The road to City of Berkeley: The Antitrust Positions of Justice Thurgood Marshall

• DOI: 10.1177/0003603X8703200202
• Date: 01 June 1987
• Author: Victor H. Kramer
• Published date: 01 June 1987
• Subject Matter: Article

The Antitrust Bulletin/Summer 1987

The road to

City

of

Berkeley:

the antitrust positions

of

Justice Thurgood Marshall

BY

VICTOR

H.

KRAMER*

335

Justice Marshall's positions in antitrust cases initially attracted

my attention because sometimes they seemed inconsistent with

the stereotyped picture

of

how a liberal, not to say populist,

Supreme Court justice should view the antitrust laws. Some

of

his

positions struck me as counterintuitive. What in his education

and experience as a lawyer might provide the basis for his

antitrust votes? To what extent could these experiences be relied

upon to help explain Justice Marshall's views in antitrust cases?

In his seminal book, The Road to Xanadu, published in 1927,

Professor John Livingston Lowes

of

Harvard undertook to

explain how Samuel Taylor Coleridge created the marvelous

imagery employed in his two great poems, The Rime

oj

the

Ancient Mariner and Kubla Khan,' Lowes' methods, if they were

Law Alumni Professor, University

of

Minnesota Law School.

AUTHOR'S

NOTE: I wish to thank John Sutter, J.D. 1987, University

of

Minnesota,

for

his painstaking

research

assistance; the law firm

of

Arnold

&Porter for making its Washington, D.C., facilities available

for

the preparation

of

this article;and Dean Thomas Krattenmaker and

my colleague, Professor Daniel Gifford,

for

reading a draft and making

helpful suggestions.

1See J. L.

LOWES,

THE

ROAD

TO

XANADU

(1927), especially

the

Preface.

The

fifteenth printing

of

this

book

was published in 1955.

© 1987by Federal Legal Publications, Inc.

336 The antitrust bulletin

to be applied to the positions

of

Supreme Court justices, would

present grave difficulties. Coleridge and presumably other poets

had

no rhyme clerks while Supreme

Court

justices have law

clerks-currently

as many as four. Moreover, customarily,

the

clerks are employed by the justices only for a year, which means

that

Marshall has thus far had over 60 different clerks.' Although

we have good reason to be confident that each individual justice

decides how he or she is going to vote to decide each case and

edits the drafts

of

opinions, we also have it on good authority

that

the clerks have written most

of

the sentences

of

most

of

the

opinions

of

most contemporary justices.'

Recognizing at the start, then,

that

we cannot put very much

reliance on the words in Marshall's opinions, we can at least

study his life,

and

particularly, his legal career prior to joining the

Court,

for what guidance it may give in explaining how Marshall

has reached his conclusions on how to vote in antitrust cases.

Thurgood Marshall was

born

in

1908

in Baltimore to middle-

class parents. His great grandfather was a slave captured in the

Congo in the first half

of

the last century,' Marshall's father was

the

steward

of

aMaryland private club and his mother was an

elementary public school teacher. After graduating from the

public schools

of

Baltimore, Marshall went to Lincoln University

in southeastern Pennsylvania for his undergraduate degree.' He

then returned to Baltimore

and

moved into his parents' home to

save expenses in order to afford law school tuition. Marshall

2See R.

POSNER,

THE

FEDERAL

COURTS-CRISIS

AND

REFORM

102-03

(1985).

3Id. at

104.

4Except where otherwise indicated, this and the three following

paragraphs are based on material in R. W.

BLAND,

PRIVATE

PRESSURE

ON

PUBLIC

LAW-

THE

LEGAL

CAREER

OF

JUSTICE

THURGOOD

MARSHALL

esp.

3-12 &178-79 (1973).

5 Marshall took three courses in economics while an undergraduate

at Lincoln University in the late twenties. Letter to the author from

Donald L. Pierce, Registrar of Lincoln University (Oct. 21, 1986).

Justice Marshall 337

would have attended the University of Maryland Law School in

Baltimore had it not been segregated." Instead, he commuted to

the law school of Howard University in Washington, D.C., where

he graduated in

1933

as valedictorian. He took no antitrust

course for none was offered.'

After two years or so in a rather unsuccessful effort to

develop his own practice in Baltimore, young Marshall moved to

New York and became assistant special counsel to the Legal

Defense and Education Fund of the National Association for the

Advancement of Colored People (NAACP), and in 1950 became

its chief counsel. During the course of the 25 years between

1936

and

1961

he spent in the employ of

the

NAACp, he briefed

and/

or argued 32 cases in the U.S. Supreme Court involving the

rights

of

black people, including Brown v. Board

of

Education:"

In 1961, President Kennedy appointed Marshall to the Second

Circuit. After Marshall had sat on that court for four years,

President Johnson appointed him solicitor general of the United

States; after two years in that position, the same president

appointed him to the Supreme Court of the United States.

Marshall wrote one antitrust opinion while on the Second

Circuit.9As solicitor general, he argued two antitrust cases in the

6R.

KLUGER,

SIMPLE

JUSTICE

179 (1977).

7Letter to the

author

from Dean J. Clay Smith, Jr.,

of

Howard

University Law School (July 7, 1986).

8347 U.S. 483 (1954); the cases are listed in R. W.

BLAND,

supra

note

4, at 183-84. R.

KLUGER,

supra note 6, contains adetailed

description

of

the struggle in court for the civil rights

of

black people,

including Marshall's participation in that struggle.

9We found six antitrust cases on which Marshall sat while a judge

on

the Second Circuit. In only one did he write the opinion. Asheville

Mica Co. v. Commodity Credit Corp., 335 F.2d 768, 772 (1964). The

other

five cases are Vanity Fair Paper Mills, Inc. v. FTC, 311 F.2d 480

(1962); Atlantic City Electric Co. v. GeneralElectric

Co.,

312 F.2d 236

(1962); McManus v , Lake Central Airlines, Inc., 327 F.2d 212 (1964);

Lieberthal v.

North

Country

Lanes, Inc., 332 F.2d 269 (1964);

Klebanow v . N.Y. Produce Exchange, 344 F.2d 294 (1965).