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He Enjoyed the Fight : THURGOOD MARSHALL: Justice For All By Roger Goldman with David Gallen , (Carroll & Graf: $24.95; 479 pp.)

August 09, 1992|Sheldon M. Novick | Novick is a scholar in residence at Vermont Law School and the author of "Honorable Justice: The Life of Oliver Wendell Holmes" (Dell Publishing).

Thurgood Marshall's family lived on a good street in Baltimore when he was growing up before the First World War, but there were tough kids on the street behind them. At dinner time his mother would go to the front door to call his brother, and then to the back door to call him.

Marshall was a lively boy, often in trouble at school, and he grew into a big man, over six feet tall, barrel-chested and forceful. He grew up a fighter, and like any old soldier he had a lot of stories to tell: tales of late-night parties in Harlem with Joe Louis; of trips to the South for the National Assn. for the Advancement of Colored People in the 1940s; of telephone calls from the President of the United States.

He led the attack in the courts against legal segregation, and he argued and won Brown v. Board of Education. Long after he had joined the Supreme Court, he said: "I enjoy the fight. I agree with the old saying, 'I love the peace, but I adore a riot.' " In recent years, when the questions about retirement came, he said, "I have a lifetime appointment and I intend to serve it. I expect to die at 110, shot by a jealous husband."

Marshall, as NAACP attorney and Solicitor General, had helped the Court to open the doors of all the institutions of public life, and to the places of public discourse. Furthermore, he resisted the intrusion of those public institutions into the private realm. He had a lively sense of the daily life of all sorts of people, and a concrete understanding that for many people, especially the powerless, government was an oppressive, intruding force that, even without intending to do so, could blindly obliterate privacy and individual belief.

He was appointed to the Supreme Court in 1967, at the height of Lyndon Johnson's fight to remake the world; Marshall and Johnson, we are told, sometimes shared a bottle of bourbon. Marshall, like Johnson's two other appointees, Justices Abe Fortas and Arthur J. Goldberg, was prepared to take the Court much further into the battle for social justice than it had yet ventured. The aging Earl Warren was chief justice, and the Warren Court, by 1967, had struck down legal barriers blocking the schoolroom and the courtroom and voting booth.

But the Warren Court had exhausted its initial impulse. As a justice, Marshall began to argue for a more profound set of changes in Constitutional law. An open courtroom door meant nothing to the poor. Equal access to the institutions of public life meant very little, in Marshall's view, without affirmative programs to repair the destruction wrought by past injustice, and to provide the minimum means of a decent life: "The intent of the Fourteenth Amendment was to abolish caste legislation. . . . When state action has the predictable tendency to entrap the poor and create a permanent underclass, that intent is frustrated."

In "Thurgood Marshall: Justice for All," St. Louis University law professor Roger Goldman (with co-author David Gallen) argues that in a more sympathetic Court, Marshall would have held government to an affirmative obligation, as a matter of Constitutional right, to provide a minimum of subsistence, health care and education to everyone. Marshall would have carried out in Constitutional law the equivalent of the social reforms that President Johnson was embarked upon.

This revolution--and it would have been a revolution--foundered. Goldberg and then Fortas were taken from the Court; Johnson himself retreated from the presidency in defeat, and in 1969, a new President appointed a new Chief Justice. Marshall was thenceforth in a minority; before his retirement it would shrink to a minority of two in many cases, and after Justice William J. Brennan retired, Marshall often dissented alone. He wrote hundreds of dissents, and while not always eloquent, these opinions were both passionate and dignified. In the civil-rights cases that were his life's work he, like Justice Oliver Wendell Holmes 60 years earlier, was able to rise above the Court, seemingly above the law itself:

"Desegregation is not and never was expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. . . . In the short run, it may seem the easier course to allow our great metropolitan areas to be divided up each into two cities--one white, the other black--but it is a course, I predict, our people will ultimately regret."

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