To The Readers Of The Metropolitan Corporate Counsel:
The election of President Barack Obama makes this a very poignant Black History Month. It is a fitting time to remember the architect of the legal struggle to end "separate but equal" institutions: Thurgood Marshall, a member of NYCLA for many years. After President Lyndon Johnson nominated Marshall to the Supreme Court in 1967, Newsweek wrote: "In three decades he has probably done as much to transform the life of his people as any Negro alive today, including Nobel laureate Martin Luther King."
Marshall was born in rigidly segregated Baltimore in 1908. His legal career was shaped by Charles Hamilton Houston, dean of Howard University Law School. Marshall said of Houston:
Harvard was training people to join big Wall Street firms. Howard was teaching lawyers to go out and go in court. Charlie's phrase was "Social Engineer." To be a part of the community. And have the lawyer to take over the leadership in the community.
Marshall would carry this philosophy all the way to the Supreme Court. Marshall's first successful Supreme Court case was Chambers v. Florida, 309 U.S. 227 (1940). The Supreme Court reversed the capital murder conviction of Marshall's client, which was based on a coerced confession. Justice Hugo Black wrote for a unanimous Court:
Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. . . . No higher duty, no more solemn responsibility, rests upon this Court than that of . . . maintaining [the] constitutional shield [of due process] . . . for the benefit of every human being subject to our Constitution - of whatever race, creed or persuasion 309 U.S. at 242.
Marshall took Justice Black at his word, and, as director-counsel of the NAACP Legal Defense and Education Fund, crafted a strategy to end segregation that culminated in Brown v. Board of Education, 347 U.S. 483 (1954). At the oral argument, Justice Frankfurter asked Marshall to define "equal," and Marshall replied, "Equal means getting the same thing, at the same time, and in the same place." Chief Justice Warren effectively adopted Marshall's definition in his unanimous opinion: "The plaintiffs contend that segregated public schools are not 'equal' and cannot be made 'equal,' and that hence they are deprived of the equal protection of the laws. . . . . We conclude that . . . [s]eparate educational facilities are inherently unequal."
Marshall was appointed to the U.S. Court of Appeals for the Second Circuit and served for two years as Solicitor General. None of his 98 majority opinions for the Second Circuit was reversed on appeal. Marshall won 29 of the 32 cases he argued before the Supreme Court as a private lawyer and as Solicitor General.
In 1967, Lyndon Johnson nominated Marshall to the Supreme Court. Unfortunately, the membership of the Court became steadily more conservative, and Marshall is known more for his dissents, especially in affirmative action cases and in death penalty cases, than for his majority opinions.
Marshall inspired African Americans to believe in the possibility of legal redress for centuries of legally imposed discrimination. More importantly, he delivered on this promise. Although the course of desegregation and establishment of civil rights was far from smooth, ask yourself what might have happened if Marshall had not believed in his ability to obtain justice from the courts and persuaded other influential civil rights advocates to join him.
If Marshall were alive today, he would still be striving to eradicate institutional discrimination, one lawsuit at a time. In his absence, we must continue to advocate for the things that made his work possible: a system of fair and impartial courts and public confidence in our judiciary system. Marshall's legal heirs need both. We all do.
Ann B. Lesk