Journal of Supreme Court History

“How Do You Feel About W riting Dissents”? Thurgood Marshall’s Dissenting Vision for AmericaJIHGFEDCBA C H A R L E S L . Z E L D E N tsrqponmlkjih On Octo be r2, 1967, with his family, friends, and admirers and President of the United States Lyndon B. Johnson in atten­ dance, Thurgood Marshall stood up in the chamber of the Supreme Court of the United States, put his hand on a Bible, and swore to “administerjustice without respect to persons, . . . [to] do equal right to the poor and to the rich, and that [he would] faithfully and impartially discharge and perform all the duties incumbent upon [him] . . . under the Constitution and laws of the United States.” With these words, Marshall became the nation’s newest, and first African American, Associate Justice ofthe United States Supreme Court. A clearly emotional Marshall confessed at the time how “he wished his daddy could have been there.” Still, Marshall added, hejust knew that his father “was on some street comer in heaven shaking his finger and saying, ‘I knew my boy would do it.’”1 Without doubt, this was one ofMarshall’s proudest days. Only his victory as a lawyer inWVUTSRQPONMLKJIHGFEDCBA B ro w n v. B o a r d o f E d u c a tio n (1954) came close to generating in him the feelings of accomplishment and professional vindication brought by his elevation to the Supreme Court. Marshall’s ascent to the peak of the legal profession filled him with a profound feeling of satisfaction. As he later explained to biographer Carl T. Rowan, “How did I feel? Hell, like any other lawyer in America would feel. Real proud—because there is no greater honor a lawyer can get. I felt especially great because I knew President Johnson was using me to say something important to the nation.”2 Marshall’s feelings of pride and achieve­ ment did not last, however. As the ideological makeup of the Court and the political culture of the nation shifted over time to the right, Marshall increasingly became isolated from, and then marginalized by, his fellow Justices; with each passing year, a frustrated, angry, and often bitter Marshall saw the landmarks of his life’s work—the social, political, economic, and constitutional changes that he had helped 78 JOURNAL OF SUPREME COURT HISTORYtsrqponmlkjihgfedcbaZYXWVUTSR bring abo u t at s u chgre atco s tas the he ado f the Natio nalAs s o ciatio n fo rthe Advance m e nt o f Co lo re d Pe o p le (NAACP) Legal Defense and Education Fund, Inc. (LDF)—being circum­ scribed, abandoned, or reversed. By the end of his tenure on the Court, Marshall, by now cantankerous and belligerent, would ask prospective law clerks a simple yet revealing question by which to determine their suitabil­ ity to be one of WVUTSRQPONMLKJIHGFEDCBA h is clerks: “How do you feel about writing dissents?”3 That bitter question was not one that Marshall had ever expected to have to ask. The Supreme Court that he joined in the fall of 1967 was filled with familiar and philo­ sophically compatible friends and allies. Marshall and Chief Justice Earl Warren had a close relationship based on mutual admira­ tion, respect, and genuine friendship. In William J. Brennan, Jr., Marshall found a friend and ally whose worldview and, more important, whose understanding of law and the Constitution, harmonized perfectly with his own. Although his relationships with the other Justices were not always as congenial and familiar as those with Warren and Brennan, Marshall nonethelessjoined a Court with a clear liberal majority, one that his appointment as Justice strengthened. For the next several years Marshall regularly voted in the majority, participating in the Supreme Court’s ongoing redefinition of individual and group civil rights and liberties. He joined majorities in such landmark cases as G re e n v. C o u n ty S c h o o l B o a rd o f N e w K e n t C o u n ty (1968), in which a unanimous Supreme Court charged Southern school boards “with the affirmative duty to take whatever steps...