Read an Excerpt

The 1990s

Justice Marshall's nonjudicial opinions and writings slowed owing to ill health during the early 1990s. In 1992, however, Justice Marshall gave a rare interview to the American Bar Association Journal covering a wide range of topics. During the interview, conducted by Gary A. Hengster, publisher of the journal, Marshall acknowledged his mentor Charles Hamilton Houston and reaffirmed that at Howard UniversitySchool of Law, Houston had taught "that we be social engineers rather than lawyers . . . and I had early decided that's what I wanted to do."

Marshall addressed questions concerning racism in the military during World War II and suggested that the Supreme Court had wrongly decided City of Richmond v. Croson, which struck down as unconstitutional economic affirmative action enhancements for minorities. Marshall commented that it was his view that "a state or city can give its citizens more than our Constitution provides. . . . In Croson, this Court held that the Constitution prevented it. I can't believe that."

In a speech delivered on September 6, 1990, before the Annual Judicial Conference of the Second Circuit, Marshall asserts his belief that "the most important institutional mission of the judiciary [i]n or out the governmental scheme . . . must be a detached independent judiciary that has the final legitimate authority to ensure that political majorities, caught up in the passions of the moment, do not trample the rights of minorities." This statement may be interpreted indirectly critical of the direction of the Supreme Court decisions bowing to political winds that either did not support minority concerns or were intent on turning back the clock on civil rights gains, or both.

Six months before Justice Marshall died, he received the Medal of Liberty in Philadelphia on July 4, 1992. Upon receiving this prestigious award, he remarked that if America believes that on the "racial side that we have accomplished everything, I feel obliged to tell you that it is not so." Thus, near the end of seven decades of fighting against racism and near the end of his rich life, Marshall was inclined to see the nation as it was, still trapped by divisions of racism. Justice Marshall remarks were not bitter, but marked by disappointment. Despite his seventy years as an advocate for the rights of his people and other disenfranchised minorities of the nation, the goal of liberty for all was still some ways off, though not out of reach.

The legacy of Thurgood Marshall takes many forms. When he announced his retirement from the Supreme Court, he was asked how he would characterize his legacy. He answered, "I don't know what legacy is left. That's up to the people . . ."

* * * * *

We Must Dissent [excerpted]

[One of Justice Marshall's last public statements prior to his retirement was on July 4, 1992, when he received the Medal of Liberty in Philadelphia, Pennsylvania.]

What I'd like to do is share a few stories, a few anecdotes of people who actually have understood the meaning of liberty and struggle against the odds to become free.

I think of these people because of the risks that they have taken and the courage they have displayed. You know when I was trying these cases in the South, the people, the local people whom I represented, stayed there and faced the other side, and the dangers. And they were not afraid. They stayed there.

Well, you know what I did? When the case was over, I'd get the fastest thing out of there. So I want at all times to recognize those who stayed there. I value them not only because of the kind of people they were, but because of the kind of nation they insisted we become. I respect them not because of the influence they wielded, but because of the power they seized. It is useful, I think, to recall their stories, not to dwell on the past, but to see concrete evidence of what was in order to gain the inspiration for what can be.

Do you remember Heman Marion Sweatt? He was an ordinary person, but he had an extraordinary dream to live in a world which Afro-Americans and Whites alike were afforded equal opportunity to sharpen their skills and to hone their skills, to sharpen their minds. Unfortunately, officials at the University of Texas Law School did not share his vision. Constrained by the shackles of prejudice, incapable of seeing people, and seeing them for what they were, they denied Herman Marion Sweatt admission to the Law School of the University of Texas, as you will remember, solely because of his color—the color which just didn't happen to be theirs, a little more sunburned.

It was a devastating blow and a stinging rejection, a painful reminder of the chasm that separated the white from the Negro. But Heman Sweatt held on to what racism tried to snuff out, a sense of self, and a recognition of place, a determination to obtain the best, and a refusal to settle for anything else. Heman Marion Sweat knew what the white segregationists tried to forget that none of us, Afro, White or Blue will ever rest until we are all truly free.

Heman Sweat did not pursue liberty alone. Just a few years earlier a couple named Shelley tried to do what the white Americans had done for years, live in a decent neighborhood, in the neighborhood of their choice. But to white homeowners in Missouri such audacity was too threatening to be tolerated, in their view. The Whites belong in one world, because Negroes were in another, and they could not see the similarities that linked them to the Shelly's—the common desire to earn a living, to raise children, to own and care for a home. They saw only difference. I guess to them if the United States was indeed a melting pot, the Negro either didn't get into the pot, or he certainly never got melted down. Whatever the reason for myopic vision, the Shelly's were forced to do whatever Negroes had to do for years—use the only weapon they had, their right to a day in court to gain the rights to which they were constitutionally entitled.

Fortunately for our history, the Shelly's won their suit, but even if they had lost, they would have known more freedom than the Whites who tried to shut them out should ever know.

Racism separates, but it never liberates. Hatred generates fear, and fear, once given a foothold, binds, consumes, and imprisons. Nothing is gained from prejudice. No one benefits from racism.

As I think back on these courageous people who came before, I wonder what becomes of the challenge the Sweats and the Shelly's provided. They worked for liberty. They fought for freedom. They insisted upon justice. They were optimistic, as I was, that racial interaction would lead to understanding, and in turn would produce healing and redemption. They were hopeful, as I was that America would grow toward justice and expand toward equality.

Who would have thought that in the wake of Smith against Allright, and Shelley against Karma, and Brown against the Board of Education, that I would be giving a talk now on the anniversary of our nation's independence? I would have predicted that I would have spoken with much pride and optimism of the enormous progress this nation has already made. But as I survey the world Heman Marion Sweat and the Shelly's left behind, I wish I could say that racism and prejudice were only distant memories. I wish I could say that this nation had traveled far along the road to social justice and that liberty and equality were just around the corner. I wish I could say that America had come to appreciate diversity and to see and accept similarities.

But as I look around, I see not a nation of unity, but a nation of division: Afro and White, indigenous and immigrant, rich and poor, educated and illiterate. Even many educated white people and successful Negroes have given up on integration, and lost hope in equality. They see nothing in common, except the need to flee, as fast as they can, farther from our inner cities.

A Pullman porter once told me when I was a kid that he had been in almost every city in the country. He said he never was in a city where he had to put his hand in front of his face to know he was a Negro. Well, I'm afraid that I've been in every city in this country, and it's thirty or forty years after what he said. And I hate to tell you, what he said is still true.

But there's a price to be paid for division and isolation as the recent events in California indicate. Look around. Can't you see the tension in Watts, California? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx and Brooklyn? It's all around you. We cannot play hostage. Democracy just cannot flourish amid fear. Liberty cannot bloom with hate. Justice cannot take root amid fear.

America must get to work. In the chilled climate in which we live, we must go against the prevailing winds. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred, and the mistrust. We must dissent from a nation that buried its head in the sand waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away. We must dissent from a government that has left its young without jobs, education, or hope. We must dissent from the poverty of vision and timeless absence of moral leadership. We must dissent, because America can do better, because America has no choice but to do better.

The legal system can force open doors, and sometimes-even knock down walls, but it cannot build bridges. That job belongs to you and me. The country can't do it. Afro and White, rich and poor, educated and illiterate, our fates are bound together. We can run from each other, but we cannot escape each other. We will only attain freedom if we learn to appreciate what is different, and muster the courage to discover what is fundamentally the same. America's diversity offers so much richness and opportunity. Take a chance, won't you? Knock down the fences, which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side. We shall have liberty for all. Thank you.