Supreme Court’s Marshall Plans to Outlive the Opposition

Thurgood Marshall’s place in history was assured before he became a member of the Supreme Court in 1967. Now his conservative critics are saying it is time for the first black justice to step aside for a younger, more energetic successor.

Marshall, a civil rights pioneer who, as a lawyer, helped change the nation, will be 82 in July. He deflects questions about his retirement with curmudgeonly humor.

“I have a lifetime appointment, and I intend to serve it,” he has said many times. He once told The Washington Post: “I expect to die at 110, shot by a jealous husband.”

For decades before President Lyndon B. Johnson named him to the high court, Marshall was known nationwide as a legal champion of the poor and the powerless. Some say his contribution to the civil rights effort was equal to that of Dr. Martin Luther King Jr.

In 23 years as legal director of the National Assn. for the Advancement of Colored People and later as the federal government’s solicitor general, Marshall argued 32 cases before the Supreme Court. He won 29 of them.

His biggest victory for the NAACP came in the 1954, when the court ruled racially segregated public schools unconstitutional.

“He changed America,” said Erwin Griswold, a former Harvard University Law School dean who also served as solicitor general.

“When I think of great American lawyers, I think of Thurgood Marshall, Abe Lincoln and Daniel Webster,” said Georgetown University Law School Dean Thomas G. Krattenmaker.

Legal scholars agree that Marshall’s accomplishments before he came to the high court far surpass those of any fellow justice. It is his stature on the court that has been questioned of late by conservatives. They say he is losing interest in much of the court’s day-to-day work and delegates too much responsibility to his law clerks.

Former clerks deny it. Marshall declined to be interviewed for this article.

One of the harshest attacks on Marshall came from Terry Eastland, who was an aide to former Atty. Gen. Edwin Meese III. Eastland last year wrote in the National Review: “One joke has it that if Marshall retired, at least he wouldn’t be paid for watching television.”

That reference apparently was prompted by earlier reports that Marshall watches “The People’s Court” on a TV set in his court office. Marshall has denied the reports, saying, “That’s an awful program.”

Criticism of Marshall’s supposed work habits are often voiced along with doubts about his physical condition. Standing 6 feet 2 and overweight, Marshall shuns exercise. He had a heart attack in 1976, and has suffered from pneumonia and bronchitis. He was hospitalized in 1987 for a potentially dangerous blood clot in his right foot.

Marshall walks slowly, apparently with difficulty. His family reportedly persuaded him to give up driving a few years ago; he gets to work in a chauffeur-driven car.

His former clerks, however, insist that his health is not deteriorating.

Georgetown law professor Mark Tushnet, a Marshall clerk in 1972, said: “He did not look in good health then. He doesn’t look any different now.”

Tushnet, who is writing a biography of Marshall, also dismissed the idea that the increasing dominance of conservatives on the court has soured Marshall.

“He seemed grumpy when I worked with him and he seems grumpy now,” Tushnet said.

Legal scholars say that the succession of conservative appointments to the court has denied the old civil rights fighter the chance to shape the law that was briefly his. Within two years of Marshall’s arrival on a predominantly liberal court, Warren Burger replaced Earl Warren as chief justice, and the retreat had begun.

“But Marshall has been very important in providing visions of where the law should go,” Krattenmaker said. “He has written several (dissenting) opinions that may prove to be persuasive.”

Marshall and Justice William J. Brennan are the court’s most consistent liberals and most frequent dissenters. They stand alone in opposition to all capital punishment, press for broader protection of defendants’ rights and support affirmative action for minorities and women.

Marshall’s former law clerks say he is the court’s conscience, that his role is to make sure that the other justices realize that their decisions affect real, flesh-and-blood people.

Marshall suffers from glaucoma. At times he seems to have trouble reading summaries of his opinions from the bench. At his 80th birthday celebration he insisted that television camera lights be turned off because the glare hurt his eyes.

Last fall, during oral arguments before the court, Marshall posed several questions to a lawyer he seemed to believe was representing the government when, in fact, the lawyer was representing the other side.

“If I appear confused, I am,” Marshall said at one point. When another justice identified the counsel, Marshall recovered by telling the lawyer: “Well . . . there is no bar to you giving me some help.”

Marshall’s public appearances away from the bench are rare. When he does appear, he doesn’t mince words.

In televised interviews in 1987, he said that President Ronald Reagan’s civil rights record “ranks at the bottom,” and accused Meese’s Justice Department of trying “to undermine the Supreme Court itself.”

In a speech to a conference of lawyers and judges that year, he said he was not about to quit fighting the right-wingers.

“Don’t worry. I’m going to outlive those bastards,” he said.