Marshall Becomes the First African American Supreme Court Justice

Date October 2, 1967

President Lyndon B. Johnson appointed the nation’s leading civil rights lawyer, Thurgood Marshall, to become the first African American justice of the United States.

Locale Washington, D.C.

Key Figures

• Thurgood Marshall (1908-1993), associate justice of the United States, 1967-1991, who had been a leading civil rights lawyer
• Lyndon B. Johnson (1908-1973), president of the United States, 1963-1969, who oversaw the enactment of civil rights legislation
• Strom Thurmond (1902-2003), U.S. senator from South Carolina who led opposition to civil rights laws

Summary of Event

U.S. Supreme Court justices are responsible for defining and defending the Bill of Rights in the U.S. Constitution. The meanings of freedom of speech, freedom of the press, equal protection, and other rights are determined by the nine individuals who preside over the highest court in the United States.

The Supreme Court’s decisions tend to reflect the dominant societal values of each era. While racial prejudice against African Americans was accepted in many parts of the United States, the justices declared that cities and states could segregate African Americans into separate schools, neighborhoods, and public facilities. When women were excluded from professions because of societal attitudes about their roles as wives and mothers, the Supreme Court declared that state laws could prevent women from working as lawyers or as bartenders and in other occupations. The Supreme Court determines the extent to which women, racial minorities, and others are protected by the Constitution, yet before 1967 only white males served as justices and participated in these decisions.

Because the membership of the Supreme Court has been unrepresentative of the diversity within American society, critics of the Court have argued that constitutional rights have been interpreted to favor the interests of the narrow group of individuals, namely affluent white men, who compose the Supreme Court. Critics also note that although the Fourteenth Amendment to the Constitution, added in 1868, required state governments to provide equal protection for all people, the justices of the Court did not use those words to protect African Americans from widespread discrimination until 1954, in the case of Brown v. Board of Education.

The Supreme Court, and American society generally, began to change during the 1950’s and 1960’s. The justices on the Court increasingly made decisions that struck against racial discrimination. When President John F. Kennedy was assassinated in 1963, the new president, Lyndon B. Johnson, was able to use the wave of national political sympathy to push antidiscrimination legislation through Congress. As Johnson oversaw the implementation of the most comprehensive American laws ever initiated against racial discrimination, he turned his attention to the Supreme Court.

When Justice Tom C. Clark retired, President Johnson appointed Thurgood Marshall to fill the vacancy. In selecting Marshall to be the first black justice, Johnson chose a lawyer who had such vast experience as a litigator, government attorney, and federal judge that it was nearly impossible for civil rights opponents to claim that Marshall lacked the proper qualifications to be a justice.

Marshall’s great-grandfather had been a slave. The future justice grew up in Baltimore as the son of a schoolteacher. Marshall was an honors graduate of Lincoln University, a college for African Americans in Pennsylvania. Many top law schools were closed to black students at that time. Marshall attended law school in Washington, D.C., at Howard University, an institution founded to educate black students. He graduated at the top of his law school class in 1933.

After graduation from law school, Marshall embarked upon a career as a civil rights lawyer for the National Association for the Advancement of Colored People (NAACP). For more than twenty-five years, he traveled throughout the United States pursuing lawsuits on behalf of black people who wished to utilize the courts to fight against racial discrimination. He developed a reputation for thinking quickly on his feet in the courtroom because he grew accustomed to facing openly hostile judges in southern courthouses.

Marshall was the chief architect of the series of cases challenging racial segregation in education that culminated in the Supreme Court’s landmark 1954 decision against school segregation in Brown v. Board of Education. Prior to appointment to the highest court, few justices have ever been so experienced in preparing and presenting arguments before the Supreme Court. Marshall argued thirty-two cases before the Court, and he won twenty-nine of them.

In 1961, Kennedy appointed Marshall to be a judge on the U.S. Court of Appeals for the Second Circuit. He faced heated opposition from southern senators opposed to civil rights, and it took a year for him to gain confirmation from the Senate. In 1965, Johnson appointed Marshall to be solicitor general of the United States. The solicitor general represents the United States government in front of the Supreme Court. The position gave Marshall the opportunity to build his already impressive reputation and experience as an advocate before the highest court in the land.

After Johnson appointed him to serve on the Supreme Court, Marshall’s confirmation by the Senate was delayed for several months. Southern opponents of civil rights attempted to prevent the nation’s most famous champion of racial equality from serving. During lengthy hearings before the Senate Judiciary Committee, Senator Strom Thurmond from South Carolina attempted to derail the nomination by asking dozens of questions about obscure aspects of legal history in the hope that Marshall would stumble in answering. Ultimately, Marshall’s appointment was confirmed overwhelmingly by the Senate, with only one senator from outside the South among the eleven opposing the nomination. Marshall was sworn in as the first black justice on October 2, 1967.

Significance

By becoming a Supreme Court justice, Thurgood Marshall broke the color barrier in one of the most powerful institutions in American society. Symbolically, his appointment demonstrated to American society that rigid racial discrimination was no longer socially acceptable. For black Americans, Marshall’s appointment demonstrated that the old obstacles to professional advancement were being reduced.

Marshall became a powerful liberal voice on the Supreme Court, especially when cases concerning discrimination were under consideration. He was the first justice to have experienced firsthand the harassment and humiliation of racial discrimination. Because he traveled throughout the rural South as a litigator for the NAACP during the 1930’s and 1940’s, he had witnessed and experienced the severest racial prejudice in American society. In fact, Marshall was once nearly murdered by a lynch mob of Tennesseepolice officers who opposed his advocacy of civil rights and racial equality.

Just as other justices’ views are shaped by their attitudes and experiences, Marshall’s experiences living with racial discrimination gave him great sensitivity to the plight of powerless people within American society. The new perspective contributed by Marshall helped generate many Court opinions during the 1960’s and 1970’s that demonstrated a heightened concern for protecting the constitutional rights of all Americans. Marshall’s concerns for civil rights were evident beyond issues of racial discrimination, and they included attention to the constitutional rights of poor people, women, and criminal defendants. Until the addition of several new justices moved the Supreme Court’s decisions in a conservative direction during the late 1980’s, Marshall was a key member of a liberal Court majority that protected and expanded individuals’ civil rights to unprecedented lengths. Marshall, whose health had deteriorated, announced his retirement from the Supreme Court in 1991.

Clarence Thomas, only the second African American to be named a Supreme Court justice, was nominated by President George H. W. Bush and, after contentious nomination hearings, was subsequently confirmed. Unlike Marshall, whose most effective work occurred with the NAACP during the days of struggle for the advance of civil rights, Thomas was opposed by civil rights groups who distrusted his conservative political and legal views, although he too had risen from a modest background to prominence in the American legal profession. Also unlike Marshall, Thomas’s legal credentials were in question: An American Bar Association committee voted by a narrow majority to rate Thomas merely “qualified” for the bench, with a minority of the committee rating him “not qualified.” Many modern nominees have received unanimous “well qualified” ratings.

Bibliography

Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New and rev. ed. Lanham, Md.: Rowman & Littlefield, 1999. Detailed description of every appointment to the Supreme Court, including that of Thurgood Marshall, through 1985. Provides the best description of the political considerations that have motivated a president’s decisions regarding Supreme Court appointments. Gives a complete, concise discussion of the Marshall appointment.

Bland, Randall W. Private Pressure on Public Law: The Legal Career of Justice Thurgood Marshall, 1934-1991. Rev. ed. Lanham, Md.: University Press of America, 1993. Biographical description of Justice Marshall’s career up through his early years on the Supreme Court. Marshall’s career extended well beyond the time frame of this early volume.

Cox, Archibald. The Court and the Constitution. Boston: Houghton Mifflin, 1987. Presents a thorough history of the Supreme Court and its decisions, including the era of Thurgood Marshall’s service on the Court. Discusses how justices’ decisions reflect the historical era in which they live. Provides the general audience with analysis of most important areas of constitutional law.

Kluger, Richard. Simple Justice: The History of “Brown v. Board of Education” and Black America’s Struggle for Equality. Rev. ed. New York: Knopf, 2004. Detailed discussion of civil rights lawyers’ efforts to win Supreme Court decisions against racial discrimination in education. Provides extensive details on Thurgood Marshall’s work as a civil rights lawyer over the course of two decades. Considered the definitive history of civil rights litigation.

Nieman, Donald G. Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991. Discussion of racial discrimination in the United States. Provides a thorough history of ways in which the courts and other government institutions failed to provide African Americans with the rights guaranteed by the words of the Constitution.

O’Brien, David M. “LBJ and Supreme Court Politics in Light of History.” In Lyndon Baines Johnson and the Uses of Power, edited by Bernard J. Firestone and Robert C. Vogt. New York: Greenwood Press, 1988. Discussion of President Johnson’s motivations in selecting appointees, including Marshall, for the Supreme Court. Discusses the reactions of Supreme Court justices and leading political figures to Johnson’s choice of Marshall. Includes discussion of controversy surrounding Johnson’s other appointee, Abe Fortas.

‗‗‗‗‗‗‗. Storm Center: The Supreme Court in American Politics. 7th ed. New York: W. W. Norton, 2005. Thorough, readable discussion of the Supreme Court’s procedures and role in the American governing system. Provides many anecdotes about the justices’ personalities and interactions. Includes references to Marshall’s participation in specific cases.