ABA Journal

Posted August 11, 2017

By Lee Rawles

 

 

 

 

 

From left, Gilbert A. King, author of “Devil in the Grove: Thurgood Marshall, the Groveland Boys and the Dawn of a New America”; Ira M. Feinberg of Hogan Lovells; and Georgetown University Law Professors Susan Bloch and Sheryll Cashin, speak at "The Legacy of Justice Thurgood Marshall: Celebrating the 50th Anniversary of His Historic Appointment to the U.S. Supreme Court," on Friday at the ABA Annual meeting in New York City./Photo by Len Irish

 

On the cusp of the 50th anniversary of Thurgood Marshall's confirmation as the first African-American U.S. Supreme Court justice, three of his former law clerks gathered to speak about his legacy.

Ira Feinberg, Susan Bloch and Sheryll Cashin took the stage Friday with Gilbert King, author of the Pulitzer Prize-winning book Devil in the Grove: Thurgood Marshall, the Groveland Boys and the Dawn of a New America. The event, “The Legacy of Justice Thurgood Marshall: Celebrating the 50th Anniversary of His Historic Appointment to the U.S. Supreme Court,” was a CLE Showcase program at the ABA Annual Meeting in New York City, sponsored by the Section of Litigation.

 

King kicked off the program by giving the audience a primer on Marshall’s early years heading the NAACP’s Legal Defense Fund. King says that photos commonly used to illustrate the Jim Crow South show segregated water fountains or “Whites Only” signs and leave the impression that the laws were merely “rude or inconvenient.” His research shows a deeper reality of “brutality and terrorism.”

 

Marshall defied the system of brutality and terrorism every time he traveled south to defend black people in capital cases, constantly endangering his life, King says. In the summer of 1946, there was a wave of lynchings in which black World War II veterans were being murdered for wearing their uniforms. U.S. Army Sgt. Isaac Woodard was taken off a bus, beaten and blinded in both eyes by South Carolina police officers. The NAACP and Marshall worked to publicize such atrocities and raised funds to provide legal representation to people suffering from racial injustice.

 

Before Marshall was sworn in to the Supreme Court on Oct. 2, 1967, he had argued before that court 32 times and won 29 of those cases.

 

Feinberg, now a partner at Hogan Lovells, was 25 years old when he clerked for Marshall in 1973 and 1974. It was “a heady experience,” Feinberg says. “In many ways, Watergate framed the entire year.”

 

In the six years between Marshall joining the court and Feinberg beginning his clerkship, there had been a sea change. When Marshall joined, it was the Warren Court, known for liberal decisions such as Brown v. Board of Education. By 1973, with four President Richard M. Nixon appointees, it had become the conservative Burger Court, and Marshall found himself on the dissenting side of many opinions.

 

Feinberg recalled a school busing case during his term, which was a “very bitter pill” for Marshall, as the desegregation jurisprudence he’d worked to establish was chipped away. He found himself “a dissenter on most of the things he cared about,” Feinberg says.

 

Former U.S. Supreme Court Justice Thurgood Marshall.

 

Bloch, a professor at Georgetown Law Center, clerked for Marshall in 1976 and 1977. She says that over the course of his Supreme Court career, Marshall dissented in 40 percent of the cases that were decided before the court. She says that he understood the power of dissent, and used to carry a copy of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson in his pocket.

 

As a law clerk, “working on a dissent is fun,” Bloch said. She recently got to see the logic of one of the dissents she worked on, Fiallo v. Bell, vindicated. Marshall had seen an immigration law which differentiated between the children of unwed female American citizens from the children of unwed male citizens as discriminatory. In June, the Supreme Court decided in Sessions v. Morales-Santana that a similar gender line drawn by Congress in an immigration case violated the Fifth Amendment.

 

According to Bloch, two words and one issue during Marshall’s time as justice stick out for her: The words were “passion” and “courage,” and the issue was the abolition of the death penalty. Marshall’s time defending capital cases had convinced him that the government should never be allowed to take a person’s life.

   

Bloch sees Marshall’s impact in every major civil rights battle since his time with the NAACP Legal Defense Fund. She says that his influence can also be seen in the women’s and gay rights movements. She traces an opinion Marshall wrote in a pornography case to the overturning of sodomy laws with Lawrence v. Texas and to the successful same-sex marriage cases. And she is heartened by the willingness to reconsider the death penalty that some current justices appear to be showing. “So I think there’s hope.”

 

Cashin clerked for Marshall in the last year he served on the court in 1990 and 1991—although she did not have any idea that he planned to retire until he announced it during her last week on the job.

 

“The most delicious aspect of the year was just spending time with him and hearing his stories,” says Cashin, now a professor of at Georgetown Law.

 

Bloch recounted a story Marshall used to tell from his time at the New York-based 2nd U.S. Circuit Court of Appeals. Right after his appointment by President John F. Kennedy in 1961, Marshall showed up for work at the courthouse. A woman employee saw him enter and asked if he was the electrician they’d called to make repairs. “No ma’am!” said Marshall. “They’d never let me in that union.”

 

All three of Marshall’s former clerks recalled his empathy and humility. He referred to his clerks as the “knuckleheads” and had them call him “Judge” or “Boss.” He was a legal giant but also a human being.

 

Cashin says that although Marshall found himself in the minority for much of his time on the court, he remained hopeful and maintained a belief that, in the words of Theodore Parker, “The arc of the moral universe is long, but it bends towards justice.”

 

Still, it was painful for him when the conservative majority made decisions curtailing school desegregation.

 

“This man was 82, feeble, in declining health,” Cashin says, but when he talked about school cases, he would light up.

 

Cashin says that the hardest day in her year as a Supreme Court clerk was the day that Marshall rehearsed for the arguments he would make to his colleagues as they deliberated over a school busing case, Board of Education of Oklahoma City Public Schools v. Dowell. As he practiced aloud to his clerks, Marshall became discouraged, wondering, “Am I supposed to keep telling people it’s going to get better?”

 

Marshall was not successful in persuading his fellow justices in that case. But Cashin sees the power of his arguments and dissents still having an impact today.

 

“It did matter that he was in the room,” she says.

 

 

 http://www.abajournal.com/news/article/Thurgood_Marshalls_courage_and_passion_celebrated_by_former_law_clerks