Thurgood Marshall and Clarence Thomas Paper

Thurgood Marshall and Clarence Thomas

Ever since Clarence Thomas, a conservative, replaced Thurgood Marshall, a liberal, on the United States Supreme Court in 1991, there has been constant comparison between the two African-American justices.

Just this past month, in June 2005, Thomas again drew attention and comparison to Marshall concerning two Supreme Court decisions. Thomas was one of three justices who disagreed when the Court stated that a Texas killer’s rights were compromised when prosecutors removed all but one African-American from the jury.

In another case, the Court stopped California from making it harder for defendants to get their claims of racial bias in jury selection investigated, and Thomas, the Court’s only black member, was the only justice to disagree with the ruling.

These cases were public reminders of Thomas’ status as the Court’s toughest critic of racial discrimination claims, and one of America’s more enigmatic figures.

Although he grew up in the South during the years of segregation and has admitted to being a victim of discrimination firsthand, he has consistently made it more difficult for blacks and other minorities to get relief from bigotry.

Thomas’ speeches and writings suggest that he believes that African-Americans use discrimination too often as a crutch, and should do more to advance themselves despite obstacles they encounter.

Thomas echoes the views of many black conservatives who feel the nation’s black leadership embraces the culture of “victimology, personal grievances and separatism,” and believe that this just does not work.

Thomas has expressed that as a young man, he did not realize he could counter the discrimination he faced, especially at a Missouri divinity school and from prospective employers in Georgia after graduating from Yale Law School, with resolve rather than complaint, however over time he learned to “accept life on its own terms.”

He told the 2003 graduates at University of Georgia Law School, that he felt like giving up “a hundred times a day … There will be days when you believe you can’t take it anymore … But those days are just part of life,” and implored them to be “heroes” rather than “victims” and do their best regardless of the obstacles.

Another factor that may have played a part in these recent cases, is that Thomas is known to have little sympathy for criminal defendants who claim technical or procedural problems with their convictions and does not like the idea of criminals claiming they were victims of racism at their trials.

In both these recent cases, the defendants had been convicted of heinous murders, one had killed a small child.

During the fourteen years on the Court, Thomas has earned a reputation as a solid conservative who is strong on asserting state authority over federal power and narrow on the individual rights the Constitution protects.

He has impressed many who thought, at the time of his nomination, that he was unqualified for the job, and his work in several areas has proved that he has a sharp legal mind and a disciplined approach to constitutional interpretation.

However, his views on race transcend court politics, as he very often distinguishes his voice from others, leaving him at odds even with his conservative colleagues.

Thomas frequently adopts a singularly unsympathetic stance on cases that define when and how the Constitution prohibits racial discrimination.

Thomas is a stark contrast to his predecessor, the Supreme Court’s first African-American member, Thurgood Marshall.

A civil rights lawyer before joining the Court, Marshall argued Brown v. Board of Education, which ended segregation in schools, and he often led other justices to a deeper understanding of the effects of racism and bigotry in the United States.

Born in 1908 in Baltimore, Maryland, the great-grandson of a slave, Marshall graduated as valedictorian from Howard University Law School in 1933 and soon began to represent civil rights activists.

He became a counsel for the National Association for the Advancement of Colored People, NAACP, in 1938 and chief counsel in 1940, and over the next twenty-three years, won twenty-nine or the thirty-two major cases he undertook for that organization.

Among the precedent-setting cases that Marshall successfully argued were Smith v. Allwright, 1944, in which the Court declared Texas’ exclusion of black voters from primary elections as unconstitutional.

Other cases included Sweatt v. Painter, 1950, which declared “separate but equal” facilities for black professionals and graduate students in state universities as unconstitutional.

And perhaps, Marshall’s most famous case, Brown v. Board of Education of Topeka, 1954, in which racial segregation of American public schools was declared unconstitutional.

In 1961, President John F. Kennedy nominated Marshall to the United States Court of Appeals for the Second Circuit.

In 1965, President Lyndon B. Johnson named him United States solicitor general and in 1967 nominated him to the Supreme Court.

In 1976, the Texas Southern University School of Law was renamed the Thrugood Marshall School of Law in honor of the distinguished jurist.

Through the years, as the Court makeup became more conservative, Marshall found himself increasingly isolated.

When he retired in 1991 due to ill health, he was replaced by the conservative Clarence Thomas.

Marshall was not alone in sensing the increasingly conservative air within the judicial system. A. Leon Higginbotham Jr., a retired chief judge emeritus of the United States Court of Appeals, writes in a 1998 article for “Black Issues in Higher Education,” that not only did the judiciary became far more conservative under President Reagan and President George H. Bush, it became more White.

Of the eighty-three appointments to the appeals courts, Reagan appointed only one African-American, while Bush appointed two, and one of those was Clarence Thomas, while Carter appointed nine African-Americans and as of the 1998 article date, Clinton had appointed five.

Higginbotham remarks that in 1983, Thomas said “But for affirmative action laws, God only knows where I would be today,” yet, as a member of the Supreme Court, “he repudiates affirmative action and has made it safe for people like Professor Lino A. Graglia, of the University of Texas School of Law, to assert openly that ‘Blacks and Mexican-Americans are not academically competitive with Whites in selective institutions.’”

Higginbotham also believes that Thomas’ “skewed and hostile” views have also paved the way for anti-affirmative action crusaders.

Recalling a 1989 employment discrimination case in which Justice Harry Blackmun, a Nixon appointee, wondered whether a majority of the Supreme Court “still believes that … race discrimination against non-Whites is a problem in our society, or even remembers that it ever was,” Higginbotham says that this question reverberates today.

As a first-year Yale law student, he says that in 1950, he watched Thurgood Marshall argue Heman Sweatt’s case before the Supreme Court, eloquently asserting the constitutional promise of equality for Sweatt, for all African-Americans, however since then, says Higginbotham, “I have observed commendable progress, lately some tragic retrogression.

Clarence Thomas was born in 1948, in Pin Point, Georgia, an enclave of 500 inhabitants south of Savannah on the Moon River and named after the plantation that once stood on the land, it had been divided up after the Civil War and given to the former slaves.

After their house burned and his mother remarried, Thomas went to live in Savannah with his grandfather, Myers Anderson, an ardent Catholic, loyal Democrat, and active member of the NAACP.

In a time when African-Americans were forced to sit in the back of the buses, banned from restaurants, and denied employment opportunities, Anderson decided the best way to beat racism was to start his own business delivering wood, coal, ice, and heating oil from the back of a pick-up truck, thus, affording his family a comfortable home.

In 1968, while at Holy Cross, a Jesuit college in Worcester, Massachusetts, Thomas helped found the Black Student Union, which decided in its second year that its members should live together in one dormitory.

As the lone dissenter, Thomas preferred to “profit from the experience by learning to associate with and understand the white majority,” however he finally gave in but brought his white roommate from the previous year to live with him.

During college, he participated in a free breakfast program for local schoolchildren and was a Black Panthers sympathizer.

He graduated ninth in his class in 1971 with an English honors degree, and enrolled at Yale Law School under an affirmative action plan to recruit qualified minorities, where he took courses in tax and antitrust law instead of civil rights and constitutional law.

After graduating in 1974, he joined the staff of the attorney general of Missouri, John Danforth, a young Republican who would become Thomas’ political mentor, and when Danforth was elected Senator, he joined him as a legislative assistant in charge of energy and environmental projects.

While in Washington, Thomas became active in the black conservative movement, which believes that welfare, busing, affirmative action programs, and government set-asides, make African-Americans dependent on government charity and do more harm than good.

Thomas did not believe integration was a solution, and reasoned that African-Americans should help themselves through education, enterprise, work, and self-reliance.

When he was appointed to the EEOC, Thomas largely abandoned the use of class action suits that relied on statistical evidence to prove widespread discrimination at corporations, preferring instead to focus on individual suits.

While many credit him with improving morale at the agency, others criticize him for allowing 9,000 age discrimination complaints to lapse.

In 1990, he was appointed to the U.S. Court of Appeals for the District of Columbia, and while there he wrote a revealing opinion for the court in an affirmative action case, which held that the federal government may not give preferential treatment to women in awarding broadcast licenses, even though it does so for other minority groups.

Many civil rights groups, notably the NAACP and the Congressional Black Caucus declared they would not support Thomas’ nomination to the Supreme Court because of his opposition to the traditional civil rights agenda.

Thomas has expressed support for a limited role for the Court and a narrow reach of constitutional guarantees, and when the Court ruled in Hudson v. McMillian, 1992, that excessive force used by a prison guard may violate the Constitution even if it does not result in serious injury to a prisoner, Thomas dissented, arguing that the Eighth Amendment’s prohibition against cruel and unusual punishment “should not be turned into a national code of prison regulation.”

And in a death penalty case, Thomas wrote a separate concurring opinion that emphasized the irrelevance of a prisoner’s poor background and troubled upbringing.

There are claims that the Bush administration has discussed the possibility of Thomas succeeding William Rehnquist as chief justice, however, Justice Antonin Scalia told Thomas biographer Ken Foskett, that Thomas “doesn’t believe in stare decisis, period.”

In 1986, Justice Thurgood Marshall explained for the court that, stare decisis is the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”

In 1995, Thomas was the swing vote in several important five to four rulings, and in major civil-rights cases, he cast the deciding vote against voting rights for ethnic minorities, affirmative action to remedy past discrimination, and school desegregation.

In Rosenberger v. University of Virginia, Thomas’ deciding vote in effect sanctioned the funding of religion with public funds, and spurred debates on the separation of church and state.

In 1991, William McGurn wrote in the National Review that just as Thurgood Marshall’s ascendancy to the Court provided a lodestar for an entire generation, Thomas’ messages of self-help and family values, “his skepticism about government imposed quotas, and above all his reaffirmation of the validity of the American proposition threaten the hegemony of an ossified civil-rights establishment and its ruling party.”

In the June 2005 Batson v. Kentucky decision, Justice Breyer, stated “the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection,” and referred to Marshall’s prediction, “that the Court’s rule would not achieve its goal,” and that the only way to end the racial discrimination that peremptories inject into the jury-selection process, Marshall concluded, “was to eliminate peremptory challenges entirely,” and this “case reinforces Justice Marshall’s concern.”

Thomas has many supporters who believe that he chooses his battles carefully, and when he engages, he does so with a clarity of purpose and vision all too rare in contemporary jurisprudence.

Justice Thurgood Marshall is considered by any standard as one of the great Americans of his time, and one of the shapers of history.

However, some question whether it is fair to hold Thomas to Marshall’s standard, or whether it is actually racist to assume that by virtue of his life experience he should think and react a certain way.

Bibliography

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