Welcome back to another deep dive. Today we are
pulling a specific book off the shelf of American
history, blowing off the dust and realizing that
the cover completely misleads you about what's
inside. That's a great way to put it. We're looking
at a figure who I guarantee you recognize. You've
seen the photos. The heavy black robe, the glasses,
the, you know, slightly weary expression looking
down from the Supreme Court bench. You're talking
about Thurgood Marshall. I am. And usually when
we think of Marshall, we think first African
-American Supreme Court justice. We think of
him as this, well, this stately established figure
of the institution. Right. As the endpoint, the
statue. Exactly. But the source material we have
today. a really comprehensive historical profile
and legal analysis, it suggests that if you only
focus on the man in the robe, you're missing
the most explosive, dynamic, and frankly, dangerous
part of his life. Dangerous to the status quo,
absolutely. It's a common trap. We enshrine these
figures in bronze, and we forget that before
the statue was cast, they were in the trenches,
you know, throwing punches. So the real story
is before the robe. The argument in the source
material is fascinating. It basically suggests
that if Thurgood Marshall had retired in 1960,
before he ever sat on the Supreme Court, before
he was Justice Marshall, he would still be arguably
the most important American lawyer of the 20th
century. That is a massive claim. You're saying
the preamble was more important than the main
event. In many ways, yeah. Because before he
was interpreting the law from the bench, he was
weaponizing it from the bar table. He wasn't
just a judge. He was like the architect of the
civil rights movement's entire legal strategy.
OK, so that's a big statement. Back it up. Well,
there's one statistic from the notes that I think
perfectly frames the scale of his dominance before
he became a judge. I think I know the one you're
going to cite. It made me do a double take when
I read it. It should. So as a lawyer, primarily
for the NAACP, Thurgood Marshall argued 32 cases
before the United States Supreme Court. 32, which
is already a career right there. That's a legendary
career. Usually, if you argue one case before
the Supreme Court and don't get embarrassed,
that's the highlight. He argued 32. Do you know
how many he won? He won 29 of them. 29 and 3.
I mean, that's a batting average that puts him
in the stratosphere. And we're not talking about,
you know, minor contract disputes here. No. We
are talking about cases that fundamentally restructured
American society. He didn't just practice law.
He reshaped the entire playing field on which
the law was played. So that is our mission for
this deep dive. We want to go behind the robe.
We want to understand the mechanics of this incredible
win streak. born in a segregated city, used the
very legal system that was designed to oppress
him as the tool to dismantle that oppression.
And we're going to trace that arc. It's really
a journey from being a social engineer, a phrase
we'll definitely unpack later, to becoming the
great dissenter. It's a move from the sword to
the shield, in a way. So let's start at the very
beginning, the origin story. Because you can't
understand the lawyer without understanding the
boy in Baltimore. He was born in 1908, right?
July 2nd, 1908. Baltimore, Maryland. And right
out of the gate, there's a detail about his name
that just tickles me. He wasn't born Thurgood.
I saw this. It was a family name, wasn't it?
It was. His birth name was Thurgood. T -H -O
-R -O -G -O -E -D. It was his grandfather's name.
That's a lot of letters for a kindergartner to
have to learn to write. It is a mouthful. And
apparently Thurgood, or Thurgood at the time,
had a very practical mind even at like... Age
six. He got tired of the teacher waiting for
him to finish writing his name at the top of
the page. It was just taking too long. I can
relate to that. So in the second grade, he made
an executive decision. He just cut it down. He
told the parents, they're good now. I love that.
It shows a certain decisiveness. You know, this
system is inefficient. I'm going to streamline
it. Exactly. But if we're looking for where his
legal mind actually came from, we have to look
at his father, William Canfield Marshall. Now,
William wasn't a lawyer. He was a waiter. He
worked on railroad dining cars and at a whites
only country club. So a working class guy. A
working class guy. But the source material describes
him as a man who was absolutely obsessed with
the law. In what way? Like, did he read law books
for fun? He lived it. On his days off, William
would take young Thurgood down to the local courthouse
in Baltimore. They wouldn't go to the park. They'd
go to criminal trials. They'd sit in the colored
section of the gallery and just watch the proceedings,
the arguments, the evidence, the objections.
That is a unique father -son bonding activity.
I'll give him that. It certainly beats fishing
for some people. Right. But the real training,
the real training happened afterwards. They'd
go home to the dinner table, and that's where
the cross -examination began. The dinner table
became the courtroom. Precisely. William Marshall
would challenge everything Thurgood said. If
Thurgood made a claim, any claim, his father
would demand evidence. Marshall later said that
his father never told me to become a lawyer,
but he turned me into one. Wow. There's a great
quote where Marshall says his father made him
prove every statement, even if we were discussing
the weather. So you couldn't just say, it's raining.
You had to, I submit into evidence the water
falling from the sky. You had to build a case.
The pavement is wet. The sky is gray. There is
precipitation on the window. It taught him that
assertion is nothing without backing. It honed
that sharp argumentative edge that would define
his career. He wasn't learning to be loud. He
was learning to be precise. Okay, so he takes
this sharp mind to college. He goes to Lincoln
University in Pennsylvania. The oldest HBCU in
the country. This was, I mean, this was the Oxford
of black America at the time. And was he the
studious, serious future justice we might imagine?
Oh, not even close. The profile describes him
as mischievous. energetic and boisterous he was
the guy playing pinochle in the dorms until all
hours he was the guy pulling pranks i read he
actually got suspended he did he got suspended
for two weeks for a hazing incident involving
freshmen so you know he was participating in
the rough and tumble of college life he was no
saint But he was clearly brilliant at the same
time. Oh, absolutely. He was on the debate team
and they were just crushing opponents. And look
at the company he was keeping. His classmate
at Lincoln was Langston Hughes, the legendary
poet. It's wild to think of them in the same
dorm, just two college kids who would go on to
define the 20th century in completely different
ways. It really was a crucible of talent. But
there's a turning point coming. He graduates
with honors in 1930. He decides, OK. The law
is my path. He's from Baltimore. His father pays
taxes in Maryland. So logically, he applies to
the University of Maryland Law School. And this
is the inciting incident of the movie right here.
It is. He applies and he's rejected. Not because
his grades weren't good enough. They were excellent.
Not because he wasn't a resident. He was rejected
solely and explicitly because he was black. The
University of Maryland did not admit African
-Americans, period. We hear about segregation
so much that. Sometimes I think we can become
desensitized to it. But for him, this had to
be so personal. This wasn't a history book. This
was his life. It was a direct slap in the face.
He later talked about how much that burned. Here
was a state institution funded by the taxes his
father worked hard to pay as a waiter. And they
were telling him, you are not good enough to
walk through these doors. So he couldn't go to
Maryland. Where did he end up going? He went
to Howard University School of Law in Washington,
D .C. And honestly, looking back, getting rejected
by Marilyn might have been the best thing that
ever happened to him and, you know, to the country.
Why do you say that? Was Howard a better school
at the time? It wasn't just about prestige. It
was about leadership. At Howard, the dean was
a man named Charles Hamilton Houston. And if
Marshall is the hero of our story, Houston is
the mentor. He's the Yoda. OK, so tell us about
Houston. Charles Hamilton Houston was a visionary.
He wasn't just running a law school to churn
out people who could write wills or handle divorces.
He viewed the law as a weapon. He taught his
students that they were not just lawyers. They
were social engineers. Social engineers. That's
a very specific, almost mechanical term. What
did he mean by that? He meant that the law isn't
static. It's a machine. And if you understand
how the machine works better than the operators.
You can re -engineer it. You can use the Constitution,
the statutes, the precedents to construct a better,
fairer society. So it's an active process. Very
active. But he warned them. Because they were
black lawyers, the system would be looking for
any excuse, any tiny mistake to dismiss them.
So they had to be perfect. They had to be better
than perfect. Houston was notoriously strict.
He drilled them on procedure, on evidence, on
the tiniest details. He told them, a lawyer's
either a social engineer or he's a parasite on
society. There was no middle ground. You were
there to change the world. And Marshall thrived
in this kind of environment. He absorbed it into
his DNA. He graduated first in his class in 1933.
And he came out of Howard not just with a degree,
but with a mission. He returns to Baltimore to
start his own practice. And this is where the
story gets really cinematic. Yeah. Because he
doesn't wait very long to sell that score with
the University of Maryland. No, he does not.
He opens his practice and he's struggling a bit
financially because he's taking so many cases
for poor people in the community, often for free.
But then in 1935, a young man walks into his
office named Donald Gaines Murray. And what does
Donald want? Donald wants to go to law school.
specifically the University of Maryland Law School.
And just like Marshall five years earlier, he
has been rejected because of his race. I can
only imagine the look on Thurgood Marshall's
face when he heard that. It must have been electric.
Marshall takes the case. He teams up with his
mentor, Charles Houston, and they sue the University
of Maryland. This is the case, Murray v. Pearson.
Now, they didn't argue segregation is wrong,
did they? That wasn't the strategy yet. No, and
this is so crucial to understanding Marshall's
genius. If they had walked in and said segregation
is unconstitutional, they would have lost. The
Supreme Court precedent was Plessy v. Ferguson
from 1896, which said, separate but equal is
the law of the land. How did they win? They used
the social engineer approach. They used the system's
own logic against it. They said, OK, Maryland,
you say separate but equal. Fine. We accept your
premise for the sake of argument. Where is the
equal school for Mr. Murray? And Maryland didn't
have one. Exactly. There was no black law school
in Maryland, not one. So Marshall argued, since
you haven't provided a separate school, you must
admit him to the white one to fulfill the equal
part of your own law. That's a trap. It's a perfect
legal trap. It is. And the judge, Eugenio Dunn,
agreed. He ordered the university to admit Murray.
Marshall must have felt incredible vindication.
Oh, he did. He didn't hide it either. He famously
said later that he filed that suit to get even
with the bastards. I appreciate the honesty.
It wasn't just high -minded ideals. It was personal.
It drives home that these weren't abstract battles
for him. But this case, this Murray case, it
became the blueprint for the entire NAACP strategy
moving forward. And this leads us into what the
outline calls the strategic shift. Marshall joins
the NAACP national staff in New York. He becomes
the special counsel. And they start this long
campaign across the country. Right. They realize
that they couldn't attack Plessy v. Ferguson
head on yet. The country wasn't ready. The court
wasn't ready. So they decided to engage in what
I like to call trench warfare. Explain that.
What does it mean? They went state by state,
case by case, forcing states to live up to the
equal part of. separate but equal. They knew
that true equality is expensive, really expensive.
Right. If you have to build two of everything,
two medical schools, two law schools, your budget
goes broke pretty fast. Exactly. Take the case,
Missouri Exrel, Games v. Canada in 1938. It's
a similar fact pattern. A black student wants
to go to law school in Missouri. Missouri says,
well, we don't have a black law school, but hey,
we'll give you a scholarship to go to a school
in Illinois or Iowa. So they're basically outsourcing
their civil rights obligations. That's a perfect
way to put it. And Marshall argued that wasn't
good enough. He said the 14th Amendment's Equal
Protection Clause applies within the jurisdiction.
If Missouri provides a law school for whites,
it must provide one for blacks in Missouri. The
Supreme Court agreed. So now Missouri has a choice.
integrate the white school or spend millions
building a brand new black law school, maybe
for just a handful of students. Precisely. Marshall
was making the cost of segregation prohibitively
high. He was tightening the financial vice on
the South one lawsuit at a time. And he wasn't
just doing this in education. The notes call
him Mr. Civil Rights. Yeah. Because he was just
everywhere. He was the legal defense fund. He
was arguing about. Voting rights, transportation,
housing, criminal defense. He was traveling constantly,
often deep into the South, risking his life.
I mean, he couldn't stay in white hotels. He
had to stay in people's homes. There were towns
where he had to leave before sundown or risk
being lynched. Let's hit a couple of those other
key wins because it really shows his range. Smith
v. Allwright in 1944. A massive, massive victory
for democracy. This challenged the white primary
in Texas. The Democratic Party in Texas claimed
it was a private club so it could exclude black
people from voting in its primary elections.
And since the South was effectively a one -party
state at that time, the primary was the election.
It was the only election that mattered. If you
can't vote in the primary, you have no voice.
So Marshall argued that the primary was part
of the state's election machinery, so the Constitution
had to apply. The court agreed and struck it
down. He effectively re -enfranchised millions
of voters with that single argument. Just incredible.
And then there's Shelly B. Kramer in 1948. This
one is about housing. This is one of the most
intellectually brilliant arguments he ever made.
So you had these things called restrictive covenants.
You'd buy a house and the deed would have a clause
that says you cannot sell this property to a
Negro or an Asian or a Jew. And the defense was
always, hey, this is a private contract between
two people. The government isn't involved here.
Right. And the 14th Amendment only stops the
state from discriminating, not private individuals.
It seems like a dead end legally. But Marshall
found the loophole, he argued. Yes, you can sign
that racist contract. But the moment you go to
a court and ask a judge to enforce it, to kick
a black family out of their new home, well, the
state has entered the chat. Because the court
is the state. The court is the state. Judicial
enforcement of a private contract is state action.
And the state cannot enforce racism. The Supreme
Court bought it. It completely revolutionized
property law. It's amazing to see how he finds
these threads and just pulls them until the whole
tapestry unravels. But I want to pause on his
principles for a second, because sometimes people
think of him as just an advocate for his side.
But there's a moment during World War II that
suggests something different. You're talking
about the Japanese internment. Yeah. Executive
Order 9066. This is a critical moment for Marshall's
character, I think. The U .S. government was
rounding up Japanese Americans and putting them
in camps. It was popular at the time. I mean,
even the ACLU board, the supposed guardians of
civil liberties, was split. They were afraid
of looking unpatriotic during the war. Marshall
wasn't split. Marshall was clear as a bell. He
stood against the majority of the ACLU board.
He condemned the internment. He saw it for what
it was, a violation of due process based entirely
on race. He didn't care that the victims weren't
black. He cared that the Constitution was being
shredded. That moral consistency is what brings
us to the main event, the crown jewel of his
career, Brown v. Board of Education. This is
where the strategy shifts. The attrition phase
is over. By the early 1950s, Marshall and the
NAACP Legal Defense Fund decide it's time to
go for the jugular. No more make it equal. The
new argument is separate is inherently unequal.
That is a huge pivot. They're not just attacking
the facilities anymore. They're attacking the
very psychology of segregation. They are. And
to do that, Marshall did something that, you
know, traditional lawyers thought was crazy.
He brought in sociology. He brought in data.
The doll test. The famous doll test. Marshall
worked with psychologists Kenneth and Mamie Clark.
They went to segregated schools and showed African
-American children two dolls, one white, one
black. They were identical in every way except
for color. And they asked the kids a series of
questions. Simple questions. Which is the nice
doll? Which is the bad doll? Which doll would
you like to play with? And then the killer question.
Which doll looks like you? The results were devastating.
They were heartbreaking. I mean, just soul crushing.
The majority of black children identified the
white doll as the nice one and the black doll
as the bad one. And when they had to identify
the doll that looked like them, admitting that
they were the bad one. Some of the children would
just break down crying. And Marshall took this
into the Supreme Court. He made this part of
his legal argument. He put it right into the
record. He argued that segregation wasn't just
separating bodies. It was destroying minds. It
was creating a sense of inferiority that, in
the words of the final decision, may affect their
hearts and minds in a way unlikely ever to be
undone. So let's set the scene for the argument
itself. It's 1953. Marshall is up against a giant
of the legal world. John W. Davis. Yeah. He was
the ultimate establishment lawyer. I mean, he'd
been solicitor general. He had run for president
in 1924. He was polished. He used flowery rhetoric.
He cited Latin. He was the past. And Marshall.
Marshall was the future. He didn't try to out
fancy Davis. He spoke plainly. He was conversational.
He forced the justices to look past the legal
theories and see the children. There's a core
argument he made that I think is. most powerful
thing he ever said. What was that? He asked the
court, essentially, what is the goal of segregation?
He said the only valid reason for segregation
is to keep the people who were formerly in slavery
as near to that stage as possible. He called
it out. No states' rights, no tradition, just
straight up racism. He stripped all the varnish
off. And on May 17th, 1954, the court agreed.
Unanimous. 9 -0. Chief Justice Earl Warren wrote,
separate educational facilities are inherently
unequal. Marshall's reaction was pretty human
from what I read. Yeah, he said, I was so happy
I was numb. But, and there's always a but in
history, isn't there? The victory wasn't total.
No. The court ruled on the principle, but they
delayed the implementation. A year later, in
what's called Brown II, the court had to decide
how to desegregate. Marshall wanted a hard deadline.
He said, do it by September 1956. And the court
said. They used this infamous phrase. With all
deliberate speed. Which sounds nice, but it's
basically a permission slip to stall for as long
as you want. Exactly. In the South, deliberate
speed meant never. It triggered what they called
massive resistance. Marshall spent the next decade
fighting cases just to get states to obey the
Supreme Court's own order. He had to go back
for Cooper v. Aaron in 1958 just to get Little
Rock, Arkansas to stop blocking black kids from
entering high school. So he wins the war of principle.
But the occupation is messy and long. It was
a grind. But by 1960, Sir Good Marshal is the
most famous, most successful lawyer in the country.
And the government decides it's time to bring
him inside the tent. This starts his ascent to
the bench. JFK appoints him to the Second Circuit
Court of Appeals in 1961. Which was a bold move.
The Second Circuit sits in New York. It handles
huge commercial cases. It's considered the second
most important court in the land. But getting
him concerned... That was a battle. Southern
senators again. Of course. They were not going
to let Mr. Civil Rights become a federal judge
without a fight. They delayed his confirmation
for over eight months. They held hearings on
ridiculous marginal issues, just trying to slow
walk it. But he eventually got through. And how
did he do as a judge? Because being an advocate.
And being a judge are really different skill
sets. He was excellent. He wrote 98 majority
opinions during his time on the Second Circuit.
And here's the kicker. Not a single one of them
was reversed by the Supreme Court. Wow. That
is a badge of honor for a circuit judge. It proved
he wasn't just a radical. He was a craftsman.
He knew the law inside and out. But he doesn't
stay there. 1965, LBJ comes calling. Lyndon Johnson.
He persuades Marshall to step down from the lifetime
judgeship to become the solicitor general. Now,
for listeners who might not track the org chart
of the DOJ, what exactly is the solicitor general?
It's often called the 10th justice. The solicitor
general is the government's top lawyer. If the
United States is a party in a Supreme Court case,
the SG or their office argues it. And Marshall
took the job. He called it the best job I ever
had. I mean, think about the symbolism. He spent
30 years fighting the government. Now he is the
government. He's wearing the striped pants and
the morning coat. He's up there arguing to defend
the Voting Rights Act in South Carolina v. Katzenbach.
He won 14 of the 19 cases he argued for the government.
We all know LBJ had a bigger plan in mind. Oh,
absolutely. LBJ wanted to make history. He wanted
to appoint the first African -American Supreme
Court justice. But there was a problem. There
were no vacancies. The court was full. So how
do you solve a problem like a full Supreme Court?
With a little bit of Machiavellian maneuvering.
This is a classic LBJ story. In 1967, LBJ appoints
Ramsey Clark to be the attorney general. Okay,
Ramsey Clark. Why does that matter? Because Ramsey
Clark's father was Tom Clark. And Tom Clark was
a sitting justice on the Supreme Court. Oh, I
see where this is going. A massive conflict of
interest. Huge. You can't have the son appearing
as the chief prosecutor before the father on
the bench. So Justice Tom Clark felt obligated
to retire to let his son have the job. LBJ forced
a vacancy. He cleared the seat and then he nominated
Thurgood Marshall. LBJ announced it saying, it
is the right thing to do, the right time to do
it, the right man and the right place. But the
confirmation hearings. They were not a coronation.
No, they were hazing. The Southern segregationists,
led by Strom Thurmond of South Carolina, decided
they were going to try and humiliate him. I read
about the quiz they gave him. It's just unbelievable.
It was absurd. Strom Thurmond started asking
him incredibly obscure questions about constitutional
history. Things like... Who were the members
of the Committee on Style at the Constitutional
Convention? Or asking about the, you know, intricacies
of the 13th Amendment debates in the 1860s. Your
questions that I guarantee you Strom Thurmond
couldn't answer without a cheat sheet. Questions
nobody could answer off the cuff. It was a high
-level version of the literacy tests they used
to stop black people from voting in the South.
They were trying to make him look unqualified.
But Marshall just sat there. He was calm. He
refused to take the bait. And he won. Confirmed.
69 to 11. On October 2nd, 1967, he took the oath.
So now we are in the final act of his career.
Justice Marshall. He joins the Warren Court.
And at first, this is a pretty friendly environment
for him, ideologically speaking. It's the heyday
of liberalism. He aligns instantly with Justice
William Brennan. They became best friends and
ideological twins. The clerks used to call them
Justice Brennan Marshall as one word because
they voted together so often. But the political
winds shift. Nixon gets elected, then Reagan.
The court moves sharply to the right. And this
is where we see that transformation we talked
about at the beginning. Marshall goes from being
the engineer of the majority to the great dissenter.
He is fighting to hold the line against a conservative
tide. I want to dig into his legal philosophy
a bit because it wasn't just be liberal. He had
a specific view on how a law should work, especially
regarding equal protection. The notes mentioned
a sliding scale. Yes. This is his big contribution
to legal theory, and it's really important. So
traditionally, the court uses these rigid tiers
to decide discrimination cases. Can you explain
the tiers for us? Sure. If a law discriminates
based on race, it gets strict scrutiny, which
means the court looks at it with a microscope
and the law usually dies. But if a law discriminates
based on something else, like... wealth or age,
it gets rational basis, which means the court
barely glances at it and the law usually survives.
And Marshall didn't like these neat little boxes.
He hated them. He thought they were too abstract
to remove from real life. He proposed a sliding
scale. He said, don't just look at the category,
look at the impact. You should balance the importance
of the right being taken away from an individual
against the state's interest in its law. Can
you give us an example where this really mattered?
The best example is his descent in San Antonio
Independent School District, Villa Rodriguez,
in 1973. This case is crucial. It was about school
funding. In Texas, like in most of the country,
schools were funded by local property taxes.
Which means rich neighborhoods have rich schools
and poor neighborhoods have poor schools. Exactly.
The disparity was massive. A group of parents
sued, saying this system violated equal protection.
But the majority of the Supreme Court said, no,
wealth isn't a suspect class like race is. And
the Constitution doesn't explicitly say you have
a right to an education. So under our rigid tears,
the system is fine. And Marshall's dissent? He
was furious. It's one of his most powerful dissents.
He argued that you cannot treat education like
it's some luxury good. He said that while the
Constitution doesn't spell out education, education
is necessary to exercise your other rights like
free speech and voting. He argued that by denying
poor kids a good education, the state was permanently
locking them into an underclass. He wanted the
court to look at the reality of those kids' lives,
not just the legal formalism. It seems like that's
the thread running through his whole career.
Look at the reality on the ground. Always. He
brought the real world into the ivory tower,
sometimes kicking and screaming. We also have
to talk about the death penalty. For Marshall,
this wasn't just a legal issue. It was a moral
absolute. It was. And you have to remember, Marshall
was the only justice on that court who had actually
represented men on trial for their lives. He
had stood next to innocent black men in the South
who were being framed for murder. He knew the
system could get it wrong. He knew it was racist.
So he opposed it. In all cases. In all cases.
He believed it was a violation of the Eighth
Amendment's ban on cruel and unusual punishment.
He famously said, death is so lasting. It's a
haunting phrase, isn't it? It is. After the Supreme
Court reinstated the death penalty in 1976, in
a case called Greg v. Georgia Marshall and Brennan,
adopted a policy of persistent dissent. Every
single time a death penalty appeal came to the
court and was denied, they would file a dissent.
I dissent. I dissent. They did this over 1 ,400
times. 1 ,300 times. That is incredible stamina.
It was a form of witnessing. He called the death
penalty vestigial savagery. He refused to let
the court kill people without him pointing out
the barbarity of it every single time. He was
also a strong defender of privacy and the First
Amendment. Very. He wrote the opinion in Stanley
v. Georgia in 1969. Police had raided a guy's
house for bookmaking and found pornographic films
instead. Marshall threw out the conviction. He
wrote, 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. Basically,
get the government out of my living room. Exactly.
He also supported the right to burn the American
flag in protest in Texas v. Johnson. He argued
that the flag is a symbol and its strength comes
from the fact that it can withstand criticism.
So we had this image of the fierce legal mind,
the great dissenter. But what was he like to
work with? What was he like in the hallways?
By all accounts, he was a character, a real storyteller.
Justice Sandra Day O 'Connor wrote about this.
She said that in the private conferences where
the justices discuss cases, it can get very dry
and academic. But Marshall would interrupt with
stories. Stories about what? About his days on
the road for the NAACP. About facing down lynch
mobs in Mississippi. about dealing with corrupt
sheriffs in Tennessee. At first, O 'Connor thought
he was just being a raw contour, just, you know,
wasting time. But then she realized he was doing
it on purpose. He was educating them. He was
forcing them to see the people behind the law.
Every story had a legal hook. He was reminding
these other justices, who mostly came from privileged
backgrounds, that the law affects real vulnerable
people in profound ways. There was a negative
rumor that dogged him later in life, though.
The source mentions critics calling him lazy
or saying he just watched soap operas all day.
Yeah, that was a nasty narrative. that developed
in the 80s as the court became more conservative,
people claimed he was disengaged and let his
clerks do all the writing while he watched TV
in his chambers. Is there any truth to it at
all? His clerks say absolutely not. Former clerks
like Mark Tushnet, who is a huge legal scholar
now, have called that idea wrong and perhaps
racist. Look, Marshall was old. He was tired.
His health was failing. And yes, he delegated
the drafting of opinions to his clerks. Which
every justice does. Every single one. That's
the system. But the clerks confirm. Marshall
made the decisions. He told them how to vote
and why. He edited their drafts. He was the boss.
And speaking of clerks, he had an amazing eye
for talent. Current Justice Elena Kagan was a
Marshall clerk. Cass Sunstein, the famous scholar,
was a Marshall clerk. He was mentoring the next
generation, just like Houston mentored him. But
time is the one opponent you can't sue. By 1991,
he is 82 years old. His health is failing. He
really didn't want to retire. He used to say,
I was appointed to a life term and I intend to
serve it. He famously said he wanted to die at
110, shot by a jealous husband. That's a great
line. It is. But his body was giving out. He
couldn't hear well. His heart was bad. So in
June 1991, he announces his retirement and the
press conference was classic Marshall. Just pure,
unfiltered Marshall. I love this clip. A reporter
asks him, essentially, why are you retiring?
What's wrong? And Marshall just glares and says,
what's wrong with me? I'm old. I'm getting old
and coming apart. No sugarcoating. Just the blunt
truth. The aftermath of his retirement, though,
was a bitter pill for his supporters. It was
a shock to the system. He was replaced by Clarence
Thomas. President George H .W. Bush nominated
Thomas, who the source describes as a far -right
ideologue. So you replaced the architect of the
civil rights movement with a man who opposed
affirmative action and many of the very tools
Marshall had built. It was a complete ideological
flip. Marshall died just two years later in January
1993. He died of heart failure. But the outpouring
was massive. He lay in repose in the Great Hall
of the Supreme Court. Thousands and thousands
of people lined up to pay their respects. And
the eulogy was given by Chief Justice William
Rehnquist. Now, Rehnquist and Marshall disagreed
on almost everything. They were polar opposites
legally, but Rehnquist was gracious. He pointed
to the inscription above the Supreme Court entrance,
equal justice under law. And he said. Surely
no one individual did more to make these words
a reality than Thurgood Marshall. That is a profound
tribute from an adversary. It is. It acknowledges
that Marshall didn't just interpret the law.
He forced the country to actually live up to
it. When you look back at his entire life, from
the social engineer to the justice, what's the
big takeaway? How should we view his legacy today?
I think the most provocative part of his legacy
is his view of the Constitution itself. We hear
a lot today about originalism, the idea that
we should interpret the Constitution exactly
as the founding fathers intended in 1787. Right.
The whole what would Madison do school of thought.
Marshall didn't care what Madison would do. In
1987, during the bicentennial of the Constitution,
Marshall gave a speech that really shocked people.
He said he didn't find the wisdom, foresight,
and sense of justice of the framers particularly
profound. He said the quiet part out loud. He
said the government they devised was defective
from the start. It allowed slavery. It treated
women as property. He argued that we the people
didn't really mean all the people until folks
like him fought a civil war, passed amendments,
and argued cases in court to fix it. So for him,
the Constitution isn't some sacred relic to be
worshipped. It's a project to be worked on, a
fixer -upper. Exactly. He believed the true miracle
of the Constitution wasn't its birth. But it's
life, how it has been expanded and perfected
by generations of struggle. It's a living constitution
in the truest sense of the word. That is such
a powerful reframing of the whole debate. It
puts the responsibility on us, not just on the
guys in powdered wigs. It does. It says the work
isn't done. If our listeners want to see that
mind at work, where should they go? What's a
good starting point? Go read The Descent and
San Antonio v. Rodriguez. The school funding
case, it is accessible, it is passionate, and
it is a master class in how to use the law to
fight for human dignity. It's Marshall at his
best. They're a good Marshall. The man who proved
that you can change the world if you are willing
to argue about it. Thank you for walking us through
this. It was a pleasure. And thank you for listening
to The Deep Dive. We'll see you next time.