Tragic Justice

National Review, Dec 7, 1998 by John O. McGinnis

Thurgood Marshall: American Revolutionary, by Juan Williams (Times Books, 480 pp., $27.50)

THIS book recounts one of the saddest tales of a Supreme Court Justice ever told. Thurgood Marshall emerged from modest circumstances to lead a crusade against racial discrimination, culminating in the victory of Brown v. Board of Education. He was appointed to the Court as a symbol of racial equality. But when he resigned from that position a few years before his death, he was a bitter and querulous character, a shadow of the charismatic and courageous leader America once knew. What happened to him?

Juan Williams's book is most successful in recreating the vanished world of Marshall's upbringing. Born in Baltimore to lower-middle-class parents, he grew up in what we now would call the inner city, but in a milieu where his father and mother worked hard and remained together. Williams draws a picture of a community that maintained the quiet dignity of self-reliance even in the face of economic hardship and social prejudice.

From an early age, Marshall was a gifted storyteller, and in high school he became a skilled debater. After somewhat raucous college days, he acquired the self-discipline to graduate as one of the top students at Howard Law School. One of his early victories in civil rights was to win the admission of a black college graduate to the University of Maryland Law School, which had turned the man down because of his race.

In this initial litigation, Marshall did not challenge the prevailing doctrine that the state could provide separate institutions for different races so long as they were equal. Instead, he proved that the state did not provide any equal alternative for legal education. One of Marshall's greatest assets as a litigator was common sense in choosing the arguments that had the greatest chance of success. As head of the NAACP's legal team, he shifted to the argument that separate institutions were inherently unequal only when the Supreme Court itself had begun chipping away at the doctrine of separate but equal.

Marshall also displayed considerable political acumen. He shamed one Southern senator who wanted to take a vacation in Bermuda to avoid voting for anti-lynching legislation. He used his considerable personal charm to defuse potentially violent situations when he represented black persons accused of crimes in the South. After Brown he recognized that infiltration of the NAACP by Communists would be disastrous for the civil-rights movement and thus made common cause with J. Edgar Hoover to expel them. He also had the good sense to oppose black separatists and to insist that civil rights be seen as part of a larger effort to guarantee individual rights for all. Throughout his time in the civil-rights movement, Marshall was both single-minded and prudent- a rare combination in a leader of any cause.

Weary of battles with militant blacks and Southern school boards, Marshall finally left the NAACP for federal appointments-first as a federal appeals court judge in 1961 and then as Solicitor General in 1965. In neither of these jobs did he distinguish himself. Nevertheless in 1967 President Johnson appointed him to the Supreme Court. While other black lawyers like William Hastie had more judicial experience and more wide-ranging legal ability, Johnson wanted political credit for nominating the legal embodiment of black aspirations. Thus Marshall's appointment is confirmation of the truth that, once merit is subordinated to race as a criterion of selection, symbolism will triumph over substance.

Since he did not have any real interest in most legal issues, Justice Marshall came to view constitutional law through the prism of race rather than view race from the perspective of individual rights. Because he was not well-suited for his judicial position, he became increasingly angry and sensitive to slights. He once walked out of a banquet at the Supreme Court when the Solicitor General omitted his name from the chronological list of Justices. (He was going to celebrate Marshall's whole career at the end of his speech.) Marshall paid a high personal price for others' need for a symbol.

American Revolutionary is at its weakest in its discussion of Marshall's years on the Court. Williams does not have a command of constitutional jurisprudence and frequently turns complex legal issues into political cartoons. The book does demonstrate, however, that Marshall consistently joined William Brennan in constructing the legal framework for welfare-state liberalism-a framework that would do much to destroy the virtues of the kind of community that had produced Marshall. It also allows us glimpses into the fatuous defenses that liberals made of his general inattention. One former clerk says Marshall was only interested in "people's law," like civil rights. Of course, separation of powers, federalism, and property rights are as essential to preserving the liberty of people as civil rights.

At the end of his career, Marshall was reduced to publicly denouncing the