Ervin also turned to the Miranda ruling and asked Marshall if the courts should accept voluntary confessions when the suspects had no lawyers and had not been told of their right to remain silent. Marshall, speaking slowly, as if considering his response, said: “Well, Senator, the word voluntary gets me in trouble.… I tried a case in Oklahoma where the man ‘voluntarily confessed’ after he was beaten up for six days.” The hearing room erupted with laughter.
Ervin and Marshall continued to spar, with Ervin trying to get Marshall to disavow the Miranda rules and Marshall repeatedly explaining that he could not talk in specifics. Ervin finally replied, “If you have no opinions on what the Constitution means at this time you ought not to be confirmed.” The hearings were going badly for the nominee, and the Johnson White House was distressed.
On July 20, Chairman Eastland, apparently convinced that he and his fellow southerners had Marshall on the ropes, dropped the veil of questions and went to the heart of their fears about putting a black man on the Supreme Court. “Are you prejudiced against white people in the South?” he asked. Lifting his eyeglasses off in a studied manner, Marshall replied: “Not at all. I was brought up, what I would say, ‘way up south’ in Baltimore, Maryland. And I worked for white people all of my life until I got in college. And from there most of my practice of course was in the South and I don’t know, with the possible exception of one person that I was against in the South, that I have any feelings about them.”
The response was good but not good enough. Senator Strom Thurmond felt free to launch his own attack, asking Marshall detailed questions about the history of the Thirteenth and Fourteenth Amendments. At one point the senator’s questioning became absurdly arcane: “What constitutional difficulties did Rep. John Bingham of Ohio see—or what difficulties do you see—in congressional enforcement of the privileges and immunities clause, article IV, section 2, through the necessary and proper clause of article I, section 8?”
The room fell silent as Thurmond, the former Dixiecrat presidential candidate, then in his sixties, finished a speedy, barely understandable reading of the question in his South Carolina accent. Newly elected Sen. Ted Kennedy, the younger brother of Sen. Robert Kennedy and the assassinated president, looked befuddled. He asked Thurmond for “further clarification” of the question. When Thurmond repeated the same question twice, Kennedy asked if the senator could get out the point of the question in some other way.
“I don’t think I can make it any plainer,” Thurmond said with a huff and continued to talk about sections and clauses in the Constitution, reaching new heights of obscure reference that lost most listeners.
“That’s the answer, I see,” said a flabbergasted Senator Kennedy as howls of laughter broke out in the hearing room.
Chairman Eastland called the room back to order and promptly began another volley of fire by asking Marshall if he was aware that the author of a book cited in one of his Second Circuit opinions was a Communist. “I positively did not know that,” Marshall replied, adding he would not have cited the book if he had known the author was a Communist.
The question was a bald setup. To bolster charges that Marshall was a Communist, the committee allowed the general counsel for Liberty Lobby, a right-wing political group, to testify. Michael D. Jaffe listed Marshall’s association with groups such as the International Juridical Association and the National Lawyers Guild. Jaffe added that Marshall had “a record of duplicity and arrogance unparalleled by that of any nominee to high judicial office in recent times.”
Marshall, sticking with the White House game plan, sat calmly and made no reply, giving no credibility to the attack. His body language seemed to say the accusations were beneath his dignity.
The committee recessed for the weekend, and beginning that Friday night President Johnson began nonstop lobbying that carried into Sunday. On Monday, the final day in the two-week hearings, the negative tone had shifted. Several senators voiced kind words for the nominee. Only Senator McClellan took one last shot. He equated the riots in black ghettos around the nation with Marshall’s efforts to overturn laws of segregation. “A sentiment has been built up over the country to the point where some people feel that if you don’t like the law, violate it,” said McClellan, angrily slamming his fist on the dais. “And the Supreme Court takes the position that at its whim it can reverse decisions.… No wonder the fellow out in the street thinks—‘why can’t I do as I please.’ ”5
The hearings ended on July 24, and despite an eleven-day delay orchestrated by Chairman Eastland, President Johnson’s power to persuade carried the day. The committee voted on August 3, by 11 to 5, to recommend Marshall be confirmed. But the final vote of the entire Senate was held off until the end of the month. By that time it would be more than two and a half months since Marshall had been nominated. The tension was getting to him and to his family. Marshall’s supporters tried to buck him up, but the nominee told friends and his White House helpers that he was concerned. Johnson’s staff assured him they had enough votes to seal his confirmation, but Marshall wondered if they were keeping him in the dark.
A few days later Senators Ervin, Thurmond, Eastland, and McClellan engaged in what newspapers called a six-hour mini-filibuster against Marshall’s confirmation. Thurmond returned to Marshall’s lack of knowledge about the history of the Fourteenth Amendment. The senator derided Marshall as a man who did not even know the names of the people who had drafted the Fourteenth Amendment—which Marshall was supposed to be an expert on. Senator Kennedy interrupted to ask Thurmond if he knew who the members of that committee were. Thurmond turned red and finally said he would let Kennedy know later. “He didn’t know himself,” said Marshall.
When the filibuster ended, the Senate voted 69–11 to approve Marshall for the high court. Southern senators were almost uniformly opposed to Marshall. But Johnson had succeeded in persuading twenty senators to simply not vote. That was a safety-valve strategy for southerners who were up for reelection. They couldn’t afford to be on the record supporting Marshall, but they could live with having missed the vote. And without those votes, the margin of victory was that much greater for Marshall and Johnson.
After the victory the new justice got a call from President Johnson. He congratulated Marshall and immediately added, “But the hell you caused me, goddammit, I never went through so much hell.” Marshall, never at a loss for a comeback, said, “It was your idea, it wasn’t mine.” Johnson cracked a laugh and said, “I guess that’s right.”
* * *
On September 1, 1967, Marshall privately took the judicial oath in the chambers of Justice Hugo Black, a former Ku Klux Klansman from Alabama. Black, a leathery, hunched man at seventy-nine, was the senior member of the Court, having served since 1937. Black’s tenure made him the dean of Supreme Court justices, and he volunteered to administer the oath as an act of friendship. He and Marshall had known each other for thirty years, since Marshall and the NAACP had supported Black’s nomination to the high court despite criticism from many in the liberal fold.
The new job, in addition to its prestige, came with a $10,000 raise, taking Marshall’s salary to $39,500. On one of his first days at the Court, he called a former aide in the Solicitor General’s Office, Louis Claiborne, and took him to lunch. “We went to Mr. Henry’s on Capitol Hill and had our three martinis,” Claiborne said. “He picked me up, and here he was in this cream-colored, gaudy, twenty-foot Cadillac. And he says to me, ‘See this, I haven’t gotten me my first paycheck yet, but that’s the nigger in me. I went out and bought one of these for me and one for Cissy.’ ”
On Monday, October 2, Marshall was publicly given the constitutional oath at the U.S. Supreme Court, making him the ninety-sixth justice. President Johnson, former justice Tom Clark, Attorney General Ramsey Clark, and several of Marshall’s family and friends were there for the ceremony. “People were everywhere when he took his seat,” recalled Grafton Gaines, Marshall’s courier from the Solicitor General’s Office.
“You know, that was a big thing. Even the ones that hated blacks came to the Court.”6
Although he was the first black person in the tight-knit fraternity of justices, the so-called Brethren, Marshall immediately fit in well. He had been before the Court enough times as solicitor general—and as the NAACP’s lawyer—that he was greeted as a friend. Justice Byron White, in an interview years later, noted that Marshall had been expected to get a Supreme Court seat for several years. And Justice William Brennan immediately befriended Marshall. “When he came on the Court there were many others delighted, too,” Brennan said in an interview later, “but none was so much as I.”7
Marshall did ruffle a few feathers in his first days, however. He began asking the three justices who had been on the Court in 1954 (Chief Justice Warren, Hugo Black, and William O. Douglas) about an unpublished opinion, written by Justice Stanley Reed, dissenting against the school desegregation ruling. Warren had persuaded Reed to vote with the majority so the Brown ruling would be unanimous. Now, thirteen years later, Marshall wanted to see the stillborn dissent.
“I just asked,” he said in an interview later. “And nobody knew at all. They all took the Fifth Amendment!” When Marshall persisted over several weeks, unable to get anything from men he called “the great liberals,” he went to see his friend Earl Warren. When he asked about the Brown case all conversation ceased and the chief justice gave him a chilly stare. At that moment Marshall thought to himself that even though he was now in “the club,” he was “still a nigger.”
Making one last try, Marshall asked Tom Clark, now in retirement, about Brown. The conservative Texan surprised Marshall. He told him about the dissent and said there were no major surprises in it—just an argument in favor of separate but equal as the law. Even after Clark came clean with him, Marshall nursed resentment that his fellow liberal justices had not been direct with him.8
But Marshall quickly settled into the routine of a Supreme Court justice. In November, just a month after he joined the Court, Marshall wrote his first opinion in a unanimous decision granting defendants the right to an attorney at every stage of the criminal process. In Mempa v. Rhay, a case where a poor teenager was convicted of stealing a car but given no legal counsel at his probation hearing, Marshall wrote: “All we decide here is that a lawyer must be afforded [to the defendant] at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.”
Justice Black had been prepared to vote against the defendant, but when he read Marshall’s draft of the opinion, he decided to make the ruling unanimous. “Although I voted the other way [in conference among the justices] on the assumption that probation here was separate and apart from sentencing, I am now persuaded by your analysis that the so-called probation was in reality a deferred sentence,” Black wrote to Marshall, adding that “your first opinion for the Court [was] written with brevity, clarity and force.”9
The new justice did not isolate himself from Washington politics as he went about learning the job. President Johnson stayed in touch with him, sending the justice to Africa with Vice President Humphrey as co-leader of the U.S. delegation to Liberian president William Tubman’s inaugural. Johnson also invited Marshall to prayer breakfasts, White House luncheons, and some off-the-record meetings. Johnson’s presidency was going through a dizzying roller-coaster ride; the war in Vietnam was getting worse, and there were more antiwar protests and race riots at home. Johnson was also facing challengers for the 1968 Democratic nomination, with the biggest name on the horizon belonging to Bobby Kennedy.
A discouraged president sometimes turned to Marshall for private chats. His influence with the civil rights community and Johnson’s need to nail down the black vote in the primary in the face of a possible Kennedy candidacy, were key areas where Marshall could provide help. But with crisis aflame on every front, Johnson saw his campaign for a second term as futile. Despite Marshall’s support and promises of more help in the future, the president announced his decision not to seek reelection.
The political scene was thrown into chaos. Senators Robert Kennedy and Eugene McCarthy were mounting serious challenges to Johnson’s chosen successor, Vice President Humphrey. The sense of turmoil reached a new high on April 4, 1968, when Martin Luther King, Jr., was assassinated in Memphis, Tennessee. Marshall was at the Court when he heard about the shooting and the immediate explosion of riots across the nation.
He phoned the White House and the Justice Department to see what he could do. In the crisis atmosphere, however, there was no clear role for him to play. “The night Dr. King was murdered we were having a staff meeting,” Ramsey Clark recalled in an interview. “I went down to Memphis that night, and when I came back, Washington was on fire. When you flew in, you could see flames and smoke going all the way down the Potomac, ten miles or so.
“Thurgood was profoundly affected,” Clark continued. “Thurgood came and sat in—almost like a witness, he sat out in the front office. I said, ‘What are you doing?’ He said, ‘I just wanted to be here in case there is anything I could do.’ ”10
All Marshall could later recall about the time he spent sitting at the Justice Department was that it was “a rough night.” The morning after the assassination Marshall attended a meeting in the White House Cabinet Room with the president, congressional leaders, and civil rights leaders, including Roy Wilkins of the NAACP and Whitney Young of the National Urban League. The president was worried about urban violence and began the meeting by reading a wire service story quoting Stokely Carmichael, the militant leader of the Student Non-Violent Coordinating Committee, as calling for black people to strike back at white America. After Defense Secretary Clark Clifford said he hoped he would not have to send troops into American cities, the president called on Marshall to speak.
According to Johnson’s notes, Marshall’s emphasis was on finding a way to end demonstrations because they could lead to more violence: “The important thing is to keep people out of the streets and change the mood in the country.” 11 After the meeting, Marshall joined Johnson for a memorial service for King at the White House, followed by an Oval Office meeting with Johnson and Chief Justice Earl Warren.
Marshall’s relationship with King created emotional difficulty for him. He particularly disliked King’s criticism of President Johnson’s policies on the Vietnam War. And he had never been a fan of the marches and boycotts King used to protest segregation. Marshall had once mocked street protest by saying he was “a lawyer, not a missionary.”12
“I used to have a lot of fights with Martin about his theory about disobeying the law,” Marshall said in an interview years later. “I didn’t believe in that. I thought you did have a right to disobey the law, and you also had a right to go to jail for it, and he kept talking about Henry David Thoreau, and I told him that Thoreau wrote his book [“Civil Disobedience”] in jail. If you want to write a book, you go to jail and write it.”
But Marshall conceded that King had tremendous influence. “He came at the right time,” said Marshall. “It’s very interesting how people pop up at the right time.… I think he was great, as a leader. As an organizer he wasn’t worth shit.… He was a great speaker … but as for getting the work done, he was not too good at that.… All he did was to dump all his legal work on us [the NAACP], including the bills. And that was all right with him, so long as he didn’t have to pay the bills.”13
King’s death did not change Marshall’s attitude toward the activists in the streets. When Marshall went back to work at the Supreme Court after the April riots, a group of demonstrators from Resurrection City, a tent community near the Capitol, tried to march into the Supreme Court building. Marshall was not sympathetic to their demonstration or their claim to be operating in King’s spirit. When they asked Marshall to come out and speak to them, he replied, “I have talked to people before they broke the law, and I’ve talked to people after they’ve broken the law, but I’ve never talked to people while they were breaking it.”
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br /> The activity in the streets and in national politics continued to overshadow Marshall’s profile as the first black justice on the nation’s high court. Segregationist George Wallace, the governor of Alabama, entered the 1968 presidential race as a favorite son of the Old South, further inflaming racial tensions. In June, Sen. Robert Kennedy, who had just won the California primary and appeared to be on his way to claim the Democratic nomination, was assassinated in Los Angeles.
And bringing the turmoil close to home, Chief Justice Earl Warren decided to resign at the end of June. His departure gave President Johnson the chance to appoint the next chief justice before the fall election. Johnson nominated his old pal Justice Abe Fortas for the top job, but Fortas was quickly attacked by conservatives. It was discovered that his former law partners had solicited money to fund a lecture series the justice had given at American University. The fact that Fortas was a Jew also complicated his nomination. Senator Eastland was overheard saying at a party: “After [Thurgood] Marshall, I couldn’t go back to Mississippi if a Jewish chief justice swore in the next president.”14
Marshall was supportive of Fortas as a fellow justice and fellow Johnson appointee. He sent him a note telling him to hang on despite the scandals and barbs. Marshall had never learned of the contempt with which Fortas had spoken about his intellect while Marshall was solicitor general. Fortas had also made derogatory comments about Marshall to other justices after Marshall had joined the Court. But Marshall had no idea that Fortas despised him.
As the scandals mounted, however, Marshall’s support for Fortas made no difference. Fortas was compelled to withdraw his nomination, and Warren continued to serve as the chief. The defeat of the Fortas nomination was a serious setback for Johnson’s already crumbling presidency.
Meanwhile, riots continued to break out in the big cities, and there was more and more talk of “Black Power.” It became the hip slogan for the militant black youth who viewed Marshall as an establishment voice. Justice Marshall’s uneasy relationship with black militants reached a boiling point when he spoke at the University of Wisconsin in late September 1968. A disruptive group of Black Panthers and antiwar protesters threatened him, and Marshall became fearful. When he got back to Washington, he phoned the FBI. “[Justice Marshall] stated he was somewhat of a ‘practicing coward’ and that he had been deliberately harassed at the University of Wisconsin while attempting to make an appearance there,” a senior FBI agent, Cartha DeLoach, wrote to the assistant FBI director, Clyde Tolson. “They were vociferous and very active in their harassment. He indicated he became somewhat afraid for his safety.”15
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