Vol. 5 No. 4 (April, 1995) pp. 137-140

MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, by Mark V. Tushnet. New York: Oxford University Press, 1994. 399pp. $35.00.

Reviewed by Joel B. Grossman, University of Wisconsin-Madison

This is a fascinating narrative history of the efforts by Thurgood Marshall and the NAACP Legal Defense Fund to reshape the meaning of the equal protection clause and harness it in the struggle for racial equality. Based on prodigious research, and relying on original sources as well as interviews with many of the key figures involved, Tushnet, himself a former law clerk for Justice Marshall, shows in painstaking detail how the LDF gradually led the Supreme Court to abandon Jim Crow and the pernicious doctrine of "separate but equal." The use of litigation in behalf of civil rights had begun before Marshall entered the scene in the 1930s, but it was his determined leadership that led to the most important constitutional decision of the twentieth century, BROWN V. BOARD OF EDUCATION (1954,55). Of course BROWN was initially limited to the question of de jure school segregation. But the idea of equality, once set loose from its nineteenth century restraints and the barnacles of adverse constitutional precedents, proved impossible to contain. It spread rapidly to all walks of American life, and soon was recognized as one of the defining (but also most contentious) principles of our legal and political culture.

Marshall left the LDF in 1961 to accept President Kennedy's appointment to the Court of Appeals. President Johnson appointed him as Solicitor General in 1965, and then elevated him to the Supreme Court in 1967 -- he first justice of African descent. On the Court he would play a major role in the next, and much more difficult, phase of the civil rights struggle -- the struggle to define the meaning of constitutional equality and to whom it applied, and to implement its commands in a society much more comfortable with the idea than the reality. Tushnet's book does not extend to this second phase of Marshall's career (one hopes for a second volume that does), but it effectively reveals the qualities of mind and heart and speech that produced one of our greatest public advocates.

Quite apart from the richly detailed discussion of cases and other legal events, the book has several themes. One, reflected in the title,"Makinq Civil Rights Law" is that the modern equal protection clause didn't just arrive by constitutional stork. It took enormous effort and leadership to turn the Court away from its civil rights complacency and toward a rejection of separate-but-equal as an acceptable interpretation of equal protection. But even such leadership could not have succeeded without the major changes in racial attitudes -- by blacks and whites -- brought about by World War II, without the mass migration and the post-industrial revolution that sapped the vitality of a disappearing economic order, and without the recognition that segregation undermined American efforts to be a major player in world politics. Legal doctrine doesn't often respond quickly to social change.

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It was part of Marshall's genius to recognize that even incremental legal change required extraordinary attention to detail and patience, and an abiding faith in the law as a necessary if not sufficient mechanism for social change. The author's emphasis on civil rights law is also appropriate; it reminds us of the gap between law as a precondition, or even guarantor, of civil rights, and the actual realization of those rights either by the named plaintiffs or by blacks as a class. Marshall, of course, understood that gap all to well. One could compile a long list of cases that Marshall and his colleagues nominally "won" that did not yield immediate payoffs. But the fruits of those decisions, individually and cumulatively, would eventually be realized.

A second theme of the book, prefaced in Tushnet's earlier work on the NAACP, is the complexity and environmental/political nuances of litigation strategy: the need to respond to the often conflicting goals of theoretically allied organizations; the necessity of controlling grass roots litigation efforts in order to shape cases properly for Supreme Court review by the LDF; the need to harness public support; and the problems of implementation. The twenty year campaign to attack housing discrimination, for example, was nearly unhinged when the Supreme Court focused primarily on SHELLEY V. KRAEMER (1954) rather than on another case that the LDF preferred. The LDF only reluctantly became involved in defending the sit-in protesters in the 1960s. Marshall believed that such demonstrations undermined the goal of constitutional reform, but quickly recognized that the onset of the civil rights revolution, and the evolution of more activist strategies, had changed the game and could not be ignored in the legal arena. The great victory in SHELLEY would have meant little without follow up efforts to bar the use of racial restrictive covenants -- to which Marshall devoted considerable time. Indeed, as Tushnet notes, Marshall spent increasing amounts of time on the political side of civil rights, and correspondingly less on litigation; it was his own personal evolution from civil rights lawyer to civil rights leader.

Tushnet's description of the LDF's strategy in the school segregation cases is particularly insightful. He shows how Marshall devised the LDF strategy to secure the elimination of the separate-but-equal doctrine by arguing that PLESSY was morally bankrupt and legally unacceptable, and not consistent with the modern meaning of the 14th Amendment, and that segregation should be ended forthwith, while at the same time recognizing that the decision he sought depended on meeting the doctrinal preferences of a number of justices. Frankfurter, especially, sought a decision that permitted at least a modicum of discretion and gradualism by the southern states in implementing the BROWN decision (believing, somewhat naively, that compliance would follow). But it was not so much anything Marshall said or did that brought about the favorable result as Earl Warren's fortuitous appointment as chief justice, and his commitment to ending segregation and skillful leadership in forging a unanimous decision that was unequivocal in principle if more flexible as to remedy.

Tushnet also sheds additional light on the controversy over William Rehnquist's role, as Jackson's clerk, in influencing Jackson's willingness to overturn PLESSY. In a memorandum to Jackson that surfaced when Rehnquist himself was nominated to the Court

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by Richard Nixon in 1970, Rehnquist appeared, at least to his adversaries, to be urging Jackson to reaffirm PLESSY as sound law. At the level of ideology, the memorandum also strongly criticizes Jackson's liberal colleagues and compares the anti-Plessy sentiment to the discredited LOCHNER decision. In response to these allegations Rehnquist said that the memorandum did not reflect his own views, but was written, at Jackson's behest, to articulate Jackson's views. Many thought Rehnquist was not truthful, but with Jackson long dead, there was no way to corroborate either interpretation.

When Rehnquist was nominated by Ronald Reagan to be chief justice in 1986, the issue arose again, and Rehnquist and his opponents repeated their earlier claims. Richard Kluger's definitive study of the BROWN cases, SIMPLE JUSTICE, had essentially agreed with Rehnquist's opponents that the views expressed by the memorandum were Rehnquist's rather than Jackson's. Tushnet argues that the memorandum did express some of Jackson's ambivalence on how to deal with a venerable precedent. But he notes that Jackson never supported reaffirmation of PLESSY, and that his reservations about the matter went to whether or not (and how) PLESSY should be overruled. Thus, in Tushnet's judgment, " . . . the memorandum, while expressing one aspect of Jackson's views, is put in ways that strongly suggest that it expresses all of Rehnquist's. . . .the memorandum speaks in Rehnquist's voice rather than Jackson's." But apart from the ideological overtones which were peripheral to the main issue and clearly reflected Rehnquist's paranoia about a liberal conspiracy of law clerks on the Court, Tushnet concludes that the memorandum "is precisely the kind of argument Jackson would have made -- part of the time." (p. 351, n. 9) Absent a deathbed confession, the exact truth of the matter will never be known. But Tushnet's interpretation is typically careful and fair minded. And it is a textbook lesson about the evolution of constitutional doctrine and the interplay of justices and their clerks.

Thurgood Marshall's influence on constitutional law was probably greater as a lawyer than as a justice. As head of the LDF he led a constitutional revolution. As a member of an increasingly conservative Court, he labored, with great frustration and increasing irritation, to blunt the backlash against that revolution. But as his influence on constitutional doctrine ebbed, his rhetoric flowed. Perhaps, like the first Justice Harlan's memorable dissent in PLESSY, Thurgood Marshall's words, his essential optimism, and his commitment to the constitution and the law, will someday be brought back to life in post-Gingrich America. Marshall argued, during the 1987 bicentennial, that the original constitution was not worth celebrating, that "the true miracle of the constitution was not its birth but its life." It was the 14th Amendment which afforded a basis for the promise of progress toward justice and equality. It is a promise not yet (and perhaps never to be) fully realized. For Marshall, however, the key was the progress that had been made and his belief that, over time, there would be more: "Negroes," he said, "were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law" (p. 5).

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References:

BROWN V. BOARD OF EDUCATION, 347 U.S. 443 (1953).

LOCHNER V. NEW YORK, 198 U.S. 45 (1905)

PLESSY V. FERGUSON, 163 U.S. 537 (1896).

Kluger, Richard. 1975. SIMPLE JUSTICE. New York: Vintage Books.