In honor of Black History Month, members of Pond Lehocky Giordano’s Diversity, Equity, and Inclusion (DEI) Committee are taking the time to listen and learn. We are proud to present our series on historical BIPOC (black, indigenous, and people of color) litigators who have inspired our team members.
To say that Thurgood Marshall had a profound effect on the nation’s legal landscape would be an understatement. He was an accomplished lawyer, judge, and eventual Supreme Court Justice. In each aspect of his legal career, he fought zealously for the equal protection of all individuals under the Constitution, and he did so with unmatched skill. Thurgood Marshall is a legal legend and hopefully this article sheds a light on the historical impact he had on our legal system and our culture.
Thurgood Marshall was born in Baltimore, Maryland in 1908. His father worked as a railroad porter, and his mother worked as a teacher. His parents would play a pivotal role in shaping his skills as a lawyer. His father would take Marshall and his brother to watch court cases and, after a day of hearing the cases, the father and sons would later debate the respective sides. The family also would debate current events after dinner. Marshall credited his father with developing his skills. When asked whether his father wished for him to become a lawyer, Marshal would reply, “My Father turned me into one. He did it by teaching me to argue, by challenging my logic on every point, by making me prove every statement I made.” That is essentially the goal of a law school. Marshall’s father instilled these skills in his son at an early age. It is not surprising that Marshall would go on to law school and graduate first in his class from Howard University Law in 1933.
Marshall’s private practice became intertwined with the National Association of the Advancement of Colored People (NAACP). His first case with the NAACP was Murray v. Pearson. In Murray, a black student with exceptional credentials was denied admission to the University of Maryland in 1936. At the time, the University of Maryland practiced segregation. Indeed, Marshall had desired to study law at the University of Maryland, but he did not apply because he knew their policy of segregation. However, Murray sought to challenge the policy. At that point, the governing precedent was the “separate but equal” doctrine of Plessy v. Ferguson. Marshall argued that Maryland violated the separate but equal doctrine by failing to provide a comparable educational opportunity at a state-run black institution. Marshall no doubt disagreed with the doctrine articulated in Plessy v. Ferguson, but he had to argue the precedent that governed the issue. The Court of Appeals found in favor of Murray and determined, “Compliance with the Constitution cannot be deferred at the will of the state. Whatever system is adopted for legal education must furnish equality of treatment now.”
The most historic and important case of Marshall’s private practice was Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). In Brown, Marshall argued on behalf of a class of 13 local black families against the Topeka, KS school board. Particularly in the Brown Family’s instance, their daughter was denied enrollment at a school closest to their home and, instead, the district required her to ride a bus to a segregated black elementary school much farther away. The Lower Courts found that the segregated schools were “substantially equal with respect to buildings, transportation, curricula and educational qualifications of teachers.” Consequently, the issue before the Supreme Court in Brown was the matter of segregation and, ultimately, the constitutionality of the Supreme Court’s ruling in Plessy v. Ferguson.
The Supreme Court grappled to come to a decision in Brown, even requiring a second argument on the impact that the equal protection clause of the Fourteenth Amendment has on the issue. This was seen as a consensus building tactic. Ultimately, the Court reached its decision. The Supreme Court stated, “[w]e come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities?” Brown, 397 U.S. at 493. The Court found that school, regardless of their facilities, are inherently unequal because of the psychological impact that the segregation had on the minority students. “To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.” Brown, 347 U.S. at 494. Thankfully, due to the brilliant advocacy of Thurgood Marshall, an all-white Supreme Court recognized its error and removed the separate but equal doctrine it previously embraced in Plessy v. Ferguson.
Clearly, Marshall was a shining star in the world of advocacy. He caught the eye of President Kennedy, who nominated Marshall to the United States Court of Appeals for the Second Circuit. However, a group of Senators from the South held up his confirmation, and he served several months under a recess appointment. Marshall remained on the Court until 1965 when President Johnson appointed him as the first African American Solicitor General. The Solicitor General is the government’s chief attorney who argues cases before the Supreme Court when the United States is a litigant. This was a brilliant move by President Johnson as he had just signed the Civil Rights Act in 1964; so, who was better suited to defend the law than Thurgood Marshall. Marshall held this position until 1967, at which point President Johnson nominated Marshall as Associate Justice to the United States Supreme Court. Marshall was confirmed as an Associate Justice by a Senate vote of 69-11 with 20 Senators abstaining. This certainly was not a moment for profiles in courage to the abstaining Senators.
Marshall served on the Court for 24 years. His record was generally viewed as liberal with strong support for Constitutional Protection of individual rights, particularly the rights of criminal defendants and women. Marshall consistently opposed the death penalty. He concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional. This ruling was later overturned, but Marshall consistently dissented from every denial of certiorari in a capital case and from every decision upholding a sentence of death. Marshall announced his retirement due to health concerns in 1991. He was ultimately replaced by Clarence Thomas, who began the Court’s shift towards the right.
This Black History Month, and every month, we celebrate attorneys who historically made an impact on our society, defeated the odds, and overcame challenging hurdles, including the law of the land. Thurgood Marshall lived a life worth remembering, which is what all attorneys should aspire to achieve. I am proud to follow in his footsteps as an attorney and advocate.