Very little about the law was abstract to Marshall. He not only suffered its worst failure, the long reign of legal segregation, but he was also the architect of one of its greatest triumphs. He was the victorious attorney in Brown v. Board of Education, the 1954 landmark decision that prohibited racial segregation in public schools. As a Justice, Marshall sometimes helped to change American law. As a civil rights lawyer he changed America.
"He is truly a living legend," says Harvard law professor Laurence Tribe. "It is hard to think of another lawyer in the 20th century who has played a more important role." In 1967, when Lyndon Johnson chose him as the first black Supreme Court Justice, Marshall was a man resolved to continue the revolution he had helped to set in motion. But his 24 years on the court were increasingly frustrating. The last Justice chosen by a Democratic President, he joined the liberal court of Chief Justice Earl Warren in its waning years. Over the next two decades, as a succession of Republican appointees were named to the court, Marshall found himself pushed into the role of perennial dissenter. In the term just ended -- and several before it -- he wrote not a single important majority decision.
Before the conservative tide prevailed, however, Marshall helped to ensure liberal victories in dozens of cases involving issues he cared most about: civil liberties, affirmative action, the rights of the accused, abortion, the death penalty. He read the Constitution in the broad light of its Preamble, with its spacious promises to "promote the general welfare, and secure the blessings of liberty . . ." He took that to mean the most important role of the Constitution was to ensure fair treatment for the disadvantaged in a world where judges, police and legislatures could not be counted on to exercise their power fairly.
Marshall's willingness to see broad promises where conservatives saw narrow guarantees was precisely what made them cheer his departure last week. "Marshall's jurisprudence was Exhibit A of the judicial activism that conservatives have been trying to do something about for the last 20 years," complained Alan Slobodin of the Washington Legal Foundation. "He imposed his personal views into clauses of the Constitution where it wasn't authorized."
There can be no doubt that Marshall's personal experience shaped his view of the law. He was born in Baltimore in 1908, when the city was as segregated as any in the deep South. Because the University of Maryland law school barred blacks, Marshall gave up hope of attending there. He went instead to the all- black law school at Howard University, which in the 1930s was being transformed under vice-dean Charles H. Houston into a training ground for lawyers who would challenge segregation in the courts. Houston became Marshall's mentor, firing the determination of the younger man to confront segregation head on. After graduation Marshall worked as a lawyer for the Baltimore branch of the NAACP. One of his first major cases forced the integration of the same University of Maryland law school he had been unable to attend.
In 1938 Marshall became legal director of the national NAACP. He spent the next 20 years pursuing racial discrimination cases all over the South and in the Supreme Court, where he racked up a remarkable record: 32 cases argued, 29 won.
"Marshall's greatest talent was getting a picture of the big problem," says federal appeals court judge Leon A. Higginbotham Jr., an old friend and former civil rights lawyer. "When he argued the case for desegregating the University of Texas law school, the attorney general of Texas talked about all the great opportunities at Texas Southern, the state school for blacks. Marshall just summed it all up by saying, 'Is there anyone here who, if they had the opportunity to go to the University of Texas, would choose Texas Southern?' "
As he traveled through the South, Marshall was routinely threatened. More than once he found himself facing a white racist with a gun. Undaunted, Marshall and his team laid the legal groundwork for their victory in Brown. Working again with Houston and other civil rights lawyers, Marshall had to convince the court that the 14th Amendment would not allow segregation. His problem was the court's long-held position that separate but equal facilities were constitutional. "What they set out to do was demonstrate that there was no such thing as equality with separation -- that the very act of separation stigmatized individuals," says Federal Appeals Court Judge Nathaniel Jones.
Marshall's victory in Brown was not only the beginning of the end for legal segregation: it also opened the way for later claims to equal protection under the law by other minorities and women. A generation of civil rights lawyers flocked to Marshall throughout the 1950s, when he still possessed dark, wavy hair and the stamina for long nights of poker and bourbon. He ran his office in the earthy style he would later bring to the Supreme Court, where he once shook up protocol-conscious Chief Justice Warren Burger by greeting him in the halls with a shout of, "What's shakin', Chiefie, baby?"
Marshall was already considered a possibility for the Supreme Court when John F. Kennedy appointed him to the Federal Appeals Court in 1961. Southern Senators fiercely resisted the nomination. At the confirmation hearings South Carolina Senator Strom Thurmond tried to rattle Marshall by questioning him on more than 60 obscure legal and historical matters. Marshall did not have the answers for Thurmond, but he spoke persuasively enough on the main issues to be confirmed by 69 votes to 11. After Marshall had served four years on the bench, Lyndon Johnson made him Solicitor General in 1965, a prelude to naming him to the court two years later.
Marshall's detractors called him an indifferent Justice, prone to watching television in his chambers. (He once assured his friend Justice William Brennan you could learn a lot about life from soap operas.) By most accounts Marshall had spotty interest in areas of the law beyond civil rights, criminal law and free expression. But despite poor health in recent years -- his eyesight is failing, he wears a hearing aid, and he broke his hip in a fall last year -- he was determined to keep his seat as long as the likely replacement was another conservative nominee. With cantankerous tongue in cheek, Marshall would tell his clerks, "If I die, prop me up and keep on voting."