to Yale to preside over the final moot court arguments, in which I was a finalist. For me, he was already larger than life. Before attending law school, I had spent a week reading Simple Justice, Richard Kluger's fascinating, but flawed, history of the litigation culminating in Brown. Kluger writes history by locating heroes and telling their stories. Some of the heroes of his book were the individuals with the courage to stand up against the totalitarian white supremacist power structures then governing their states and communities. Some of the heroes of his book were judges. And some of the heroes were lawyers, like Charles Hamilton Houston and William Hastie, even now too often ignored in law school classroom, and Thurgood Marshall--who would probably be ignored, despite his remarkable legal achievements, but for his elevation to the Supreme Court.

Before I read Simple Justice, I had only the thinnest appreciation for the achievements of the legal arm of the civil rights struggle. Although I was a history major, my courses, on twentieth century American history treated Brown as an axiom and the civil rights movement that followed--which we did study in history--as what really mattered. Indeed, in the armchair radicalism of my undergraduate days, I was inclined to treat law as relatively unimportant, as a cloak for the true power relations of society. Certainly I could not imagine lawyers as heroes.

Which is why Kluger's book was an eye-opener for me. Kluger's tale has its faults--I have in mind particularly his exaltation of Earl Warren and his crediting the inner dynamics of the Brown Court, rather than the skill or forcce of the litigants before it, as well as his notion that Marshall and others in the New York office of the NAACP Legal Defense Fund had to be pushed to confront segregation directly. Later, listening eagerly at the feet of Thurgood Marshall and also of Spottswood W. Robinson, III, for whom it was my privilege to serve as law clerk at the Court of Appeals for the District of Columbia Circuit, I would hear most of the same tales, and many others, with greater nuance and complexity. But my critique would come later. At the time, it was the heroes who got to me, and Kluger's book is full of them. Kluger, much like David Halberstam, paints his principal figures as much larger than life, and as budding lawyer, I was content, even delighted, to leave them that way. I came away from Kluger convinced that there were indeed giants roaming the earth in those days, giants who might have won the battle much earlier than they did except that the moral Lilliputians who fought them were far more numerous and held all the guns.

Very few of the Justices who have served on the Supreme Court would have been in the legal hall of fame without their careers on the Court, but Marshall was one of these. So to meet Thurgood Marshall in the flesh was, for me, to come into contact with a demigod. I had no idea what to expect, but I was worried and not a little awed. What I found, to my delight, was a great warmth, an openness, and an earthy good humor. His supreme unpretentiousness, his choice not to subject himself to the opinions of others, put me immediately at ease.

And the, in the late summer or early fall of 1979, I was astonished to be invited to serve as one of his law clerks, to join, for twelve months, his chambers family. (As an officer of the Yale Law Journal, I had been trained to see the Supreme Court as a sort of wholly owned subsidiary that was obliged to give us employment upon application, but the Justice did not always play their proper roles.) And for those twelve months, Justice Marshall, or the Judge, as we used to call him around the chambers, was one of the finest teachers I have ever had--at pool as well as at law. Because he was so often in dissent as the Burger Court majority chipped away at the edifice he had spent a lifetime building (an edifice the Rehnquist Court would later hit with a bulldozer), it would have been easy for the chambers to develop a bunker mentality, to see the rest of the Justices as enemies. But the Judge would have none of that. In those days, he was far too confident, far too good humored, and had far too capacious a view of human nature for those sins to turn him bitter. And for his ability to maintain his aplomb and his warmth even as the edifice began to crumble, I loved him all the more.

So, yes, Thurgood Marshall is my hero, too--but my reasons are not the same as those cited in some of the agonized commentaries on his depature. The greatness of a judge should no more be measured by the results he reaches than the greatness of a writer should be judged by the titles of her books. It is a trivialization of Marshall's importance to the Court for those on the left or the right to reduce his towering career to a series of outcomes in concrete cases.

Yes, every vote matters, and the new and relatively untested Justice Clarence Thomas makes many people nervous. One may easily make predictions about the Court without Marshall: Roe v. Wade(2) hangs by a thread, more bizarre First Amendment decisions are sure to follow, civil rights statutes are likely to receive ever more restrictive interpretations, and the Court has lost its one member whoo clients once included large numbers of those who sat on the other side of the interrogation tables in police stations.

On the other hand, many of the precedents that are said to be threatened are marked by judicial overreaching. Well before Marshall arrived to join the Warren Court in 1967, the Justices, perhaps awed by their own stellar achievements in helping to hasten the end of America's version of apartheid, occasionally began to write as though their own moral compasses were the truesign-posts of constitutional law. In the early 1970's, the last year of liberalism triumphant, the Court seemed to develop a "We have the votes" mentality that is always dangerous in the judicial branch--the same arrogance, as it happens, that lately seems to be infecting the Rehnquist Court, to the unfortunate glee of people on the right who ought to know better.

If President Bush, as his rhetoric suggests, wants to avoid the sin of judicial legislation, then one must hope that in appointing Clarence Thomas, he has followed Marshall with someone like Marshall--but like Marshall in a particular and rarely mentioned sense.

Thurgood Marshall's entire legal career has been marked by a strong and abiding faith in the rule of law--a faith too often absent in the antilegal cynicism of those on the left or the right who measure the success of the Supreme Court by whether it reads into the Constitution the political programs they prefer.

Just consider the fight against racial segregation. When others were sure that the only route to racial justice in America was direct action, Thurgood Marshall was out litigating--and litigating, it must be said, before a Supreme Court that included no members selected for their opposition to segregation. Marshall could do this with such confidence, such passion, only if he believed that people of good will would keep their minds open and could be persuaded if presented with clear and sensible legal arguments.

This real of the judges as someone amenable to reason is generally lost in today's popular clamor for the preservation of this precedent or the rejection of that one. If a President, pressured from his right flank, seeks a candidate who will vote "the right way," or if a Senate, pressured from the left, rejects a nominees who will vote "the wrong way," enormous damage is done to this ideal. Indeed, enormous damage is done to the notion of law as a guiding rather than a governing force in our democracy.

As a legal scholar, I rather unfashionably prefer that judges attempt a sharp separation of personal political and moral preferences from constitutional analysis. That judges generally seen as on the left cross that line in their quest for a better society has long been a commonplace of constitutional theory, which is probably why so much of contemporary scholarship is devoted to proving that it isn't so. But judges who are considered to be on the right do it too, with increasing frequency, most recently in the Court's restrictions of the constitutional right to seek writs of habeas corpus. Indeed, I fear that the Rehnquist Court's monument in the struggle for racial justice may prove to be its sharp departure from the original understanding of the Fourteenth Amendment in McCleskey v. Kemp.(3) There the Justices rejected the claim that the death penalty is administered in a racially discriminatory fashion, even though statistics plainly demonstrate that capital juries value the lives of white murder victims higher than the lives of black ones; and the rejection came notwithstanding the clear concern of the authors of the Fourteenth Amendment that the criminal law would be used to protect whites but not blacks.

Critics of Thurgood Marshall have long contended that he has, at some points in his career on the Court, identified his personal moral compass with the commands of the Constitution. Certainly I do not agree with very legal position that he has taken. But if the line is going to be crossed, I think we could do far worse than have the judge who does the crossing be a person of the integrity, compassion, and commitment to individuals that the Judge has displayed througout his career. This is not because his moral insticts are always right--whose are?--but because they are always compassionate. There are other judges of integrity and compassion, conservatives as well as liberals, and some of them are on the Court. But there is only one Thurgood Marshall.

Still, his decision to step down from the bench should not be viewed as a light going out. In the three and a half decades since Brown, people who describe their goals as progressive have come to rely far too much on the Court as an ally for social change: whereas, if the truth is told, it has not been a reliable ally for those on the left in two decades. (Even Roe, fiercely defended, and as fiercely attacked, as a decision about reproductive privacy, is, if one reads it carefully, much more a quasi-administrative-law decision, deferring to the considered judgment of the medical establishment.)

In fighting for a cause, one must use the tools that are available, and in the fifties and sixties, the Court happened to be available. That the Court was on the side of the angels in the battle against segreation was simply a coincidence. It is not easy to study the fabric of social change and come away with the conclusion that had Brown come out the other way, the civil rights movement would have died aborning. More likely, the Court would have sunk slowly into obscurity; a vital element in the prestige the Court now enjoys comes from the rhetorical buildup it received as antisegregation intellectuals and politicians in the fifties insisted that its edicts, no matter how controversial, must be obeyed.

In that sense, it is a tragedy of our era that everyone who has a cause seems to suppose that the Brown litigation is necessarily the model to follow. Brown was wonderful, but it does not represent the whole fabric of social change. For most of human history, people have relied on themselves rather than on their courts to make vital moral judgments and to ensure ethical progress. The skill of deciding difficult issues through public moral debate, rather than through arcane legal argument, is one that it is time for all of us to recover.

Public dialogue is risky, for one must face and persuade not a few judges, members of the ruling elite, but a broader range of people, many of them not subject to any particular conversational constraints. In other words, a tough world awaits when one leaves the courts and enters politics. Yet we live in a constitutional democracy, which means that not every moral wrong must be remedied by the creation of a constitutional right. The Constitutional places some moral choices outside the political process, but most of them are--and should be--left within it. The legislatures, not the courts, are the places where most of our great moral battles should be fought.

Besides, it is simply not true that Thurgood Marshall's departure, along with that of William Brennan last year, marks the end of the era when the Court was the first and best hope for curing the nation's ills. That era ended long ago, and I can even give it a date--a date, I think, when Justice Brennan and Marshall themselves knew with certainly that the era had passed, even though, on many issues, their side still had the votes.

During my year as a law clerk for Justice Marshall, I was a witness--the only witness, I think, other than the participants--to an incident I promised myself I would never reveal until both Justices were of the Court. The incident occured the morning after Ronald Reagan's landslide election in November 1980. Jimmy Carter's defeat was, by that time, a foregone conclusion; what stunned many observes was that the Democrats lost control of the Senate for the first time in more than two decades.

The court was sitting that day to hear oral arguments--a little thing like a presidential election could hardly disrupt the precise schedule--and, as usual, the Justices were rushing to the robing room and the law clerks to our little marble alcove off too the side of the courtroom. I left the chambers fast on the Judge's heels. In the broad, sunny corridor, Marshall encountered Brennan. From where I stood, it appeared that Brennan had tears in his eyes.

Brennan, looking unusually frail, gazed up at his old friend and ally. "Is it really true," he asked softly, "that Strom Thurmond is going to be chairman of the Judiciary Committee?" Senator Thurmond, one of Marshall's principal tormentors in his confirmation hearings,(4) was once an ardent segregationist. The name, no doubt, was a symbol for Marshall of all that he had spent his career struggling against.

Marshall, towering over his friend, looked down, hesitated, then slipped his arm around Brennan's narrow shoulders. They walked to the robing room that way, passing in and out of the shadows where the brilliant morning sunlight struck curtains or walls. That is the moment when the era ended, as these two great soldiers of liberalism squared their shoulders and marched off to fight their battle against the new political order.

And so the old order passeth. Perhaps it was time. But we will never see their like again.

(1) 347 U.S. 438 (1954).

(2) 410 U.S. 113 (1973).

(3) 481 U.S. 279 (1978).

(4) I discuss the nastiness of many of the questions at Thurgood Marshall's confirmation hearings in Stephen L. Carter, The Confirmation Mess, Revisited, 84 Nw. U. L. Rev. 962 (1990).

(1) 347 U.S. 438 (1954).

(2) 410 U.S. 113 (1973).

(3) 481 U.S. 279 (1978).

(4) I discuss the nastiness of many of the questions at Thurgood Marshall's confirmation hearings in Stephen L. Carter, The Confirmation Mess, Revisited, 84 Nw. U. L. Rev. 962 (1990).

William Nelson Cromwell Professor of Law, Yale University. This is an expanded and slightly rewritten version of an article that appeared on the Op-Ed page of the Wall Street Journal on July 1, 1991, under the title, An Old Soldier of Liberalism Musters Out.

Mr. Justice Thurgood Marshall:

A Substantial Architect of the United States Constitution for Our Times

Toward the end of the fourth score of the twentieth century, the United States moved a decisive stage closer to a nation in which "[t]he people, not the government, possess the absolute sovereignty,"(1) but with two vital retraints. First, the sovereign power of the majority may not deprive even the most despised minority of their constitutional and other fundamental rights;(2) the latter defined as all rights which are "implicit in the concept of ordered liberty."(3) Second, the history, ethics, decency, and fiarness of a civilized people demand on occasion that government, including the courts, provide resources to those to whom it has previously denied basic equality by its own willful misconduct.(4) Evenst in Eastern Europe today should convince even the most fervent, activist exponent of judicial restraint that free people function well only in an open society, in which there are constitutional and decency restraints, both on government and on majorities.(5)

This nation's advance came about not solely through dramatic incidents, such as Brown,(6) Cooper,(7) the Civil Rights Act of 1964,(8) or the Voting Rights Act of 1965,(9) for the results of any one alone were bound to be ephemeral. Instead, the nation advanced due to a combination of factors and forces: the shrinkage of the world due to technological developments, the growth in literacy and education, the pervasiveness of television, the rise of a free press, diffusion of competing ideas, a timely death,(10) and--not the least--the actions of a few great men. Thurgood Marshall is one such man about whom there should be little doubt or debate.

Without years of poring over numerous diaries, letters and records--such as Mark DeWolfe Howe did as he unsuccessfully struggled to finished a biography of Justice Holmes--it is hard to ascertain those special fibers that make a human being a tower of strength. For as Felix Frankfurter reminds us: "Greatness in the law is not standardized quality, for are the elements that combine to attain it."(11)

It is easier to describe what Marshal is not.

For example, Justice Thurgood Marshall is not like Percy Bysshe Shelley, who avoided the unpopular fray but considered "wholly unexcusable" others who did likewise.(12) Rather than avoid controversy, Marshall confronted it. As both an advocate and a Justice, he challenged many established practices in American society: the use of forced confessions;(13) racial segregation and discrimination in all forms;(14) wrongful deprivation of the precious right to vote;(15) restrictive covenants;(16) the death penalty as an excessive punishment unworthy of a civilized society;(17) the disparity between educational facilities of rich and poor (his dissent in San Antonio Independent School District v. Rodriquez(18) asserted a right in which all but the most brazen American abstractly believes: "the right of every American to an equal start in life), and the foolish notion that the horrendous effects of three hundred years of racial segregation simply vanish and lose all detrimental effect when society merely says we will not act that way in the future.(19)

Justice Marshall also is not like many men--such as Disraeli, Talleyrand, Daniel Webster, and John Marshall, to speak only of the dead--who involve themselves in public issues in order to add shekels to their purses.(20)

But why persist in the negative? As an advocate he had an eagle's eye, a lion's heart, a prodigious memory, a flame of genius, a restrained daring, and even--rushing from an adverse trial decision to a Special Term of the Supreme Court to argue Cooper before the opening of the shools in Little Rock--a greyhoud's speed.(21) In a room of brilliant lawyers, including law professors from the leading law schools, Marshall had the ability to listen, to ask the right questions, and, at the end of the discussion, to become the intellectual leader of those whom he had assembled to advise him. As an advocate he retained the moral character and perspective to consider, question and critizize arguments or theories advanced by younger and older attorneys. Marshall's colleagues on the bench have said he trated them with courtesy and kindness, but brought them to realize "the reality that the protections [in the Constitution] were honored not by their enforcement but by their neglect" and assisted them "in understanding those facets of American life upon which their decisions impact but about which some have little first hand knowledge."(22) Better than any, Marshall can combien what Socrates, Plato, Aristotle, and perhaps Pushkin, gave to the world, what de Tocqueville, Burke, Shakespeare, and Saint Beuve (to name a select few) gave to Europe, and what Lincoln, John Hope Franklin, Alain Locke, Hemingway, and Langston Hughes made peculiarly American.

There is a great sense of humor in that tall hulk of gentleman. Marshall's humor is neither barnyard nor off-color, and because it is wit and not wisecrack, it is hard to describe. Because his witty, sophisticated remarks are so dependent upon the event or circumstance that gave rise to their display, they are difficulty to retell.(23) Perhaps sharing a story he told me when I recently visited him in chambers will illustrate this point. Marshall reminisced:

Justice Harlan was a wonderful man--a real gentleman. He was

a gentleman in every sense of the word, and that was his problem. He

did not even cuss. When he got to a cussing point, he would ask me

what to say.

I remember one time, we were all meeting, and Chief Justice

Warren and Harlan were really knocking heads over one point. Well, we

took a coffee break and Harlan told me he needed a word or two so

I gave him two or three things to choose from. When the meeting

started up again, Warren said, "now Harlan, I just don't see what you

are trying to say." Harlan looked at him and said, "Chief, it is as clear

as a goat's ass going up a hill." Warren looked right at me and said,

"Thurgood, I know that was you who gave him that."

The third quality will better emerge after a digression. Perhaps it is not really a digression, as intellectual contests between two superb advocates (Thurgood Marshall and John W. Davis in Brown) often take on the mastery of the artist, his canvas, his aim, and the surroundings sought to be implanted forever in the viewer's mind. In Paul Johnson's The Birth of the Modern: World Society 1815-1830,(24) an event in the Constable-Turner struggle is described:

The Royal Academy's annual show in May, which opened the

London Season, was the best showplace by far . . . . But there were

many disadvantages . . . . The wall space was grotesquely

overcrowded, and everything depended on where your work was hung and what

was n ear it. There were tremendous rows in consequence . . . . When

Constable finally showed his Opening of Waterloo Bridge, done in

1817, he heightened it on varnishing day with vermilion and lake. The

painting was hung next to Turenr's Helvoetsluys, described by

C.R. Leslie as "beatiful" but "a grey picture." Turner come several

times into the room, looking from Constable's picture to his own, "and

at last brought his palette . . . and putting a round daub of red lead,

somewhat bigger than a shilling, on his grey sea, went away without

saying a world. The intensity of the red lead, made more vivid by the

coolness of his picture, caused even the vermilion and lake of

Constable to look weak." Hence Constable's bitter comment: "[Turner] has

been here, and fired a gun."

Marshall, as advocate and Justice, fired a gun with the selectivity and deftness which are the luxuries of those who have the mark of genius, an incessant activity of mind. Let me share three instances. First, in the Brown argument about the form of the decree, the Southern States were making much of the point (though it was due to the states' own neglect) of the reportedly large gap in the education levels of the two races. Marshall, in his blunt argot, said the solution was simple: "Put the dumb colored children in with the dumb white children, and put the smart colored children with the smart while children--that is no problem."(25) Second, in Cooper v. Aaron,"(26) the Little Rock School Board argued that requiring integration in the public schools was just like trying to force prohibition on the Amrican peoaple. Marshall's reply was that he did not think that one could equate a constitutional education with a shot of whiskey. Third, like all great artists, his exits are grand and have a dash of style. On the last day of the October 1990 Term, in Payne v. Tennessee,(27) the Court overturned previous decisions that had held that the Eighth Amendement bars the admission of victim-impact evidence in the penalty phase of a capital case. Justice Marshall intoned in dissent: "Power, not reason, is the new currency of this Court's decisionmaking."(28) He further warned: "Cast aside today are those condemed to face society's ultimate penalty. Tomorrow's victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday's |spirited dissents' will squander the authority and the legitimacy of this Court as a protector of the powerless."(29)

Mr. Justice Marshall: one note of hope. What you did to make this nation slightly more civilized--restore the supremacy and integrity of a process which puts restraints on irresponsible majorities as well as on government--has a solid founation, and its retelling by a new generation of teachers and lawyers will inspire the young. Those wielding judicial power, perhaps temporarily restraining progress by not understanding the real beat of America, will meet the same fate as those who felt that Holmes' Twentieth Regiment, the Union Army at Lookout Mountain, or Martin Luther King's march to Selma did not represent the real future of the United States and its real heart and soul. Thanks to you and to those you have inspired and will inspire, history and experience will prove these skeptics wrong. For, as Professor Paul Gewirtz reminds us in his moving tribute, your stunning successes as an advocate and your perceptive opinions as judge and Justice are grounded in "America's own ideals, the symbols of its democratic faith."(30)

(1) Madison's Report on the Virginia Resolutions (1800), reprinted in Debates on the Adoption of the Federal Constition, at 569 (Jonathan Elliot ed., 1987).

(2) See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Cooper v. Aaron, 358 U.S. 1 (1958); Brown v. Board of Educ., 347 U.S. 483 (1954).

(3) Palco v. Connecticut, 302 U.S. 319, 325 (1937).

(4) See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 552-53 (1989) (marshall, J., dissenting); Fullilove v. Klutznick, 4448 U.S. 448 (1980); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., concurring in part and dissenting in part); Swann v. Charlotte-Mecklenburg Bd. of EDuc., 402 U.S. 1 (1971).

(5) See, e.g., Valery Chalidze, Tyranny of the Soviety Majority, N.Y. Times, Sept. 29, 1991, at E17.

(6) 347 U.S. 483 (1954).

(7) 358 U.S. 1 (1958).

(8) Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 28 U.S. C. [section] 1447, 42 U.S.C. [subsection] 1971, 1975a to 1975d, 20000a to 2000h-6 (1988)).

(9) Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. [subsection] 1971, 1973 to 1973bb-1 (1988)).

(10) Richard Kluger, Simplet Justice 656 (1976).

(11) Felix Frankfurter, The Supreme Court in the Mirror of Justices, 105 U. Pa. L. Rev. 781, 784 (1957). Frankfurter goes on:

To speak only of Justices near enough to one's own time, greatness may manifest itself through

the power of penetrating analysis exerted by a trenchant mind, as in the case of Bradley; it may

be due to persistence in a point of view forcefully expressed over a long judicial stretch, as

shown by Fiedl; it may derive from acoherent judicial philosophy, expressed with pungency

and brilliance, reinforced by the Zeitgeist, which in good part was itself a reflection of that

philosophy, as was true of Holmes; it may be achieved by the resourceful deployment of vast

experience and an originating mid, as illustrated by Brandeis; it may result from the influence

of a singularly endearing personality in the service of sweet reason, as Cardozo proves; it may

come through the kind of vigor that exerts moral authority over others, as embodied in Hughes

(12) In 1818, Shelley left Sussex and became a wanderet at the height of a political controversy in his district. On April 20, 1818, when the election campaign was reaching a paroxysm, he was in Milan, Italy. In a letter of Thomas Peacock, he wrote: "The number of English who pass through this town is very great. The ought to be in their own country in the present crisis. Their conduct is wholly unexcusable." Letter from Percy Bysshe Shelley to Thomas Love Peacock (Apr. 28, 1818), in 2 Letters of Percy Bysshe Shelly, 1816-1822, at 597 (Roger Ingpen ed., 1914).

(13) See, e.g., Watts v. Indiana, 338 U.S. 49 (1949) (use at trial of confession coerced by police violated defendant's due process rights); accord Lyon v. Oklahoma, 322 U.S. 596 (1944).

(14) See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Morgan v. Virginia, 328 U.S. 373 (1946) (statute separating black and white passengrs violates Commerce Clause).

(15) See, e.g., Smith v. Allwright, 321 U.S. 649 (1944); Rice v. elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948).

(16) Shelley v. Kraemer, 334 U.S. 1 (1948).

(17) Furman v. Georgia, 408 U.S. 238, 314 (1972) (Marshall, J., concurring); see also Thurgood Marshall, Remarks on the Death Made at the Judicial Conference of the Second Circuit, 86 Colum. L. Rev. 1 (1986).

(18) 411 U.S. 1, 71 (1973).

(19) Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., dissenting).

(20) How Justices RAnk--Richest to Poorest, U.S. News & World Rep., May 27, 1985, at 8.

(21) Cooper v. Aaron, 358 U.S. 1 (1958).

(22) William J. Brennan, Justice Thurgood Marshall: Advocate for Human Need in American Jurisprudence, 40 Md. L. Rev. 390, 394, 396 (1981).

(23) His former colleague, Chief Judge irving R. Kaufman, gae one example. Judge Marshall in a witty aside remarked: "There';s a very practical way to find out whether a confession has been coerced: ask, how big was the cop?" Irving R. Kaufman, Thurgood Marshall: A Tribute From a Former Colleague, 6 Black L.J. 23, 25 (1978).

(24) Paul Johnson, The Birth of the Modern: Woirld Society 1815-1830, at 602-03 (1991) (alteration in original).

(25) Richard Kluger, Simple Justice 730 (1976).

(26) 358 U.S. 1 (1958).

(27) 111 S. Ct. 2597 (1991).

(28) Id. at 2619 (Marshall, J., dissenting).

(29) Id. at 2625.

(30) Paul Gewirtz, Thurgood Marshall, 101 Yale L.J. 13, 17 (1991).

William T. Coleman, Jr., A.B. University of Pennsylvania, 1941; LL.B., Harvard Law School, 1946 as of 1943; Law Clerk to Mr Justice Felix Frankfurter, 1948-49 Term; Senior Partner, O'Melveny & Myers; U.S. Secretary of Transportation in the Ford Administration, 1975-77; Chairman, NAACP Legal Defense and Educational Fund, Inc., 1961-75, 1977-present; Member, American College of Trial Lawyers.

(1) Madison's Report on the Virginia Resolutions (1800), reprinted in Debates on the Adoption of the Federal Constition, at 569 (Jonathan Elliot ed., 1987).

(2) See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Cooper v. Aaron, 358 U.S. 1 (1958); Brown v. Board of Educ., 347 U.S. 483 (1954).

(3) Palco v. Connecticut, 302 U.S. 319, 325 (1937).

(4) See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 552-53 (1989) (marshall, J., dissenting); Fullilove v. Klutznick, 4448 U.S. 448 (1980); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., concurring in part and dissenting in part); Swann v. Charlotte-Mecklenburg Bd. of EDuc., 402 U.S. 1 (1971).

(5) See, e.g., Valery Chalidze, Tyranny of the Soviety Majority, N.Y. Times, Sept. 29, 1991, at E17.

(6) 347 U.S. 483 (1954).

(7) 358 U.S. 1 (1958).

(8) Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 28 U.S. C. [section] 1447, 42 U.S.C. [subsection] 1971, 1975a to 1975d, 20000a to 2000h-6 (1988)).

(9) Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. [subsection] 1971, 1973 to 1973bb-1 (1988)).

(10) Richard Kluger, Simplet Justice 656 (1976).

(11) Felix Frankfurter, The Supreme Court in the Mirror of Justices, 105 U. Pa. L. Rev. 781, 784 (1957). Frankfurter goes on:

To speak only of Justices near enough to one's own time, greatness may manifest itself through

the power of penetrating analysis exerted by a trenchant mind, as in the case of Bradley; it may

be due to persistence in a point of view forcefully expressed over a long judicial stretch, as

shown by Fiedl; it may derive from acoherent judicial philosophy, expressed with pungency

and brilliance, reinforced by the Zeitgeist, which in good part was itself a reflection of that

philosophy, as was true of Holmes; it may be achieved by the resourceful deployment of vast

experience and an originating mid, as illustrated by Brandeis; it may result from the influence

of a singularly endearing personality in the service of sweet reason, as Cardozo proves; it may

come through the kind of vigor that exerts moral authority over others, as embodied in Hughes

(12) In 1818, Shelley left Sussex and became a wanderet at the height of a political controversy in his district. On April 20, 1818, when the election campaign was reaching a paroxysm, he was in Milan, Italy. In a letter of Thomas Peacock, he wrote: "The number of English who pass through this town is very great. The ought to be in their own country in the present crisis. Their conduct is wholly unexcusable." Letter from Percy Bysshe Shelley to Thomas Love Peacock (Apr. 28, 1818), in 2 Letters of Percy Bysshe Shelly, 1816-1822, at 597 (Roger Ingpen ed., 1914).

(13) See, e.g., Watts v. Indiana, 338 U.S. 49 (1949) (use at trial of confession coerced by police violated defendant's due process rights); accord Lyon v. Oklahoma, 322 U.S. 596 (1944).

(14) See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Morgan v. Virginia, 328 U.S. 373 (1946) (statute separating black and white passengrs violates Commerce Clause).

(15) See, e.g., Smith v. Allwright, 321 U.S. 649 (1944); Rice v. elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948).

(16) Shelley v. Kraemer, 334 U.S. 1 (1948).

(17) Furman v. Georgia, 408 U.S. 238, 314 (1972) (Marshall, J., concurring); see also Thurgood Marshall, Remarks on the Death Made at the Judicial Conference of the Second Circuit, 86 Colum. L. Rev. 1 (1986).

(18) 411 U.S. 1, 71 (1973).

(19) Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., dissenting).

(20) How Justices RAnk--Richest to Poorest, U.S. News & World Rep., May 27, 1985, at 8.

(21) Cooper v. Aaron, 358 U.S. 1 (1958).

(22) William J. Brennan, Justice Thurgood Marshall: Advocate for Human Need in American Jurisprudence, 40 Md. L. Rev. 390, 394, 396 (1981).

(23) His former colleague, Chief Judge irving R. Kaufman, gae one example. Judge Marshall in a witty aside remarked: "There';s a very practical way to find out whether a confession has been coerced: ask, how big was the cop?" Irving R. Kaufman, Thurgood Marshall: A Tribute From a Former Colleague, 6 Black L.J. 23, 25 (1978).

(24) Paul Johnson, The Birth of the Modern: Woirld Society 1815-1830, at 602-03 (1991) (alteration in original).

(25) Richard Kluger, Simple Justice 730 (1976).

(26) 358 U.S. 1 (1958).

(27) 111 S. Ct. 2597 (1991).

(28) Id. at 2619 (Marshall, J., dissenting).

(29) Id. at 2625.

(30) Paul Gewirtz, Thurgood Marshall, 101 Yale L.J. 13, 17 (1991).

William T. Coleman, Jr., A.B. University of Pennsylvania, 1941; LL.B., Harvard Law School, 1946 as of 1943; Law Clerk to Mr Justice Felix Frankfurter, 1948-49 Term; Senior Partner, O'Melveny & Myers; U.S. Secretary of Transportation in the Ford Administration, 1975-77; Chairman, NAACP Legal Defense and Educational Fund, Inc., 1961-75, 1977-present; Member, American College of Trial Lawyers.

Thurgood Marshall

Thurgood Marshall's life as a civil rights lawyer insired my decision to go to law school, so it was the greatest of dreams fulfilled when I came to work as his law clerk at the Supreme Court. Now, as he leaves the Court, it is an honor to mark his retirement in these pages.

Marshall is an extraordinary figure in American legal history. He has lived many lives--indeed, while others marvel over his professional durability at the age of eighty-three, I actually think of him as having compressed more than a hundred years of living into that time span. He was the country's greatest civil rights lawyer during the greatest period of civil rights advances in our history, and in that role he lived a life of relentless intensity and danger, and one of transforming achievement. He was a United States Court of Appeals Judge. He was Solicitor General of the United States (his favorite job, he has often said with complete seriousness--an advocate's job in which he spoke for "the United States," not simply a faction or insurgent part of the whole). Finally, he became a Justice on the Supreme Court of the United States during one of its most dramatic periods of change. While he was a top government official for much of this time--an insider and a colleague of the advantaged--he spent his carrer trying to protect the disadvantaged and identifying with them.

The centerpiece of his public life is and always will be Brown v. Board of Education.(1) Marshall did not win Brown alone, and never claimed to have done, so but he was the guiding force and justly became the symbol of the trimph. Much has been written about the long litigation campaign leading to the Supreme Court's unanimous decision in Brown. But one aspect of Marshall's achievement is rarely emphasized: to do what he did required an heroic imagination. He grew up in a ruthlessly discriminatory would--a world in which segregation of the races was pervasive and taken for granted, where lynching as common, where the black man's inherent inferiority was proclaimed widely and wantonly. Thurgood Marshall had the capacity to imagine a radically different world, the imnaginative capacity to believe that such a world was possible, the strength to sustain that image in the mind's eye and the heart's longing, and the courage and ability to make that imagined world real. The predicate for the great achievement of Brown was to imagine something better than the present--to resist the acquiescene, passivity, fear, and accommodation that overcome so many, to defy an insistent reality with imagination and then to fight for what was imagined.

Brown changed the world. And because of that, Thurgood Marshall's life stands for the idea that law can change the world and that the Supreme Court can be a powerful force in fulfilling our best public values. That was what drew me to the law, and what has drawn so many others. Brown, then, is not just a case; its importance cannot be assessed just by totalling up what ending enforced school segregation may have accomplished. Its importance cannot be assessed even by recognizing that it gave broad legitimacy to the modern political struggle for racial equality. Its broadest importance is its embodiment of a conception of law and of the courts.

The naming of Thurgood Marshall to the Supreme Court, therefore, was an act of the greatest importance. His becoming a part of the Court showed how much he had changed the world--in many ways it was the most striking indication of the transformation he had wrought. For all of his imaginative heroism, it is hard to believe that in the 1930's, |40's and |50's Marshall ever imagined that he might someday sit on the Court, be more than an insurgent advocate waiting for others--the Justices--to vindicate him. He created the world that made his own ultimate personal triumph possible. He would now share the power to decide. His becoming a Justice became part of what Brown meant.

The perspective he brought to the Court was unique. The other Justices had diverse life experiences, and many were major public figures in their own right. But Marshall brought something distinctive to the Court. The distinctiveness was not simply that he was the first black to sit on the Court, but that he had spent much of his professional life working among the oppressed and the insurgent. To be sure, by the time Marshall came to the Supreme Court he knew more Presidents and Congressmen than most Justices, and he knew their needs and their weaknesses; indeed, they were the subject of many of his bes t stories. But Marshall also knew the other side of the tracks, not simply as an observer but as one who had called it home; and he always thought of himself as an activist on its behalf. He brought to the Court a sense of how the world worked, and how it worked against those at the bottom. He knew what police stations were like, what rural Southern life was like, what the New York streets were like, what trial courts were like, what hard-nosed local political campaigns were like, what death sentences were like, and what being black in America was like--and he knew what it felt like to be at risk as a human being. Most importantly, perhaps, he knew the difference that law could make in all those places. None of his experiences with the harshness of life made him bitter or cynical about law's possibilities. He knew well how law could trample individuals, but he remained faithful to an ideal of what it could do to protect individuals.

Marshall is, as Louis Pollak once called him, "larger-than-life."(2) In his presence one thinks: This man has genuinely lived. That is partly because of what one knows of him, partly from the vast and shifting fields of reference in his fecund supply of stories, and partly from the earned aura given off by someone who has experienced life especially intensely. For all of that, he is utterly human. He is earthy, compassionate, determined, funny, and proud. He does not act like someone taken with his own legend--indeed, at times he seems to defy people's expectations of who he is. He is outwardly unsentimental. He never coddled his law clerks, and almost never praised them. Yet he is in fact a man of strong sentiment and loyalty. The day after I argued my first Supreme Court case I was back at home in my study reading when the phone rang. "Paul, it's Thurgood Marshall. I just wanted to tell you that you were really great yesterday and that I was so proud of you." My fantasies about arguing before the Court--and thee were many--had not included such a moment. "Now, remember, that doesn't mean you're going to win," he quickly added, "but I just wanted you to know you did a great job."

He came to the Court during what seemed the heyday of the Warren Court, but the Court's membership rapidly changed. He wrote many important majority opinions, but soon found himself a frequent dissenter from a considerable portion of the Court's work. He found that discouraging, but in some sense it was his more accustomed position. While he would have devoutly wished to have ended his career as a comfortable member of the Court's majority, his role as dissenter was perhaps more authentic for him, or at least more continuous with what had come before.

For me at least, it is his dissents that sound with the greatest power and resonance, whether or not one agrees with their ultimate conclusions. I particularly have in mind his dissent in San Antonio Independent School District v. Rodriguez,(3) the case that marked the true end of the Warren Court, and perhaps most especially his dissent in Milliken v. Bradley,(4) in which the Court rejected the appropriateness of most interdistrict relief in school desegregation cases. The Milliken dissent emerged from the core of Marshall's pre-Court experience and ended with a sad and angry prophecy:

Desegregation is not and was never expected to be an easy task.

Racial attitudes ingrained in our Nation's childhood and adolescence

are not quickly thrown aside in its middle years. But just as the

inconvenience of some cannot be allowed to stand in the way of the rights

of others, so public opposition, no matter how strident, cannot be

permitted to divert this Court from the enforcement of the

constitutional principles at issue in this case. Today's holding, I fear, i s more a

reflection of a perceived public mood that we have gone far enough

in enforcing the Contitution's guarantee of equal justice than it is the

product of neutral principles of law. In the short run, it may seem to

be the easier course to allow our great metropolitan areas to be divided

up each into two cities--one white, the other black--but it is a course,

I predict, our people will ultimately regret. I dissent.(5)

Justice Marshall's views evolved while he was on the Court. Always a patriot, he nevertheless became more skeptical of the government's professed need to promote national interests by restricting individual liberty. He had a strong distaste for flag burners and others who attacked our country, but he disciplined that distaste and supported their First Amendment claims, as he concluded the Constitution required him to do.

Always an egalitarian on racial matters, he broadened his own understanding of the meaning of equality to other social groups. Interestingly, when affirmative action issues first started to emerge in bold relief, I can recall, he was very uneasy with race-conscious hiring, admissions, and set-asides as a corrective for past discrimination. In time, he became their most passionate defender on the Court. He came to that position, I think, in much the same way many others did: reluctantly, through a gradually developed judgment that, against the backdrop of centuries of oppression, colorblind measures would not work, or at least not work fast enough, to achieve a significantly greater inclusion of minorities in mainstream American life. Those who have tried to quote back at the Justice his endorsement of colorblind remedies at the time of Brown ignore the fact that judges continue to change while in office, and that the life revealed in cases continues a judge's education.

The departure of Justice Marshall, of course, is not just the end of a great man's career on the Court, but also the end of a large chapter in the Court's history, the breaking of the final link to the Warren Court. At the end, Justice Marshall was an isolated figure on the Court, not only deprived of majorities in the cases that mattered most to him, but deprived even of the shared memories and dissenting faith provided by Justice Brennan. For that reason, his departure produced in many an elegiac mood that Justice Brennan's departure had not. Linda Greenhouse of The New York Times, writing on a daily deadline, captured that sense exactly:

Thurgood Marshall . . . knows the Court's potential as an

instrument for social change better than almost anyone who has ever served

there. Even in advanced age, in evident anger and sorrow, his

continued presence on the bench made him a powerful symbol of the era

when the Court demonstrated that potential to a remarkable degree. His

departure crystallizes a moment when a historic tide, long in the

ebbing, has finally run out and a new history of uncertain dimension

has begun to unfold.(6)

In law, of course, the link to the past is never fully cut because those who come before always provide some authority for those who come after. History itself is authority, and history can never be permanently erased. The central legal strategy leading up to Brown, like the central political strategy of figures such as Martin Luther King, Jr., was to invoke Americans' historic ideals as the basis for insisting that America's racial practices had to change. We, after all, were a country conceived with the proclamation that all men are created equal, and we have often reproclaimed that faith. Brown did not embody some radical new principle, but rather was seen as the fulfillment of promises made a century or two earlier in the Declaration of Independence, in the Fourteenth Amendment, and in cases like Strauder v. West Virginia,(7) whose sweeping rationale had been ignored in subsequent decisions. The appeal in Brown was not to ideas outside the central American tradition, but to the core of that intellectual tradition itself. That is why Thurgood Marshall's intuitively patriotic response to flag burning or Communists should never have surprised me: the premise of the great litigation campaign leading up to Brown was that what blacks had to work with, their best hope, was America's own ideals, the symbols of its democratic faith.

The Justice's dissents of the past two decades, progressively harsher and more numerous, also appealed to the country's historic ideals. But they were also appeals to the future--at least implicitly a beacon to some later day when the Court might change and perhaps follow the alternative path laid out by today's dissent.

As the new Court consolidates its membership and direction, the great historic question is this: A hundred years from now, will the Warren Court be seen as a parenthesis in the history of the Court--an essentially aberrant deflection from the true path of the Court's development? Or will the newly emergent late twentieth century Court itself be seen as the parenthesis, the aberrant deflection? There is, of course, no way to know; "[t]here is no pulling open the buds to see what the blossom will be."(8) There may, in fact, be no ultimate answer. But if the Warren Court is the parenthesis, Marshall's dissents will be ignored; if the Rehnquist Court proves to be the aberration, then Marshall's dissents will be rediscovered and will provide authority and guidance for the future. Dissenters (whether the Marshalls or the Scalias) hope to become like Holmes and Brandeis--prophets vindicated by the future, dissenters who became great prophets because (indeed, only because) they were vindicated by history.

If we can predict anything about our constitutional future, though, we know that Thurgood Marshall is indelibly impressed upon it. Perhaps more clearly than any other recent member of the Court, he is an historic figure. He fundamentally changed our world for the better, which can be said of very very few lawyers. And he deservedly has become a symbol of America's possibilities--the possibility that we can redeem our terrible racial past, that our constitutional ideals are part of our strength as a nation, and that a life in the law can be a life of the largest purpose and achievement.

(1) 347 U.S. 483 (1954).

(2) Louis H. Pollak, Thurgood Marshall: Lawyer and Justice, 40 Md. L. Rev. 405, 408 (1981).

(3) 411 U.S. 1 (1973).

(4) 418 U.S. 717 (1974).

(5) Id. at 814-15 (Marshall, J., dissenting).

(6) Linda Greenhouse, The Conservative Majority Solidifies, N.Y. Times, June 30, 1991, [section] 4, at 1.

(7) 100 U.S. 303 (1988).

(8) D.H. Lawrence, Democracy, in Phoenix: The Posthumous Papers of D.H. Lawrence 699, 715 (Edward D. McDonald ed., 1936).

([Dagger]) Professor of Law, Yale Law School; Law Clerk to Justice Marshall 1971-72 Term.

(1) 347 U.S. 483 (1954).

(2) Louis H. Pollak, Thurgood Marshall: Lawyer and Justice, 40 Md. L. Rev. 405, 408 (1981).

(3) 411 U.S. 1 (1973).

(4) 418 U.S. 717 (1974).

(5) Id. at 814-15 (Marshall, J., dissenting).

(6) Linda Greenhouse, The Conservative Majority Solidifies, N.Y. Times, June 30, 1991, [section] 4, at 1.

(7) 100 U.S. 303 (1988).

(8) D.H. Lawrence, Democracy, in Phoenix: The Posthumous Papers of D.H. Lawrence 699, 715 (Edward D. McDonald ed., 1936).

Paul Gewirtz Professor of Law, Yale Law School; Law Clerk to Justice Marshall 1971-72 Term.

My Personal Debt to Thurgood Marshall

Now that Thurgood Marshall has annouced his decision to retire as a Justice of the Supreme Court, assessments of his life and contributions to the development of American constitutional law are beginning to pour in and, even in this conservative climate, they are all faavorable. When viewed against the background of American history over the past half century, the totality of his contributions to the restructing of American society has rendered him larger than life. However, I fear that his personal, unique contributions to the advancement of women in the law--a profession once totally dominated by men--may be lost in the review of the multitude of events and judicial opinions which now compose his life. My tribute acknowledges my personal debt to Thurgood Marshall for aiding my career at a time when nobody was hiring women lawyers.

My first job interview was an accurate sign of the times. It was October 1945. World War II had abruptly ended a few months earlier, and I was in my final year at Columbia Law School. The women in may class had high hopes but few offers. I learned from my classmates that a small midtown firm was looking to hire aa recent graduate. When I appeared for may interview, a balding, middle-aged white male appeared at a door leading to the reception room where I was standing. The receptionist had not even asked me to have a seat. Even after the door to the reception room quiclkly closed, she still did not invite me to sit down. She knew as well as I that the interview was over.

When I returned to school, another classmate, an African-American male from North Carolina, Herman Taylor, told me about a law clerk vancancy at the NAACP Legal Defense and Education Fund, Inc. (the Inc. Fund). I hurried down to the Inc. Fund offices on lower Fifth Avenue for an interview, and Thurgood Marshall hired me on the spot. Marshall told me about his admiration for African-American women who had the couraged to enter the legal profession. He also told me aboout Florence Lucas, an African-American woman who was practicing in Queens and who had put herself through law school by working in a laundry at night. When I finished Columbia Law School in June 1946, Marshall received Boared approval to hire a woman lawyer. I was a member of the Inc. Fund staff until 1965.

Thurgood Marshall had no qualms about women being given equal employment opportunities. His mother was a school teacher andhis father was a dining car steward. Over the years, he told me about every successful African-American woman he encourtered. Marshall was born and grew up in America at a time when nobody had to tell him that African-Ameriacan males were on the bottom rung of the ladder in every conceivable professional endeavor and that African-American women were not even on the ladder.

When I joined the staff of the Inc. Fund as a clerk in 1945 it was a fledging public interest law firm with two full-time lawyersin addition to Marshall, one part-time lawyer, and three secretaries. The annual budget was about $30,000. The law library consisted of a single set of Supreme Court Reports. Since my main responsibilities included research and writing, and we had no library facilities, Marshall suggested that I join the New Youk City Bar Association (the Association) so that I could see its law library. After securing membership, I presented myself at the front door of the Association of 44th Street in Manhattan. When I got there I saw the "gate keeper' standing at his desk immediately inside the door. He was an elderly white man with snow-white hair who appeared to be one year older than God. He was talking with an Association lawyer. When I approached the desk, the "gate keeper" continued his conversation and never even looked at me. The "gate keeper" obviously assumed that I was a mere messenger. The one or two other women members of the Association at that time had joined so recently that a women's rest room had not yet been provided. When the "gate keeper" finally addressed me an embarrassing two minutes or so later, he said politely, "May I help you," with a quick motion of his head in my direct. When I replied that I wanted to use the library, the "gate keeper," again without looking in my direction, said, "You must be a member." When I assured him that I was a member, he finally ceased his conversation and turned his head fully in my direction for the first time. As if he had seen a ghost, he shouted in disbelief, "You a member of this Association." "Yes," I replied. "What is your name," was his retort. "Mrs. Motley," I said, guarding against what all African-American women guarded against in those days. When he found my name on the membership list, he exclaimed, "Oh, right this way, Constance." This story is one of the many stories in Marshall's "Stories Repertoire." The Association, forty years later, now has its first African-American president.

Around 1948, Marshall sent me to Baltimore to sit in on a case that was being tried by the founder of the Inc. Fund and Thurgood Marshall's mentor, the great Charles Hamilton Houston. Houston was the Dean of Horward Law School when Thurgood Marshall studied there. In the case I was watching, Houston was representing a black woman against the University of Maryland's School of Nursing. Marshall wanted me to learn from the master. To this day I have never seen a better prepared trial lawyer. Houston had a notebook in which every question he was going to ask was written out. His advice to me was: "Never ask a question which you have not previously considered." Every exhibit he was going to introduce was carefully laid out on a table. He allowed me to sit next to him at the counsel's table so that I could see and hear every move be made.

As part of my early training, Thurgood Marshall accompanied me to two trials. One of these trials, which was before the Commissioner of Education for the State of New York, involved segregated schools in Hempstead in 1949. (Hempstead now has an African-American mayor.) The other trial was a contempt hearing against the Board of Trustees of the University of Alabama. During the course of that hearing, we stayed in the Birmingham home of local attorney Arthur Shores. His home had been bombed on at least fifteen occasions. (Birmingham now has an African-American mayor.) At night we were guarded by African-American men with machine guns, and during the day others carrying handguns escorted us to and from court.

Among the better known cases that I personally tried were those against the Universities of Mississippi, Georgia, and Alabama, and Clemson College in South Carolina. As a result, James Meredith, the plaintiff in the University of Mississippi case, became a national hero in 1962. Charlene Hunter Gault and Hamilton Holmes, the plaintiffs in the University of Georgia case, brought Georgia kicking and screaming into the twentieth century in 1961. George Wallace and Alabama finally gave up massive resistance to desegregation in 1963. And now South Carolina brags about Harvey Gantt, the plaintiff in the Clemson College case in 1962, who became mayor of Charlotte and recently ran unsuccessfully against Jesse Helms for the United States Senate. During my career with the Inc. Fund, I participated in civil rights cases in federal courts in eleven states and the District of Columbia. Out of the ten cases I argued before the United States Supreme Court, I won nine. One particularly busy day in 1962, I argued four cases on appeal in the Fifth Circuit.

By the time I left the Inc. Fund in February 1965 to become the first woman President of the Borough of Manhattan, I was one of the best known civil rights lawyers in the country. A year earlier I became the first African-American woman and the second woman ever elected to the New York State Senate. In 1965, there were still not very many woman who had actually tried cases as the chief counsel. You could count on one hand the number of women who had argued a case before the United States Supreme Court. When I first joined the Marshall team in 1945, women lawyers were a rarity in most court-couses and virtually unheard of outside New York City. I remember that when Thurgood Marshall sent me to Jackson, Mississippi, in 1949 to assist Robert Carter with a case involving the equalization of "Negro" teachers' salaries, the whole town turned out to see the "Nigra" lawyers from New York--one of whom was a woman.

Beginning in 1946, when Thurgood Marshall argued the case striking down segregation on interstate buses, Morgan v. Virginia,(1) he allowed me to accompany him to virtually every case he argued, including Brown v. Board of Education,(2) the School Desegregation Cases. Since the Nation's Capital was a racially segregated town, I usually ended up staying at a so-called "Negro" hotel, which was no more than a private rooming house in a "Negro" residential area. We stayed in such hotels until 1964 when the Congress reenacted the Civil Rights Act of 1875, making it possible for use to stay in white hotels and eat in white restaurants. The Restrictive Covenant Cases(3) were argued in 1947. The following year, Sipuel v. Board of Regents,(4) which involved the admission of a "Negro" woman to the law school of the University of Oklahoma, was argued. In 1949, Sweatt v. Painter(5) resulted in the admission of Heman Sweatt to the University of Texas Law School. Finally, in 1952, when the School Desegregation Cases were argued in the Supreme Court for the first time, Marshall moved for my admission to the Supreme Court Bar.

My son was born in May 1952. Although the policy at the NAACP--of which the Inc. Fund was part in those days--was to have women take a leave of absence after six months of pregnancy, Marshall simply igonored the pressure brought on him to have me go on leave after six months. I worked until one week before my son arrived. I was the only professional woman employed by the NAACP or the Inc. Fund at that time. All the other women were clerical or semi-professionals and, if pregnant, had left long before the ninth month. I set a new standard for women with Marshall's tacit approval. Thus, there was a big smile on my face when I read Marshall's opinion for the court on pregnancy leaves and Title VII in California Federal Savings and Loan v. Guerra.(6)

During his career with the Inc. Fund, Thurgood Marshall argued or participated in about thirty-two cases before the Supreme Court. He was involved in a much greater number of lower court cases. Marshall also had an invaluable training program for lawyers who worked for him. Prior to each Supreme Court argument, he invariably practiced before a panel of Howard Law School faculty members. Not only did Marshall's staff members attend these moot court sessions, but on occasion we participated as well. In addition, we were included in the preparation of cases. All of Marshall's major cases before the Supreme Court benefitted from weeks of discussions with experts and academics in constitutional law. For the School Desegregation Cases, these conferences took place over a two-year period and included historians, sociologists, and psychologists.

In January 1966, President Johnson submitted my name to the United States Senate for its "Advice and Consent" to my nomination as a United States District Judge. At the time, only two other women were federal district judges: Sarah Hughes in Texas, who swore in Johnson after Kennedy was assassinated in 1963, and Bonita Matthews in the District of Columbia. Florence Allen, the first woman federal judge, was then on the Court of Appeals for the Sixth Circuit. President Johnson had initially submitted my name for a seat on the Court of Appeals for the Second Circuit, but the opposition to my appointment was so great, apparently because I was a woman, that Johnson had to withdraw my name. I remember how stunned both Johnson and Marshall were by the strength and intensity of the opposition. When I wen to Washington for the announcement of my appointment, Johnson told me that the first opening in the Supreme Court would go to Thurgood Marshall. At the time, Marshall was the Solicitor General of the United States. Johnson stepped down in 1968, but not before appointing Thurgood Marshall to the Supreme Court.

President Johnson also told me that Ramsey Clark, who was then the Attorney General of the United States, was the first person to bring me to his attention. He said that Clark was in the Supreme Court one day when I argued a case. After the argument Clark went directly to the White House and urged Johnson to appoint me to the bench. Thurgood Marshall held my hand during the entire process. When my name finally reached the Senate floor in August 1966, Senator Eastland of Mississippi, who headed the Judiciary Committee, led the opposition. He had held up my nomination as well as the nomination of every other African-American appointed to the federal bench during the sixties, including Marshall's nomination to the Second Circuit in 1962 and his nomination to the Supreme Court in 1968. I was finally confirmed by the Senate in August 1966 and became the first African-American woman appointed to the federal bench. Marshall came to my swearing in as a district court judge.

When Marshall was appointed to the Second Circuit, there was not a single African-American employee in the United States Courthouse in Manhattan except for the elevator operators. Thurgood Marshall served as the only African-American judge in that courthouse from 1961 to 1965. Before his appointment to the bench, Thurgood Marshall had spent his entire life in the African-American Community, so to speak, so he knew how lonely I would be, with the double handicap of being a woman and black. At the time of my appointment, there were only about seven other African-Americans who had been appointed to the federal bench. It was not until 1970 that the United States Attorney's Office for the Southern District of New York decided that women were as capable as men at handling federal criminal prosecutions. Shira Neiman, who was hired in 1970, was the first woman in the Criminal Division. Before that, Patricia Hynes, who worked in the Civil Division, was the only woman in the United States Attorney's Office in the Southern District.

When I was introduced as a new judge at a Second Circuit Judicial Conference, the master of ceremonies said, "And now I want to introduce Connie Motley who is doing such a good job on the District Court." In contrast, everyone else was introduced with a full blown curriculum vitae. Similarly, in 1968 when I was introduced by the chairman of the Seminar for New Federal Judges, my introduction went as follows: "Judge Motley has served on the Board of United Church Women and the Board of Trustees of the Y.W.C.A" Former Supreme Court Justice Tom Clark, who was helping to chair the meeting, was so astounded by this introduction that he asked the master of ceremonies to let him have the microphone. Clark then told the assembled new judges about the ten cases I had argued before him when he was still on the bench. Later Justice Clark told me about the disparagement of Shirley Hofstedler, who had just been named by President Carter to the Ninth Circuit, by a group of men at the golf course. The thing which amazed him was that none of the judges had ever met Shirley Hofstedler. One of the most critical lessons I learned from my mentor, Thurgood Marshall, was to laugh off these ludicrous antifeminist affronts which were regularly hurled in my direction. Eventually, they all ended up in Marshall's "Stories Repertoire."

After his appointment to the Supreme Court, I saw Thurgood Marshall at least once a year at the Second Circuit Judicial Conference, since he was our Circuit Justice. He pushed unsuccessfully for my appointment to Second Circuit Court Committees. He had a great big smile on his face when I became the Chief Judge of our court and thus appointed the members of all of our twenty-four court committees at the district court level.

Now I am a Senior United States District Judge, having taken senior status on October 1, 1986. I was the Chief Judge of our court, the largest federal trial court in the country, from June 1, 1982 until October 1, 1986. Our full complement was twenty-seven judges. Only one other woman had ever served as a chief judge of a federal district court prior to myself. I was the only woman on our court until June 1978, when Mary Johnson Lowe, another African-American woman, was appointed by President Carter. Carter appointed about forty women to the federal bench during his term. One of Thurgood Marshall's biggest disappointments is that I never was elevated to the Court of Appeals. The opposition to me as a woman and a "liberal" has remained. As Gabe Pressman said when I was sworn in to the District Court: "She just made it, because now the tide has turned."

If it had not been for Thurgood Marshall, no one would ever have heard of Constance Baker Motley.

(1) 328 U.S. 373 (1946).

(2) 347 U.S. 483 (1954).

(3) Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948).

(4) 332 U.S. 631 (1948).

(5) 339 U.S. 629 (1950).

(6) 479 U.S. 272 (1987).

Constance Baker Motley Senior Judge, United States District Court for the Southern District of New York.

(1) 328 U.S. 373 (1946).

(2) 347 U.S. 483 (1954).

(3) Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948).

(4) 332 U.S. 631 (1948).

(5) 339 U.S. 629 (1950).

(6) 479 U.S. 272 (1987).

Constance Baker Motley Senior Judge, United States District Court for the Southern District of New York.

TM's Legacy

Thirty years ago, in October 1961, Thurgood Marshall went on the bench. Since then, he has served as a Circuit Judge on the United States Court of Appeals for the Second Circuit, as Solicitor General of the United States, and as Associate Justice of the Supreme Court. His judicial career spanned an era in which the judicial branch has stood at the center of much controversy. Like any judge of his time who was called upon to rule on controversial matters, those aligned against his views have been highly critical of his work. Those aligned with his views have been lavis in their praise.

A couple of things have been lost in the clash of sound bites. First, the great bulk of Justice Marshall's judicial work, like that of all federal judges, consists of decisions that are largely ignored by both the media and politicized observers but are of critical importance to the legal system that sustains our economy and our civilization. As a law teacher and judge who continually encounters and uses this otherwise ignored body of Justice Marshall's work, I would stress that his jurisprudence has been extremely professional and is highly regarded by those who labor in less publicized areas of law.

Justice Marshall outhored several major opinions in corporate and securities law, the fields in which I teach. His opinion in TSC Industries v. Northway, Inc.,(1) formulating the test of materiality, is one of the mose cited decisions in securities law. Herman & MacLean v. Huddleston,(2) which held that private remedies under the 1993 and 1934 Securities Acts are cumulative, contains a very helpful analysis of the procedural and substantive interplay of the various express and judge-made avenues of relief under the Acts. Reyes v. Ernst & Young(3) brought light ot the murky issues of what kinds of notes constitute securities for purposes of federal law. And Kamen v Kemper Financial Services(4) infused Rule 23(1) of the Federal Rules of Civil Procedure with good judgment by holding that the demand requirement in shareholders' derivative actions will generally be governed by the law of the state of incorporation. Finally, everyone, including his colleagues remaining on the Supreme Court, should reread his dissenting opinion in Sedima, S.P.R.L. v. Imrex Co.,(3) arguing against what has become the virtually unlimited reach of civil RICO.

Second, in evaluating a judge's work, one must look not simply to the results reached but also to the quality of a judge's opinions. Even in those decisions that inevitably spark political controversy, judges must employ reasoning that invokes legal criteria and then put that reasoning on paper. Such reasoning is rarely noted, much less subjected to analysis, by the great bulk of the media, which focuses solely on individual votes and outcomes and usually describes them in political terms. Junstice Marshall's opinions in constitutional cases have been grounded in legal reasoning and highly respected by less politicized observers, including many who do not agree with the results reached.

Many observers believed that his concurring opinion in the New York Times Co. v. United States,(6) the Pentagon Papers case, was the best of the several that were written in that celebrated case. The opinion examined the numerous statutory provisions governing the distribution of national security information and viewed those provisions against proposals for strengthening control over the distribution of information that had been rejected by Congress. Justice Marshall's opinion argued powerfully that Congress has specifically declined to authorize resort to the equity powers of federal courts to prevent such distribution and that issuance of an injunction would violate the separation of powers. His opinion in Police Department of Chicago v. Mosley(7) remains the classic statement on the invalidity of laws restricting speech that are not content-neutral, and his dissent in City of Richmond v. J.A. Croson Co.(8) is a classic statement of his position on race-conscious remedial measures.

Justice Marshall's judicial career has thus been outstanding. What is truly amazing, and I mean truly amazing, is that he was an historic figure before his judicial career. By the time "TM" (as his clerks affectionately refer to him) became a judge, he had been chased by gangs, received by Presidents (eagerly and not so eagerly), and had had his picture on the cover of Time magazine. (He won't like this, but that picture did not resemble Sidney Poitier.)(9)

By the time he went on the bench, TM had already completed two historic careers. One career was a lawyer. That career began when he graduated first in his class from Howard Law School. There is no photograph of that class because its members were too rebellious even to agree to sit for a photo at the school's request. TM has said that was the first sign of the fuss that the students would cause later.

By 1961, TM was probably the most famous lawyer in the United States, best known for winning 29 of 32 cases in the Supreme Court, including the Brown case. he and his small group of associates changed the face of American law by carefully orchestrating, and brilliantly arguing, a long line of civil rights cases that restored the role of the Fourteenth Amendment to its rightful place in American law. But TM was no fancy appellate lawyer who took only landmark constitutional cases. He was a courtroom lawyer who went where he was needed and tried all kinds of cases, including murder cases.

TM's second career prior to becoming a judge was a civil rights leader at a time when the movement had a small political base, and when diplomacy and persuasion were its principal weapons. He was a master at both. With the intensity of his convictions and the aid of his extraordinary personality, he enlisted white political and other leaders, such as Henry Luce, in his cause and relentlessly addressed groups across the country with the theme that equal rights under law was not the cause of one group but was in the interest of all citizens. He thus was a major figure in making civil rights a part of mainstream American values.

None of TM's achievements came easily, not even becoming a judge. The Kennedy Administration had first insisted that he take a district judgeship, and when TM turned that down, it appeared that he might not get an appointment at all. Finally, he was nominated to the Second Circuit but on an interim basis. Interim appointment, thankfully no longer used, was a method by which judicial appointments were made while Congress was not in session. Instead of having life tenure, the judge served on an interim basis until confirmed or not confirmed. For TM the interim was long. His nomination, which occurred before the Voting Rights Act of 1965, languished in the Senate Judiciary Committee chaired by James O. Eastland of Mississippi, who shunted TM's nomination to a subcommittee chaired by Senator Olin Johnston of South Carolina.

I began working for TM on October 24, 1961. When I left in the spring or early summer of 1962, TM still had not been confirmed. I left and was replaced by Jim Freedman, now President of Dartmouth. Interestingly, within days after I left, the Senate confirmed TM. (He has been kind enough never to mention in my presence inferences that might be drawn from this sequence of events).

In spite of the strain of serving as a judge without having been confirmed, TM carried out his responsibilities with his characteristic good humor. It has been my experience that most famous men or women rarely live up to their press clippings. Unlike many household names, however, Thurgood Marshall, the person, lives up to, even outdoes, his press clippings. He is a warm, friendly, incredibly funny man, a totally lovable human being.

In his first year as a judge, he was a magnet for all the law clerks. Every morning he presided over a coffee hour attended by clerks from other chambers. The atmosphere was on of earthy stories, salty language, and booming laughter. (I did my best to adapt to this environment.)

TM has always been a keen observer of life, ready with a one-liner or anecdote summing up the issue of the moment. Discussing street crime, he once remarked that he was thinking of getting a large sign that read, "Just ask." Describing good detective work, he once explained, "When a man robs a bank, the first thing he'll do is get a new girlfriend. The old girlfriend will call the police. A good detective is the one by the phone when that call comes." And, as heonce told me when discussing a mutual acquaintance who seemed to attract publicity, "He who tooteth not his own horn, will find his horn untooted."

TM's inexhaustible sense of humor has enabled him to laugh at, while combatting, the darker side of human nature. He has described how in the 1940's he forced a travel agency to leave New york because it was looking reservations for Florida hotels that discriminated. In his words, "I called this agency and asked to book a room at the -- Hotel. I told the woman who answered that my name was Thurgood Marshall. Usually when I did that they would say |I'm sorry we cannot accept yourr reservation, ' and I would then get the agency booted out of New York. This time, though, the woman said |Thank you, Mr. Marshall. Your reservation will be made. I hope you have a good vacation.' I then said to her, |Excuse me, isn't this a restricted hotel?' She replied, |Oh, Mr. Marshall, I didn't know you were Jewish.' I told her [lapsing into an exaggerated accent] |Ahh've got NEWWSS for you.'"

TM also tells of confronting General Macarthur about the continued segregation of the Army during the Korean War despite presidential orders to desegregate. Each time TM brought up the name of a black soldier who had performed courageously in battle or efficiently in a staff position, the General would deny that the soldier was qualified to serve in an integrated unit. Just as the conversation reached an impasse, an all-white band passed by. TM asked the General whether he was also unable to find a qualified black musician.

On another occasion, during the Nixon Administration, TM, then a Justice, was ill in the hospital. A doctor informed him that the White House had asked for details o fhis condition. The doctor then asked whether TM minded of this information was passed along. TM said that he didn't care one way or the other so long as the bottom of the report the doctor wrote in block capital letters, "NOT YET."

TM is a man who not only preaches tolerance but also practices it. In 1962, he was intereviewed by the FBI concerning the appointment of a former southern governor to a federal position. The governor had previously vowed never to accept the desegregation of schools in his state. TM noted that he had irreconcilable diffrences with the man. However, he added, "I have got to say, though, that he spent twenty-five years in politics in that state and never became rich. He must be one of the most honest men around." Recently, at a meeting of lawyers, TM went out of his way to grasp the hand of Judge Robert Bork and share some kind words, after Bork's nomination had been defeated in the Senate. TM and Judge Bork surely have different views on many things, but those differences were not enough to stop TM's basic humanity from coming through.

Some view TM as a cranky curmudgeon without realizing that such behavior is one of the longest running acts in legal history. Law clerks are rarely praised for good work or a conscientious performance. One day I braved a blizzard to travel from Madison, Connecticut, to the New York courthouse in Foley Square. When I arrived, on time, TM looked at me, looked out the window at the snow, and said, "Boy, now I know how stupid you really are." I also became accustomed to being called "knucklehead." I didn't mind that so much when, later, one of my successors told me that, after he had done a very good job on a project, TM had declared that the clerk was "almost a knucklehead."

One incident perhaps best sums up TM's tolerance, good humor, and basic humanity--and the extraordinary time of transition in which he lived and indeed helped shape. In 1962, while on the Second Circuit, TM went upstairs to another judge's chambers where a group portrait of the judges was to be taken. The photographer, in testing his equipment, had blown a fuse, and had sent for an electrician. When TM entered the chambers, the other judge's secretary said, "You must be the electrician." After he returned, he related this incident to me. Instead of taking umbrage at the secretary's remark, he resorted to his penchant for commenting on current affairs. This incident occurred when craft unions rarely had black members. TM said of the secretary's remark, "Boy, that woman must be crazy if she thinks I could become an electrician in New York City."

[Dagger] Judge, United States Court of Appeals for the Second Circuit; Adjunct Professor of Law, Yale Law School, Judge Winter served as Justice Marshall's first law clerk.

(1) 426 U.S. 438 (1976).

(2) 459 U.S. 375 (1983).

(3) 494 U.S. 56 (1990).

(4) 111 S. Ct. 1711 (1991).

(5) 473 U.S. 479, 500 (1985) (Marshall, J., dissenting).

(6) 403 U.S. 713, 740 (1971) (Marshall, J., concurring).

(7) 408 U.S. 92 (1972).

(8) 488 U.S. 469, 528 (1989) (Marshall, J., dissenting).

(9) Sidney Poitier portrayed Justice Marshall in a recent television miniseries, Seperate But Equal (ABC television broadcast, Apr. 7 & 8, 1991).

(1) 426 U.S. 438 (1976).

(2) 459 U.S. 375 (1983).

(3) 494 U.S. 56 (1990).

(4) 111 S. Ct. 1711 (1991).

(5) 473 U.S. 479, 500 (1985) (Marshall, J., dissenting).

(6) 403 U.S. 713, 740 (1971) (Marshall, J., concurring).

(7) 408 U.S. 92 (1972).

(8) 488 U.S. 469, 528 (1989) (Marshall, J., dissenting).

(9) Sidney Poitier portrayed Justice Marshall in a recent television miniseries, Seperate But Equal (ABC television broadcast, Apr. 7 & 8, 1991).

Ralph K. Winter Judge, United States Court of Appeals for the Second Circuit; Adjunct Professor of Law, Yale Law School, Judge Winter served as Justice Marshall's first law clerk.
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Title Annotation:includes 5 tributes in honor of Justice Thurgood Marshall
Author:Carter, Stephen L.; Coleman, William T., Jr.; Gewirtz, Paul; Motley, Constance Baker; Winter, Ralph
Publication:Yale Law Journal
Article Type:Testimonial
Date:Oct 1, 1991
Words:14552
Next Article:The promissory basis of Section 90.
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