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Thurgood Marshall: The Influence of a Raconteur

1992; Wiley; Volume: 17; Issue: 1 Linguagem: Inglês

10.1353/sch.1992.0001

1540-5818

Sandra Day O’Connor,

Law, Rights, and Freedoms

Thurgood Marshall: The Influence of a Raconteur Sandra Day O’Connor Editor’s Note: Thisarticle-wasoriginallyprinted in 44 Stanford Law Review 1217 (1992). It is reprinted by permission. © 1992 by the Board of Trustees ofthe LelandStanfordJunior University. I was fresh out ofStanford Law School, work­ ing as a civilian attorney in the Quartermaster Market Center, the day Thurgood Marshall changed the nation. He had been chipping away at the building blocks of a separatist society long before 1954, ofcourse, but it was through Brown v. Board ofEducation' that he compelled us, as a nation, to come to grips with some ofthe contra­ dictions within ourselves. Like most ofmy counterparts who grew up in the Southwest in the 1930s and 1940s, I had not The Burger Court the day of Justice O'Connor’s investiture. Justice Sandra Day O'Connor and Justice Thurgood Marshall served on the Court together for ten years. Both were firsts: the first woman and the first African-American to become an Associate Justice. 10 JOURNAL 1992 been personally exposed to racial tensions before Brown-, Arizona did not have a large AfricanAmerican population then, and unlike Southern states, it never adopted ac/ejure system ofsegre­ gation. Although I had spent a year as an eighth grader in a predominately Latino public school in New Mexico, I had no personal sense, as the plaintiffchildren ofTopekaSchool Districtdid, of being a minority in a society that cared primarily for the majority. But as I listened that day to Justice Marshall talk eloquently to the media about the social stigmas and lost opportunities suffered by Afri­ can-American children in state-imposed segre­ gated schools, my awareness of race-based dis­ parities deepened. 1 did not, could not, know it then, but the man who would, as a lawyer and jurist, captivate the nation would also, as col­ league and friend, profoundly influence me. Although all ofus come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth ofa man who knew the anguish of the silenced and gave them a voice. At oral argument and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experi­ ences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth. Although 1 was continually inspired by his historic achievements, 1 have perhaps been most personally affected by Justice Marshall as raconPeabody Conservatory of Music MT. VERNON PLACE AND CHARLES STREET BALTIMORE, MD. CONSERVATORY OFFICE Virginia Oartv. Secretary Harold Randolph, Director 'S'« nexus . *•<«*,? A -I February 22, 1926. Cornelius tfeshington, 1333 Chapel St., Norfolk, Ta. Dear Siri I am sorry, but no colored stu­ dents are aooepted at the Peabody Conservatory. Very truly yours. Thurgood Marshall spent much ofhis career using the legal system to fight racial discrimination. Racially restrictive admissions policies in education, such as those shown in this letter, were one of his major priorities. MARSHALL TRIBUTE 11 teur. It was rare during our conference delibera­ tions that he would not share an anecdote, ajoke or a story; yet, in my ten years on the bench with him, I cannot recall ever hearing the same “TM” story twice. In my early months as the junior Justice, I lookedforwardtothesetalesas welcome diversions from the heavy, often troublesome, task of deciding the complex legal issues before us. But over time, as I heard more clearly what JusticeMarshallwas saying, Irealizedthatbehind most ofthe anecdotes was a relevant legal point. I was particularly moved by a story Justice Marshall told during the time the Court was con­ sidering a case in which an African-American defendant challenged his death sentence as ra­ cially biased. Something in the conversation caused his eyebrows to raise characteristically, and with a pregnant pause, to say: “That reminds me of a story.” And so it began, this depiction of justice in operation. “You know,” he said: I had an innocent man once. He was accused ofraping awhitewoman. The government told me if he would plead guilty, he’d only get life. I said I couldn’t makethatdecision; I’d have to ask my client. So I told him that if he pleaded guilty, he wouldn’t get the death sentence. He said, “Plead guilty to what?” I said, “Plead guilty to rape.” He said, “Raping thatwoman? You gotta be kidding. I won’t do it.” That’s when I knew I had an inno­ cent man. When thejudge sentthejurors out, he told them that they had three choices: Notguilty, guilty, orguiltywith mercy. “You understand those are the three different possible choices,” he instructed. But after the jury left, the judge told the people in the courtroom that they were not to move before the bailifftook the defendant away. I said, “What happened to ‘not guilty’?” The judge looked at me, and said, “Are you kidding?” Just like that. And he was the “judge.” As he neared the end of his tale, Justice Marshall leaned forward, pointed his finger at no one in particular, and said with his characteristic signal offinals, “E-e-e-endofthe Story. The guy was found guilty and sentenced to death. But he neverraped that woman.” He paused, flicking his hand. “Oh well,” he added, “he wasjusta Negro.” With the aid ofthis low-key narrative, Justice Marshall made his own legal position quite clear: in his view the death penalty was not only cruel and unusual punishmentin violation ofthe Eighth Amendment, it had never been, and could never be, administered fairly and free of racial bias. Although I disagreed with Justice Marshall about the constitutionalvalidity ofthe deathpenalty, his story made clear what legal briefs often obscure: the impactoflegal rules onhuman lives. Through his story, Justice Marshall reminded us, once again, that the law is not an abstract concept removedfromthe societyitserves, andthatjudges, as safeguarded of the Constitution, must con­ stantly strive to narrow the gap between the ideal ofequaljustice andtherealityofsocial inequality. Justice Marshall’s stories served for me an­ other function. Beneath his wit and charm and rambunctiousness, he is an intenselyprivate man; there are sides to him no one but his family will everknow. Butovertheyears, ashe sharedstories of Kianviolenceandjurybias, ofco-optedjudges anddishonestpoliticians,Ihave gainedan insight, a peephole really, into the characterofa manwho is atonceeternallyatpeaceandperpetuallyatwar. “S-a-a-a-n-d-r-a-a-a,” he calledout once, “did I ever tell you about the welcome I received in Mississippi?” Itwas early evening in a smalltown in Mississippi in the early 1940s and he was waitingto hop the nexttrainto Shreveport. “I was starving,” he told me, “so I decided to go over to thisrestaurantandsee ifone ofthe cookswould let me in the back to buy a sandwich. You know, that’s how we did things then; the front door was so inconvenient!”Beforehecouldgo over, Justice Marshall recounted, “a man ofyour race holding a pistol sidled up. ‘Boy,’ he said, ‘what are you doing in these parts?’ I said, ‘I’m waitingto catch the next train.’ He said, ‘Listen up boy because I’m only gonna tell you this once. The last train throughhereisatfourp.m. andyoubetterbeonitcuz niggers ain’t welcome in these parts after dark.’” “Guess what,” Justice Marshall added, a twinklecreepingintohis eye, “Iwasonthattrain.” WhatJusticeMarshalldidnotsay,whathehad no need to say, was how physically threatening 12 JOURNAL 1992 The arraignment of George Crawford on murder charges in Leesburg, VA in 1933 brought out an array of legal talent for his defense. Left to right, front, Walter White and Edward P. Lovette. Back, James G, Tyson, Leon A. Ranscome and Charles Houston. Houston was Marshall’s mentor at Howard University and continued to influence his career long after graduation. and personally humiliating the situation must have been. Left unspoken, too, was the anger and frustration any grown man must have felt at being called “boy” and run out oftown. It is not surpris­ ing, really, that these sentiments are relegated to the backdrop; unlike many national figures, Jus­ tice Marshall is not interested in publicizing the risks he has taken or the sacrifices he made. Instinctively,he downplayshis own role, as though it were natural to hide under train seats, or earn $2,400 a year as a lawyer, or write briefs on a manual typewriter balanced, in a moving car, between his knees. To Justice Marshall, these hardships warrant no comment; they are simply the natural extension ofa lifetime credo of“doing the best you can with what you’ve got.” But to those ofus who have traveleda different road, Justice Marshall’s experiences are a source ofamazementand inspiration, not only because of what they reveal about him but also because of what they instill in, and ask of, us. I have not encountered prejudice on a sustained basis. But I have experienced gender discrimination enough, such as when law firms would only hire me, a “lady lawyer,” as a legal secretary, to understand how one could seek to minimize interaction with those who are intolerant of difference. That Justice Marshall never hid from prejudice but thrusthimself, instead, into its midsthas beenboth an encouragement and a challenge to me. I asked him, once, how he managed to avoid becoming despondent from the injustices he saw. MARSHALL TRIBUTE 13 Instead of responding directly, he told me about the time he and his mentor, Charles Hamilton Houston, the vice-dean at Howard Law School, traveled to Loudon County, Virginia, to help a manontrialforhis life.Theman, GeorgeCrawford, had been indicted by an all-white grand jury of murdering a white woman from a well-to-do Virginia family, as well as her white maid. De­ spite their defense challenge to the exclusion of African-Americans from thejury, Crawford was convicted of murder by an all-white jury, and sentenced to life. “You know something is wrong with the government’s case,” Justice Marshall told me, “when aNegro only gets life formurder­ ing a white woman.” After the trial, Justice Marshall said, the mediaaskedifCrawfordplannedan appealbased on the exclusion ofAfrican-Americans from the jury. “Crawford said, ‘Mr. Houston, if I have another trial, and I got life this time, could they kill me the next time?’ Charlie told him yes. So Crawford told Charlie: ‘Tell them the defendant rests.’” “I still have mixed feelings about that case,” Justice Marshall added. “I just don’t believe that guy got a fair shake. But what are you going to do?” he asked. “There are only two choices in life: stop andgo on. You tellme, whatwould you pick?” Evennow, I stillthinkaboutJusticeMarshall’s backhanded response, wondering how one con­ fronts, as he did, the darkest recesses of human nature—bigotry, hatred, and selfishness—and emerge wholly intact. Although I probably will never completely understand, part ofthe answer, I think, lies in his capacity fornarration itself. His stories reflect a truly expansive personality, the perspective of a man who immerses himself in human suffering andthen translatesthat suffering in away thatothers can bearand understand. The past he relates—doused in humor and sadness, tragedy and triumph—is but a minor ofhimself: a man who sees the worldexactly as it is and pushes on to make it what it can become. No one could helpbutbemovedbyJusticeThurgoodMarshall’s spirit; no one could avoidbeing touchedbyhis soul. As I continue on the bench, a few seats down from where he once sat, I think often of Justice Marshall. I remember the morning we first met and the afternoon he left the bench. I remember thehistoric law suitshebroughtandthethoughtful opinions and dissents he wrote. I recall his unwaveringcommitmenttothepoor, the accused, and the downtrodden, and his constant, impas­ sionedrepudiationofthedeathpenalty. Morethan that, though, I think of the raconteur himself. Occasionally,atConferencemeetings, I stillcatch myself looking expectantly for his raised brow and his twinkling eye, hoping to hear, just once more, anotherstorythatwould, by andby, perhaps change the way I see the world. Endnotes ' 347 U.S. 483 (1954). ...