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BROWN, SMITH, AND THE IMPORTANCE OF THE CIVIL RIGHTS "DOORKEEPERS":
A Review of Thurgood Marshall's Collected Writings


By ROSS DAVIES


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Friday, Oct. 12, 2001

Mark V. Tushnet, ed., Thurgood Marshall: His Speeches, Writing, Arguments, Opinions, and Reminiscences (Lawrence Hill Books 2001)

Thurgood Marshall was a first-rate storyteller, as Mark Tushnet's collection of highlights from America's greatest civil rights lawyer demonstrates. Marshall's "Reminiscences" — which take up the last hundred pages of the collection — are by turns amusing, depressing, and inspiring. Even alone, they would make this book worthwhile.

The rest of the book is useful and readable — no small accomplishment for an anthology consisting mostly of law review articles, briefs, and scripted speeches.

Tushnet, a Georgetown University law professor, has selected and organized Marshall's works both thematically and chronologically, to illuminate the diversity of his pursuits and the ups and downs of the civil rights movement. Tushnet also has done a good job of gently but thoroughly annotating his selections, and he has wisely left the "Reminiscences" untouched. He recognizes that an editor has nothing to add to Marshall speaking off the cuff.

The "Reminiscences" are the product of four interviews with the Columbia Oral History Project in 1977. By then, Marshall had been a Supreme Court Justice for a decade. It had also been more than twenty-five years since he had been an attorney for the National Association for the Advancement of Colored People. (In 1961, Marshall had resigned from his position as the NAACP's top lawyer when John F. Kennedy appointed him to the United States Court of Appeals for the Second Circuit in New York City). Especially from that distance, Marshall's perspectives on civil rights and his years in the movement are intriguing.

For example, every schoolchild learns that Marshall's greatest achievement was winning the case of Brown v. Board of Education in the early 1950s, in which the Supreme Court declared that segregated public schools were unconstitutional. But Marshall himself was not so sure, remarking, "The Texas primary case was the greatest. … That, to me, was the greatest one." Marshall was referring to Smith v. Allwright, a 1944 case in which the Supreme Court held that neither the Texas legislature nor the state's Democratic Party could manipulate primary elections in order to deprive African Americans of their right to vote.

Marshall made no bones about his reason for placing Smith above Brown: Power. "We knew in the beginning that the courts could not solve the problem" of institutional race discrimination, he explained, "because the courts just don't have that authority." For Marshall, litigation was as much a matter of shaping public opinion as it was a matter of shaping constitutional law: "It's the public, the minds, the souls of the people that have to do it … ."

In Marshall's view, neither courts nor legislatures were in a position to exert the leadership necessary to reverse 300 years of mistreatment of Americans of African descent. "I have maintained all along," he said, "that whatever movement we really get comes from the person I call 'the doorkeeper.' I use that because it might be the president of the United States, it might be the governor of a state, it might be the mayor of a city, it might be a sheriff. But the person with the authority, speaking out, usually moves the balance of the community." It was the Smith case that gave many African Americans the chance to vote for their own doorkeepers.

Several of the anecdotes in Marshall's "Reminiscences" reflect the decisive role of the doorkeeper in civil rights. And it was his standards for doorkeeping that most strongly influenced his skepticism about John and Robert Kennedy, his admiration for Lyndon Johnson, and his contempt for Dwight Eisenhower.

The Lessons Of Experience

Marshall's views about the capacity of executive leadership to transform civil rights were not merely theoretical. They reflected a lifetime of experience combating executive power that was employed in the service of race discrimination, relieved by occasional examples of leaders willing to push for change.

Consider this story of a 1950 trip to Japan and Korea — a typical Marshall anecdote. After months of lobbying the State and Defense Departments, Marshall had been granted permission to investigate the remarkable rate at which African Americans were being court-martialed during the Korean War. While he was in Japan, Marshall had an audience with Douglas MacArthur, at the commanding General's headquarters for U.S. forces in Southeast Asia. According to Marshall, the meeting went like this:

He said, "There's none qualified."

I said, "Well, what's qualification?"

"In field of battle, et cetera."

I said, "Well, I just talked to a Negro yesterday, a sergeant, who has killed more people with a rifle than anybody in history. And he's not qualified?"

And he said, "No."

I said, "Well, now, General, remember yesterday you had the big band playing at the ceremony over there?"

He said, "Yes, wasn't it wonderful?"

I said, "Yes. The Headquarters Band, it's beautiful." I said, "Now general, just between you and me, goddamn it, don't you tell me that there's no Negro that can play a horn?"

That's when he said for me to go.

Best proof of it was, General Matthew Ridgway took over after him, and desegregated in about three weeks. Desegregated the whole thing.

Marshall's "Reminiscences" are filled with other, equally striking stories stretching down through the years — stories about his family, about racial conflict in the North and South, about small town politicians and national figures.

Eventually, though, they all return to the same point, the point of much of Marshall's life, and in the end perhaps his greatest disappointment and his greatest hope: As Marshall put it, "You see, we were always looking for that one case to end all of it. And that case hasn't come up yet. So I think, what we were doing was whittling away."


Ross Davies practices law at Shea & Gardner in Washington, DC, and edits The Green Bag, An Entertaining Journal of Law.

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