WEBVTT 00:00:00.000 --> 00:00:02.700 Welcome back to another deep dive. Today we are 00:00:02.700 --> 00:00:05.160 pulling a specific book off the shelf of American 00:00:05.160 --> 00:00:09.800 history, blowing off the dust and realizing that 00:00:09.800 --> 00:00:13.000 the cover completely misleads you about what's 00:00:13.000 --> 00:00:15.300 inside. That's a great way to put it. We're looking 00:00:15.300 --> 00:00:18.679 at a figure who I guarantee you recognize. You've 00:00:18.679 --> 00:00:22.399 seen the photos. The heavy black robe, the glasses, 00:00:22.579 --> 00:00:25.359 the, you know, slightly weary expression looking 00:00:25.359 --> 00:00:27.219 down from the Supreme Court bench. You're talking 00:00:27.219 --> 00:00:30.120 about Thurgood Marshall. I am. And usually when 00:00:30.120 --> 00:00:32.299 we think of Marshall, we think first African 00:00:32.299 --> 00:00:34.859 -American Supreme Court justice. We think of 00:00:34.859 --> 00:00:37.679 him as this, well, this stately established figure 00:00:37.679 --> 00:00:39.859 of the institution. Right. As the endpoint, the 00:00:39.859 --> 00:00:42.759 statue. Exactly. But the source material we have 00:00:42.759 --> 00:00:45.280 today. a really comprehensive historical profile 00:00:45.280 --> 00:00:47.679 and legal analysis, it suggests that if you only 00:00:47.679 --> 00:00:49.799 focus on the man in the robe, you're missing 00:00:49.799 --> 00:00:52.780 the most explosive, dynamic, and frankly, dangerous 00:00:52.780 --> 00:00:54.920 part of his life. Dangerous to the status quo, 00:00:55.039 --> 00:00:57.719 absolutely. It's a common trap. We enshrine these 00:00:57.719 --> 00:00:59.700 figures in bronze, and we forget that before 00:00:59.700 --> 00:01:01.899 the statue was cast, they were in the trenches, 00:01:02.060 --> 00:01:04.659 you know, throwing punches. So the real story 00:01:04.659 --> 00:01:07.390 is before the robe. The argument in the source 00:01:07.390 --> 00:01:10.450 material is fascinating. It basically suggests 00:01:10.450 --> 00:01:13.349 that if Thurgood Marshall had retired in 1960, 00:01:13.790 --> 00:01:16.909 before he ever sat on the Supreme Court, before 00:01:16.909 --> 00:01:20.329 he was Justice Marshall, he would still be arguably 00:01:20.329 --> 00:01:23.030 the most important American lawyer of the 20th 00:01:23.030 --> 00:01:26.049 century. That is a massive claim. You're saying 00:01:26.049 --> 00:01:27.689 the preamble was more important than the main 00:01:27.689 --> 00:01:30.739 event. In many ways, yeah. Because before he 00:01:30.739 --> 00:01:32.819 was interpreting the law from the bench, he was 00:01:32.819 --> 00:01:35.459 weaponizing it from the bar table. He wasn't 00:01:35.459 --> 00:01:37.980 just a judge. He was like the architect of the 00:01:37.980 --> 00:01:40.400 civil rights movement's entire legal strategy. 00:01:40.780 --> 00:01:43.099 OK, so that's a big statement. Back it up. Well, 00:01:43.200 --> 00:01:45.299 there's one statistic from the notes that I think 00:01:45.299 --> 00:01:47.980 perfectly frames the scale of his dominance before 00:01:47.980 --> 00:01:49.980 he became a judge. I think I know the one you're 00:01:49.980 --> 00:01:51.760 going to cite. It made me do a double take when 00:01:51.760 --> 00:01:54.510 I read it. It should. So as a lawyer, primarily 00:01:54.510 --> 00:01:58.390 for the NAACP, Thurgood Marshall argued 32 cases 00:01:58.390 --> 00:02:01.909 before the United States Supreme Court. 32, which 00:02:01.909 --> 00:02:04.629 is already a career right there. That's a legendary 00:02:04.629 --> 00:02:07.250 career. Usually, if you argue one case before 00:02:07.250 --> 00:02:08.889 the Supreme Court and don't get embarrassed, 00:02:09.150 --> 00:02:11.960 that's the highlight. He argued 32. Do you know 00:02:11.960 --> 00:02:14.340 how many he won? He won 29 of them. 29 and 3. 00:02:14.460 --> 00:02:16.120 I mean, that's a batting average that puts him 00:02:16.120 --> 00:02:17.840 in the stratosphere. And we're not talking about, 00:02:17.840 --> 00:02:20.800 you know, minor contract disputes here. No. We 00:02:20.800 --> 00:02:24.139 are talking about cases that fundamentally restructured 00:02:24.139 --> 00:02:26.680 American society. He didn't just practice law. 00:02:27.020 --> 00:02:29.840 He reshaped the entire playing field on which 00:02:29.840 --> 00:02:32.479 the law was played. So that is our mission for 00:02:32.479 --> 00:02:34.780 this deep dive. We want to go behind the robe. 00:02:34.860 --> 00:02:37.719 We want to understand the mechanics of this incredible 00:02:37.719 --> 00:02:42.860 win streak. born in a segregated city, used the 00:02:42.860 --> 00:02:45.639 very legal system that was designed to oppress 00:02:45.639 --> 00:02:48.580 him as the tool to dismantle that oppression. 00:02:48.919 --> 00:02:50.960 And we're going to trace that arc. It's really 00:02:50.960 --> 00:02:53.840 a journey from being a social engineer, a phrase 00:02:53.840 --> 00:02:56.159 we'll definitely unpack later, to becoming the 00:02:56.159 --> 00:02:58.460 great dissenter. It's a move from the sword to 00:02:58.460 --> 00:03:00.560 the shield, in a way. So let's start at the very 00:03:00.560 --> 00:03:04.039 beginning, the origin story. Because you can't 00:03:04.039 --> 00:03:05.840 understand the lawyer without understanding the 00:03:05.840 --> 00:03:08.659 boy in Baltimore. He was born in 1908, right? 00:03:08.819 --> 00:03:12.699 July 2nd, 1908. Baltimore, Maryland. And right 00:03:12.699 --> 00:03:14.900 out of the gate, there's a detail about his name 00:03:14.900 --> 00:03:17.740 that just tickles me. He wasn't born Thurgood. 00:03:17.939 --> 00:03:20.180 I saw this. It was a family name, wasn't it? 00:03:20.219 --> 00:03:23.780 It was. His birth name was Thurgood. T -H -O 00:03:23.780 --> 00:03:26.960 -R -O -G -O -E -D. It was his grandfather's name. 00:03:27.099 --> 00:03:29.900 That's a lot of letters for a kindergartner to 00:03:29.900 --> 00:03:32.199 have to learn to write. It is a mouthful. And 00:03:32.199 --> 00:03:34.699 apparently Thurgood, or Thurgood at the time, 00:03:34.819 --> 00:03:37.610 had a very practical mind even at like... Age 00:03:37.610 --> 00:03:40.389 six. He got tired of the teacher waiting for 00:03:40.389 --> 00:03:41.949 him to finish writing his name at the top of 00:03:41.949 --> 00:03:43.590 the page. It was just taking too long. I can 00:03:43.590 --> 00:03:45.710 relate to that. So in the second grade, he made 00:03:45.710 --> 00:03:47.650 an executive decision. He just cut it down. He 00:03:47.650 --> 00:03:50.250 told the parents, they're good now. I love that. 00:03:50.289 --> 00:03:52.969 It shows a certain decisiveness. You know, this 00:03:52.969 --> 00:03:55.169 system is inefficient. I'm going to streamline 00:03:55.169 --> 00:03:58.210 it. Exactly. But if we're looking for where his 00:03:58.210 --> 00:04:00.729 legal mind actually came from, we have to look 00:04:00.729 --> 00:04:03.810 at his father, William Canfield Marshall. Now, 00:04:03.849 --> 00:04:06.210 William wasn't a lawyer. He was a waiter. He 00:04:06.210 --> 00:04:08.469 worked on railroad dining cars and at a whites 00:04:08.469 --> 00:04:11.229 only country club. So a working class guy. A 00:04:11.229 --> 00:04:13.870 working class guy. But the source material describes 00:04:13.870 --> 00:04:17.230 him as a man who was absolutely obsessed with 00:04:17.230 --> 00:04:20.490 the law. In what way? Like, did he read law books 00:04:20.490 --> 00:04:23.899 for fun? He lived it. On his days off, William 00:04:23.899 --> 00:04:26.779 would take young Thurgood down to the local courthouse 00:04:26.779 --> 00:04:29.100 in Baltimore. They wouldn't go to the park. They'd 00:04:29.100 --> 00:04:31.639 go to criminal trials. They'd sit in the colored 00:04:31.639 --> 00:04:33.800 section of the gallery and just watch the proceedings, 00:04:34.019 --> 00:04:35.819 the arguments, the evidence, the objections. 00:04:36.259 --> 00:04:38.540 That is a unique father -son bonding activity. 00:04:38.660 --> 00:04:40.639 I'll give him that. It certainly beats fishing 00:04:40.639 --> 00:04:42.959 for some people. Right. But the real training, 00:04:43.079 --> 00:04:44.720 the real training happened afterwards. They'd 00:04:44.720 --> 00:04:46.560 go home to the dinner table, and that's where 00:04:46.560 --> 00:04:48.720 the cross -examination began. The dinner table 00:04:48.720 --> 00:04:51.750 became the courtroom. Precisely. William Marshall 00:04:51.750 --> 00:04:54.629 would challenge everything Thurgood said. If 00:04:54.629 --> 00:04:57.009 Thurgood made a claim, any claim, his father 00:04:57.009 --> 00:04:59.910 would demand evidence. Marshall later said that 00:04:59.910 --> 00:05:02.129 his father never told me to become a lawyer, 00:05:02.189 --> 00:05:05.430 but he turned me into one. Wow. There's a great 00:05:05.430 --> 00:05:07.050 quote where Marshall says his father made him 00:05:07.050 --> 00:05:09.589 prove every statement, even if we were discussing 00:05:09.589 --> 00:05:12.170 the weather. So you couldn't just say, it's raining. 00:05:12.370 --> 00:05:15.209 You had to, I submit into evidence the water 00:05:15.209 --> 00:05:17.610 falling from the sky. You had to build a case. 00:05:18.079 --> 00:05:21.399 The pavement is wet. The sky is gray. There is 00:05:21.399 --> 00:05:24.399 precipitation on the window. It taught him that 00:05:24.399 --> 00:05:27.240 assertion is nothing without backing. It honed 00:05:27.240 --> 00:05:29.439 that sharp argumentative edge that would define 00:05:29.439 --> 00:05:32.220 his career. He wasn't learning to be loud. He 00:05:32.220 --> 00:05:34.560 was learning to be precise. Okay, so he takes 00:05:34.560 --> 00:05:36.680 this sharp mind to college. He goes to Lincoln 00:05:36.680 --> 00:05:39.500 University in Pennsylvania. The oldest HBCU in 00:05:39.500 --> 00:05:41.360 the country. This was, I mean, this was the Oxford 00:05:41.360 --> 00:05:43.759 of black America at the time. And was he the 00:05:43.759 --> 00:05:46.839 studious, serious future justice we might imagine? 00:05:47.019 --> 00:05:50.139 Oh, not even close. The profile describes him 00:05:50.139 --> 00:05:54.329 as mischievous. energetic and boisterous he was 00:05:54.329 --> 00:05:56.649 the guy playing pinochle in the dorms until all 00:05:56.649 --> 00:05:59.490 hours he was the guy pulling pranks i read he 00:05:59.490 --> 00:06:02.269 actually got suspended he did he got suspended 00:06:02.269 --> 00:06:04.470 for two weeks for a hazing incident involving 00:06:04.470 --> 00:06:06.990 freshmen so you know he was participating in 00:06:06.990 --> 00:06:10.170 the rough and tumble of college life he was no 00:06:10.170 --> 00:06:12.740 saint But he was clearly brilliant at the same 00:06:12.740 --> 00:06:15.120 time. Oh, absolutely. He was on the debate team 00:06:15.120 --> 00:06:17.420 and they were just crushing opponents. And look 00:06:17.420 --> 00:06:19.699 at the company he was keeping. His classmate 00:06:19.699 --> 00:06:22.000 at Lincoln was Langston Hughes, the legendary 00:06:22.000 --> 00:06:24.420 poet. It's wild to think of them in the same 00:06:24.420 --> 00:06:26.660 dorm, just two college kids who would go on to 00:06:26.660 --> 00:06:28.620 define the 20th century in completely different 00:06:28.620 --> 00:06:30.959 ways. It really was a crucible of talent. But 00:06:30.959 --> 00:06:32.839 there's a turning point coming. He graduates 00:06:32.839 --> 00:06:36.339 with honors in 1930. He decides, OK. The law 00:06:36.339 --> 00:06:39.000 is my path. He's from Baltimore. His father pays 00:06:39.000 --> 00:06:42.339 taxes in Maryland. So logically, he applies to 00:06:42.339 --> 00:06:44.360 the University of Maryland Law School. And this 00:06:44.360 --> 00:06:46.819 is the inciting incident of the movie right here. 00:06:46.980 --> 00:06:50.319 It is. He applies and he's rejected. Not because 00:06:50.319 --> 00:06:52.339 his grades weren't good enough. They were excellent. 00:06:52.540 --> 00:06:55.060 Not because he wasn't a resident. He was rejected 00:06:55.060 --> 00:06:58.800 solely and explicitly because he was black. The 00:06:58.800 --> 00:07:01.439 University of Maryland did not admit African 00:07:01.439 --> 00:07:04.300 -Americans, period. We hear about segregation 00:07:04.300 --> 00:07:06.860 so much that. Sometimes I think we can become 00:07:06.860 --> 00:07:09.259 desensitized to it. But for him, this had to 00:07:09.259 --> 00:07:11.540 be so personal. This wasn't a history book. This 00:07:11.540 --> 00:07:14.560 was his life. It was a direct slap in the face. 00:07:14.819 --> 00:07:17.199 He later talked about how much that burned. Here 00:07:17.199 --> 00:07:19.800 was a state institution funded by the taxes his 00:07:19.800 --> 00:07:22.160 father worked hard to pay as a waiter. And they 00:07:22.160 --> 00:07:24.180 were telling him, you are not good enough to 00:07:24.180 --> 00:07:26.800 walk through these doors. So he couldn't go to 00:07:26.800 --> 00:07:28.879 Maryland. Where did he end up going? He went 00:07:28.879 --> 00:07:31.040 to Howard University School of Law in Washington, 00:07:31.220 --> 00:07:34.069 D .C. And honestly, looking back, getting rejected 00:07:34.069 --> 00:07:35.910 by Marilyn might have been the best thing that 00:07:35.910 --> 00:07:37.569 ever happened to him and, you know, to the country. 00:07:37.689 --> 00:07:39.370 Why do you say that? Was Howard a better school 00:07:39.370 --> 00:07:42.089 at the time? It wasn't just about prestige. It 00:07:42.089 --> 00:07:45.250 was about leadership. At Howard, the dean was 00:07:45.250 --> 00:07:48.370 a man named Charles Hamilton Houston. And if 00:07:48.370 --> 00:07:50.910 Marshall is the hero of our story, Houston is 00:07:50.910 --> 00:07:53.449 the mentor. He's the Yoda. OK, so tell us about 00:07:53.449 --> 00:07:55.930 Houston. Charles Hamilton Houston was a visionary. 00:07:56.230 --> 00:07:58.269 He wasn't just running a law school to churn 00:07:58.269 --> 00:08:00.490 out people who could write wills or handle divorces. 00:08:00.829 --> 00:08:03.829 He viewed the law as a weapon. He taught his 00:08:03.829 --> 00:08:05.730 students that they were not just lawyers. They 00:08:05.730 --> 00:08:09.250 were social engineers. Social engineers. That's 00:08:09.250 --> 00:08:12.250 a very specific, almost mechanical term. What 00:08:12.250 --> 00:08:14.610 did he mean by that? He meant that the law isn't 00:08:14.610 --> 00:08:17.050 static. It's a machine. And if you understand 00:08:17.050 --> 00:08:19.149 how the machine works better than the operators. 00:08:19.769 --> 00:08:22.329 You can re -engineer it. You can use the Constitution, 00:08:22.709 --> 00:08:25.649 the statutes, the precedents to construct a better, 00:08:25.750 --> 00:08:28.250 fairer society. So it's an active process. Very 00:08:28.250 --> 00:08:31.149 active. But he warned them. Because they were 00:08:31.149 --> 00:08:33.190 black lawyers, the system would be looking for 00:08:33.190 --> 00:08:36.429 any excuse, any tiny mistake to dismiss them. 00:08:36.529 --> 00:08:38.649 So they had to be perfect. They had to be better 00:08:38.649 --> 00:08:41.860 than perfect. Houston was notoriously strict. 00:08:42.279 --> 00:08:45.139 He drilled them on procedure, on evidence, on 00:08:45.139 --> 00:08:48.080 the tiniest details. He told them, a lawyer's 00:08:48.080 --> 00:08:50.600 either a social engineer or he's a parasite on 00:08:50.600 --> 00:08:53.559 society. There was no middle ground. You were 00:08:53.559 --> 00:08:56.019 there to change the world. And Marshall thrived 00:08:56.019 --> 00:08:58.240 in this kind of environment. He absorbed it into 00:08:58.240 --> 00:09:01.360 his DNA. He graduated first in his class in 1933. 00:09:01.940 --> 00:09:04.519 And he came out of Howard not just with a degree, 00:09:04.679 --> 00:09:07.549 but with a mission. He returns to Baltimore to 00:09:07.549 --> 00:09:09.590 start his own practice. And this is where the 00:09:09.590 --> 00:09:12.429 story gets really cinematic. Yeah. Because he 00:09:12.429 --> 00:09:14.529 doesn't wait very long to sell that score with 00:09:14.529 --> 00:09:16.409 the University of Maryland. No, he does not. 00:09:16.470 --> 00:09:18.710 He opens his practice and he's struggling a bit 00:09:18.710 --> 00:09:21.009 financially because he's taking so many cases 00:09:21.009 --> 00:09:23.169 for poor people in the community, often for free. 00:09:23.370 --> 00:09:26.429 But then in 1935, a young man walks into his 00:09:26.429 --> 00:09:29.350 office named Donald Gaines Murray. And what does 00:09:29.350 --> 00:09:31.690 Donald want? Donald wants to go to law school. 00:09:32.350 --> 00:09:34.450 specifically the University of Maryland Law School. 00:09:34.649 --> 00:09:37.169 And just like Marshall five years earlier, he 00:09:37.169 --> 00:09:39.450 has been rejected because of his race. I can 00:09:39.450 --> 00:09:41.429 only imagine the look on Thurgood Marshall's 00:09:41.429 --> 00:09:43.330 face when he heard that. It must have been electric. 00:09:43.970 --> 00:09:46.409 Marshall takes the case. He teams up with his 00:09:46.409 --> 00:09:49.889 mentor, Charles Houston, and they sue the University 00:09:49.889 --> 00:09:52.570 of Maryland. This is the case, Murray v. Pearson. 00:09:52.809 --> 00:09:54.950 Now, they didn't argue segregation is wrong, 00:09:55.070 --> 00:09:56.990 did they? That wasn't the strategy yet. No, and 00:09:56.990 --> 00:09:59.490 this is so crucial to understanding Marshall's 00:09:59.490 --> 00:10:01.690 genius. If they had walked in and said segregation 00:10:01.690 --> 00:10:05.169 is unconstitutional, they would have lost. The 00:10:05.169 --> 00:10:07.470 Supreme Court precedent was Plessy v. Ferguson 00:10:07.470 --> 00:10:11.529 from 1896, which said, separate but equal is 00:10:11.529 --> 00:10:14.299 the law of the land. How did they win? They used 00:10:14.299 --> 00:10:16.580 the social engineer approach. They used the system's 00:10:16.580 --> 00:10:18.460 own logic against it. They said, OK, Maryland, 00:10:18.639 --> 00:10:21.519 you say separate but equal. Fine. We accept your 00:10:21.519 --> 00:10:23.559 premise for the sake of argument. Where is the 00:10:23.559 --> 00:10:25.960 equal school for Mr. Murray? And Maryland didn't 00:10:25.960 --> 00:10:28.460 have one. Exactly. There was no black law school 00:10:28.460 --> 00:10:31.559 in Maryland, not one. So Marshall argued, since 00:10:31.559 --> 00:10:33.820 you haven't provided a separate school, you must 00:10:33.820 --> 00:10:36.559 admit him to the white one to fulfill the equal 00:10:36.559 --> 00:10:39.519 part of your own law. That's a trap. It's a perfect 00:10:39.519 --> 00:10:42.940 legal trap. It is. And the judge, Eugenio Dunn, 00:10:42.940 --> 00:10:45.960 agreed. He ordered the university to admit Murray. 00:10:46.220 --> 00:10:48.559 Marshall must have felt incredible vindication. 00:10:48.799 --> 00:10:50.919 Oh, he did. He didn't hide it either. He famously 00:10:50.919 --> 00:10:53.360 said later that he filed that suit to get even 00:10:53.360 --> 00:10:55.519 with the bastards. I appreciate the honesty. 00:10:55.759 --> 00:10:58.240 It wasn't just high -minded ideals. It was personal. 00:10:58.659 --> 00:11:01.120 It drives home that these weren't abstract battles 00:11:01.120 --> 00:11:04.480 for him. But this case, this Murray case, it 00:11:04.480 --> 00:11:07.500 became the blueprint for the entire NAACP strategy 00:11:07.500 --> 00:11:10.129 moving forward. And this leads us into what the 00:11:10.129 --> 00:11:13.710 outline calls the strategic shift. Marshall joins 00:11:13.710 --> 00:11:16.990 the NAACP national staff in New York. He becomes 00:11:16.990 --> 00:11:19.289 the special counsel. And they start this long 00:11:19.289 --> 00:11:21.929 campaign across the country. Right. They realize 00:11:21.929 --> 00:11:23.870 that they couldn't attack Plessy v. Ferguson 00:11:23.870 --> 00:11:26.370 head on yet. The country wasn't ready. The court 00:11:26.370 --> 00:11:28.570 wasn't ready. So they decided to engage in what 00:11:28.570 --> 00:11:31.669 I like to call trench warfare. Explain that. 00:11:31.710 --> 00:11:34.210 What does it mean? They went state by state, 00:11:34.289 --> 00:11:36.870 case by case, forcing states to live up to the 00:11:36.870 --> 00:11:40.299 equal part of. separate but equal. They knew 00:11:40.299 --> 00:11:43.179 that true equality is expensive, really expensive. 00:11:43.559 --> 00:11:45.419 Right. If you have to build two of everything, 00:11:45.580 --> 00:11:47.879 two medical schools, two law schools, your budget 00:11:47.879 --> 00:11:50.879 goes broke pretty fast. Exactly. Take the case, 00:11:50.960 --> 00:11:55.909 Missouri Exrel, Games v. Canada in 1938. It's 00:11:55.909 --> 00:11:58.269 a similar fact pattern. A black student wants 00:11:58.269 --> 00:12:00.210 to go to law school in Missouri. Missouri says, 00:12:00.289 --> 00:12:02.330 well, we don't have a black law school, but hey, 00:12:02.529 --> 00:12:04.389 we'll give you a scholarship to go to a school 00:12:04.389 --> 00:12:07.129 in Illinois or Iowa. So they're basically outsourcing 00:12:07.129 --> 00:12:09.210 their civil rights obligations. That's a perfect 00:12:09.210 --> 00:12:11.149 way to put it. And Marshall argued that wasn't 00:12:11.149 --> 00:12:13.549 good enough. He said the 14th Amendment's Equal 00:12:13.549 --> 00:12:15.830 Protection Clause applies within the jurisdiction. 00:12:16.309 --> 00:12:18.730 If Missouri provides a law school for whites, 00:12:18.889 --> 00:12:21.690 it must provide one for blacks in Missouri. The 00:12:21.690 --> 00:12:24.330 Supreme Court agreed. So now Missouri has a choice. 00:12:25.199 --> 00:12:27.879 integrate the white school or spend millions 00:12:27.879 --> 00:12:30.340 building a brand new black law school, maybe 00:12:30.340 --> 00:12:32.799 for just a handful of students. Precisely. Marshall 00:12:32.799 --> 00:12:35.840 was making the cost of segregation prohibitively 00:12:35.840 --> 00:12:38.200 high. He was tightening the financial vice on 00:12:38.200 --> 00:12:40.240 the South one lawsuit at a time. And he wasn't 00:12:40.240 --> 00:12:42.659 just doing this in education. The notes call 00:12:42.659 --> 00:12:45.179 him Mr. Civil Rights. Yeah. Because he was just 00:12:45.179 --> 00:12:48.740 everywhere. He was the legal defense fund. He 00:12:48.740 --> 00:12:51.330 was arguing about. Voting rights, transportation, 00:12:51.850 --> 00:12:54.929 housing, criminal defense. He was traveling constantly, 00:12:55.090 --> 00:12:57.669 often deep into the South, risking his life. 00:12:57.909 --> 00:13:00.250 I mean, he couldn't stay in white hotels. He 00:13:00.250 --> 00:13:02.789 had to stay in people's homes. There were towns 00:13:02.789 --> 00:13:05.049 where he had to leave before sundown or risk 00:13:05.049 --> 00:13:07.470 being lynched. Let's hit a couple of those other 00:13:07.470 --> 00:13:10.450 key wins because it really shows his range. Smith 00:13:10.450 --> 00:13:14.830 v. Allwright in 1944. A massive, massive victory 00:13:14.830 --> 00:13:17.730 for democracy. This challenged the white primary 00:13:17.730 --> 00:13:20.389 in Texas. The Democratic Party in Texas claimed 00:13:20.389 --> 00:13:22.570 it was a private club so it could exclude black 00:13:22.570 --> 00:13:24.629 people from voting in its primary elections. 00:13:24.870 --> 00:13:27.210 And since the South was effectively a one -party 00:13:27.210 --> 00:13:29.690 state at that time, the primary was the election. 00:13:29.970 --> 00:13:31.870 It was the only election that mattered. If you 00:13:31.870 --> 00:13:33.649 can't vote in the primary, you have no voice. 00:13:33.990 --> 00:13:36.190 So Marshall argued that the primary was part 00:13:36.190 --> 00:13:38.750 of the state's election machinery, so the Constitution 00:13:38.750 --> 00:13:41.769 had to apply. The court agreed and struck it 00:13:41.769 --> 00:13:44.519 down. He effectively re -enfranchised millions 00:13:44.519 --> 00:13:47.100 of voters with that single argument. Just incredible. 00:13:47.279 --> 00:13:49.639 And then there's Shelly B. Kramer in 1948. This 00:13:49.639 --> 00:13:51.799 one is about housing. This is one of the most 00:13:51.799 --> 00:13:54.120 intellectually brilliant arguments he ever made. 00:13:54.340 --> 00:13:56.759 So you had these things called restrictive covenants. 00:13:56.779 --> 00:13:59.360 You'd buy a house and the deed would have a clause 00:13:59.360 --> 00:14:02.320 that says you cannot sell this property to a 00:14:02.320 --> 00:14:05.059 Negro or an Asian or a Jew. And the defense was 00:14:05.059 --> 00:14:07.200 always, hey, this is a private contract between 00:14:07.200 --> 00:14:09.659 two people. The government isn't involved here. 00:14:09.759 --> 00:14:12.019 Right. And the 14th Amendment only stops the 00:14:12.019 --> 00:14:14.179 state from discriminating, not private individuals. 00:14:14.500 --> 00:14:17.700 It seems like a dead end legally. But Marshall 00:14:17.700 --> 00:14:20.940 found the loophole, he argued. Yes, you can sign 00:14:20.940 --> 00:14:23.460 that racist contract. But the moment you go to 00:14:23.460 --> 00:14:26.259 a court and ask a judge to enforce it, to kick 00:14:26.259 --> 00:14:29.059 a black family out of their new home, well, the 00:14:29.059 --> 00:14:31.279 state has entered the chat. Because the court 00:14:31.279 --> 00:14:33.740 is the state. The court is the state. Judicial 00:14:33.740 --> 00:14:36.100 enforcement of a private contract is state action. 00:14:36.279 --> 00:14:39.019 And the state cannot enforce racism. The Supreme 00:14:39.019 --> 00:14:41.879 Court bought it. It completely revolutionized 00:14:41.879 --> 00:14:44.259 property law. It's amazing to see how he finds 00:14:44.259 --> 00:14:46.620 these threads and just pulls them until the whole 00:14:46.620 --> 00:14:49.620 tapestry unravels. But I want to pause on his 00:14:49.620 --> 00:14:51.960 principles for a second, because sometimes people 00:14:51.960 --> 00:14:54.639 think of him as just an advocate for his side. 00:14:55.120 --> 00:14:57.340 But there's a moment during World War II that 00:14:57.340 --> 00:14:59.220 suggests something different. You're talking 00:14:59.220 --> 00:15:01.460 about the Japanese internment. Yeah. Executive 00:15:01.460 --> 00:15:05.480 Order 9066. This is a critical moment for Marshall's 00:15:05.480 --> 00:15:07.500 character, I think. The U .S. government was 00:15:07.500 --> 00:15:09.679 rounding up Japanese Americans and putting them 00:15:09.679 --> 00:15:12.620 in camps. It was popular at the time. I mean, 00:15:12.620 --> 00:15:15.000 even the ACLU board, the supposed guardians of 00:15:15.000 --> 00:15:18.139 civil liberties, was split. They were afraid 00:15:18.139 --> 00:15:20.440 of looking unpatriotic during the war. Marshall 00:15:20.440 --> 00:15:23.620 wasn't split. Marshall was clear as a bell. He 00:15:23.620 --> 00:15:25.820 stood against the majority of the ACLU board. 00:15:26.000 --> 00:15:28.779 He condemned the internment. He saw it for what 00:15:28.779 --> 00:15:31.860 it was, a violation of due process based entirely 00:15:31.860 --> 00:15:34.639 on race. He didn't care that the victims weren't 00:15:34.639 --> 00:15:36.679 black. He cared that the Constitution was being 00:15:36.679 --> 00:15:39.000 shredded. That moral consistency is what brings 00:15:39.000 --> 00:15:41.840 us to the main event, the crown jewel of his 00:15:41.840 --> 00:15:45.200 career, Brown v. Board of Education. This is 00:15:45.200 --> 00:15:47.330 where the strategy shifts. The attrition phase 00:15:47.330 --> 00:15:51.529 is over. By the early 1950s, Marshall and the 00:15:51.529 --> 00:15:54.850 NAACP Legal Defense Fund decide it's time to 00:15:54.850 --> 00:15:57.649 go for the jugular. No more make it equal. The 00:15:57.649 --> 00:16:00.970 new argument is separate is inherently unequal. 00:16:01.129 --> 00:16:03.250 That is a huge pivot. They're not just attacking 00:16:03.250 --> 00:16:05.549 the facilities anymore. They're attacking the 00:16:05.549 --> 00:16:08.470 very psychology of segregation. They are. And 00:16:08.470 --> 00:16:10.529 to do that, Marshall did something that, you 00:16:10.529 --> 00:16:12.169 know, traditional lawyers thought was crazy. 00:16:12.289 --> 00:16:14.429 He brought in sociology. He brought in data. 00:16:14.649 --> 00:16:17.070 The doll test. The famous doll test. Marshall 00:16:17.070 --> 00:16:19.070 worked with psychologists Kenneth and Mamie Clark. 00:16:19.330 --> 00:16:21.889 They went to segregated schools and showed African 00:16:21.889 --> 00:16:24.370 -American children two dolls, one white, one 00:16:24.370 --> 00:16:26.690 black. They were identical in every way except 00:16:26.690 --> 00:16:29.029 for color. And they asked the kids a series of 00:16:29.029 --> 00:16:31.149 questions. Simple questions. Which is the nice 00:16:31.149 --> 00:16:33.330 doll? Which is the bad doll? Which doll would 00:16:33.330 --> 00:16:35.710 you like to play with? And then the killer question. 00:16:36.110 --> 00:16:39.169 Which doll looks like you? The results were devastating. 00:16:39.490 --> 00:16:41.850 They were heartbreaking. I mean, just soul crushing. 00:16:42.289 --> 00:16:44.730 The majority of black children identified the 00:16:44.730 --> 00:16:46.870 white doll as the nice one and the black doll 00:16:46.870 --> 00:16:49.309 as the bad one. And when they had to identify 00:16:49.309 --> 00:16:51.809 the doll that looked like them, admitting that 00:16:51.809 --> 00:16:54.480 they were the bad one. Some of the children would 00:16:54.480 --> 00:16:56.720 just break down crying. And Marshall took this 00:16:56.720 --> 00:16:58.899 into the Supreme Court. He made this part of 00:16:58.899 --> 00:17:01.340 his legal argument. He put it right into the 00:17:01.340 --> 00:17:03.840 record. He argued that segregation wasn't just 00:17:03.840 --> 00:17:06.839 separating bodies. It was destroying minds. It 00:17:06.839 --> 00:17:10.220 was creating a sense of inferiority that, in 00:17:10.220 --> 00:17:13.079 the words of the final decision, may affect their 00:17:13.079 --> 00:17:15.599 hearts and minds in a way unlikely ever to be 00:17:15.599 --> 00:17:17.859 undone. So let's set the scene for the argument 00:17:17.859 --> 00:17:22.240 itself. It's 1953. Marshall is up against a giant 00:17:22.240 --> 00:17:25.380 of the legal world. John W. Davis. Yeah. He was 00:17:25.380 --> 00:17:27.380 the ultimate establishment lawyer. I mean, he'd 00:17:27.380 --> 00:17:29.460 been solicitor general. He had run for president 00:17:29.460 --> 00:17:32.940 in 1924. He was polished. He used flowery rhetoric. 00:17:33.019 --> 00:17:35.559 He cited Latin. He was the past. And Marshall. 00:17:35.740 --> 00:17:38.319 Marshall was the future. He didn't try to out 00:17:38.319 --> 00:17:41.400 fancy Davis. He spoke plainly. He was conversational. 00:17:41.619 --> 00:17:44.900 He forced the justices to look past the legal 00:17:44.900 --> 00:17:47.539 theories and see the children. There's a core 00:17:47.539 --> 00:17:49.910 argument he made that I think is. most powerful 00:17:49.910 --> 00:17:52.970 thing he ever said. What was that? He asked the 00:17:52.970 --> 00:17:55.349 court, essentially, what is the goal of segregation? 00:17:55.769 --> 00:17:57.970 He said the only valid reason for segregation 00:17:57.970 --> 00:18:00.930 is to keep the people who were formerly in slavery 00:18:00.930 --> 00:18:03.269 as near to that stage as possible. He called 00:18:03.269 --> 00:18:05.289 it out. No states' rights, no tradition, just 00:18:05.289 --> 00:18:07.349 straight up racism. He stripped all the varnish 00:18:07.349 --> 00:18:10.930 off. And on May 17th, 1954, the court agreed. 00:18:11.569 --> 00:18:14.970 Unanimous. 9 -0. Chief Justice Earl Warren wrote, 00:18:15.190 --> 00:18:17.710 separate educational facilities are inherently 00:18:17.710 --> 00:18:20.460 unequal. Marshall's reaction was pretty human 00:18:20.460 --> 00:18:22.460 from what I read. Yeah, he said, I was so happy 00:18:22.460 --> 00:18:24.880 I was numb. But, and there's always a but in 00:18:24.880 --> 00:18:26.900 history, isn't there? The victory wasn't total. 00:18:27.079 --> 00:18:29.299 No. The court ruled on the principle, but they 00:18:29.299 --> 00:18:32.160 delayed the implementation. A year later, in 00:18:32.160 --> 00:18:34.440 what's called Brown II, the court had to decide 00:18:34.440 --> 00:18:37.599 how to desegregate. Marshall wanted a hard deadline. 00:18:37.700 --> 00:18:40.740 He said, do it by September 1956. And the court 00:18:40.740 --> 00:18:43.630 said. They used this infamous phrase. With all 00:18:43.630 --> 00:18:46.529 deliberate speed. Which sounds nice, but it's 00:18:46.529 --> 00:18:48.549 basically a permission slip to stall for as long 00:18:48.549 --> 00:18:51.450 as you want. Exactly. In the South, deliberate 00:18:51.450 --> 00:18:54.190 speed meant never. It triggered what they called 00:18:54.190 --> 00:18:57.450 massive resistance. Marshall spent the next decade 00:18:57.450 --> 00:18:59.990 fighting cases just to get states to obey the 00:18:59.990 --> 00:19:02.589 Supreme Court's own order. He had to go back 00:19:02.589 --> 00:19:05.890 for Cooper v. Aaron in 1958 just to get Little 00:19:05.890 --> 00:19:08.349 Rock, Arkansas to stop blocking black kids from 00:19:08.349 --> 00:19:11.150 entering high school. So he wins the war of principle. 00:19:11.759 --> 00:19:14.819 But the occupation is messy and long. It was 00:19:14.819 --> 00:19:18.299 a grind. But by 1960, Sir Good Marshal is the 00:19:18.299 --> 00:19:20.759 most famous, most successful lawyer in the country. 00:19:20.980 --> 00:19:22.940 And the government decides it's time to bring 00:19:22.940 --> 00:19:25.099 him inside the tent. This starts his ascent to 00:19:25.099 --> 00:19:27.940 the bench. JFK appoints him to the Second Circuit 00:19:27.940 --> 00:19:31.480 Court of Appeals in 1961. Which was a bold move. 00:19:31.740 --> 00:19:34.140 The Second Circuit sits in New York. It handles 00:19:34.140 --> 00:19:36.420 huge commercial cases. It's considered the second 00:19:36.420 --> 00:19:38.519 most important court in the land. But getting 00:19:38.519 --> 00:19:40.980 him concerned... That was a battle. Southern 00:19:40.980 --> 00:19:43.759 senators again. Of course. They were not going 00:19:43.759 --> 00:19:45.819 to let Mr. Civil Rights become a federal judge 00:19:45.819 --> 00:19:48.000 without a fight. They delayed his confirmation 00:19:48.000 --> 00:19:51.039 for over eight months. They held hearings on 00:19:51.039 --> 00:19:54.279 ridiculous marginal issues, just trying to slow 00:19:54.279 --> 00:19:57.400 walk it. But he eventually got through. And how 00:19:57.400 --> 00:20:00.180 did he do as a judge? Because being an advocate. 00:20:00.700 --> 00:20:02.960 And being a judge are really different skill 00:20:02.960 --> 00:20:05.920 sets. He was excellent. He wrote 98 majority 00:20:05.920 --> 00:20:08.200 opinions during his time on the Second Circuit. 00:20:08.339 --> 00:20:11.220 And here's the kicker. Not a single one of them 00:20:11.220 --> 00:20:14.039 was reversed by the Supreme Court. Wow. That 00:20:14.039 --> 00:20:16.700 is a badge of honor for a circuit judge. It proved 00:20:16.700 --> 00:20:18.960 he wasn't just a radical. He was a craftsman. 00:20:19.019 --> 00:20:21.740 He knew the law inside and out. But he doesn't 00:20:21.740 --> 00:20:25.710 stay there. 1965, LBJ comes calling. Lyndon Johnson. 00:20:25.950 --> 00:20:28.450 He persuades Marshall to step down from the lifetime 00:20:28.450 --> 00:20:31.349 judgeship to become the solicitor general. Now, 00:20:31.369 --> 00:20:33.269 for listeners who might not track the org chart 00:20:33.269 --> 00:20:36.009 of the DOJ, what exactly is the solicitor general? 00:20:36.250 --> 00:20:38.890 It's often called the 10th justice. The solicitor 00:20:38.890 --> 00:20:41.190 general is the government's top lawyer. If the 00:20:41.190 --> 00:20:43.470 United States is a party in a Supreme Court case, 00:20:43.630 --> 00:20:46.329 the SG or their office argues it. And Marshall 00:20:46.329 --> 00:20:49.240 took the job. He called it the best job I ever 00:20:49.240 --> 00:20:51.680 had. I mean, think about the symbolism. He spent 00:20:51.680 --> 00:20:54.859 30 years fighting the government. Now he is the 00:20:54.859 --> 00:20:56.779 government. He's wearing the striped pants and 00:20:56.779 --> 00:20:59.220 the morning coat. He's up there arguing to defend 00:20:59.220 --> 00:21:01.859 the Voting Rights Act in South Carolina v. Katzenbach. 00:21:02.140 --> 00:21:05.359 He won 14 of the 19 cases he argued for the government. 00:21:05.579 --> 00:21:08.259 We all know LBJ had a bigger plan in mind. Oh, 00:21:08.319 --> 00:21:11.960 absolutely. LBJ wanted to make history. He wanted 00:21:11.960 --> 00:21:14.140 to appoint the first African -American Supreme 00:21:14.140 --> 00:21:16.720 Court justice. But there was a problem. There 00:21:16.720 --> 00:21:19.259 were no vacancies. The court was full. So how 00:21:19.259 --> 00:21:21.559 do you solve a problem like a full Supreme Court? 00:21:21.819 --> 00:21:25.019 With a little bit of Machiavellian maneuvering. 00:21:25.019 --> 00:21:29.059 This is a classic LBJ story. In 1967, LBJ appoints 00:21:29.059 --> 00:21:31.099 Ramsey Clark to be the attorney general. Okay, 00:21:31.160 --> 00:21:33.339 Ramsey Clark. Why does that matter? Because Ramsey 00:21:33.339 --> 00:21:35.950 Clark's father was Tom Clark. And Tom Clark was 00:21:35.950 --> 00:21:38.130 a sitting justice on the Supreme Court. Oh, I 00:21:38.130 --> 00:21:40.369 see where this is going. A massive conflict of 00:21:40.369 --> 00:21:42.849 interest. Huge. You can't have the son appearing 00:21:42.849 --> 00:21:45.329 as the chief prosecutor before the father on 00:21:45.329 --> 00:21:48.549 the bench. So Justice Tom Clark felt obligated 00:21:48.549 --> 00:21:51.569 to retire to let his son have the job. LBJ forced 00:21:51.569 --> 00:21:54.750 a vacancy. He cleared the seat and then he nominated 00:21:54.750 --> 00:21:57.970 Thurgood Marshall. LBJ announced it saying, it 00:21:57.970 --> 00:22:00.269 is the right thing to do, the right time to do 00:22:00.269 --> 00:22:03.109 it, the right man and the right place. But the 00:22:03.109 --> 00:22:06.390 confirmation hearings. They were not a coronation. 00:22:06.529 --> 00:22:10.289 No, they were hazing. The Southern segregationists, 00:22:10.329 --> 00:22:12.690 led by Strom Thurmond of South Carolina, decided 00:22:12.690 --> 00:22:14.769 they were going to try and humiliate him. I read 00:22:14.769 --> 00:22:16.569 about the quiz they gave him. It's just unbelievable. 00:22:16.650 --> 00:22:18.789 It was absurd. Strom Thurmond started asking 00:22:18.789 --> 00:22:22.190 him incredibly obscure questions about constitutional 00:22:22.190 --> 00:22:25.690 history. Things like... Who were the members 00:22:25.690 --> 00:22:28.190 of the Committee on Style at the Constitutional 00:22:28.190 --> 00:22:31.490 Convention? Or asking about the, you know, intricacies 00:22:31.490 --> 00:22:34.509 of the 13th Amendment debates in the 1860s. Your 00:22:34.509 --> 00:22:36.529 questions that I guarantee you Strom Thurmond 00:22:36.529 --> 00:22:38.609 couldn't answer without a cheat sheet. Questions 00:22:38.609 --> 00:22:40.829 nobody could answer off the cuff. It was a high 00:22:40.829 --> 00:22:43.230 -level version of the literacy tests they used 00:22:43.230 --> 00:22:45.130 to stop black people from voting in the South. 00:22:45.309 --> 00:22:46.950 They were trying to make him look unqualified. 00:22:47.170 --> 00:22:49.710 But Marshall just sat there. He was calm. He 00:22:49.710 --> 00:22:52.170 refused to take the bait. And he won. Confirmed. 00:22:52.170 --> 00:22:56.900 69 to 11. On October 2nd, 1967, he took the oath. 00:22:57.079 --> 00:22:58.960 So now we are in the final act of his career. 00:22:59.799 --> 00:23:02.059 Justice Marshall. He joins the Warren Court. 00:23:02.420 --> 00:23:05.539 And at first, this is a pretty friendly environment 00:23:05.539 --> 00:23:08.519 for him, ideologically speaking. It's the heyday 00:23:08.519 --> 00:23:11.200 of liberalism. He aligns instantly with Justice 00:23:11.200 --> 00:23:13.680 William Brennan. They became best friends and 00:23:13.680 --> 00:23:16.619 ideological twins. The clerks used to call them 00:23:16.619 --> 00:23:18.640 Justice Brennan Marshall as one word because 00:23:18.640 --> 00:23:21.039 they voted together so often. But the political 00:23:21.039 --> 00:23:24.549 winds shift. Nixon gets elected, then Reagan. 00:23:25.029 --> 00:23:27.690 The court moves sharply to the right. And this 00:23:27.690 --> 00:23:29.089 is where we see that transformation we talked 00:23:29.089 --> 00:23:30.829 about at the beginning. Marshall goes from being 00:23:30.829 --> 00:23:33.750 the engineer of the majority to the great dissenter. 00:23:34.230 --> 00:23:37.329 He is fighting to hold the line against a conservative 00:23:37.329 --> 00:23:39.650 tide. I want to dig into his legal philosophy 00:23:39.650 --> 00:23:42.690 a bit because it wasn't just be liberal. He had 00:23:42.690 --> 00:23:45.670 a specific view on how a law should work, especially 00:23:45.670 --> 00:23:48.630 regarding equal protection. The notes mentioned 00:23:48.630 --> 00:23:51.579 a sliding scale. Yes. This is his big contribution 00:23:51.579 --> 00:23:54.579 to legal theory, and it's really important. So 00:23:54.579 --> 00:23:57.259 traditionally, the court uses these rigid tiers 00:23:57.259 --> 00:24:00.359 to decide discrimination cases. Can you explain 00:24:00.359 --> 00:24:03.440 the tiers for us? Sure. If a law discriminates 00:24:03.440 --> 00:24:06.319 based on race, it gets strict scrutiny, which 00:24:06.319 --> 00:24:08.440 means the court looks at it with a microscope 00:24:08.440 --> 00:24:11.640 and the law usually dies. But if a law discriminates 00:24:11.640 --> 00:24:14.079 based on something else, like... wealth or age, 00:24:14.259 --> 00:24:17.359 it gets rational basis, which means the court 00:24:17.359 --> 00:24:20.099 barely glances at it and the law usually survives. 00:24:20.339 --> 00:24:22.440 And Marshall didn't like these neat little boxes. 00:24:22.700 --> 00:24:25.079 He hated them. He thought they were too abstract 00:24:25.079 --> 00:24:28.380 to remove from real life. He proposed a sliding 00:24:28.380 --> 00:24:30.380 scale. He said, don't just look at the category, 00:24:30.519 --> 00:24:33.359 look at the impact. You should balance the importance 00:24:33.359 --> 00:24:35.599 of the right being taken away from an individual 00:24:35.599 --> 00:24:38.319 against the state's interest in its law. Can 00:24:38.319 --> 00:24:39.980 you give us an example where this really mattered? 00:24:40.430 --> 00:24:43.029 The best example is his descent in San Antonio 00:24:43.029 --> 00:24:44.869 Independent School District, Villa Rodriguez, 00:24:45.190 --> 00:24:48.789 in 1973. This case is crucial. It was about school 00:24:48.789 --> 00:24:51.369 funding. In Texas, like in most of the country, 00:24:51.470 --> 00:24:53.509 schools were funded by local property taxes. 00:24:53.789 --> 00:24:55.630 Which means rich neighborhoods have rich schools 00:24:55.630 --> 00:24:58.730 and poor neighborhoods have poor schools. Exactly. 00:24:58.950 --> 00:25:02.130 The disparity was massive. A group of parents 00:25:02.130 --> 00:25:05.029 sued, saying this system violated equal protection. 00:25:05.329 --> 00:25:07.710 But the majority of the Supreme Court said, no, 00:25:07.910 --> 00:25:11.109 wealth isn't a suspect class like race is. And 00:25:11.109 --> 00:25:14.170 the Constitution doesn't explicitly say you have 00:25:14.170 --> 00:25:17.329 a right to an education. So under our rigid tears, 00:25:17.710 --> 00:25:20.430 the system is fine. And Marshall's dissent? He 00:25:20.430 --> 00:25:23.650 was furious. It's one of his most powerful dissents. 00:25:23.789 --> 00:25:27.109 He argued that you cannot treat education like 00:25:27.109 --> 00:25:29.599 it's some luxury good. He said that while the 00:25:29.599 --> 00:25:32.420 Constitution doesn't spell out education, education 00:25:32.420 --> 00:25:35.279 is necessary to exercise your other rights like 00:25:35.279 --> 00:25:37.880 free speech and voting. He argued that by denying 00:25:37.880 --> 00:25:40.619 poor kids a good education, the state was permanently 00:25:40.619 --> 00:25:43.119 locking them into an underclass. He wanted the 00:25:43.119 --> 00:25:45.319 court to look at the reality of those kids' lives, 00:25:45.400 --> 00:25:47.420 not just the legal formalism. It seems like that's 00:25:47.420 --> 00:25:48.880 the thread running through his whole career. 00:25:48.980 --> 00:25:51.740 Look at the reality on the ground. Always. He 00:25:51.740 --> 00:25:53.779 brought the real world into the ivory tower, 00:25:53.920 --> 00:25:56.119 sometimes kicking and screaming. We also have 00:25:56.119 --> 00:25:58.349 to talk about the death penalty. For Marshall, 00:25:58.490 --> 00:26:00.549 this wasn't just a legal issue. It was a moral 00:26:00.549 --> 00:26:04.009 absolute. It was. And you have to remember, Marshall 00:26:04.009 --> 00:26:06.490 was the only justice on that court who had actually 00:26:06.490 --> 00:26:09.569 represented men on trial for their lives. He 00:26:09.569 --> 00:26:11.849 had stood next to innocent black men in the South 00:26:11.849 --> 00:26:14.190 who were being framed for murder. He knew the 00:26:14.190 --> 00:26:16.490 system could get it wrong. He knew it was racist. 00:26:16.690 --> 00:26:19.539 So he opposed it. In all cases. In all cases. 00:26:19.700 --> 00:26:22.119 He believed it was a violation of the Eighth 00:26:22.119 --> 00:26:24.700 Amendment's ban on cruel and unusual punishment. 00:26:24.920 --> 00:26:28.839 He famously said, death is so lasting. It's a 00:26:28.839 --> 00:26:31.359 haunting phrase, isn't it? It is. After the Supreme 00:26:31.359 --> 00:26:35.000 Court reinstated the death penalty in 1976, in 00:26:35.000 --> 00:26:37.859 a case called Greg v. Georgia Marshall and Brennan, 00:26:37.980 --> 00:26:41.460 adopted a policy of persistent dissent. Every 00:26:41.460 --> 00:26:43.480 single time a death penalty appeal came to the 00:26:43.480 --> 00:26:45.839 court and was denied, they would file a dissent. 00:26:45.839 --> 00:26:48.950 I dissent. I dissent. They did this over 1 ,400 00:26:48.950 --> 00:26:52.589 times. 1 ,300 times. That is incredible stamina. 00:26:52.829 --> 00:26:55.049 It was a form of witnessing. He called the death 00:26:55.049 --> 00:26:58.150 penalty vestigial savagery. He refused to let 00:26:58.150 --> 00:27:00.170 the court kill people without him pointing out 00:27:00.170 --> 00:27:02.250 the barbarity of it every single time. He was 00:27:02.250 --> 00:27:04.650 also a strong defender of privacy and the First 00:27:04.650 --> 00:27:07.690 Amendment. Very. He wrote the opinion in Stanley 00:27:07.690 --> 00:27:11.509 v. Georgia in 1969. Police had raided a guy's 00:27:11.509 --> 00:27:14.269 house for bookmaking and found pornographic films 00:27:14.269 --> 00:27:16.869 instead. Marshall threw out the conviction. He 00:27:16.869 --> 00:27:19.329 wrote, if the First Amendment means anything, 00:27:19.569 --> 00:27:21.910 it means that a state has no business telling 00:27:21.910 --> 00:27:24.549 a man sitting alone in his own house what books 00:27:24.549 --> 00:27:26.690 he may read or what films he may watch. Basically, 00:27:26.750 --> 00:27:28.809 get the government out of my living room. Exactly. 00:27:29.470 --> 00:27:31.730 He also supported the right to burn the American 00:27:31.730 --> 00:27:35.029 flag in protest in Texas v. Johnson. He argued 00:27:35.029 --> 00:27:37.349 that the flag is a symbol and its strength comes 00:27:37.349 --> 00:27:38.990 from the fact that it can withstand criticism. 00:27:39.869 --> 00:27:42.950 So we had this image of the fierce legal mind, 00:27:43.049 --> 00:27:46.109 the great dissenter. But what was he like to 00:27:46.109 --> 00:27:47.609 work with? What was he like in the hallways? 00:27:47.789 --> 00:27:50.490 By all accounts, he was a character, a real storyteller. 00:27:50.609 --> 00:27:52.630 Justice Sandra Day O 'Connor wrote about this. 00:27:52.789 --> 00:27:54.750 She said that in the private conferences where 00:27:54.750 --> 00:27:57.490 the justices discuss cases, it can get very dry 00:27:57.490 --> 00:27:59.829 and academic. But Marshall would interrupt with 00:27:59.829 --> 00:28:02.609 stories. Stories about what? About his days on 00:28:02.609 --> 00:28:06.549 the road for the NAACP. About facing down lynch 00:28:06.549 --> 00:28:09.289 mobs in Mississippi. about dealing with corrupt 00:28:09.289 --> 00:28:12.369 sheriffs in Tennessee. At first, O 'Connor thought 00:28:12.369 --> 00:28:14.549 he was just being a raw contour, just, you know, 00:28:14.549 --> 00:28:16.769 wasting time. But then she realized he was doing 00:28:16.769 --> 00:28:18.829 it on purpose. He was educating them. He was 00:28:18.829 --> 00:28:20.910 forcing them to see the people behind the law. 00:28:21.009 --> 00:28:23.609 Every story had a legal hook. He was reminding 00:28:23.609 --> 00:28:25.809 these other justices, who mostly came from privileged 00:28:25.809 --> 00:28:29.089 backgrounds, that the law affects real vulnerable 00:28:29.089 --> 00:28:31.990 people in profound ways. There was a negative 00:28:31.990 --> 00:28:34.190 rumor that dogged him later in life, though. 00:28:34.369 --> 00:28:36.609 The source mentions critics calling him lazy 00:28:36.609 --> 00:28:38.549 or saying he just watched soap operas all day. 00:28:38.710 --> 00:28:40.940 Yeah, that was a nasty narrative. that developed 00:28:40.940 --> 00:28:43.019 in the 80s as the court became more conservative, 00:28:43.299 --> 00:28:45.440 people claimed he was disengaged and let his 00:28:45.440 --> 00:28:47.460 clerks do all the writing while he watched TV 00:28:47.460 --> 00:28:49.819 in his chambers. Is there any truth to it at 00:28:49.819 --> 00:28:52.819 all? His clerks say absolutely not. Former clerks 00:28:52.819 --> 00:28:55.299 like Mark Tushnet, who is a huge legal scholar 00:28:55.299 --> 00:28:58.019 now, have called that idea wrong and perhaps 00:28:58.019 --> 00:29:01.400 racist. Look, Marshall was old. He was tired. 00:29:01.519 --> 00:29:04.220 His health was failing. And yes, he delegated 00:29:04.220 --> 00:29:06.579 the drafting of opinions to his clerks. Which 00:29:06.579 --> 00:29:08.940 every justice does. Every single one. That's 00:29:08.940 --> 00:29:11.920 the system. But the clerks confirm. Marshall 00:29:11.920 --> 00:29:13.740 made the decisions. He told them how to vote 00:29:13.740 --> 00:29:16.519 and why. He edited their drafts. He was the boss. 00:29:16.819 --> 00:29:19.539 And speaking of clerks, he had an amazing eye 00:29:19.539 --> 00:29:22.819 for talent. Current Justice Elena Kagan was a 00:29:22.819 --> 00:29:25.819 Marshall clerk. Cass Sunstein, the famous scholar, 00:29:26.099 --> 00:29:28.660 was a Marshall clerk. He was mentoring the next 00:29:28.660 --> 00:29:31.339 generation, just like Houston mentored him. But 00:29:31.339 --> 00:29:34.990 time is the one opponent you can't sue. By 1991, 00:29:35.309 --> 00:29:38.910 he is 82 years old. His health is failing. He 00:29:38.910 --> 00:29:40.890 really didn't want to retire. He used to say, 00:29:40.890 --> 00:29:42.950 I was appointed to a life term and I intend to 00:29:42.950 --> 00:29:45.009 serve it. He famously said he wanted to die at 00:29:45.009 --> 00:29:47.490 110, shot by a jealous husband. That's a great 00:29:47.490 --> 00:29:50.089 line. It is. But his body was giving out. He 00:29:50.089 --> 00:29:52.329 couldn't hear well. His heart was bad. So in 00:29:52.329 --> 00:29:54.710 June 1991, he announces his retirement and the 00:29:54.710 --> 00:29:57.750 press conference was classic Marshall. Just pure, 00:29:57.849 --> 00:30:00.289 unfiltered Marshall. I love this clip. A reporter 00:30:00.289 --> 00:30:02.369 asks him, essentially, why are you retiring? 00:30:02.569 --> 00:30:04.670 What's wrong? And Marshall just glares and says, 00:30:04.750 --> 00:30:06.730 what's wrong with me? I'm old. I'm getting old 00:30:06.730 --> 00:30:09.970 and coming apart. No sugarcoating. Just the blunt 00:30:09.970 --> 00:30:12.190 truth. The aftermath of his retirement, though, 00:30:12.269 --> 00:30:15.170 was a bitter pill for his supporters. It was 00:30:15.170 --> 00:30:17.839 a shock to the system. He was replaced by Clarence 00:30:17.839 --> 00:30:20.579 Thomas. President George H .W. Bush nominated 00:30:20.579 --> 00:30:23.839 Thomas, who the source describes as a far -right 00:30:23.839 --> 00:30:26.579 ideologue. So you replaced the architect of the 00:30:26.579 --> 00:30:28.680 civil rights movement with a man who opposed 00:30:28.680 --> 00:30:31.279 affirmative action and many of the very tools 00:30:31.279 --> 00:30:33.759 Marshall had built. It was a complete ideological 00:30:33.759 --> 00:30:37.000 flip. Marshall died just two years later in January 00:30:37.000 --> 00:30:40.799 1993. He died of heart failure. But the outpouring 00:30:40.799 --> 00:30:43.279 was massive. He lay in repose in the Great Hall 00:30:43.279 --> 00:30:45.890 of the Supreme Court. Thousands and thousands 00:30:45.890 --> 00:30:48.309 of people lined up to pay their respects. And 00:30:48.309 --> 00:30:50.349 the eulogy was given by Chief Justice William 00:30:50.349 --> 00:30:53.009 Rehnquist. Now, Rehnquist and Marshall disagreed 00:30:53.009 --> 00:30:55.089 on almost everything. They were polar opposites 00:30:55.089 --> 00:30:58.970 legally, but Rehnquist was gracious. He pointed 00:30:58.970 --> 00:31:01.049 to the inscription above the Supreme Court entrance, 00:31:01.349 --> 00:31:04.819 equal justice under law. And he said. Surely 00:31:04.819 --> 00:31:07.440 no one individual did more to make these words 00:31:07.440 --> 00:31:10.720 a reality than Thurgood Marshall. That is a profound 00:31:10.720 --> 00:31:13.180 tribute from an adversary. It is. It acknowledges 00:31:13.180 --> 00:31:14.759 that Marshall didn't just interpret the law. 00:31:14.920 --> 00:31:16.940 He forced the country to actually live up to 00:31:16.940 --> 00:31:19.319 it. When you look back at his entire life, from 00:31:19.319 --> 00:31:22.740 the social engineer to the justice, what's the 00:31:22.740 --> 00:31:25.299 big takeaway? How should we view his legacy today? 00:31:25.579 --> 00:31:27.799 I think the most provocative part of his legacy 00:31:27.799 --> 00:31:30.500 is his view of the Constitution itself. We hear 00:31:30.500 --> 00:31:32.619 a lot today about originalism, the idea that 00:31:32.619 --> 00:31:34.539 we should interpret the Constitution exactly 00:31:34.539 --> 00:31:38.039 as the founding fathers intended in 1787. Right. 00:31:38.180 --> 00:31:41.640 The whole what would Madison do school of thought. 00:31:41.859 --> 00:31:43.640 Marshall didn't care what Madison would do. In 00:31:43.640 --> 00:31:45.960 1987, during the bicentennial of the Constitution, 00:31:46.279 --> 00:31:48.140 Marshall gave a speech that really shocked people. 00:31:48.380 --> 00:31:50.980 He said he didn't find the wisdom, foresight, 00:31:51.039 --> 00:31:53.220 and sense of justice of the framers particularly 00:31:53.220 --> 00:31:56.059 profound. He said the quiet part out loud. He 00:31:56.059 --> 00:31:58.339 said the government they devised was defective 00:31:58.339 --> 00:32:01.279 from the start. It allowed slavery. It treated 00:32:01.279 --> 00:32:04.279 women as property. He argued that we the people 00:32:04.279 --> 00:32:06.700 didn't really mean all the people until folks 00:32:06.700 --> 00:32:08.859 like him fought a civil war, passed amendments, 00:32:09.039 --> 00:32:12.259 and argued cases in court to fix it. So for him, 00:32:12.299 --> 00:32:14.940 the Constitution isn't some sacred relic to be 00:32:14.940 --> 00:32:18.099 worshipped. It's a project to be worked on, a 00:32:18.099 --> 00:32:21.819 fixer -upper. Exactly. He believed the true miracle 00:32:21.819 --> 00:32:24.869 of the Constitution wasn't its birth. But it's 00:32:24.869 --> 00:32:27.690 life, how it has been expanded and perfected 00:32:27.690 --> 00:32:30.710 by generations of struggle. It's a living constitution 00:32:30.710 --> 00:32:33.509 in the truest sense of the word. That is such 00:32:33.509 --> 00:32:36.210 a powerful reframing of the whole debate. It 00:32:36.210 --> 00:32:38.930 puts the responsibility on us, not just on the 00:32:38.930 --> 00:32:41.450 guys in powdered wigs. It does. It says the work 00:32:41.450 --> 00:32:44.009 isn't done. If our listeners want to see that 00:32:44.009 --> 00:32:46.930 mind at work, where should they go? What's a 00:32:46.930 --> 00:32:49.670 good starting point? Go read The Descent and 00:32:49.670 --> 00:32:52.609 San Antonio v. Rodriguez. The school funding 00:32:52.609 --> 00:32:55.529 case, it is accessible, it is passionate, and 00:32:55.529 --> 00:32:58.109 it is a master class in how to use the law to 00:32:58.109 --> 00:33:00.589 fight for human dignity. It's Marshall at his 00:33:00.589 --> 00:33:03.309 best. They're a good Marshall. The man who proved 00:33:03.309 --> 00:33:05.130 that you can change the world if you are willing 00:33:05.130 --> 00:33:07.390 to argue about it. Thank you for walking us through 00:33:07.390 --> 00:33:09.250 this. It was a pleasure. And thank you for listening 00:33:09.250 --> 00:33:11.130 to The Deep Dive. We'll see you next time.