Login | September 21, 2018

Law Bulletin Column: Integration of the highest court

Law Bulletin columnist

Published: October 13, 2017

Fifty years ago this month, the U.S. Supreme Court convened its first session with an African-American justice when Thurgood Marshall took his seat. The 96th justice, Marshall would serve the next 24 years on the court. This column focuses on his nomination.

The vacancy

Even before a seat on the court became available, President Lyndon B. Johnson decided he was going to appoint Marshall. Since no vacancies existed and none were expected in the near future, Johnson took a number of actions to make his historical nomination a reality.

First, he appointed the then- attorney general Nicholas B. Katzenback to be undersecretary of state, creating a vacancy for Johnson to nominate Ramsey Clark to fill the attorney general role.

This prompted associate justice Tom Clark to retire on June 12, 1967, at the age of 67, in order to avoid conflicts of interest that might occur with his son Ramsey serving as the attorney general.

Johnson then advised chief justice Earl Warren that he intended to nominate Marshall to fill the court vacancy created by Tom Clark’s retirement.

The nomination

On June 13, 1967, Johnson appeared in the Rose Garden with Marshall and informed the nation he was sending Marshall’s name to the Senate as Johnson’s nominee for the Supreme Court opening. Marshall was serving as solicitor general at the time. Johnson spoke about Marshall as follows:

“As most of you know, Mr. Marshall is presently serving as solicitor general. He has served on the second highest court in the land, the court of appeals for the state of New York from which place he resigned, at my request, to come here as solicitor general.

“He has argued 19 cases in the Supreme Court since becoming solicitor general. Prior to that time, he had argued some 33 cases.

“The statisticians tell me that probably only one or two other living men have argued as many cases before the court and perhaps less than half a dozen in all the history of the nation.

“The solicitor has had some solid cases.

“He has lost only eight of those cases.

“Mr. Marshall was first in his class at Howard. He has had a distinguished record as private counsel and as government counsel in the courts of the land. I believe he has already earned his place in history, but I think it will be greatly enhanced by his service on the court.

“I believe he earned that appointment; he deserves the appointment. He is best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right man and the right place.”

Before Marshall arrived at the White House that day, Johnson had several conversations with him and others in which the president indicated he would not submit Marshall’s name to the Supreme Court.

Concerns about the public reaction to Marshall and concerns about his potential rulings on crime (Johnson is recorded questioning how tough Marshall would be on criminal matters) may have been at the root of the conversations. Johnson asked Marshall his positions on crime, to which he responded, “I’m a Tom Clark crime man.”

On Aug. 30, 1967, Marshall was confirmed by a Senate vote of 69-11. The 11 senators who voted against the Marshall nomination were all Southern Democrats, justifying their no vote based on Marshall’s “activist temperament.”

And in an effort to acknowledge the South, Marshall chose associate justice Hugo L. Black, a former Ku Klux Klan member, to administer his judicial oath in a private ceremony on Sept. 1, 1967.

On Oct. 2, 1967, when the Supreme Court term began, Marshall began his own historic term. During his 24 years on the court, he was a champion of individual rights, especially in criminal matters involving the rights of the accused.

Marshall was a fervent opponent of the death penalty, finding it unconstitutional in all instances. He spoke of a living Constitution and often dissented from decisions issued during the Burger and Rehnquist Courts.

On Feb. 1, 1865, one day after Congress approved the 13th Amendment, Sen. Charles Sumner moved that John Rock be admitted to practice before the high court, making Rock the first African-American to be admitted to the Supreme Court bar.

It would take more than 100 years and the actions of President Lyndon B. Johnson, however, to break the color barrier on the Supreme Court by nominating Marshall.

Another 42 years elapsed before the first Hispanic associate justice, Sonia M. Sotomayor, joined the court.