Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall. - book reviews

National Review, March 1, 1993 by Mary Ann Glendon

WHEN the young Thurgood Marshall was a law student at Howard University in the early 1930s, he often cut classes to watch former Solicitor General John W. Davis argue cases before the Supreme Court. Davis, then a Wall Street lawyer at the peak of his career, was the leading oral advocate of the day. On those occasions, Marshall later recalled, "I'd ask myself, 'Will I ever, ever... ?' and every time I had to answer, 'No, never.'" Davis was his beau iddal of a lawyer. Two decades later, Thurgood Marshall, at the height of his powers, argued and won the most celebrated Supreme Court case of the twentieth century, Brown v. Board of Education. His adversary: the eighty-year-old John W. Davis. Marshall had been a gracious opponent (forbidding his associates to make snide remarks about Davis) and Davis was noble in defeat (writing a friend that it was good for the country that the Warren Court's decision had been unanimous).

By 1954, when the historic schooldesegregation case was decided, Marshall's own place in the pantheon of American lawyers was already assured. He was the architect of the legal assault on segregated housing, public accommodations, and schools, and on all-white Democratic primaries. In later years, he could look back on winning 29 of the 32 cases he argued before the Supreme Court for the NAACP, 14 of the 19 cases he argued as Solicitor General, and 24 years of service as the first black Justice on the nation's highest tribunal.

Carl Rowan's Dream Makers, Dream Breakers recounts in rich detail Marshall's rise from unruly youth to civilrights hero, master legal strategist, judge on the Second Circuit Court of Appeals, Solicitor General of the United States, and Supreme Court Justice. Like a landscape painter who draws the viewer in by placing human figures in the foreground, Rowan melds history with biography, interspersing his account of Marshall's life and work with events in the struggle for racial justice in which Marshall played such a crucial role. The heroes of the narrative, the "dream makers," include, besides Marshall, Charles Hamilton Houston, Eleanor Roosevelt, Harry Truman, and Earl Warren. Among the villains are Orval Faubus, Strom Thurmond, J. Edgar Hoover, George Wallace, Jesse Helms, and "the most ruthless dream breaker," Richard Nixon.

In its biographical aspect, the book is an unabashed appreciation of the author's long-time friend. As history, it is a straightforward account of the decisions, strategies, struggles, and executive, legislative, and judicial actions that shaped American race relations from the time of Marshall's birth in 1908 to his retirement from the Supreme Court in 1991.

Like the outpouring of tributes that appeared after the Justice's retirement and his recent death, Rowan's book emphasizes that part of Marshall's life (1936 to 1961) devoted to civil-rights activism and strategy, passing rather lightly over his more problematic performance as a Supreme Court Justice. It is left for later biographers to explain why a man who was widely regarded as one of the most talented lawyers of his time was held in relatively low professional esteem as a judge.

Rowan seems right to discount law clerks' self-serving criticisms, of the type unearthed by Woodward and Bernstein in their 2979 best-seller, The Brethren. Marshall is portrayed there as an indolent and often uncomprehending judge, disdainful of legal technicalities, delegating research and opinion-writing to his clerks, telling them only half in jest, "I'll do whatever Bill [Brennan] does." Rowan's own interviews with Marshall clerks led him to a bottom line not very different from Woodward and Bernstein's--that, though Marshall might have delegated more than most of his brethren, the sentiments and the results were always Marshall's own. Regrettably, as Judge Richard Posner and others have pointed out, the practice of turning work that is properly judicial over to recent law graduates is widespread in the over-burdened federal court system. Few judges can now say, as Justice Louis Brandeis once did, "The reason they respect Supreme Court Justices so much is that we are the only people in Washington who do our own work."

The reason that even Marshall's most fervent admirers are expansive concerning his merits as a lawyer while confining themselves to bland generalities about his judging resides in the fact that different branches of the legal profession require different sorts of skills and personal qualities. The traits that are conducive to success in trying cases or arguing appeals are significantly different from those that make for excellence in judging. It must have been difficult for Thurgood Marshall, at age 53, after a lifetime of vigorous advocacy, to begin a second career which required him to renounce the role of impassioned pleader for that of impartial arbiter on the Second Circuit Court of Appeals. His transition was interrupted four years later, moreover, when President Johnson appointed him Solicitor General. Marshall was 59 when he took his seat on the United States Supreme Court.