Anyone with first- or even secondhand knowledge of the real-life subject must have wondered what strain of myopia possessed those producing the 1991 TV miniseries Separate but Equal when they cast Sidney Poitier as Thurgood Marshall. Poitier is an icon and so was Marshall, but all icons don’t look alike. Whatever virtues Poitier brought to the role, his granite solemnity and stiff-backed nobility were all wrong for Marshall, who came across in Simple Justice, Richard Kluger’s masterly 1975 account of the Brown v. Board of Education fight that inspired the miniseries, as a swaggering composite of Batman, Rabelais, Demosthenes and Anansi the Spider.
This is the epic-heroic vision of Marshall that roars to life in Thurgood Marshall: American Revolutionary, and its evocation is the principal asset of Juan Williams’s book. Readers with more stringent expectations of biographies of Supreme Court Justices may arch their eyebrows over Williams’s breezy, capacious style. And one needn’t be a legal scholar to suspect that the book leaves plenty of room for deeper inquiry into Marshall’s arguments, decisions and dissents. But the speed and swirl of the book’s narrative is more than appropriate for the subject. Williams, a veteran Washington Post reporter and television commentator who wrote the companion volume to PBS’s Eyes on the Prize, wants his readers to feel the ground shaking beneath them as they witness a nation’s galvanic transformation. If the book seems to run away with itself at times, that may be because the history it chronicles seems several steps ahead of America apprehending its impact. Comprehension hasn’t caught up yet, even at this late date.
Marshall’s life provides an illuminating if sometimes troubling focal point for examining this history. To put it another way: Malcolm X, who drew harsh, unrelenting disdain from Marshall (“A damned pimp” was the Justice’s elegy for Malcolm), secured much of his immortality by telling African-Americans to secure their rights “by any means necessary.” Marshall actually carried out that mandate, sometimes in ways that aren’t going to please those who might otherwise consider him a hero.
Or for that matter, consider him a revolutionary–which, in the global sense of the term, Marshall was not, Williams’s subtitle notwithstanding. Consider this testimony, quoted in Kluger’s Simple Justice, from Alfred Kelly, a white historian who helped Marshall’s NAACP legal team prepare its epochal Supreme Court arguments against school segregation:
[Marshall and his team] were convinced that the relationship between the law and society was the key. There was a very conservative element in these men then in the sense that they really believed in the American dream and that it could be made to work for black men, too. Thurgood Marshall was…an American patriot. He truly believed in the United States and the Constitution, but that the whole system was tragically flawed by segregation laws…. Marshall and his colleagues were no rebels. They felt that the social order was fundamentally good…
Kelly, while admiring their zeal, believed that Marshall and his men were “in a sense…profoundly naive” in thinking that their efforts would change the hearts and minds of racists. While Williams is likewise attentive to the unshakable federalism in Marshall’s ideological makeup, skepticism does not shade his own account of Marshall’s courtroom battles leading up to the May 17, 1954, Brown decision against school segregation.
From the time he graduated, in the early thirties, from Howard University Law School (which under the rigorous proprietorship of its legendary dean Charles Houston was intended in those years to be a “West Point of Negro leadership”), Marshall attacked the segregationist social order with a legal jujitsu that must have been something to witness firsthand. Case by case, from his home state of Maryland to the deepest, most forbidding parts of the South, Marshall attacked injustice using every rhetorical tool, every ligament of the debating muscles he’d developed and honed since he was a child. Outside the courtroom, he had to literally duck, dodge, weave and bolt like hell from almost every Southern town to avoid bodily harm, even death. Williams’s voice isn’t Marshall’s, but you get the feeling while reading these tales that the old man himself would roll out his perilous adventures in a similar, locomotive-driven manner. (What a TV series such stories would make! Too bad there’s hardly a producer or a viewer these days who will buy the notion that lawyers can be society’s Good Guys.)
I can’t resist using the following encounter of titans as an example of Marshall’s off-the-cuff bravado. It involves an NAACP investigation into discrimination against black soldiers during the Korean War. Marshall presented his findings to Gen. Douglas MacArthur, who wasn’t impressed.
While speaking to the general, Marshall mentioned that he had heard from Japanese officials that there was not a single black military man on the entire headquarters staff or MacArthur’s personal guard. The general responded that no blacks were qualified by battlefield performance to be in his personal guard. A stunned Marshall said, “Well, I just talked to a Negro yesterday, a sergeant who has killed more people with a rifle than anybody in history, and he’s not qualified?” MacArthur said no and expected that Marshall would back down…
Pointing towards the parade ground, Marshall said, “Now, General, remember yesterday you had that big beautiful band playing at the ceremony over there.” MacArthur, thinking the conversation had shifted, smiled, saying, “Yes, wasn’t that wonderful?”… Marshall noted that there was not one black soldier in that band. “Now, General, just between you and me, goddammit, don’t you tell me that there is no Negro that can play a horn.”
Marshall, here and elsewhere, shows himself as someone who seemed to spring from the womb with a sense of personal entitlement and profound mission. Only a black man who took for granted that he could speak eye to eye with imperious dimwits like MacArthur could have walked into any American courtroom and changed seemingly intractable white minds, even when he lost a case. His presence alone should have been sufficient evidence of Jim Crow’s obsolescence. But it wasn’t. He had to win a big one.
The Brown case, which occupies this biography’s literal and figurative center, is given a brisk, evenhanded recounting. Williams details arguments within Marshall’s team over using sociological data assembled by Kenneth Clark and others as evidence of segregation’s malign effect on the psyches of black children. The tactics aren’t examined here so much as catalogued, to show the extent to which Marshall and the NAACP were intent on using everything they could throw at the Supreme Court–field studies utilizing black and white dolls, painstaking examinations of the Fourteenth Amendment–to make their case work. The fevered atmosphere of all-night conferences among the NAACP staff, the cigarettes-and-bourbon antidotes to Marshall’s growing tension (along with the added toll to what was already his unhappy first marriage), the pointed exchanges between Marshall and associate Justice Felix Frankfurter (“a smart aleck,” as Marshall later recalled “with a glare”) during the December 1952 arguments on school segregation before the High Court; these and other elements of this epochal saga are neatly compressed by Williams, who recounts them with a sense of awe that is contagious. How wonderful it must have been to be black, alive and aware in May 1954!
The story doesn’t end with Brown, of course. But the book’s surprises become attenuated afterward. The pragmatist-conservative side in Marshall assumes prominence almost immediately after the Supreme Court decision. He chafed bitterly at the Court’s subsequent “all deliberate speed” equivocation on enacting school integration, but accepted it nonetheless. He was no fan of boycotting as a strategy for obtaining civil rights, which meant that he was at best ambivalent about Martin Luther King Jr. and the latter’s tactics of nonviolent resistance. Marshall in fact told law student and future senator Harris Wofford that he “couldn’t imagine a worse prescription” for battling Southern segregation than Gandhian nonviolence, and that it would ultimately lead to setbacks in what he and the NAACP had won in the courts. A less generous mind than Williams’s might billboard this dispute as one of history’s leading men grousing over being upstaged by another. But Marshall, as Williams makes clear throughout, believed in Law and felt that breaking it was less profitable in the long run than changing it.
Far more disquieting is the curious fandango (Williams calls it a “minuet”) that ensued in the mid-fifties between Marshall and J. Edgar Hoover. The FBI chief started out, a decade earlier, believing Marshall to be one of Satan’s emissaries, given the young lawyer’s work with left-wing labor groups. The director soon came to exchange information with the NAACP, through Marshall, on “Communist activities inside civil rights groups.” As far as Williams’s book is concerned, Marshall wasn’t selling out his convictions, since he had never made a secret of his anti-Communism. He was also being practical: The last thing African-Americans needed in the fifties was to have their progress impeded while Jim Crow was in his death throes. Marshall, who fancied himself a great persuader, maintained that he was the one using Hoover for his ends rather than the other way around.
One wishes there were a dissenting voice or two in the book to argue this contention. One also wishes there were more details about the nature of Marshall’s “information” and who–or what–was hurt by his disclosures. Yet even if the more distressing aspects of the Marshall-Hoover connection were amplified here, you would still wonder, given the scope of what Marshall had already accomplished by the late fifties, whether any radical voice could persuasively challenge what Marshall told an interviewer years after chasing Communists out of the NAACP: “I did more than anybody else did and if you don’t believe me ask.” By any means necessary…
Marshall became more adroit at manipulating his growing prestige within the establishment’s upper reaches while preserving his stature as a freedom-fighting litigator. He maintained this tricky balancing act to the end of his life, even as he ascended to what was widely believed to be his waiting seat on the Supreme Court. Williams makes it clear, however, that Lyndon Johnson’s appointment of Marshall in 1967 and the subsequent confirmation were anything but certain. (In today’s less civilized times, the appointment might have been scuttled altogether.) The subsequent decade’s rightward drift compelled Marshall to see his position on the High Court as yet another arena for demanding human rights. Indeed, as the Court’s majority became more conservative through the remainder of Marshall’s life, one gets the sense that the Justice may as well have been on the other side of the bench, making arguments to an increasingly unsympathetic panel of Brethren against capital punishment and for preserving the civil rights victories he’d fought so hard to secure. He becomes sicker, angrier; life is much less fun. His skin becomes so thin that he complains to the FBI about a 1982 National Lampoon parody, written under his byline, offering guidelines for better porn movies. Altogether, not a pretty sight.
By the time he died in 1993, Marshall, whose seat had by then been taken by Clarence Thomas, was already being missed, even (especially?) by radicals who believed him to have become too entrenched in the establishment. And it’s true that even with his contradictions showing as conspicuously as they do in this book, Marshall looks better than nearly anyone in public life right now. Williams’s coda lays out both the man’s legacy and the work ahead in a decent, position-paper manner. In particular, Williams notes the “unparalleled rush of immigrants entering the United States” and the concomitant “nativist backlash” from Americans along with the immigrants’ own impulse to maintain as much of their culture and heritage as their upward mobility within American society will allow.
“The cutting issue today,” Williams writes, “is whether different levels of wealth and opportunity will attach themselves to different classes, limiting economic mobility.” Whether native-born or not, Americans with limited access to better education and jobs are going to find themselves leaning more and more on the legal strategies of social engineering pioneered by Thurgood Marshall.
Even in taking this class-based analysis, Williams diminishes neither racism’s persistence nor integration’s necessity. Ironically, it takes even greater courage these days for a black writer to declare in print, as Williams does, that “integration of racial groups and economic classes guarantees that everyone has an investment in the common good and a mutual concern about the nation’s future.”
So true. Yet such phrases don’t quite resound with the force of a clarion call. At the dawn of the next century, what’s needed in addition to preserving Marshall’s legacy is a leap of the American imagination into newer, potentially scarier perceptions of who we are and what we are meant to become. Whatever tumult came in the wake of Brown v. Board of Education, we know we can’t reverse its effect without many other things falling apart on us. The Law, as Marshall believed in it, has done its part for the twentieth century. Whose turn is it for the twenty-first? Ours, one by one.