Thurgood Marshall

by Juan Williams

  President Johnson shook his head and said, “No, I received very little pressure of any kind in this connection.” The American Bar Association found Marshall “highly acceptable,” Johnson added. Another reporter jumped in: “I was just going to ask Justice Marshall, if we might, how he feels about this appointment?”

  Johnson, turning to Marshall, responded: “I hope the justice doesn’t go into an extended news conference before his confirmation.” Marshall, who was almost as tall as the president, then stepped forward, bent over the microphone, smiled, and looking out through thick, black-framed eyeglasses said: “You speak for me, Mr. President, we will wait until after the Senate acts.”8 The president and Marshall, arm in arm and smiling, then marched with long, loping strides back into the Oval Office, where Marshall asked the president for permission to tell his wife the good news before she heard it on the radio. Johnson, with a startled look, said he was surprised Marshall had not already told her. “How could I, sir?” Marshall asked. “I’ve been with you all the time.” Marshall rang up his wife from a phone on the circular coffee table, and an eager Johnson grabbed for the receiver. “Cissy, this is Lyndon Johnson.… I just put your husband on the Supreme Court.” The stunned wife replied, “I sure am happy I’m sitting down.”9

  To Marshall’s surprise, the next morning’s newspapers did not greet the nomination with high praise. It was “rich in symbolism,” said The New York Times. But the paper did not give Marshall high marks as a legal thinker, saying he was not particularly distinguished either as a federal judge or as solicitor general.

  Newsweek magazine said President Johnson did not have to mention at his press conference that Marshall would be the first black on the Court. In a week of race riots across the nation, for the president to choose a black man to sit on the high court looked to a lot of people like a deft political move by a master politician. And there was the chance that the nomination could win back liberal white voters, who were increasingly turning away from Johnson over the Vietnam War. With a potential primary challenge from Sen. Robert Kennedy next year, Johnson had tied up the black vote, the magazine concluded. Newsweek did laud Marshall as a black leader who “in three decades … has done as much to transform the life of his people as any Negro alive today, including Nobel Laureate Martin Luther King, Jr.”10

  One faint line of praise for Marshall’s nomination came from conservatives who thought it might stop wild-eyed black people from rioting. An editorial in the Las Vegas Sun didn’t have much good to say about Marshall but celebrated the fact that his nomination “pretty much negate[s] the complaints of the Negro multitudes.… It is hoped the significance is not lost on the Martin Luther Kings and the Stokely Carmichaels and their rampaging followers.”11

  While cheering for the nomination was polite at best in most papers, the voices of criticism were full-blooded. The Chicago Sun-Times wrote that lawyers would be keeping an eye on Marshall “because he has been subject to criticism for laziness by those who dealt with him as Solicitor General and Circuit Court Judge.”12 Joseph Kraft, the preeminent Washington columnist, wrote Marshall’s only qualification was that he was “a Negro, not just any Negro [but] not even the best qualified Negro.”13

  The administration quickly responded to the critics by emphasizing Marshall’s strong belief in the law and racial integration. Johnson and his top aides transformed Marshall into a living symbol of racial progress and good American race relations. Two weeks after his nomination and before any Senate hearings began, the White House arranged for Marshall to be appointed to a special commission to study whether crime and violence were the cause of rioting in Harlem. The leaders of the liberal white establishment were embracing him as their answer to angry blacks who said whites never gave a black man a chance.

  And yet a strong undercurrent of criticism of Marshall—he was unqualified, lazy, too liberal—continued. Marshall came under the most brutal attack from segregationists, who did not want an integrationist on the Court. President Johnson’s political strategy to have Marshall quickly and easily confirmed was crumbling. And even Marshall’s tough-mindedness, his amazing will to win, seemed to be overmatched.

  Hearings for most Supreme Court nominees began within a week of the nomination. Byron White, President Kennedy’s first candidate for the Court, had been nominated and confirmed within eight days. Abe Fortas, President Johnson’s first, had to wait only fourteen days. Thurgood Marshall was different. It would be seventy-eight days before his name would come up for a vote of Senate confirmation.

  In the two and a half months between the nomination and the vote on Marshall, his record as a lawyer, his writings, his drinking, the women he slept with, and his family came under the intense scrutiny of FBI and Senate investigations. Sen. Robert Byrd, Democrat of West Virginia, wrote to FBI director J. Edgar Hoover, asking if there was information about Marshall’s ties to Communists. Another senator focused on uncovering evidence that Marshall hated whites; other senators loaded up on detailed legal questions, hoping to reveal gaps in Marshall’s knowledge of the law that would disqualify him for the high court.

  But the larger topics for Marshall’s opponents were still left unanswered: Who was this man? How did a black man so despised by millions of segregationists rise past Jim Crow political power to become a federal judge, the first black solicitor general, and finally to stand at the door of the highest station of American law, the Supreme Court? Simply put, where did this Negro come from?

  CHAPTER 2

  A Fighting Family

  THURGOOD MARSHALL’S RISE TO POWER played out against the backdrop of America’s tempestuous history of slavery, Jim Crow segregation, and the civil rights movement. That panorama would dwarf most people, but Marshall was raised to stand out. He grew up in an exceptional family and was rooted in an exceptional place—Baltimore, Maryland. Any attempt to know Thurgood Marshall had to start with his family and his hometown. His defiance of segregation, his willingness to stand up to powerful whites, and his insistence that he was the equal of any man were rooted in his Baltimore family.

  William Marshall, his father, told Thurgood from an early age to treat everyone with respect but never to let any insult go by without standing up for himself. “If somebody calls you a ‘Nigger’ take it up right then and there,” his father, a pale-skinned, blue-eyed man, told him. “Either win or lose right then and there.”

  The advice came into play one afternoon while fifteen-year-old Thurgood was delivering hats. He was on an errand for Mr. Schoen, a Jewish man who ran a women’s hat and dress store. Schoen’s shop was on Pennsylvania Avenue, a large, noisy street running through Old West Baltimore. The avenue was lined with street vendors and their horse-drawn wagons called Arabs, fancy clothing stores as well as butcher shops, theaters, numbers runners, and jazz clubs. It was where most of Baltimore’s black people shopped, and for Thurgood it was a great place to have an after-school job.

  During the five o’clock rush hour one afternoon, Mr. Schoen sent his young worker out with a tall stack of hats to be delivered to customers. As he was getting on a trolley and struggling to see around the boxes, Thurgood pushed by a white woman who was also getting onboard. He felt a hand grab at his shirt collar, and before he knew what had happened, he was being pulled backward off the trolley by a white man.

  “Don’t push in front of a white lady,” the man told him. Marshall brashly responded, “Damn it, I’m just trying to get on the damned bus.” The white man glared at the teenager and said, “Nigger, don’t you talk to me like that.”

  Thurgood dropped the hats and started swinging. The man, trampling over the hats, grabbed Thurgood’s shirt and started wrestling with him. But Thurgood, tall and awkward for his age, kept throwing wild, hard punches despite all attempts to slow him down. A crowd gathered and others gawked from the trolley. A nearby policeman ran over and pushed into the fray. To Thurgood’s surprise the policeman never said a word to the man who had started the fight. Instead he arrested Thurgoo
d, who had to phone Mr. Schoen from the precinct to tell him about the fracas and the damage to the hats. Schoen came down to the station and told the police that his young worker had been provoked.

  “So they took his word and let me go,” Marshall recalled. Marshall apologized to Schoen for destroying all of his expensive hats. “It was worth it if you’re right,” Schoen said. “Did the man really call you a nigger?” The young Thurgood responded forcefully: “Yes, sir, he sure did.” Schoen stopped walking, put an arm around Thurgood, and told him he had done the right thing.

  The fight was an early sign of a defiant streak that would be prominent throughout Marshall’s life. But it was also the result of being the child of a proud, politically active, black, middle-class family that owned successful businesses and lived in an integrated neighborhood. Young Thurgood was accustomed to living, playing, and working with whites. His family was full of strong people who were not intimidated by the violent segregation that had spread across much of the country at the turn of the century.

  Marshall’s understanding of America’s racial problems and his approach to attacking them in the twentieth century—the belief that changing the law was the core of any civil rights movement—did not come simply out of his fight on the trolley. It was rooted in the epic struggle of free blacks in Baltimore for equal rights, a fight in which his grandparents had taken a leading role. Attaining equal treatment for black people under the law was an issue that Thurgood Marshall’s family had been involved with since the 1800s.

  If Marshall’s family had been from the North or Deep South, he would not have had a vision of blacks and whites living together as equals under the law. A sparse population of blacks in the North during the 1800s made racial integration uncommon. In the Deep South the realities of slavery and crass oppression kept blacks separate and silent.

  But Baltimore was between North and South—a nerve center where the nation’s fractured racial picture came together. Maryland’s eastern and southern counties overflowed with vast communities of slaves on rural plantations. Its northern counties, however, were industrial and transportation centers that attracted free black people and runaway slaves from rural Maryland and around the nation.

  Baltimore, the state’s biggest city, had the largest population of free blacks of any city in the nation before the Civil War. Free blacks were well-to-do homeowners, businessmen, and religious leaders, and there were even private schools for free black children.

  In fact, at the start of the Civil War, forty-seven years before Marshall was born, all four of his grandparents lived either in or near Baltimore. Among the city’s free black population, his grandparents were literate, proud people, and political activists for equal rights for blacks.

  One of Marshall’s grandfathers, Isaiah O. B. (Olive Branch, as in a peacemaker) Williams, was a twenty-three-year-old free man as the war’s first shots boomed out at Fort Sumter, South Carolina. A fair-skinned mulatto, he was living in rural Howard County, just west of Baltimore. Williams traveled to the Navy Yard in New York to sign up six months after the Civil War started. He served as the captain’s steward aboard the USS Santiago de Cuba, a ship that successfully battled several Confederate vessels.1

  At the outbreak of the war, Isaiah’s future wife, Mary Fossett, was a twelve-year-old free black girl living in Baltimore. She could read to her mother and father the chilling newspaper accounts of Confederate sympathizers attacking Northern troops at the Baltimore train station at Camden Yards in 1861.2

  Marshall’s other grandmother, Annie Robinson, was also a free black. She was a mulatto but looked like any blue-eyed white girl. Born in Baltimore, she was just three in April of 1861, as reports of the war’s first battles spread to the city.3 Annie lived with her mother, a thirty-five-year-old widow who was working as a housekeeper in the downtown home of a rich, white merchant, who may have been Annie’s father.4

  The only one of Marshall’s grandparents who was not free when the war started was the twelve-year-old Thorney Good Marshall, already a defiant and angry character. As the War Between the States began, Thorney was a slave living in Accomac County, among the rows of corn and tobacco along Virginia’s Eastern Shore, in the midst of one of the largest concentrations of slaves in America. He was described as having a “yellow complexion,” and later records list his race as mulatto.

  During the chaos of the war, young Thorney apparently escaped slavery and ended up in Baltimore. The city was the first and closest taste of the better life in the North for any Southern black soul who could get there. Frederick Douglass, a Maryland-born slave who later gained fame as an abolitionist orator, once described Baltimore as the one place “short of a free state, where I most desired to live.”5 With the city’s large population of free blacks, it was easy for Thorney Marshall to take on the life of a free black and go unquestioned in Baltimore.

  A wonderful family lore grew up around Thorney’s escape from slavery. As the tale was told, Thorney was bought in the Congo by a rich, white American hunter. The hunter carried the child to America, expecting him to be his lifelong servant. But as the boy grew older his dislike of slavery made him ornery and mean. The hunter finally told the young slave he would sell him—“You’re so evil I got to get rid of you.” But Thorney was so difficult that the hunter decided it would be unfair to sell him to an unsuspecting buyer; instead he gave Thorney his freedom on the promise that he would leave Virginia’s Eastern Shore and never return. Thorney left, but he soon returned to buy land next to his former owner and torment the old man for the rest of his life.6

  The facts tell a slightly different story. Documents show that Thorney was between thirteen and fifteen years old when he left Accomac County. He was certainly old enough to be a defiant, spirited lad, but not old enough to have become the mighty slave of the family tale.

  The true story of Thurgood Marshall’s other grandfather was as good as the one that was made up about Thorney. With the Civil War over and Baltimore filling with larger numbers of blacks, Isaiah Williams returned a victorious veteran. He used his navy pay to buy a house in Old West Baltimore, a thriving neighborhood filled with Irish, Russian, and German immigrants as well as free blacks. Isaiah saw himself as the equal of anyone, attending church with whites and standing up for the rights of black people in the city. He was never afraid to argue, even with the white man who lived next door. When the neighbor, a recent German immigrant7 who was known for being mean to everyone, unexpectedly asked Isaiah to work with him repairing a broken fence that separated their property, the proud Isaiah had no problem telling him to get lost. “I’d rather go to hell,” he snapped.8

  Hungry for adventure, Isaiah reenlisted in November 1866 and worked as the captain’s steward onboard the USS Powhatan, the flagship of the South Pacific squadron for the U.S. Navy. The ship sailed along the Pacific coast of South America, patrolling the waters from Chile to Panama.

  The long stays in several exotic ports allowed Isaiah to get to know the people and their way of life. He saw carnivals, Shakespearean plays, and opera; for a black man born in the United States during slavery, this was extraordinary, and Isaiah had more than his share of good times. After shore leave during one stay in Payta, Peru, he was “confined in double irons, ‘per order of Captain,’ … for drunkenness.”9

  After three years of duty, Isaiah was honorably discharged on December 30, 1869, in Philadelphia. Back in Baltimore he began working as a baker and soon had enough money to open a successful grocery store in the basement of his house. Within a few years he opened a second store, which was even more successful, on Denmead Street.10 It catered to some of the city’s rich white families.

  His prominence in business and experience as a world traveler made Isaiah a respected black leader in the city. He was well known in local politics and the Republican Party. The party of Lincoln provided a base for black activists such as Isaiah, who were trying to win equal rights. He was known to battle with white city officials over police brutality an
d to argue for admitting black children to public schools.

  In November 1872 he married Mary Fossett, then a teacher in one of the city’s black private schools. They had six children, including in 1885 Norma Arica Williams, the future mother of Thurgood Marshall. Isaiah named her after the opera Norma, which he had seen when his navy ship visited the town of Arica, near the border between Chile and Peru.

  While Thurgood Marshall’s maternal grandfather was establishing his grocery business, the former slave Thorney Marshall was making good money working as a waiter at Baltimore’s popular Barnum Hotel. But the rambunctious twenty-one-year-old wanted more adventure than waiting tables.

  With blacks in Congress and in southern state legislatures in the early 1870s, as part of the ballyhooed Reconstruction effort to allow newly freed slaves political power, Thorney wanted to get out of Baltimore and see the South. He signed up with the army to go out west with the allblack 24th Regiment of the U.S. Cavalry. They were called Buffalo Soldiers, a term coined by Native Americans in honor of their supposed buffalolike strength and because they wore thick buffalo hides in winter.11 Their job was to fend off Indian and Mexican attacks and keep peace among settlers on the western frontier. Marshall was immediately sent to the deepest, most southern point of Texas, Fort Brown.

  The fort was renowned as “the most unhealthful” and unpleasant U.S. Army outpost in the nation. To the north was Brownsville, a town with no drainage system. A mosquito-laden marsh sat to the east, and temperatures stayed in the high nineties for much of the year. It was not uncommon for the soldiers to come down with fevers, dysentery, and diarrhea.12 Thorney’s job was to ride shotgun for the army paymaster who traveled along the Rio Grande every other month. There was a constant threat of robbers—American, Mexican, and Indian—along the two-hundred-mile route between Fort Brown and Laredo. Thorney had to be brave and quick, with both his hands and a gun.