The Many Masks of Thurgood Marshall
This is an opend piece that ran in the Post following the death of Thurgood Marshall in January 1993.
The Many Masks of Thurgood Marshall
Behind the Justice’s Curmudgeonly PersonaA Special Kind of Torment
By Juan Williams
The Washington Post January 31, 1993
BLACK MEN, subject to slights and insults in American life, often wear many masks to hide their pain. Thurgood Marshall, who died last Sunday at age 84, was a master of the art.
As a lawyer he was trained to mask his emotions at critical moments before any jury; Justice Marshall could make funny stories out of the times when Southern sheriffs threatened to kill him. But, ironically, later in life he wore an even thicker emotional mask to disguise the pain he felt from public life in Washington: Thurgood Marshall felt unappreciated.
Marshall masked his hurt with a cantankerous demeanor that kept most people at a distance. People who talk about Marshall as a gruff character are inevitably describing a man they met after 1961, when Marshall was named to the United States Court of Appeals, the beginning of a series of federal government jobs that took him out of the fraternity of black lawyers and into a wider white world where his stature and intellect were questioned.
In the 1940s and 1950s, Marshall wore a different mask. As the head of the Legal Defense and Education Fund of the NAACP, he was known to his legion of friends as an outgoing man who loved bawdy humor, card games and bourbon. He talked loudly and professed to wear life “like a loose garment.” He persisted in that easygoing style even while black militants such as Malcolm X derided him as a taken. Maintaining this persona was no small strain for Marshall, who routinely worked day and night trying to manage 400 cases or more at one time, earned little money and traveled into areas of the country where any black man who stood up for his rights put his life in danger.
In death, Marshall’s various masks threaten to conceal his legacy. In obituaries he is remembered for the wonderful stories he could tell, and as the high court’s first black justice. Unstated but implicit in most of the eulogies and obituaries was the assumption that Marshall was not one of America’s outstanding legal minds.
Lost in these accounts is the reality of Marshall as a man who led a team that skillfully deployed the Constitution in an unprecedented way: to dismantle the world of “separate but equal.” Little attention is paid to the man who loved the law and legal argument, who would arrange long moot court sessions to prepare for any day in court. Largely forgotten is the brilliant advocate of free speech, the man who along with Justice William Brennan stood firmly against use of the death penalty, the fierce defender of a woman’s right to an abortion.
The mask of curmudgeon that obscured Marshall’s intellectual accomplishments had another purpose: to hide his own pain, pain that dated back to the start of his tenure in Washington. Robert Kennedy, then the attorney general, was reluctant to award him an open seat on the Second Circuit of the United States Court of Appeals. Kennedy wanted Marshall to accept a district court job and avoid a possibly difficult confirmation hearing. Southern senators, Kennedy worried, would be angry at President Kennedy for sending the leading civil rights lawyer of the time before them for confirmation.
“‘You can’t go on the Court of Appeals,'” Marshall recalled Kennedy saying. “‘You don’t seem to understand it’s this (the district court job) or nothing.'” Marshall, recounting the conversation in his Supreme Court chambers nearly 30 years later, turned red and shouted out the response he gave to Bobby Kennedy: “‘The trouble with you is that you are different from me. You don’t know what it means, but all I’ve had in my life is nothing. It’s not new to me. So goodbye.’ And I walked Out”
Only unyielding pressure from Louis Martin, the president’s key black adviser, finally persuaded JFK to appoint Marshall to the appeals court. His confirmation process went on for nearly a year as his credentials and experience with noncivil rights law were questioned, In fact, the Southern senators opposed him simply because he was black and a pioneer in civil rights law. But his opponents didn’t admit their real motives; they hammered at him from behind, questioning his ability as a lawyer and judge.
This questioning only reinforced Marshall’s determination. “He cared deeply about being seen as carrying a full load, being fully versed, fully competent, because he was aware that as the first black judge an that court there was intense scrutiny and he did not plan to let anyone down,” said James 0. Freedman, now the president of Dartmouth College, who was one of Marshall’s first law clerks.
“Because he was such a storyteller, a marvelous personality, it was easy for his critics to say that was the whole of the man when it wasn’t,” Freedman said, noting that none of Marshall’s more than 100 rulings on the appeals court was reversed by the Supreme Court.
Marshall’s mask became tighter when President Johnson appointed him solicitor general and it was widely suggested that he was not as “intellectual,” not as much a “student of detail,” as his predecessor, Harvard Law School professor Archibald Cox. The mask hardened when LBJ appointed him to the Supreme Court in 1967. The appointment was derided by many as a symbolic gesture meant to appease black Americans as riots tore apart the nation. And again the issue of his legal ability was raised at his hearings. Sen. Strom Thurmond, the South Carolina Republican, asked Marshall question after question on details of the Constitution 60 questions in all, including queries on the meaning of the 13th, 14th and 15th amendments.
This presumption of the intellectual inferiority of black people is part of the everyday American landscape. But for Marshall, a lawyer who had argued 32 cases before the Supreme Court and won 29, it was galling. The question asked among white lawyers and legal scholars was direct: What did Marshall know about tax law and other complicated areas of federal jurisprudence? Marshall tried to ignore the darts and do his work, but he lost his easygoing style.
He took some comfort in hearing that Lyndon Johnson shared his pain. Marshall told me that a week before Johnson died, the former president had called and confided in him that he did not run for office a second time because of the antagonism he provoked by appointing Marshall to the court. “He thought that moving me here was what killed him off,” Marshall said, dismissing the notion that the war in Vietnam led to Johnson’s political demise. Most historians would disagree, but Marshall’s reasoning is revealing of the man behind the mask. By 1968 he saw himself as a target in a larger battle that could even drive a president from office. He felt under attack.
In the late ’70s, Marshall said, he got a call from a person he would identify only as a Carter administration official. The person asked him if, given his health problems, he might step down so Carter could have a Supreme Court appointment. Marshall said no, but once again the hurt was intense. He felt his fellow Democrats were trying to shove him aside.
The mask protected him when Bob Woodward and Scott Armstrong’s book about the Supreme Court, “The Brethren,” portrayed him as a lazy man who spent much time watching TV and who left his court work to a series of firstrate law clerks. This indictment hurt him deeply. Sitting in his chambers with his wife and a reporter, he lashed out at the idea that he was just shuffling papers. His wife, Cissy, said Marshall used the television as background noise while “his mind is working on some legal case.” Marshall threw her a sidelong glance and said, “You shouldn’t tell that,” as if it were beneath him to begin responding to all the assaults.
In his final years, he protected himself by being prickly. He was once approached by a man who proudly announced, “You remember me, don’t you?” Marshall, without losing a step, replied, “Of course I don’t.” He declined almost all invitations to speak in public or even receive awards (although he made an exception for awards from groups of lawyers). During summer court recesses, he would visit Atlantic City and in the anonymity of the casinos play blackjack and order room service. But that was all. The rest of the time he spent privately his mask well in place.
Unmasked, Thurgood was a man who wanted to he appreciated and respected as a hardworking, thoughtful advocate who stood up for individual rights before the American bar. That’s what he wanted and that’s what he was.
Juan Williams, who writes frequently for Outlook, is writing a biography of Thurgood Marshall based on extensive interviews with the justice shortly before his death.