Marshaling Justice : DREAM MAKERS, DREAM BREAKERS: The World of Justice Thurgood Marshall; By Carl T. Rowan (Little, Brown: $24.95; 457 pp.) : THURGOOD MARSHALL: Warrior at the Bar, Rebel on the Bench By Michael D. Davis ; and Hunter R. Clark ; (Birch Lane Press: $31.95; 387 pp.)

When Thurgood Marshall, the first African-American to serve on the U.S. Supreme Court, resigned in 1991, he wanted history to record that “he did what he could, with what he had.” These two biographies show that Marshall, who died last January, contributed monumentally to making equal justice under the law a reality for all Americans.

When Marshall began to practice law in the 1930s, black Americans were legally and often forcibly segregated everywhere he looked, from theaters and restaurants to schools and courtrooms. When Marshall switched from advocacy to judging in 1961, he deserved credit for reversing those policies of exclusion. On the Court of Appeals and then on the Supreme Court, Marshall wrote more than 300 major opinions, stripping law of its racist taint in order to give more than lip service to the promises of the Constitution and the Declaration of Independence. Along with his friend Justice William Brennan, he was also a staunch defender of civil liberties such as privacy rights and due-process protection for people accused of crimes. Marshall also joined Brennan in fervent opposition to the death penalty on the argument that not only did it fail as a deterrent, it often failed to prosecute the guilty party, an irreversible mistake.

Syndicated columnist Carl Rowan’s book benefits from his 40 years of friendship with Marshall. While Marshall was often consumed by a quest, Rowan reports, he also could be warm and fun-loving. Marshall relaxed by playing poker and spinning tales, imbibing Wild Turkey all the while, in congenial company. Rowan gives generous space to Marshall’s critics, including those who hinted that as a Supreme Court justice he was intellectually deficient and lazy. But he also questions this criticism with portraits of Marshall’s unlimited appetite for hard work and an explanation of his jocular phrases and acid humor; they were, Rowan suggests, a clever mask for his anger, not a sign of carelessness.

Born in 1908, Marshall grew up in Baltimore’s segregated black community, a favorite child of his Pullman-porter parents and a schoolteacher. As a young man, he had his fair share of playing and fighting, but he also worked with his father as a porter and as a waiter at exclusive clubs. It was from his hard-working father that Marshall learned “to lay some knuckles to any white man who called me a nigger.”

He followed that advice: One day, when Marshall was entering a trolley carrying four hatboxes for his employer, a white man pushed him, claiming he had stepped in front of a white woman. When the police came and arrested him, Marshall tells Rowan, “(I) was beating this guy up pretty good.” Marshall made one telephone call, to Mortimer Schoen, his Jewish employer. Schoen rushed to the jail to post $50 and get young Thurgood out. As they left the jail, Marshall apologized for “busting up four of your hats in that fight.”

“Was it worth it?” Schoen asked. “Sure as hell was,” said Marshall, recalling that Schoen never asked him to pay for the hats or to repay him the $50 spent to free him from jail. “There were some good white people around, even then,” says Marshall.

After his undergraduate years at Lincoln University in Pennsylvania, Marshall wanted to attend law school locally at the all-white University of Maryland Law School in Baltimore. Denied entry because of his race, he enrolled instead at Howard University Law School in Washington, D.C. There dean Charles Hamilton Houston inspired Marshall with his own “dedication, his vision, his willingness to sacrifice” in the cause of justice. Houston trained Marshall and other students to use the law to effect social change. After Marshall graduated, he sued successfully to end segregation at the University of Maryland Law School. In 1935, the university was ordered to admit the first African-American.

Marshall then joined the NAACP’s legal staff and shortly thereafter became its director-counsel. Rowan describes graphically how blacks throughout the nation turned to the NAACP’s Legal Defense and Educational Fund (LDF) for help. Men and women accused of crimes (e.g., refusing to stay in segregated places) found Marshall willing to travel to the most hostile territories to deflect lynch mobs and defend causes.

Rowan depicts Marshall in the NAACP-LDF years as entirely self-confident, overburdened but enjoying his work and the company of his colleagues. According to Rowan, the lack of staff and resources and low salaries seemed not to bother him.

Rowan’s fast-moving account is full of anecdotes from his conversations over the years with Marshall himself, his colleagues and friends, his supporters and detractors. These include allies such as Eleanor Roosevelt and Hubert Humphrey, and opponents such as Strom Thurmond and George Wallace. Throughout the text, Rowan liberally sprinkles his own views on civil rights and civil liberties.

In “Thurgood Marshall: Warrior at the Bar, Rebel on the Bench,” Davis and Clark cover Marshall’s early life and career with more distance and reserve. Their most significant contribution is their explanation of Marshall’s hostility toward non-violence as a strategy during the Montgomery bus boy- cott and the 1960s protests. Despite his grudging respect for Martin Luther King, Marshall put the entire legal force of the NAACP-LDF at the command of the civil rights movement. The authors also describe Marshall’s fear that Malcolm X’s militant separatism would prove counterproductive. Everything in his training and experience led Marshall to believe that justice should be pursued in the courtroom and legislature and not in deliberate violations of the law.

Both books chronicle Marshall’s civil rights work, from prohibiting the use of restrictive covenants to exclude blacks from housing to his crowning achievement, the 1954 victory in Brown v. Board of Education of Topeka that finally consigned “separate but equal” to the dust heap of constitutional law. Both books also explain that President Kennedy appointed Marshall to the court of appeals only at the price demanded by Senate Judiciary Committee Chairman James Eastland (D-Miss.): the nomination of Eastland’s segregationist college roommate to a federal district court post in the South. President Johnson, demonstrating his leadership on civil rights after Kennedy’s assassination, appointed Marshall Solicitor General and then to the Supreme Court. After a grueling year-long battle for his confirmation over the opposition of segregationists led by Senator Strom Thurmond of South Carolina, Marshall joined the Court.

Marshall’s health and spirits sagged when the court became conservative during the Reagan-Bush years. The death penalty was reinstated. The court rejected affirmative action to remedy job discrimination while rebuffing minority business set-asides to remedy the exclusion of blacks from government contracts. Outside the court, the persistence of de facto segregation and unequal education mocked the victory in Brown. After Brennan stepped down in 1990 the court conferences became more difficult to bear. Hoping for a political chance, he delayed his departure.

The last straw, though, was the court’s 1991 decision to allow “victim impact” statements before a jury that was to decide whether someone convicted of a particularly heinous crime would get a life sentence or the death penalty. “Beyond his absolute rejection of the dath penalty,” Rowan writes, “Marshall found revolting the idea that a jury that already knew the character of the crime and the criminal should be emotionalized at sentencing time by relatives telling of their anguish. In his days as a lawyer, Thurgood had seen numerous black men consigned to death not by intellectual or legal considerations, but by pure racial emotion on the part of jurors.”

On June 27, 1991, Marshall denounced his colleagues; later that same day, he announced his retirement for health reasons.

Neither of these books contains citations or notes to enable researchers to check the facts or to facilitate further research. Both books contain errors of fact primarily on tangential subjects. Rowan discusses how the Supreme Court in 1992 ordered Mississippi “to come up with more money for the historically black colleges to make up for generations of racial and financial discrimination.” The Court actually only ordered Mississippi to end the dual system of black and white colleges. Davis and Clark describe Jack Greenberg as “now” the head of the LDF Fund. Julius Chambers, who has just been succeeded by Elaine Jones, replaced Greenberg in 1984.

Rowan conveys, with elegance and directness, Marshall’s joy of spirit, his easy manner, his casual grace, his way with words in court, his folksiness out of the courtroom, and his respect for professional women. Marshall’s commitment to integration remained undiminished despite the challenge of enduring white racism and separatist black nationalism.

Marshall’s contributions as a lawyer and judge touched most aspects of American life. Asked whether his successor should be black, Marshall answered with a proverb from his father: “There’s no difference between a black snake and a white snake. They’ll both bite.” For those suffering from racial discrimination Marshall left the message that “You can’t use race as an excuse for not doing what you should be doing.” He also admonished all Americans to join in the continuing struggle to end racism. “The legal system can force open doors, and sometimes, even knock down walls,” he noted. “But it cannot build bridges . . . We will only attain freedom if we learn to appreciate what is different and muster the courage to discover what is fundamentally the same . . . Knock down the fences that divide. Reach out; freedom lies just on the other side.”