Marshall on the Politics of Race and the Court
Marshall spoke at length about his attitudes — how he viewed the politics of race in America and what he saw his fellow justices doing about race-based cases:
A: We couldn’t get anything through Congress. I remember, you can’t name one bill that passed in the Roosevelt administration for Negroes. Nothing. We couldn’t even get the antilynching bill through.
So you had to go to the courts. That was the only place that was a possibility. And we go and look at that and say good God, that ain’t no chance either. And so some of us said let’s bang it in there and bang it in there, bang it in there, bang it in there. And now where you going now. You know you can go to the courts if you want to know where we is now. That’s where we is now.
Q: No use in going to the court?
A: I can’t say that. But you see what the record shows.
Q: What could the court do?
A: The court could take any of these cases and redo them. Do it every day.
Q: The question which seems to be at the heart of a lot of this. Race based classification in terms of contract setasides or Affirmative Action, what is the answer, a reasonable answer?
A: Discrimination as usual. You have to be exactly better than the white man. Well, your whole background is that you never have been better, and the white man has had it all along. There’s not a white man in this country who can say I never benefited by being white. There’s not a white man in the country can say it.
Affirmative Action, an effort to make up for previous discrimination, was a policy that Marshall championed as a Supreme Court justice:
Q: Well, what about an Affirmative Action question when you look at Bakke (Bakke v California Regents, 1978, which outlawed racial quotas in university admission policies).
A: Well the trouble with Bakke to my mind was that the Jewish people backed it. And that gave me great problems. And I didn’t like it. And that’s why I did a lot more research I think on it because I wanted to win it. And there were times when I almost won it.
Q: The Jewish perspective, that they feel limited by quotas.
A: They were playing with the word quota. Worried about the word as if they can’t handle the words. We can all handle words. But that was the wrong case and I still stand by every word I’ve said in my opinion.
Q: If you feel that way, why wouldn’t you subscribe to the same idea for the Court?
A: Well I don’t say that you had a judge on Court because he was a Negro. Qualified or not. That’s what you said.
Well there are not that many Negroes qualified for this Court. There would be maybe, I would say a maximum of a dozen. I couldn’t imagine more than that. I’d have trouble naming them but I know of ‘em. I know of ‘em. There are some awful good ones out there. They don’t get up here though to argue cases.
Q: John Hope Franklin said to ask you what needs to be done to create a more equitable racial climate in the country.
A: Of course there’s more the Court can do. I think one thing the Court could stop looking around for excuses not to enforce the 14th Amendment as it was intended to be enforced. And just looking for excuses.
Q: Concrete examples?
A: No, that’s hard because I mean it needs to be said. And I mean I assume they’ve got some conscience. I could be wrong.
Q: Are you able to persuade them?
A: I’m trying. I haven’t done as much as I could. I don’t know why, I’ve just done the best I could.
Q: You are famous as the greatest trial lawyer, a very persuasive individual.
A: Well I could be better because I lost ‘em. I mean I didn’t persuade them on Affirmative Action did I? I didn’t persuade them in the Bakke case. I wrote it, if they didn’t read it that’s their problem.
Q: When you speak to them as individuals do they listen?
A: I don’t know. When I write I don’t know whether they read it or not.
Q: You put more emphasis on writing than speaking to them?
A: Because writing stays there.
Q: But when I’m speaking to you here I can say, Justice Marshall, man to man.
A: Well we don’t get to that kind of discussion. I don’t know whether they believe me or not. What do they know about Negroes? You can’t name one member of this Court who knows anything about Negroes before he came to this Court. Name me one. Sure, they went to school with one Negro in the class. Name me one who lives in a neighborhood with Negroes. They’ve got to get over that problem and the only way they can do it is the person himself. What you have to do – white or black – you have to recognize that you have certain feelings about the other race, good or bad. And then get rid of ‘em. But you can’t get rid of them until you recognize them. The Court can set the guidelines. That’s all they can do. They can’t go into the details, they can’t do that.
Q: Has the Court done all it can to eradicate racism?
A: Of course not.
Q: What more could it do?
A: Case by case as it comes up – to look at it and give it a fair shake. And not find reasons not to look at it.
For example, you didn’t file your paper, or it had been filed and denied. That doesn’t destroy a man’s right. But they’re hanging people, I mean electrocuting people because they didn’t follow the rules.
Q: In terms of making sure you don’t exclude African Americans. Would you say it’s on a historical basis that they must be included now because they had been excluded previously?
A: I guess that’s one of the arguments. But the other one is that the whole comparison is faulted because there’s been this discrimination for all of these years and therefore people are in a position that they wouldn’t have been in if it were not for that way that passed. So the only way to get rid of the weighted past is to weigh the future. Not as much, but considerably.
Q: But what about colleagues who say that violates the whites’ rights?
A: I guess it does, but I don’t think the Constitution was meant to use anything that was unlawfully gained and their right is unlawfully gained. For example, your grandfather had a job that a Negro couldn’t get. Your father got a job that a Negro couldn’t get, therefore you have a better education than the children of those people. So somebody’s got to pay for that.
Q: If I say that to a white man he says I didn’t own any slaves. I didn’t discriminate against anybody.
A: Did he go apply for a job and say he wasn’t white? Did he accept the job knowing that Negroes had been excluded? But his father did. That’s how he got the money. He got the money from his father to get educated.
Q: But he says let’s call it all equal now and I’m qualified but you Negroes aren’t qualified.
A: I absolutely agree with that as of 1896, Plessey v. Ferguson [the precedent setting Supreme Court decision legalizing segregated seating on trains]. I agree with him as of that time. If it had been done then I would be with you now. Well if the Plessey v. Ferguson says everybody is equal and the Constitution is color blind and they went through with that, I would say that as of now you have to face up like everybody else and that’s not about the race.
Q: A 100 years later?
A: Why of course.
Q: So I say to you how much longer does white America have to make recompense?
A: I don’t have the slightest idea. I don’t know. I know all that’s happened in the past.