Tributes.

• Author: Carter, Stephen L.
• Position: Includes 5 tributes in honor of Justice Thurgood Marshall

Thurgood Marshall, I thought, would always be there.

My life has been rounded by his. I was born in 1954, scant months after his advocacy led to the stunning victory in Brown v. Board of Education,(1) and so I grew up in the world he had helped to build. I arrived at college just as the Warren Court,which he joined only near its end, began to fragment. I was privileged to serve as his law clerk at the very instant when liberalism ran into the stone wall of electoral distate--the reagan landslide of 1980. And now, upon his retirement, I am at last coming to grips with my pahtial estrangement from the liberal establishment to which Marshall has always been a hero.

Thurgood Marshall has long been my hero, too. Few black Americans would say otherwise. Not long ago, I chatted with an elderly taxi driver, a beautiful black man who popped up one day like a Greek chorus, to help me keep my head on straight. The driver explained to me that I was too young to remember what it was like in the old days. He told me that for his generation, rooting for Thurgood Marshall was like rooting for Joe Louis--the heavyweight out to battle and demolish one white hope after another. Marshall was the man to call whenever the racists struck. Marshall, the lawyer, using the white man's weapons to fight back the white man's system. Marshall, the symbol. Marshall, the hero.

John Ely, in dedicating Democracy and Distrust to Earl Warren, writes, "You don't need many heroes if you choose carefully." Point taken--but choosing Thurgood Marshall as my hero didn't require much care. He was simply there. I met him for the first time in the spring of 1978, when he came to Yale to preside over the final moot court arguments, in which I was a finalist. For me, he was already larger than life. Before attending law school, I had spent a week reading Simple Justice, Richard Kluger's fascinating, but flawed, history of the litigation culminating in Brown. Kluger writes history by locating heroes and telling their stories. Some of the heroes of his book were the individuals with the courage to stand up against the totalitarian white supremacist power structures then governing their states and communities. Some of the heroes of his book were judges. And some of the heroes were lawyers, like Charles Hamilton Houston and William Hastie, even now too often ignored in law school classroom, and Thurgood Marshall--who would probably be ignored, despite his remarkable legal achievements, but for his elevation to the Supreme Court.

Before I read Simple Justice, I had only the thinnest appreciation for the achievements of the legal arm of the civil rights struggle. Although I was a history major, my courses, on twentieth century American history treated Brown as an axiom and the civil rights movement that followed--which we did study in history--as what really mattered. Indeed, in the armchair radicalism of my undergraduate days, I was inclined to treat law as relatively unimportant, as a cloak for the true power relations of society. Certainly I could not imagine lawyers as heroes.

Which is why Kluger's book was an eye-opener for me. Kluger's tale has its faults--I have in mind particularly his exaltation of Earl Warren and his crediting the inner dynamics of the Brown Court, rather than the skill or forcce of the litigants before it, as well as his notion that Marshall and others in the New York office of the NAACP Legal Defense Fund had to be pushed to confront segregation directly. Later, listening eagerly at the feet of Thurgood Marshall and also of Spottswood W. Robinson, III, for whom it was my privilege to serve as law clerk at the Court of Appeals for the District of Columbia Circuit, I would hear most of the same tales, and many others, with greater nuance and complexity. But my critique would come later. At the time, it was the heroes who got to me, and Kluger's book is full of them. Kluger, much like David Halberstam, paints his principal figures as much larger than life, and as budding lawyer, I was content, even delighted, to leave them that way. I came away from Kluger convinced that there were indeed giants roaming the earth in those days, giants who might have won the battle much earlier than they did except that the moral Lilliputians who fought them were far more numerous and held all the guns.

Very few of the Justices who have served on the Supreme Court would have been in the legal hall of fame without their careers on the Court, but Marshall was one of these. So to meet Thurgood Marshall in the flesh was, for me, to come into contact with a demigod. I had no idea what to expect, but I was worried and not a little awed. What I found, to my delight, was a great warmth, an openness, and an earthy good humor. His supreme unpretentiousness, his choice not to subject himself to the opinions of others, put me immediately at ease.

And the, in the late summer or early fall of 1979, I was astonished to be invited to serve as one of his law clerks, to join, for twelve months, his chambers family. (As an officer of the Yale Law Journal, I had been trained to see the Supreme Court as a sort of wholly owned subsidiary that was obliged to give us employment upon application, but the Justice did not always play their proper roles.) And for those twelve months, Justice Marshall, or the Judge, as we used to call him around the chambers, was one of the finest teachers I have ever had--at pool as well as at law. Because he was so often in dissent as the Burger Court majority chipped away at the edifice he had spent a lifetime building (an edifice the Rehnquist Court would later hit with a bulldozer), it would have been easy for the chambers to develop a bunker mentality, to see the rest of the Justices as enemies. But the Judge would have none of that. In those days, he was far too confident, far too good humored, and had far too capacious a view of human nature for those sins to turn him bitter. And for his ability to maintain his aplomb and his warmth even as the edifice began to crumble, I loved him all the more.

So, yes, Thurgood Marshall is my hero, too--but my reasons are not the same as those cited in some of the agonized commentaries on his depature. The greatness of a judge should no more be measured by the results he reaches than the greatness of a writer should be judged by the titles of her books. It is a trivialization of Marshall's importance to the Court for those on the left or the right to reduce his towering career to a series of outcomes in concrete cases.

Yes, every vote matters, and the new and relatively untested Justice Clarence Thomas makes many people nervous. One may easily make predictions about the Court without Marshall: Roe v. Wade(2) hangs by a thread, more bizarre First Amendment decisions are sure to follow, civil rights statutes are likely to receive ever more restrictive interpretations, and the Court has lost its one member whoo clients once included large numbers of those who sat on the other side of the interrogation tables in police stations.

On the other hand, many of the precedents that are said to be threatened are marked by judicial overreaching. Well before Marshall arrived to join the Warren Court in 1967, the Justices, perhaps awed by their own stellar achievements in helping to hasten the end of America's version of apartheid, occasionally began to write as though their own moral compasses were the truesign-posts of constitutional law. In the early 1970's, the last year of liberalism triumphant, the Court seemed to develop a "We have the votes" mentality that is always dangerous in the judicial branch--the same arrogance, as it happens, that lately seems to be infecting the Rehnquist Court, to the unfortunate glee of people on the right who ought to know better.

If President Bush, as his rhetoric suggests, wants to avoid the sin of judicial legislation, then one must hope that in appointing Clarence Thomas, he has followed Marshall with someone like Marshall--but like Marshall in a particular and rarely mentioned sense.

Thurgood Marshall's entire legal career has been marked by a strong and abiding faith in the rule of law--a faith too often absent in the antilegal cynicism of those on the left or the right who measure the success of the Supreme Court by whether it reads into the Constitution the political programs they prefer.

Just consider the fight against racial segregation. When others were sure that the only route to racial justice in America was direct action, Thurgood Marshall was out litigating--and litigating, it must be said, before a Supreme Court that included no members selected for their opposition to segregation. Marshall could do this with such confidence, such passion, only if he believed that people of good will would keep their minds open and could be persuaded if presented with clear and sensible legal arguments.

This real of the judges as someone amenable to reason is generally lost in today's popular clamor for the preservation of this precedent or the rejection of that one. If a President, pressured from his right flank, seeks a candidate who will vote "the right way," or if a Senate, pressured from the left, rejects a nominees who will vote "the wrong way," enormous damage is done to this ideal. Indeed, enormous damage is done to the notion of law as a guiding rather than a governing force in our democracy.

As a legal scholar, I rather unfashionably prefer that judges attempt a sharp separation of personal political and moral preferences from constitutional analysis. That judges generally seen as on the left cross that line in their quest for a better society has long been a commonplace of constitutional theory, which is probably why so much of contemporary scholarship is devoted to proving that it isn't so. But judges who are considered to be on the right do it too, with increasing frequency, most recently in the Court's restrictions of the constitutional right to seek...