From Baltimore to Howard Law School
Thurgood Marshall was born in Baltimore, Maryland, in 1908. He attended Lincoln University in Pennsylvania, a historically Black college, and was then refused admission to the University of Maryland School of Law because of his race. He went to Howard University Law School in Washington instead, where he studied under Charles Hamilton Houston, the dean who was building a program to train civil rights lawyers. Marshall graduated at the top of his class in 1933 and began practicing in Baltimore.
An early case in 1935 and 1936, Murray v. Pearson, challenged the University of Maryland’s refusal to admit a Black applicant. Marshall, working with Houston, won in the state’s highest court. It was a modest victory but one that suggested a strategy: use the legal doctrine of “separate but equal” against itself by showing that segregated institutions were not equal.
The NAACP Legal Defense Fund
Marshall joined the national staff of the NAACP and, in 1940, became the first director-counsel of its Legal Defense and Educational Fund, an organisation that was formally separate from the NAACP though closely linked to it. For more than two decades he led a series of cases that gradually dismantled legal segregation. Among the best known were:
- Smith v. Allwright (1944), in which the Supreme Court struck down the all-white Democratic primary in Texas.
- Shelley v. Kraemer (1948), which held that courts could not enforce racially restrictive covenants in housing.
- Sweatt v. Painter (1950), which ordered the admission of a Black student to the University of Texas law school and found that the separate law school Texas had set up was not equal.
- Brown v. Board of Education (1954), where the Court unanimously held that segregated public schools were unconstitutional.
Marshall argued Brown on behalf of the plaintiffs, with a team of lawyers and with help from social scientists. By the time he left the Legal Defense Fund in 1961 he had argued many cases before the Supreme Court and won the great majority of them. The exact count is often given as around three dozen arguments, but it is better to say simply that he was one of the most successful advocates to appear before the Court. The wider story of what followed is told in the article on the civil rights movement.
Judge and Solicitor General
In 1961 President John Kennedy appointed Marshall to the US Court of Appeals for the Second Circuit in New York. Southern senators delayed the confirmation, and it was completed in 1962. He served on that court for about four years and wrote opinions on a range of issues. In 1965 Lyndon Johnson named him Solicitor General, the government’s chief lawyer before the Supreme Court, the first Black person to hold that post. In that role he argued cases for the federal government, and he was involved in defending laws such as the Voting Rights Act.
The 1967 nomination
In June 1967 Justice Tom Clark announced his retirement. Clark’s son Ramsey had recently become Attorney General, and Clark stepped down partly to avoid any conflict of interest from having a father and son in those posts. Johnson saw an opportunity. On June 13, 1967, he announced Marshall as his nominee. He is reported to have described it as the right thing to do, at the right time, with the right man in the right place, though the precise wording comes from second-hand accounts.
Johnson’s motives are generally seen as mixed: a genuine belief in advancing civil rights, an understanding of the political value of the appointment, and a wish to place a distinguished lawyer on the Court. The announcement came shortly after the Court’s decision in Loving v. Virginia, which struck down state laws against interracial marriage, and while the country was approaching a summer of urban unrest.
The confirmation
The Senate Judiciary Committee held hearings in July. Southern Democrats, led by Senator Strom Thurmond of South Carolina and Senator Sam Ervin of North Carolina, questioned Marshall at length, including on constitutional history and on the Court’s decisions on criminal procedure. Some of the questioning was seen at the time as an effort to embarrass him, and he declined to answer some questions about matters that might come before the Court. The committee approved the nomination and the full Senate confirmed him on August 30, 1967, by a vote of 69 to 11, with a number of senators not voting or abstaining. He took the oath on October 2, 1967.
On the Court
On the Warren Court, Marshall joined a liberal majority that was at the end of its most active period. After the arrival of Warren Burger as Chief Justice in 1969 and subsequent appointments, Marshall more often found himself in dissent. He was a strong defender of the rights of criminal defendants, an opponent of the death penalty in all circumstances, and a consistent supporter of civil rights claims and individual liberties. He retired in 1991, citing declining health, and died in January 1993.
His appointment mattered in two ways. Symbolically, it placed a Black lawyer on the nation’s highest court for the first time, in a year of intense racial conflict. And in practical terms, it brought to the bench someone who had spent decades litigating the issues that now came before it. The next Black justice, Clarence Thomas, joined the Court in 1991, to succeed Marshall.