Thurgood Marshall (60 page)

While Thurgood settled into life at the Court, Cissy was busy at home. She drove the boys to school and kept house and a social calendar for her husband. She also disciplined the boys, went to their ball games, and kept watch over their friends. Her husband was preoccupied with the Court, and she did not expect him to be actively involved with the children. “When the boys came along, he said, ‘I am not ever going to punish them for something that I did in my lifetime,’ ” Cissy Marshall said in an interview. “So he never punished them because he had done everything.”
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Another issue was Justice Marshall’s drinking. Since his arrival in the fishbowl of official Washington, Thurgood had fewer card-playing buddies
and nightclubs to frequent. He had taken to drinking more, at lunch and after work, and Cissy increasingly had to act as her husband’s proctor, monitoring his drinking and his sometimes abrupt, rude behavior.

Monroe Dowling, Marshall’s longtime friend, said the justice’s behavior hit a crisis point when he had several drinks one night and went for a walk in his Southwest Washington neighborhood. “See, he would get drunk and get out of the house and get out on to the street,” Dowling said in an interview. “And in his drunkenness, he would accost women, any woman. He had no choice about that women business. One of these days, we thought, he was going to grab some woman and her husband was going to kill him.” Dowling recalled one episode in which Cissy and a friend had to drag Marshall into the house after he grabbed a woman. “With whiskey he could not discriminate,” Dowling recalled.
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By November 1968, Cissy Marshall decided there was less chance for nosy neighbors to gossip about Thurgood’s behavior if they moved to the suburbs. She also wanted more green space for Goody and John, now twelve and ten. With help from Georgia Clark, the wife of Attorney General Ramsey Clark, Cissy found a house near the Clarks in Fairfax County, Virginia. The Clarks, as well as Warren Christopher, the deputy attorney general, and several other Johnson aides, lived on scenic Lake Barcroft, about an hour from downtown.

The Marshalls’ move to Lake Barcroft was complicated by two factors. First, Marshall needed a mortgage to buy the property. Second, the 1,000-family community was all white. The Clarks helped to find a bank willing to make the $52,000 mortgage loan on the five-bedroom ranch house. The racial integration of Lake Barcroft was another matter. The
Washington Star
reported that a neighbor did a poll of area residents to see how they felt about having a black family move there. “One resident of Lakeside Drive commented, ‘I am not happy about it at all because this might be encouragement for more of the same,’ ” the
Star
reported.
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“But we didn’t think of it as integrating,” said Ramsey Clark in an interview years later. “I mean, we knew it was virtually lily-white out there, but the suburbs were all white all over the country. And we wanted to do something about that, but this wasn’t an integration effort, it was a desire to have a friend out there and his desire to get the boys out of the city.”

The move away from Washington came at a pivotal moment. President Johnson was going back to his native Texas. And Chief Justice Warren finally quit in June 1969. Nixon replaced him with the Minnesotan Warren Burger, a D.C. federal appeals court judge known for his conservative
opinions. Burger consistently voted in support of police and prosecutors, placing limits on constitutional protections for criminal defendants.

Warren’s departure signaled a change in the Court’s political balance. Just as important to Marshall, he no longer had an ally and friend at the helm. “They clearly adored each other,” said Tyrone Brown, who was Warren’s clerk during Marshall’s first year on the Court.
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Just a month before Warren left the Court, another liberal, Justice Fortas, was forced to resign. He was waylaid by another scandal, this one over evidence that he took money from a former client, a convict, to run a charity. For the next year the Court would be down to eight members. Further damaging the Supreme Court’s image, it got caught up in tawdry dramas as two of Nixon’s conservative nominees were rejected by the Senate.

The president’s first unsuccessful nominee, Clement Haynsworth, a Fourth Circuit judge, was found to have voted on cases despite holding stocks in companies affected by his rulings. Nixon’s second failed candidate was G. Harrold Carswell, a Fifth Circuit judge who critics charged was a racist. One newspaper column reported that Marshall told friends, “Carswell’s record on the federal bench is markedly more hostile to civil rights than was Haynsworth’s.”
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Nixon then nominated Harry Blackmun, another Minnesota conservative, to take Fortas’s seat. Blackmun, an intense man with a high forehead and a penetrating stare, was not nationally known. But his reputation as a stalwart conservative immediately earned him the nickname Minnesota Twin, pairing him with Chief Justice Burger. He joined the high court in June 1970.

While the Court was going through these wringing transitions, Marshall became ill. On May 15 he was hospitalized with a bad case of pneumonia. When he did not respond to antibiotics, there was widespread alarm. Dr. Walter Tkach, in a May 19 memo to the president, wrote that “this is not an ordinary pneumonia.” Nixon began to pay close attention to Marshall’s condition, thinking he might have a chance to appoint a third right-wing justice in less than two years. A week after Marshall was hospitalized, Chief Justice Burger called Dwight Chapin, one of Nixon’s top aides, to advise him that “Marshall is much sicker than anyone presently realizes.”
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Marshall recalled that he was in the hospital for thirty days and it was “touch and go.” But as he was getting better and about to leave, the head
of the hospital came into his room and said: “Mr. Justice, we’ve got a request for a report on your stay—and I wouldn’t think of releasing it without your permission.” Marshall, still coughing, asked who wanted to see his chart. The doctor said President Nixon. Marshall, knowing Nixon was not wishing him well, said: “Fine, you can release it, but providing you put the following note on the bottom of it.
Not yet!
”

Marshall’s recovery proceeded slowly. In June of 1971 he was back at Bethesda Naval Hospital. He underwent tests and returned home still “not feeling well.” Eventually he had an appendectomy. Marshall’s constant smoking, drinking, and lack of exercise—he claimed his walk from his car into the Supreme Court was enough—began to show as he put on weight and his face grew heavy.
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Then in July 1972 Marshall was driving his sixteen-year-old son, Goody, in the Virgin Islands when his Jeep ran up on a curb, slammed into a stone wall, and threw the justice out. The Jeep rolled over, pinning the elder Marshall under it. “Doctors say the sixty-four-year-old suffered a fractured ankle, a damaged finger, and bruises, but described his overall condition as ‘excellent,’ ” wrote the
Baltimore Sun
. The
Sun
, apparently aware of Marshall’s drinking, took care to note that the accident was caused when Marshall’s “foot [was] caught on the throttle and he lost control of the vehicle.”
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When President Nixon learned of Marshall’s accident, he showed great interest in the justice’s condition and sent an Air Force plane to bring him back to Washington.

With his shaky health, Marshall was now even more confined and grumpy. There was widespread speculation that he was about to leave the Court.
Jet
magazine, which regularly celebrated Marshall as a black hero, wrote in November 1972 that “several of the Supreme Court justices, including Thurgood Marshall, are expected to resign during the next term.”
Jet
said Marshall’s rival from his LDF days, Bob Carter, and the Republican Samuel Pierce were the leading black lawyers under consideration to replace him.

Marshall was angry. He quickly shot off a letter to
Jet’s
Washington editor, Simeon Booker. “Where in the world did you get the idea that Thurgood Marshall is ‘expected to resign during the next term’?” he wrote. “Certainly it gives little comfort to people in the United States to believe that the only Negro in the Supreme Court expects to resign.” He added that he had been writing as many opinions as ever and chastened Booker for not checking the story out before running it. “If this is too much to ask, forget about it,” he wrote.
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But the talk about his health continued, and in late November of 1972 his office was forced to issue a statement that said the judge was “in fine health.”
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The mention of Carter as his possible replacement particularly rankled Marshall. Just a few years earlier, in 1968, one of Carter’s lawyers at the NAACP had written an article criticizing the Supreme Court for failing to do enough to support racial integration. Marshall took it as a personal slap. Roy Wilkins fired the author from the NAACP, over Carter’s objections. Then Carter resigned in anger.

Amid all the turmoil in Washington and New York, Aubrey Marshall, age sixty-seven, died in Delaware on October 8, 1972. Thurgood had had little contact with his brother since the early 1950s, when Aubrey’s drinking had led to troubles on his job and arguments with his brother. But since his battles with TB and then nearly losing his job, Aubrey had built a solid medical career at Bissell Hospital, a sanitorium, and become medical director in 1971. Still, Aubrey had a difficult time playing second fiddle to his little brother, according to his relatives and friends. When Aubrey’s son from his first marriage, Aubrey Jr., was looking for a job and asked his father if he should ask his famous Uncle Thurgood for help, the father reacted strongly. “He told me to stay away from him,” Aubrey Jr. recalled in an interview.
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Despite his chilly relationship with his brother, there had been occasional visits, and Aubrey had come to Thurgood’s swearing-in, both as solicitor general and for the Supreme Court. But the visits were the doing of Aubrey’s second wife, Helen, who made a point of staying in touch with Thurgood and Cissy. Helen enjoyed the status that came from being related to a Supreme Court justice, a point of pleasure that did not sit well with Aubrey.

Thurgood attended his brother’s funeral in Wilmington. But the justice’s health problems and busy schedule made the trip into more of an obligatory gesture than an expression of his grief.

Despite Aubrey’s death and his own health problems and rumors about having to step down, Marshall kept up his work on the Court, especially when school desegregation cases began to pick up pace. Justice Brennan had several conversations about the subject with Marshall, who was still viewed as its foremost authority. The lone black justice consistently expressed his frustration to the Brethren about the slow pace of desegregation. In 1968 Brennan wrote an opinion that concluded, “The time for mere deliberate speed has run out”
(Green v. New Kent County)
.

By 1970, however, with the conservative Warren Burger leading the Court, there was growing pressure, on both the Court and politicians, to stop school desegregation. An angry white backlash began to take shape. Marshall nonetheless persuaded his colleagues in
Swann v. Charlotte-Mecklenburg
to unanimously confirm that there was nothing wrong with using busing to integrate public schools. Burger and the other conservative justices were generally supportive of busing from the start, given the Court’s stand in the
Green
case. But Marshall withheld his full support of the majority opinion while pushing Burger for several small changes. Marshall wanted to give federal courts as much leeway to get black and white students into school together, and his posturing forced the Chief Justice to make the strongest possible ruling. “The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation,” Burger wrote. Heeding Marshall’s advice, the Chief Justice concluded that “desegregation plans cannot be limited to the walk-in schools,” and busing was an appropriate way to create racially mixed schools.
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School desegregation was not the only issue on Marshall’s mind. In 1972, while Justice Brennan was ill, Marshall became a leader of the justices opposed to capital punishment. In
Furman v. Georgia
, he succeeded as part of a coalition that won a difficult 5–4 vote outlawing the death penalty. The majority insisted that strict guidelines be put in place to prevent its consistent use by different juries and judges. Of particular concern to Marshall was the high incidence of poor people and blacks getting the death penalty for crimes that were punished with lesser sentences for rich whites. Stephen Saltzburg, one of Marshall’s clerks that year, recalled the unusual sight of an energetic, passionate Marshall going to see each of the other justices, trying to win converts.
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“In striking down capital punishment, the court does not malign” legislatures who approved of the death penalty and judges and juries who sentence criminals to death, Marshall wrote in his opinion. “On the contrary, it pays homage to [our system of government]. Only in a free society could right triumph in difficult times and could civilization record its magnificent advancement. In recognizing the humanity of our fellow human beings, we pay ourselves the highest tribute. We achieve ‘a major milestone in the long road up from barbarism’ and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and for humanity by shunning capital punishment.”
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Conservatives accused Marshall and his four colleagues of going easy
on criminals at a time when the crime rate was rising. Marshall had been moving toward opposition to the death penalty for years. Going back to his days in private practice, when one of his first clients was put to death, and later when as a lawyer for the NAACP he saw white prosecutors railroad black defendants before all-white juries, he had come to believe that the death penalty was not administered fairly.