As of 1967, 95 people had served as Supreme Court Justices in the United States. Zero of the 95 were African American. For that matter, zero of the 95 were women, Asian, openly gay, openly atheist, etc. It was a big deal that a smattering of Justices had been Jewish or Catholic. Diversity was not exactly the Court’s strong suit. As the Civil Rights Movement grew in strength and insisted on progressive change, it was inevitable that this situation would be deemed unacceptable.
Not that such diversity-or its lack-by itself ensures anything. There are white male champions of civil rights and progressive change, and there are Clarence Thomases and Sarah Palins. But altering the make-up of the power structure in America so that it “looks like America” has long been one component of what civil rights advocates have fought for. One of the historically most important steps in this direction was taken by President Lyndon Johnson and the United States Senate in 1967, when Johnson nominated, and the Senate approved, Thurgood Marshall to fill a vacancy on the Supreme Court.
Marshall’s Life and Career Prior to the Supreme Court
Thurgood Marshall was born Thoroughgood Marshall in 1908. At the age of six he himself changed his name, due to his difficulty in spelling Thoroughgood and the taunting he received at school about having an unusual name. Growing up as an African American in segregated Baltimore gave him much life experience that he could later call upon when arguing on civil rights cases.
After graduating from historically black Lincoln University and finishing first in his class in law school at historically black Howard University, Marshall became an attorney. He was active in his local National Association for the Advancement of Colored People (NAACP) branch, and early in his career in 1936 was hired to join the NAACP’s legal staff in New York, soon becoming its chief lawyer at age 30, a position he would hold until 1961.
In that position, Marshall accumulated an impressive litigation record arguing cases in all venues up to and including the U.S. Supreme Court. Certainly the case with which he is most closely associated in history is Brown v. Board of Education, decided by the Earl Warren Court in 1954.
Brown is the case that determined that “separate but equal” no longer passed Constitutional muster, that segregation could not be justified on the basis that the groups being kept separate were being treated equally. Marshall argued, successfully, that to stigmatize entire groups as needing to be kept separate was itself so demoralizing as to constitute unequal treatment (not to mention that the claims that the treatment of different racial groups under segregation was equal even in the more tangible respects were routinely phony).
By 1961, Martin Luther King and other civil rights leaders had emerged, and the country was clearly changing, albeit slowly and with much rancor. One indication of the change-as well as an indication of how much struggle still remained-came when the new President John F. Kennedy appointed Marshall to the U.S. Court of Appeals for the Second Circuit. For a year the Senate refused to approve the appointment, at which point President Kennedy used the procedural end around of the “recess appointment” to get Marshall on the Court of Appeals without Senate approval.
The next President, Lyndon Johnson, was a good personal friend of Marshall’s. In 1965, Johnson picked Marshall to be his Solicitor General, the Department of Justice official whose responsibility it is to put the federal government’s case before the Supreme Court.
Marshall’s Appointment to the Supreme Court
When Johnson made Marshall Solicitor General, it was with an eye toward subsequently nominating him for the Supreme Court. It was uncertain, though, when the next Supreme Court vacancy might come, or even if it would come during Johnson’s presidency.
So Johnson decided to speed up the process. In 1967, he appointed Ramsey Clark as his Attorney General. Clark’s father happened to be Tom Clark, a Supreme Court Justice. In order to avoid the appearance of a conflict of interest, since many cases that come before the Supreme Court would involve his son, the elder Clark chose to resign at the end of that year’s term, thus creating the desired vacancy. As planned, Johnson nominated Marshall to fill it, noting that it was “the right thing to do, the right time to do it, the right man and the right place.”
Much had changed in the country and in the Senate in the six years since the Senate had balked at confirming Marshall for the Court of Appeals in 1961, including the passage of much historic civil rights legislation. But there was still a very strong segregationist bloc of Southern senators, and it was far from guaranteed that a controversial liberal figure who would be the first ever African American Supreme Court Justice would be confirmed.
But Johnson threw his political weight into the confirmation deliberation, using his considerable powers of persuasion and arm-twisting on his former Senate colleagues. In the end he was able to get a large number of segregationist senators not to vote in favor of Marshall but at least to abstain so as not to block him. The final Senate vote was 69-11 in favor of confirmation, with 20 senators not voting.
Marshall on the Supreme Court
Marshall served on the Supreme Court until his resignation in 1991, two years before his death. He was a consistently liberal vote throughout his time on the Court, which placed him in the majority in most cases early in his tenure, but very much in the minority the bulk of it as the Court shifted rightward. More and more he and fellow long time liberal Justice William Brennan could do little but protest in dissenting opinions as the Court came to reflect the views of William Rehnquist and Ronald Reagan’s America.
Though Marshall in some respects was in the forefront of the struggle for civil rights, it made sense that he would be the first African American Supreme Court Justice, as he had always favored working within the system. He was very comfortable with and supportive of Establishment figures from Johnson to even J. Edgar Hoover. On the other hand he was quite wary of even tame and respectful nonviolent civil disobedience such as the Freedom Riders and the lunch counter sit-ins, let alone the more radical 1960s movements associated with Malcolm X, the Black Panthers, and other decidedly anti-Establishment figures.
Frederic D. Schwarz, “Thurgood Marshall Joins the Supreme Court.” American Heritage.
Juan Williams and Alex Cohen, “Thurgood Marshall’s Historic Appointment.” NPR.
“Thurgood Marshall Biography.” Basic Famous People.