ANOTHER FIRST:

Supreme Court Justice Marshall

By Michael Jay Friedman

By 1961, Thurgood Marshall had contributed as much as any American to the legal defeat of segregation. Thanks to Marshall's efforts, activists like Dr. Martin Luther King Jr. would have the law — and the millions of Americans who respect the law — on their side. By setting the law firmly against public segregation, Marshall and his colleagues contributed to a climate in which laws like the Civil Rights Act of 1964 would outlaw many forms of private discrimination.

Unlike King and other African-American leaders, Marshall waged this struggle through the courts and then from within government. In another measure of the improving climate for blacks, President John F. Kennedy in 1961 appointed Marshall to the U.S. Court of Appeals for the Second Circuit, which serves the states of New York, Connecticut, and Vermont. The Court of Appeals is the second highest level of federal court, and Marshall was only the second African American to serve as a federal appellate judge.

Marshall wrote 98 opinions as a Circuit Court judge. Not a single one was ever overturned by the Supreme Court.

In 1965, President Lyndon B. Johnson appointed Marshall, already the prevailing advocate in nearly 30 Supreme Court decisions, as solicitor general of the United States. This meant he was responsible for arguing the government's positions before the Supreme Court.

Fittingly, his first case as solicitor general was to present the federal case in the murder of the civil rights activists James Chaney, Andrew Goodman, and Michael Schwerner. The three victims, who had been registering black voters, were killed in 1964 in Nashoba County, Mississippi, by racist conspirators. The Mississippi state courts had refused to convict the murderers, but Marshall persuaded the Supreme Court to order a trial on federal civil rights charges.

On June 13, 1967, President Johnson nominated Marshall to be the nation's first African-American Supreme Court justice. "I believe he has already earned his place in history," the president said. "But I think it will be greatly enhanced by his service on the Court."

Johnson was right. Despite opposition from some Southern senators, Marshall was confirmed and assumed his seat as an associate justice on October 2, 1967. He quickly emerged as a reliable supporter of the rights of "organized labor, racial minorities, the advancement of women, the broadening of rights to freedom of expression, and the narrowing of police authority," Harvard Law Professor Randall L. Kennedy has written. "No member of the Supreme Court has ever been more keenly alive to social inequalities."

Justice Marshall was an unyielding opponent of capital punishment, and voted to overturn every death sentence that came before the Court. He proved as strong a champion of freedom of expression as he had been for civil rights. In 1972, Marshall sided with Earl Mosley, a postal employee who had picketed a public high school with a sign alleging racism at the school. When the city passed an ordinance prohibiting picketing within 50 meters of a school except for labor picketing, Mosley challenged the law. Marshall held that the city could not distinguish between those types of speech it would permit and those it would restrict. He wrote,

Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.

Marshall served on the Supreme Court until 1991. He died in 1993, at the age of 84. President Bill Clinton attended Marshall's memorial service at the National Cathedral in Washington, D.C., which was televised nationwide. Chief Justice William Rehnquist said in his eulogy:

Inscribed above the front entrance to the Supreme Court building are the words "Equal justice under law." Surely no one individual did more to make these words a reality than Thurgood Marshall.

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