Ginsburg & Marshall
Legal Lions and Their Forward Charting Paths
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Justice Ruth Bader Ginsburg (1933-2020) and Justice Thurgood Marshall (1908-1993) |
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We mourn the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, a staunch critic of the current administration’s roll back of civil liberties and threats to our democratic institutions. She will make history again, as the first woman to lie in state. Now, forty-four days before the election, the Republican-controlled Senate will rapidly move forward to hastily confirm President Donald Trump’s conservative candidate for Ginsburg’s seat. Is history repeating itself?
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Left: Circuit Court Judge Amy Coney Barrett, one of Trump's top picks for the U.S. Supreme Court
Right: Clarence Thomas during his controversial hearings before being named a U.S. Supreme Court justice, 1991
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When Justice Thurgood Marshall passed in 1993, a Republican Senate replaced this civil rights champion with his political opposite—Clarence Thomas. Appellate Court Judge Shelvin Louise Hall remembered thinking the appointment “was a travesty and a trick at the time of the [George H.W. Bush] administration… How could you replace a Thurgood Marshall with a Clarence Thomas whose views were the antithetical and diametrically opposed to each other? So of course, it caused us great concern.”[1] Once again, a Republican Senate will make a replacement for Ginsburg who is also likely to be a woman, but that woman—who Ginsburg helped pave a career path for—will be the opposite of the recently deceased justice. Surely, we shall not see the likes of Ginsburg and Marshall again any time soon. As advocates of integration and rights of the oppressed, they both held a unique role on our nation’s highest court based on lived and respective experiences with discrimination as a Jewish woman and an African American man.
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NAACP Legal Defense Fund lawyers (left to right): Louis Redding, Robert Carter, Oliver W. Hill Sr., Thurgood Marshall, Spotswood Robinson, III, Jack Greenberg, James Nabrit Jr., and George E.C. Hayes, c.1950s |
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Early in their careers, Marshall and Ginsburg were both co-founders. In 1970, Ginsburg co-founded the first law journal in the U.S. to focus exclusively on women's rights, the Women's Rights Law Reporter. She also co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) in 1972. Thirty years prior in 1940, Marshall was co-founder of The NAACP Legal Defense Fund (LDF), which provided much needed lawyers for African Americans facing charges. Elaine Jones, the first female president and defense counsel for LDF, explained the organization’s origins: “They were going to set up this new 501 (c)(3) and name it the NAACP Legal Defense Fund… [and] it was unheard of that you could have lawyers working for no money, non-profit lawyer was a new concept. And they really sold it to the courts of New York, who understood it, bought into it; and so thus LDF was born in 1940,” with Marshall as their executive director.[2]
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Left: Professor Ruth Bader Ginsburg, Columbia Law School’s first tenured female professor, 1972
Right: Lawyer Thurgood Marshall, 1957
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Ginsburg and Marshall also both argued cases in the Supreme Court as lawyers before being appointed justices there. As director of the ACLU's Women's Rights Project, Ginsburg argued six gender discrimination cases before the Supreme Court between 1973 and 1976, notably winning five. Marshall saw more action in the high Court, as journalist Juan Williams—who wrote a biography on Marshall—explained: “Thurgood Marshall's won more cases before the Supreme Court than any other lawyer… he is the Babe Ruth, he's the Hank Aaron of Supreme Court lawyers.”[3] Stage director Vernell Lillie (1931 - 2020) vividly remembered the presence Marshall held in the courtroom when she sat in on his 1950 “separate but equal” case Sweatt v. Painter, which held significant influence in the Brown v. Board of Education case four years later: “It was sweltering hot… in that courtroom. And Thurgood Marshall… I swear in my memory… he did not seem to have perspired at all… I have never been the same after experiencing him in that courtroom… the thing that he had was dignity, not poking fun at anybody, but it was the cause that he was dealing with… it was not making whites feel ashamed of themselves… because it is so easy to be arrogant and to be insulting… And it was so very clear that somehow or another all he wanted to do was let that group there and the world know that these are human beings who are entitled to a quality education by your own state dollars that you're paying, and it was not a piece in which I need to ridicule you or be sarcastic toward you, and sharp tongued toward you that these are the facts as I see them… and I think that fortunately for me, I saw hardworking black men and women all my life from the time I was five years old and I saw them working, and working, and working, and then I saw them lose things and I still saw them maintain their dignity, and Thurgood Marshall just helped reinforce that.”[4]
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Supporters of Justice Ruth Bader Ginsburg march during the Women's March Alliance, January 19, 2019,
New York City
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To many, Thurgood was the black lawyer at the time, as former senior judge of the Washington, D.C. Superior Court Paul Webber (1934 - 2019) noted in his interview: “He was a hero to many black people… when he was coming down there on the train…you would hear the rumbling… ‘Thurgood's coming, Thurgood's coming…’ and when the train stopped at the train station black people would be all around the train station and they would applaud when he got off… Not necessarily because of the Brown versus Board of Education cases… but the other cases that he had handled throughout the South for black guys accused of crimes they may or may not have committed and he would go to their defense… so, he was a big hero in the South.”[5] Ginsburg too became popular, especially once on the Supreme Court bench, winning awards and serving as “an icon to many liberals. You can see her face on aprons, T-shirts and even memes with the words ‘I dissent.’ Someone even photo shopped sunglasses on the 85-year-old Justice for a range of ‘Notorious RBG’ products... a play on the late rapper Notorious B.I.G.”[6]
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Judge J. Edward Lumbard swears in Thurgood Marshall as Federal Judge on the U.S. Court of Appeals for the Second Circuit, October 25, 1961 |
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Ginsburg was then appointed by President Jimmy Carter to the U.S. Court of Appeals for the District of Columbia Circuit in 1980, twenty years after Marshall was appointed by President John F. Kennedy to a newly created seat on the U.S. Court of Appeals for the Second Circuit in 1961. Marshall remained on that court until 1965, making history yet again with President Lyndon B. Johnson appointing him the first African American U.S. Solicitor General. At the time, it made him the highest-ranking black government official in the nation’s history. As Solicitor General, he won fourteen of the nineteen cases he argued for the U.S. government, calling it "the best job I've ever had," which he held for two years.[7] Civil rights lawyer Howard Moore, Jr. had an unforgettable first meeting with Marshall during this time: “It was the first time I had gotten a chance to argue in the [U.S.] Supreme Court… And Thurgood came over to me and said, ‘Young man, you're up tomorrow. I wish you a lot of luck.’ And I had gone to law school because of Thurgood. I heard… [him] speak in Atlanta in 1952, I decided I wanted to go to law school… And it's kind of serendipity… that on the date when I make my first argument before the U.S. Supreme Court, that the person who stimulated me to become a lawyer and had risen so high himself, having been a circuit court judge, and now Solicitor General, and targeted to go on to the United States Supreme Court, would come over and wish me well.”[8]
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Thurgood Marshall speaks with President Lyndon Johnson, August 1967 |
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Both Marshall’s and Ginsburg’s appointment to the nation’s highest court were firsts, with Marshall as the first African American justice and Ginsburg as the first Jewish woman justice. Judge Revius Oliver Ortique, Jr. (1924 - 2008), the Louisiana Supreme Court’s first African American justice and then president of the National Bar Association, recalled Marshall’s appointment to the U.S. Supreme Court in 1967: “We had requested the meeting with President [Lyndon] Johnson… and I said, ‘Mr. President… we ought to have at least… one African American sitting on the Supreme Court.’ He said, ‘I agree with you. Don't we agree, Mr. Marshall [Thurgood Marshall]?’ Judge Marshall was as surprised when he asked him that question as we were 'cause we didn't anticipate that he was gonna ask any questions. We just thought he was gonna come and listen and promise to respond, but he said, ‘Aren't we, Thurgood?’ Thurgood's answer to, ‘If you say so, Mr. President.’ Within a week, he had named Thurgood Marshall to the [U.S. Supreme Court].”[9] Former Secretary of the U.S. Army Togo D. West, Jr. (1942 - 2018), explained: “[President Lyndon Baines Johnson] appointed… Ramsey Clark to be attorney general of the United States. That forced Tom Clark [Tom C. Clark, Ramsey Clark's father], to resign from the [U.S.] Supreme Court. That created the vacancy to which Lyndon Johnson that summer, appointed Thurgood Marshall, first African American [U.S. Supreme Court Justice].”[10]
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Thurgood Marshall in front of the U.S. Supreme Court with his wife, Celia, and their two sons,
Thurgood Jr. and John, 1967
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Building on his solid reputation as the nation's most effective civil rights lawyer, “Marshall served on the high Court for the next twenty four years, compiling a liberal human rights record that included strong support for the civil rights of people of color and for constitutional protection of individual rights, especially the rights of criminal suspects against the government. Justice Marshall also worked closely with Justice William Brennan in helping to craft the Roe v. Wade Decision of 1973 which supported abortion rights,” and which Ginsburg later protected.[11] A hero to women for doing so, this landmark legislation is now in jeopardy. In addition to Marshall’s work on Roe v. Wade, “he also… argued in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional… Marshall was often called the silent revolutionary who viewed the United States Constitution as an evolving shield of freedom,” much like Ginsburg who was also considered a judicial activist, and served on the Court for just three more years than Marshall; she twenty-seven years to his twenty-four.[12]
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(Left to right): Dr. Martin Luther King Jr., Roy Wilkins, and Thurgood Marshall at the 50th anniversary celebration of the NAACP, 1959 |
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Juan Williams emphasized Marshall’s singular role as part of a greater movement: “Much of the world we live in was shaped by his [Marshall’s] understanding of the law as the critical change element in American society… Martin Luther King [Dr. Martin Luther King, Jr.], could give great speeches, but in the mind of Thurgood Marshall, you would go home still to segregation, limited job opportunities, your children would still be going to segregated schools… Malcolm X could give wonderful speeches, speak defiantly, capture the spirit of a strong, independent, self-sufficient black man in the black community. But Thurgood Marshall said you had to get the change written into the bedrock of American law to have it there, not only for you when you go home, but for future generations. And in that sense, to change America, I think Thurgood Marshall stands apart as one of the greats.”[13] Federal District Court Judge Damon J. Keith (1922 - 2019) pointed out the importance of using the law for positive change, something Ginsburg is also revered for: “[Marshall was] determined to use the law as a means to eradicate some of these problems [of racial discrimination]… to this day, I feel as though the law is one of the strongest bull walks for eliminating racism legally in this country. You can't change a person's heart but the law can prevent them from doing what they were doing.”[14] Ginsburg’s role in the fight for gender equality was not dissimilar: “Ginsburg left a significant mark on… on everyday life in America, helping broaden the sorts of families people are able to make and the sorts of jobs they’re able to take. Her legacy is, in a way, the lives that countless Americans are able to live today… The accumulation of new protections won by Ginsburg and others has allowed many Americans to envision versions of family life beyond the breadwinner-homemaker binary.”[15]
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Ruth Bader Ginsburg accepting the Thurgood Marshall Award, August 7, 1999 |
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In 1999, Ginsburg was unsurprisingly awarded with the American Bar Association’s Thurgood Marshall Award for her work in civil rights and fighting discrimination. In her acceptance speech, she paid homage to the Supreme Court giant that went before her: “I value this occasion most as I think everyone here does, for the opportunity it gives us to remember Thurgood Marshall. Grand human. Advocate of extraordinary talent and vision. A man whose work and life this nation has enduring cause to celebrate… Across the room, where I can see it daily, is a photograph of Justice Marshall, Ninth Circuit Court Judge Clifford Wallace, and me… the photograph reminds me that the great man had a talent… He could make even the most sober judge smile and sometimes laugh heartily… He was a living lawyer who knew the clients he represented… and stood with them in small courthouses across the south. And when he became a judge, he remained in touch with life’s realities… May the Constitution Thurgood Marshall celebrated continue to evolve... May our nation’s [former] motto, ‘e pluribus unum,’ ‘out of many, one,’ become not simply aspirational, but real. May we rebuild and keep our communities, places where we tolerate and even celebrate our differences, while pulling together for the common good.”[16]
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Left: Memorial for Ruth Bader Ginsburg in front of the U.S. Supreme Court
Right: Thurgood Marshall memorial outside the former U.S. Court of Appeals for the Second Circuit, now the Maryland State House
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Ginsburg’s death brings to light their parallel career tracks. One can only ponder: What would the U.S. Supreme Court have looked like had their appointments to the highest court in the land not happened? How would the rights of minorities and/or women have been impacted had they not been there to protect them? Luckily, we do not have to ponder that. We can instead be grateful that their brilliance and committed souls touched and shaped our lives and that their legacies will live on. |
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[1] The Honorable Shelvin Louise Hall (The HistoryMakers A2002.191), interviewed by Larry Crowe, September 26, 2002, The HistoryMakers Digital Archive. Session 1, tape 4, story 5, Shelvin Louise Hall shares her views on Clarence Thomas.
[2] Elaine Jones (The HistoryMakers A2006.151), interviewed by Julieanna L. Richardson, March 6, 2007, The HistoryMakers Digital Archive. Session 2, tape 7, story 1, Elaine Jones describes the founding of NAACP Legal Defense and Educational Fund, Inc.
[3] Juan Williams (The HistoryMakers A2012.061), interviewed by Larry Crowe, June 15, 2012, The HistoryMakers Digital Archive. Session 1, tape 7, story 2, Juan Williams talks about the conflict between Carl Rowan and Thurgood Marshall.
[4] Vernell Lillie (The HistoryMakers A2008.108), interviewed by Larry Crowe, August 15, 2008, The HistoryMakers Digital Archive. Session 1, tape 4, story 5, Vernell Lillie recalls Thurgood Marshall's speech during Sweatt v. Painter, 1950.
[5] The Honorable Paul Webber (The HistoryMakers A2007.049), interviewed by Larry Crowe, February 6, 2007, The HistoryMakers Digital Archive. Session 1, tape 3, story 10, The Honorable Paul Webber remembers Thurgood Marshall, pt. 2.
[6] Patrick Ryan. “'RBG': How Ruth Bader Ginsburg became a legit pop-culture icon,” last updated December 18, 2020, accessed September 23, 2020. https://www.usatoday.com/story/life/movies/2018/05/01/rbg-documentary-shows-how-ruth-bader-ginsburg-became-pop-icon/562930002/
[7] Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York, NY: Vintage Books, 1987), 261.
[8] Howard Moore, Jr. (The HistoryMakers A2007.137), interviewed by Larry Crowe, April 14, 2007, The HistoryMakers Digital Archive. Session 1, tape 5, story 7, Howard Moore, Jr. talks about meeting Thurgood Marshall on the day before arguing Bond v. Floyd in front of the U.S. Supreme Court.
[9] The Honorable Revius Oliver Ortique, Jr. (The HistoryMakers A2008.059), interviewed by Larry Crowe, March 24, 2008, The HistoryMakers Digital Archive. Session 1, tape 4, story 7, The Honorable Revius Oliver Ortique, Jr. recalls Thurgood Marshall's U.S. Supreme Court appointment.
[10] The Honorable Togo D. West, Jr. (The HistoryMakers A2007.054), interviewed by Larry Crowe, July 24, 2008, The HistoryMakers Digital Archive. Session 2, tape 8, story 6, The Honorable Togo D. West, Jr. recalls Thurgood Marshall's appointment to the U.S. Supreme Court.
[11] Wilson Edward Reed. “Thurgood Mashall (1908-1993),” Black Past, January 21, 2007, accessed September 22, 2020. https://www.blackpast.org/african-american-history/marshall-thurgood-1908-1993/
[13] Juan Williams (The HistoryMakers A2012.061), interviewed by Larry Crowe, June 15, 2012, The HistoryMakers Digital Archive. Session 1, tape 6, story 10, Juan Williams talks about how his book, 'Thurgood Marshall: American Revolutionary' was received.
[14] The Honorable Damon J. Keith (The HistoryMakers A2002.154), interviewed by Julieanna L. Richardson, August 21, 2002, The HistoryMakers Digital Archive. Session 1, tape 2, story 6, Damon Keith talks about Thurgood Marshall's influence on his career.
[15] Joe Pinsker. “Ruth Bader Ginsburg Transformed Americans’ Personal Lives,” The Atlantic, September 23, 2020, accessed September 23, 2020. https://www.theatlantic.com/family/archive/2020/09/ruth-bader-ginsburg-legacy/616447/
[16] Ruth Bader Ginsburg, “Thurgood Marshall Award” (speech, Washington D.C., August 7, 1999) C-SPAN, https://www.c-span.org/video/?151490-1/thurgood-marshall-award
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