Editing Thurgood Marshall (section)

== Supreme Court ==
[[File:Thurgoodmarshall1967 (cropped).jpg|alt=Photograph of Marshall|thumb|Marshall, 1967]]

Marshall remained on the Supreme Court for nearly twenty-four years, serving until his retirement in 1991.<ref name="Tushnet-1994" />{{Rp|page=314}} The Court to which he was appointed—the [[Warren Court]]—had a consistent liberal majority, and Marshall's jurisprudence was similar to that of its leaders, Chief Justice Warren and Justice [[William J. Brennan Jr.]]<ref name="Tushnet-1997a" />{{Rp|page=1507}} Although he wrote few major opinions during this period due to his lack of seniority, he was typically in the majority.<ref name="Williams-1998" />{{Rp|page=344}}<ref name="Tushnet-2006">{{Cite book |last=Tushnet |first=Mark V. |url= |title=Biographical Encyclopedia of the Supreme Court: The Lives and Legal Philosophies of the Justices |publisher=[[CQ Press]] |year=2006 |isbn=978-1-933116-48-8 |editor-last=Urofsky |editor-first=Melvin I. |editor-link=Melvin I. Urofsky |location=Washington, DC |pages=334–339 |chapter=Thurgood Marshall |author-link=Mark Tushnet |chapter-url=https://archive.org/details/biographicalency0000unse/page/334/mode/2up?view=theater}}</ref>{{Rp|page=335}} As a result of four Supreme Court appointments by President [[Richard Nixon]], however, the liberal coalition vanished.<ref name="Tushnet-2006" />{{Rp|page=335}} The Court under Chief Justice [[Warren E. Burger|Warren Burger]] (the [[Burger Court]]) was not as conservative as some observers had anticipated, but the task of constructing liberal majorities case-by-case was left primarily to Brennan; Marshall's most consequential contributions to constitutional law came in dissent.<ref name="Tushnet-1997a" />{{Rp|page=1508}} The justice left much of his work to his [[law clerk]]s, preferring to determine the outcome of the case and then allow the clerks to draft the opinion themselves.<ref name="Ball-1998" />{{Rp|page=215}} He took umbrage at frequent claims that he did no work and spent his time watching daytime [[soap opera]]s;<ref name="Ball-1998" />{{Rp|page=203}} according to Tushnet, who clerked for Marshall, the idea that he "was a lazy Justice uninterested in the Court's work{{Nbsp}}... is wrong and perhaps racist".<ref>{{Cite journal |last=Tushnet |first=Mark |author-link=Mark Tushnet |date=August 1992 |title=Thurgood Marshall and the Brethren |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/glj80&div=66&id=&page= |journal=[[Georgetown Law Journal]] |volume=80 |issue=6 |pages=2109–2130}}</ref>{{Rp|page=2109}} Marshall's closest colleague and friend on the Court was Brennan,<ref name="Ball-1998" />{{Rp|pages=210–211}} and the two justices agreed so often that their clerks privately referred to them as "Justice Brennanmarshall".{{Efn|In non-unanimous cases decided by an eight- or nine-justice court, Marshall and Brennan voted the same way 91.67% of the time during the Warren Court, 87.33% of the time during the Burger Court, and 94.86% of the time during the Rehnquist Court.<ref>{{Cite book |last1=Epstein |first1=Lee J. |url=https://books.google.com/books?id=VghVzgEACAAJ |title=The Supreme Court Compendium: Two Centuries of Data, Decisions, and Developments |last2=Segal |first2=Jeffrey A. |last3=Spaeth |first3=Harold J. |last4=Walker |first4=Thomas G. |publisher=[[CQ Press]] |year=2021 |isbn=978-1-0718-3456-5 |edition=7th |location=Thousand Oaks, California |language=en |author-link=Lee Epstein}}</ref>{{Rp|pages=638, 642, 646}}}}<ref>{{Cite book |url=http://archive.org/details/supremecourtinco0000unse |title=The Supreme Court in Conference, 1940–1985: The Private Discussions Behind Nearly 300 Supreme Court Decisions |publisher=[[Oxford University Press]] |year=2001 |isbn=978-0-19-512632-7 |editor-last=Dickson |editor-first=Del |location=New York}}</ref>{{Rp|page=10}} He also had a high regard for Warren, whom he described as "probably the greatest Chief Justice who ever lived".<ref name="Ball-1998" />{{Rp|page=210}}

Marshall consistently sided with the Supreme Court's liberal bloc.<ref>{{Cite book |last=Marszalek |first=John F. |title=Encyclopedia of African-American Civil Rights: From Emancipation to the Present |publisher=[[Greenwood Press]] |year=1992 |isbn=0-313-25011-1 |editor-last=Lowery |editor-first=Charles D. |location=Westport, Connecticut |pages=345–347 |chapter=Marshall, Thurgood |author-link=John F. Marszalek |editor-last2=Marszalek |editor-first2=John F. |chapter-url=https://archive.org/details/encyclopediaofaf00arie/page/345/mode/2up}}</ref>{{Rp|page=347}} According to the scholar William J. Daniels: "His approach to justice was Warren Court–style [[legal realism]]{{Nbsp}}... In his dissenting opinions he emphasized individual rights, fundamental fairness, equal opportunity and protection under the law, the supremacy of the Constitution as the embodiment of rights and privileges, and the Supreme Court's responsibility to play a significant role in giving meaning to the notion of constitutional rights."<ref name="Daniels-1991" />{{Rp|pages=234–235}} Marshall's jurisprudence was pragmatic and relied on his real-world experience as a lawyer and as an African American.<ref name="Tushnet-2006" />{{Rp|page=339}} He disagreed with the notion (favored by some of his conservative colleagues) that the Constitution [[Originalism|should be interpreted according to the Founders' original understandings]];<ref name="Hall-2001">{{Cite book |last=Hall |first=Timothy L. |url=https://books.google.com/books?id=8AJ7__ph3rgC |title=Supreme Court Justices: A Biographical Dictionary |publisher=[[Facts on File]] |year=2001 |isbn=978-0-8160-4194-7 |location=New York |pages=202–205}}</ref>{{Rp|page=382}} in a 1987 speech commemorating the Constitution's bicentennial, he said:<ref>{{Cite journal |last=Marshall |first=Thurgood |date=November 1987 |title=Reflections on the Bicentennial of the United States Constitution |url=https://heinonline.org/HOL/Page?handle=hein.journals/hlr101&id=19&div=&collection= |journal=[[Harvard Law Review]] |volume=101 |issue=1 |pages=1–5|doi=10.2307/1341223 |jstor=1341223 }}</ref>{{Rp|pages=2, 5}}

{{Blockquote|text=... I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today{{nbsp}}... "We the People" no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of "liberty", "justice", and "equality", and who strived to better them{{nbsp}}... I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.}}

=== Equal protection and civil rights ===
[[File:US Supreme Court 1976.png|alt=Black-and-white photograph of the nine justices of the Supreme Court in their judicial robes|thumb|upright=1.35|Justices of the Supreme Court of the United States, 1976. Marshall is in the bottom row, first from the right.]]

As the Court became increasingly conservative, Marshall found himself dissenting in numerous cases regarding racial discrimination.<ref name="Tushnet-1997a" />{{Rp|page=1511}} When the majority held in ''[[Milliken v. Bradley]]'' that a lower court had gone too far in ordering [[Desegregation busing|busing]] to reduce racial imbalances between schools in Detroit, he dissented, criticizing his colleagues for what he viewed as a lack of resolve to implement desegregation even when faced with difficulties and public resistance.<ref name="Davis-1992" />{{Rp|pages=344–345}} In a dissent in ''[[City of Memphis v. Greene]]'' that according to Tushnet "demonstrated his sense of the practical reality that formed the context for abstract legal issues", he argued that a street closure that made it more difficult for residents of an African-American neighborhood to reach a city park was unconstitutional because it sent "a plain and powerful symbolic message" to blacks "that because of their race, they are to stay out of the all-white enclave{{Nbsp}}... and should instead take the long way around".<ref name="Tushnet-1997" />{{Rp|pages=91–92}} Marshall felt that [[affirmative action]] was both necessary and constitutional;<ref name="Ball-1998" />{{Rp|page=257}} in an opinion in ''[[Regents of the University of California v. Bakke]]'', he commented that it was "more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible".<ref name="Tushnet-1997" />{{Rp|page=131}} Dissenting in ''[[City of Richmond v. J.A. Croson Co.]]'', he rejected the majority's decision to strike down an affirmative-action program for government contractors, stating that he did "not believe that this Nation is anywhere close to eradicating racial discrimination or its vestiges".<ref name="Tushnet-1997" />{{Rp|pages=139–143}}

Marshall's most influential contribution to constitutional doctrine was his "sliding-scale" approach to the Equal Protection Clause, which posited that the judiciary should assess a law's constitutionality by balancing its goals against its impact on groups and rights.<ref name="Tushnet-2006" />{{Rp|page=336}}  Dissenting in ''[[Dandridge v. Williams]]'', a case in which the majority upheld Maryland's $250-a-month cap on welfare payments against claims that it was insufficient for large families, he argued that [[rational basis review]] was not appropriate in cases involving "the literally vital interests of a powerless minority".<ref name="Tushnet-1997" />{{Rp|pages=98–99}} In what [[Cass Sunstein]] described as the justice's greatest opinion, Marshall dissented when the Court in ''[[San Antonio Independent School District v. Rodriguez]]'' upheld a system in which local schools were funded mainly through property taxes, arguing that the policy (which meant that poorer school districts obtained less money than richer ones) resulted in unconstitutional discrimination.<ref name="Ball-1998" />{{Rp|pages=224–225}}<ref name="Tushnet-1997" />{{Rp|pages=100–101}} His dissent in ''[[Harris v. McRae]]'', in which the Court upheld the [[Hyde Amendment]]'s ban on the use of [[Medicaid]] funds to pay for [[abortions]], rebuked the majority for applying a "relentlessly formalistic catechism" that failed to take account of the amendment's "crushing burden on indigent women".<ref name="Tushnet-1997" />{{Rp|pages=102–103}} Although Marshall's sliding-scale approach was never adopted by the Court as a whole, the legal scholar [[Susan Low Bloch]] comments that "his consistent criticism seems to have prodded the Court to somewhat greater flexibility".<ref>{{Cite book |last=Bloch |first=Susan Low |title=The Oxford Companion to the Supreme Court of the United States |publisher=[[Oxford University Press]] |year=1992 |isbn=978-0-19-505835-2 |editor-last=Hall |editor-first=Kermit L. |editor-link=Kermit L. Hall |location=New York |pages=526–528 |chapter=Marshall, Thurgood |author-link=Susan Low Bloch |chapter-url=https://archive.org/details/oxfordcompaniont00hall/page/526/mode/2up}}</ref>{{Rp|page=527}}

=== Criminal procedure and capital punishment ===
Marshall supported the Warren Court's constitutional decisions on criminal law, and he wrote the opinion of the Court in ''[[Benton v. Maryland]]'', which held that the Constitution's prohibition of double jeopardy applied to the states.<ref name="Tushnet-2006" />{{Rp|page=337}} After the retirements of Warren and Justice [[Hugo Black]], however, "Marshall was continually shocked at the refusal" of the Burger and [[Rehnquist Court]]s "to hold police and those involved in the criminal justice system responsible for acting according to the language and the spirit of fundamental procedural guarantees", according to Ball.<ref name="Ball-1998" />{{Rp|page=286}} He favored a strict interpretation of the Fourth Amendment's warrant requirement and opposed rulings that made exceptions to that provision;<ref name="Ogletree-1989">{{Cite journal |last=Ogletree |first=Charles J. |author-link=Charles Ogletree |date=1989 |title=Justice Marshall's Criminal Justice Jurisprudence: 'The Right Thing to Do, the Right Time to Do It, the Right Man and the Right Place' |url=https://heinonline.org/HOL/Page?handle=hein.journals/hblj6&id=117&div=&collection= |journal=Harvard Blackletter Journal |volume=6 |pages=111–130}}</ref>{{Rp|page=112}} in ''[[United States v. Ross]]'', for instance, he indignantly dissented when the Court upheld a conviction that was based on evidence discovered during a warrantless search of containers that had been found in an automobile.<ref name="Ball-1998" />{{Rp|pages=291–292}} Marshall felt strongly that the [[Miranda warning|''Miranda'' doctrine]] should be expanded and fully enforced.<ref name="Ogletree-1989" />{{Rp|page=112}} In cases involving the [[Sixth Amendment to the United States Constitution|Sixth Amendment]], he argued that defendants must have competent attorneys; dissenting in ''[[Strickland v. Washington]]'', Marshall (parting ways with Brennan) rejected the majority's conclusion that defendants must prove prejudice in [[ineffective assistance of counsel]] cases.<ref name="Tushnet-1997" />{{Rp|pages=187–188}}<ref name="Ogletree-1989" />{{Rp|page=112}}

Marshall fervently opposed [[Capital punishment in the United States|capital punishment]] throughout his time on the Court, arguing that it was [[Cruel and unusual punishment|cruel and unusual]] and therefore unconstitutional under the [[Eighth Amendment to the United States Constitution|Eighth Amendment]].<ref name="Davis-1992" />{{Rp|page=318}} He was the only justice with considerable experience defending those charged with capital crimes, and he expressed concern about the fact that injustices in death-penalty cases could not be remedied, often commenting: "Death is so lasting."<ref name="Tushnet-1997a" />{{Rp|pages=1514–1515}} In ''[[Furman v. Georgia]]'', a case in which the Court struck down the capital-punishment statutes that were in force at the time, Marshall wrote that the death penalty was "morally unacceptable to the people of the United States at this time in their history" and that it "falls upon the poor, the ignorant, and the underprivileged members of society".<ref name="Tushnet-1997a" />{{Rp|page=1515}} When the Court in ''[[Gregg v. Georgia]]'' upheld new death-penalty laws that required juries to consider [[Aggravation (law)|aggravating]] and [[Mitigating factor|mitigating circumstances]], he dissented, describing capital punishment as a "vestigial savagery" that was immoral and violative of the Eighth Amendment.<ref name="Ball-1998" />{{Rp|page=305}} Afterwards, Marshall and Brennan dissented in every instance in which the Court declined to review a death sentence, filing more than 1,400 dissents that read: "Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, we would grant [[certiorari]] and vacate the death sentence in this case."<ref name="Tushnet-1997" />{{Rp|page=175}}

=== First Amendment ===
According to Ball, Marshall felt that the rights protected by the [[First Amendment to the United States Constitution|First Amendment]] were the Constitution's most important principles and that they could be restricted only for extremely compelling reasons.<ref name="Ball-1998" />{{Rp|page=316}} In a 1969 opinion in ''[[Stanley v. Georgia]]'', he held that it was unconstitutional to criminalize the possession of [[Obscenity|obscene material]].<ref name="Tushnet-2006" />{{Rp|page=335}} For the Court, he reversed the conviction of a Georgia man charged with possessing pornography, writing: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."<ref name="Ball-1998" />{{Rp|page=317}} In ''[[Amalgamated Food Employees Union Local 400 v. Logan Valley Plaza]]'', he wrote for the Court that protesters had the right to picket on private property that was open to the public—a decision that was effectively overruled (over Marshall's dissent) four years later in [[Lloyd Corp. v. Tanner|''Lloyd Corporation v. Tanner'']].<ref name="Ball-1998" />{{Rp|pages=323–324}} He emphasized equality in his free speech opinions, writing in ''[[Chicago Police Dept. v. Mosley]]'' that "above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content".<ref name="Tushnet-1997a" />{{Rp|page=1513}} Making comparisons to earlier civil rights protests, Marshall vigorously dissented in ''[[Clark v. Community for Creative Non-Violence]]'', a case in which the Court ruled that the government could forbid homeless individuals from protesting poverty by sleeping overnight in [[Lafayette Park (Washington, D.C.)|Lafayette Park]]; although Burger decried their claims as "frivolous" attempts to "trivialize" the Constitution, Marshall argued that the protesters were engaged in constitutionally protected [[symbolic speech]].<ref name="Williams-1998" />{{Rp|page=378}}<ref name="Ball-1998" />{{Rp|pages=326–327}}

Marshall joined the majority in ''[[Texas v. Johnson]]'' and ''[[United States v. Eichman]]'', two cases in which the Court held that the First Amendment protected the right to burn the American flag.<ref name="Ball-1998" />{{Rp|pages=332–333}} He favored the total [[separation of church and state]], dissenting when the Court upheld in ''[[Lynch v. Donnelly]]'' a city's display of a [[nativity scene]] and joining the majority in ''[[Wallace v. Jaffree]]'' to strike down an Alabama law regarding prayer in schools.<ref name="Ball-1998" />{{Rp|page=|pages=343–346}} On the issue of the [[Free Exercise Clause|free exercise of religion]], Marshall voted with the majority in ''[[Wisconsin v. Yoder]]'' to hold that a school attendance law could not be constitutionally applied to the [[Amish]], and he joined Justice [[Harry Blackmun]]'s dissent when the Court in ''[[Employment Division v. Smith]]'' upheld a restriction on religious uses of [[peyote]] and curtailed ''[[Sherbert v. Verner]]''<nowiki/>'s [[strict scrutiny]] standard.<ref name="Ball-1998" />{{Rp|pages=351–353}} In the view of [[J. Clay Smith Jr.]] and Scott Burrell, the justice was "an unyielding supporter of civil liberties", whose "commitment to the values of the First Amendment was enhanced from actually realizing the historical consequences of being on the weaker and poorer side of power".<ref>{{Cite journal |last1=Smith |first1=J. Clay Jr |author-link=J. Clay Smith Jr. |last2=Burrell |first2=Scott |date=Summer 1994 |title=Justice Thurgood Marshall and the First Amendment |url=https://heinonline.org/HOL/Page?handle=hein.journals/arzjl26&id=473&div=&collection= |journal=[[Arizona State Law Journal]] |volume=26 |issue=2 |pages=461–478}}</ref>{{Rp|page=477}}

=== Privacy ===
In Marshall's view, the Constitution guaranteed to all citizens the [[right to privacy]]; he felt that although the Constitution nowhere mentioned such a right expressly, it could be inferred from various provisions of the [[United States Bill of Rights|Bill of Rights]].<ref name="Ball-1998" />{{Rp|page=356}} He joined the majority in ''[[Eisenstadt v. Baird]]'' to strike down a statute that prohibited the distribution or sale of [[contraceptives]] to unmarried persons, dissented when the Court in ''[[Bowers v. Hardwick]]'' upheld an [[Sodomy law|anti-sodomy law]], and dissented from the majority's decision in ''[[Cruzan v. Director, Missouri Department of Health]]'' that the Constitution did not protect an unconditional [[right to die]].<ref name="Ball-1998" />{{Rp|pages=358–364}} On the issue of abortion rights, the author [[Carl T. Rowan]] comments that "no justice ever supported a woman's right to choice as uncompromisingly as Marshall did".<ref name="Rowan-1993" />{{Rp|page=323}} He joined Blackmun's opinion for the Court in ''[[Roe v. Wade]]'', which held that the Constitution protected a woman's right to have an abortion,<ref name="Davis-1992" />{{Rp|page=342}} and he consistently voted against state laws that sought to limit that right in cases such as ''[[Maher v. Roe]]'', ''[[H. L. v. Matheson]]'', ''[[Akron v. Akron Center for Reproductive Health]]'', ''[[Thornburgh v. American College of Obstetricians & Gynecologists]]'', and ''[[Webster v. Reproductive Health Services]]''.<ref>{{Cite journal |last=Baugh |first=Joyce A. |date=Winter 1996 |title=Justice Thurgood Marshall: Advocate for Gender Justice |url=https://www.proquest.com/docview/1311811713 |journal=Western Journal of Black Studies |volume=20 |issue=4 |pages=195–206|id={{ProQuest|1311811713}} }}</ref>{{Rp|page=203}}

=== Other topics ===
During his service on the Supreme Court, Marshall participated in over 3,400 cases and authored 322 majority opinions.<ref name="Ball-1998" />{{Rp|page=401}} He was a member of the unanimous majority in ''[[United States v. Nixon]]'' that rejected President Nixon's claims of absolute [[executive privilege]].<ref>{{Cite journal |last=Zelden |first=Charles L. |date=March 2017 |title='How Do You Feel about Writing Dissents'? Thurgood Marshall's Dissenting Vision for America |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/jspcth42&div=10&id=&page= |journal=[[Journal of Supreme Court History]] |volume=42 |issue=1 |pages=77–100|doi=10.1111/jsch.12136 |s2cid=151734746 }}</ref>{{Rp|page=78}} Marshall wrote several influential decisions in the fields of [[corporate law]] and [[securities law]], including a frequently-cited opinion regarding [[Materiality (law)#In corporate and securities law|materiality]] in ''[[TSC Industries, Inc. v. Northway, Inc.]]''<ref>{{Cite journal |last=Winter |first=Ralph K. |author-link=Ralph K. Winter Jr. |date=October 1991 |title=TM's Legacy |url=https://openyls.law.yale.edu/bitstream/handle/20.500.13051/8662/15_101YaleLJ25_1991_1992_.pdf?sequence=2&isAllowed=y |journal=[[Yale Law Journal]] |volume=101 |issue=1 |pages=25–29}}</ref>{{Rp|page=25}} His opinions involving [[personal jurisdiction]], such as ''[[Shaffer v. Heitner]]'', were pragmatic and de-emphasized the importance of state boundaries.<ref name="Tushnet-1997a" />{{Rp|page=1514}} According to Tushnet, Marshall was "the Court's liberal specialist in [[Native American Indian law|Native American law]]"; he endeavored to protect Native Americans from regulatory action on the part of the states.<ref name="Tushnet-2006" />{{Rp|page=338}} He favored a rigid interpretation of procedural requirements, saying in one case that "rules mean what they say"—a position that in Tushnet's view was motivated by the justice's "traditionalist streak".<ref name="Tushnet-1997" />{{Rp|pages=185–186}}

Like most Supreme Court justices, many of Marshall's [[law clerk]]s went on to become prominent lawyers and legal scholars. His clerks included future Supreme Court justice [[Elena Kagan]], U.S. circuit judge [[Douglas H. Ginsburg]], and legal scholars [[Cass Sunstein]], [[Mark Tushnet]], and [[Martha Minow]].