Judge Dennis Davis
Thoroughgood (Thurgood) Marshall: The Supreme Court’s First African-American Judge
Judge Dennis Davis | Thoroughgood (Thurgood) Marshall: The Supreme Court’s First African-American Judge
- Good afternoon, good evening to everybody. This is the second of the lectures which I said I’d give on lawyers and this one is about Thurgood Marshall, of course, born named Thoroughgood Marshall. And I suppose my talk will be very much that he was very much a thorough good judge, but the reason I chose him, ‘cause he was quite an extraordinary pioneer of American jurisprudence. He was, of course, the United States Supreme Court’s first African American judge. But as we shall see, his contribution was far greater to American political and social life than simply that. And I’ve posed a further question, if I may, which I’d like at least to engage with in part with you, is, what does make a good judge, particularly in the light of the fact that I would want to argue that the vast majority of the American Supreme Court judges now are politicians masquerading in robes who have given a whole series of judgements, wrenched of any precedent and any basically logical, legal persuasion. And Marshall stands in sharp contrast to that. In fact, it has always been ironic for me that Marshall was replaced as the second African American judge, as it were, by, of course, Clarence Thomas, which is deeply ironic and says so much about the trajectory of American life in general and jurisprudence in particular. But let’s just talk a little bit about him before I fill you in. He was born in July 2nd, 1908 with the name Thoroughgood. He was born in Baltimore.
He was the second son of Norma and William Marshall. She was an elementary school teacher and father worked as a railroad porter. The grandparents had been slaves and Marshall effectively attended an elementary school for black children only. His father had never graduated from high school, had served as a waiter in whites only restaurants. And Marshall himself, therefore, was somebody who had suffered all of the indignities of racial discrimination in the United States of America. It’s interesting that when he was at high school, although he got decent grades, he had a tendency to stir up trouble. And it’s ironic that one of the punishments he got as a student at school who had been quote, naughty, unquote, was to have to learn parts of the Constitution off by heart. By the time he left high school, he knew the whole of the constitutional documentation off by heart. And although it’s interesting that he’d wanted to study dentistry, he finally landed up by enrolling at Howard University Law School, historically Black college, which of course has been in the news recently 'cause of the awful racist remarks leveled against Kamala Harris, and where he graduated as a lawyer. It was during this particular period, rising to the top of his class, that he became an assistant to someone who became his mentor, the law school dean at Howard Law School, Charles Hamilton Houston, who had an extraordinary influence on so many African-American lawyers, a man who had suffered discrimination as a Black man during World War I, where he’d fought, and he’d made it his mission to educate a new generation of Black lawyers.
And clearly the influence of Houston on so many African American lawyers was profound, including that of Marshall. Now, Marshall then joined the National Association for the Advancement of Colored People, the NAACP. Much of the rest is history, but some of that history is what I want to talk to you about. Before I do that, I’m not sure how many people know so much about Marshall, certainly outside of the United States of America. So here’s the first of two clips which I’d like to share with you to give you some sense of who Marshall really was. If we could have the first clip. I’ve got no sound. I don’t know if other people have. Ah, thank you.
[Narrator] Thurgood Marshall didn’t look like a revolutionary. He wore double-breasted suits and was mocked for his light skin and wavy hair. But before Martin Luther King Jr and Malcolm X rose to prominence, it was Marshall who had a gigantic impact on race relations by helping to end legal segregation in America in the landmark Supreme Court case Brown versus Board of Education. Marshall was born in 1908 in Baltimore, where his family had stood up against racism for generations. In those days, segregation was the law of the land. In 1896, the Supreme Court had decided in Plessy versus Ferguson that schools and facilities for whites and Blacks could be separate but equal. Marshall decided to become a lawyer because in his words, “The lawyer was there to bear the brunt of getting rid of segregation.” After graduating from Howard University School of Law, Marshall took a trip to the South to see the effects of “separate but equal” firsthand. By 1938, he was a staff lawyer for the NAACP in New York and began crafting lawsuits that could chip away at segregation. The hardest part was recruiting plaintiffs. Many Black parents were afraid of losing their jobs or of exposing their families to violence. But in 1951, 13 parents in Topeka, Kansas, led by an assistant pastor named Oliver Brown, put their names on an NAACP lawsuit in federal court. Marshall lost the Kansas case and another one in South Carolina. But in 1953, the US Supreme Court announced that it would take on his appeal, not just to those cases but to five separate cases that challenged segregation. The combined cases became known as Brown versus Board of Education. On May 17th, 1954, the Court’s decision came down.
Shortly after noon, Earl Warren, the Chief Justice of the United States, began to read a unanimous opinion of the Supreme Court. Ruling in five cases in which five Negro children sought the right to go to the same schools as white children, the court said separate educational facilities are inherently unequal.
[Narrator] Everyone knew the unanimous nine to zero decision would bring enormous change, especially Marshall himself.
We do believe that this decision in itself will encourage the people to take further steps without litigation in many areas.
[Narrator] Further steps were taken in later years, following in the wake of Marshall’s success. In Little Rock, Arkansas, at the University of Alabama, and in Boston. Integration wasn’t easy. And 25 years after the Brown decision, Topeka, Kansas was still segregated.
Even today, the other schools here are not fully integrated, primarily because of housing patterns. Most Black people live in one part of town, whites in another. So many neighborhood schools are largely segregated.
[Narrator] But Thurgood Marshall, by that time a Supreme Court justice himself, never stopped believing that using the law to overturn segregation was the way to bring racial justice to America.
Thank you. That just gives you some sense and I want to talk a lot about that now, if I may, and I do think it’s important that we think about these issues in the light of today. But going back to Marshall, he joined the NAACP, as I indicated, this is at least 16 years before Brown versus Board of Education. In 1938, he was named as the chief counsel to the NAACP in New York. By 1940, he had begun to start to make his mark. There’s a case called Chambers versus Florida, in which Marshall persuaded the Supreme Court to overturn the convictions of four Black men who had been beaten and coerced into confessing to a murder which clearly they hadn’t committed. There were a series of cases during the 1940s. It was incredibly difficult for a Black man to actually act as a lawyer in the fraught situation, particularly in the South. At one occasion, he was taken into custody by a group of policemen while in a small Tennessee town working on a case. he was forced from his car, driven to an isolated area near a river, where an angry mob of white men awaited. His companion, another Black attorney, followed the police car and refused to leave until he was released. The police, perhaps because the witness was a prominent national attorney, finally drove Marshall back to town, therefore saved his life. Right through the '40s, there were very significant cases and they were all building up to the fundamental strategy, which was to overturn a famous, but let me put it, notorious case from 1896, of Plessy versus Ferguson, a case which had enshrined the doctrine of “separate but equal.” Those of you who are from South Africa will recognize that particular doctrine. It was fundamental to apartheid as well, particularly under the idea of the bantustan policy, where the idea was that we couldn’t be together, but we could have some concoction of separate but equal, which was always separate but never equal.
And that was true in the United States of America as well. And right through the late '40s into the '50s, the NAACP, under the leadership of Thurgood Marshall, sought to start to quarry away at this fundamental proposition of separate but equal. And then finally, and in probably one of the most important cases in the history of the United States of America, Brown versus the Board of Education, the case came the way of the lawyers led by Marshall. And let me put this to you, that it wasn’t only Marshall. There were other lawyers, including Jack Greenberg, who on many occasions visited South Africa and was a very prominent lawyer in the NAACP and in these cases, and of course eventually went on to become professor at Columbia University. They launched this case. The case was essentially about the following. Oliver Brown of Topeka had sued the city’s Board of Education, claiming that his daughter was forced to travel a long, long distance from her home, just to attend a segregated school. He wanted his daughter to attend the school nearest their home, which was designated for only white people. The US District Court of Kansas disagreed, asserting that the Black school offered an education which was equal in quality to the white school of Topeka.
Therefore the separate but equal doctrine. Marshall then headed the appeal in the Brown case, which combined with a number of others. He made it clear in his opening statement to the Supreme Court that what he sought was not merely resolution for the five cases. What he sought was a total end to racial segregation in schools. What he sought was that the separate but equal doctrine, when it applied to schools, meant that segregation had caused Black students to feel innately inferior. The opposing lawyers had argued that integration would harm white children. The case went on for an unprecedented three days. Court adjourned on the 11th of December, 1952 and it didn’t reconvene for a very long time, til June '53. And it was in June '53 that finally, the question that the Court had to answer was this. Did the attorneys believe that the 14th Amendment of the United States Constitution, which addressed citizenship rights, prohibited segregation in schools? That was what the case was really about. And what was really important about this case, of course, was the leadership of the then Chief Justice. Compared to today, it’s extraordinary. Chief Justice Earl Warren, he spoke in a unanimous decision written by Warren himself, holding that racial segregation of children in public schools violated the equal protection clause of the 14th Amendment, which stated that no state shall make or enforce any law which does not, sorry, which shall deny to any person within its jurisdiction the equal protection of the laws. The Court noted that Congress, when it drafted the 14th Amendment in the 1860s, did not expressly intend to require integration.
But on the other hand, it didn’t prohibit integration. The Court asserted that the 14th Amendment guarantees equal education today. Public education in the 20th century had become an essential component of the children’s public life, forming the basis of democratic citizenship, normal socialization and professional training. Any child denied a good education would be unlikely to succeed in life. Where a state had undertaken to provide universal education, such education became a right that must be afforded equally to Blacks and whites. What was really interesting about this case, in addition to its conclusion, was the manner in which it used a whole lot of social scientific evidence to show that, in fact, separating children on the basis of race creates dangerous inferiority complexes and may adversely affect Black children’s ability to learn. Even if the tangible facilities were equal between Black and white schools, racial segregation was inherently unequal, always unconstitutional. By the way, the case created a huge amount of controversy. In fact, by 1958, in a case called Cooper versus Aaron, the Court ruled that states were constitutionally required to implement this ruling of the Supreme Court. Widespread racial integration of the South was achieved by the late '60s and '70s, but of course, after a huge amount of struggle and the use of federal troops, in many instances, to enforce it. I suppose, let me make a couple of points immediately about Brown versus the Board of Education. It’s interesting, isn’t it, that the way the Court dealt with that was to say, “Well, the original position didn’t necessarily compel integration, didn’t necessarily prohibit it either, but whatever their words, the Constitution is a living document and it must therefore have to apply to the conditions in which we, the Court, find ourselves today,” i.e. in 1952, '53.
And that meant that at that particular point in time, all the social scientific evidence overwhelmingly showed that you couldn’t be equal if you were separate. And that the 14th Amendment, therefore, to a large degree, had to take the view that the notion of separate but equal was inherently contradictory, in breach of the 14th Amendment. This was a sense of looking at the Constitution as a living document and ultimately coming to a conclusion which was clearly not just sustainable, but if you wish, transformative in the manner in which I think constitutions are generally designed to be, which is to essentially make the society a better place for all who live in it. So here was Thurgood Marshall, the leading lawyer in Brown versus Board of Education. And even if you’re not a lawyer and even if you don’t come from the United States of America, I presume that somewhere in the distant past, you’ve heard of Brown versus the Board of Education and the monumental judgment, or opinion, as they’re called in the United States of America, of Earl Warren and the lawyering which had been brought to bear by Thurgood Marshall. As a result, times were changing in the United States of America. And of course, John F. Kennedy became the president in 1960. And in 1961, he rewarded Marshall for all of that work that he had done to bring about integration in American society by appointing him a judge on the US Circuit Court of Appeals. And although Marshall didn’t want to leave the NAACP, he accepted the nomination. I should tell you, it took almost a year for him to be approved by the Senate because of all of those members of the Senate who really were racist in character and in temperament and in opinion and ultimately wanted to resist the idea of an African American being appointed to the Court. But Marshall was appointed, as I say, to the district court, US Circuit Court of Appeals.
But by '65, Johnson was in and Johnson had other plans for Thurgood Marshall. He wanted Thurgood Marshall to replace Archibald Cox, who became famous some years later, as you may recall, in the Nixon saga, as the solicitor general. The solicitor general, of course, of the United States of America is a very important role because it is he or she, in this case a he, who represents the United States government in cases before the Supreme Court of the United States. I’ve got here, and I’m going to read a little bit to you 'cause it’s fascinating, the exchange between Marshall and Johnson, which took place when Johnson phoned Marshall to ask him to become the solicitor general of the United States of America, which, of course, did finally occur in 1965. But just to give you a flavor of it, and apparently the sound recording is not great and Marshall is nearly inaudible throughout the conversation. But this is what Johnson had to say. He says, “I have a rather big problem that I want to talk to you about. I want you to give it some real thought because it’s something that I have thought about for weeks and I think we can’t think of how it affects us personally. We got to think about the world and our country.” And he goes on, he says, “And our government and then ourselves way down at the bottom of the list, I want you to be my solicitor general.” Then Marshall says, “Wow, I’m not sure I can do that.” And Johnson says, “Now, you’ll lose a lot. You’ll lose security as a judge. You’ll lose the freedom that you like and you’ll lose the philosophizing that you can do on the bench. I’m familiar with those things.” And then he says, “You won’t lose, and I want you to do it for two or three reasons.” And just observe this. It’s interesting.
“I want the top lawyer in the United States representing me before the Supreme Court to be a Negro and to be a damn good lawyer that’s done it before. And so you have those peculiar qualifications.” Fascinating. “I want the top lawyer in the United States of America to be a Negro. Secondly, I think it’ll do a lot for our image abroad AND at home too, That this is the man that the whole government has to look to TO decide whether it prosecutes a case, whether it goes up with a case, whether it doesn’t,” and so on and so forth. “And number three, I want you to have the experience to be in the picture. I’m not discussing anything else. I don’t want to make any other commitments. I don’t want to imply or bribe or mislead you, but I want you to have the training and experience of being there day after day for the next few years anyway, or maybe the next few months if you could do it. Now I’ve talked to Ramsey Clark, his father, Tom Clark, is on the Supreme Court, and both of them have high regard for you. I’ve also talked to the Attorney General, Nick Katzenbach, and he says nobody will ever know I talked to you. If you decide that you can do it, I think you ought to do it for the people of the world. I just think it’ll be a great job. You’ve got a lot of security, but I don’t think you’ll lose any brothers. And after you’ve done it for a while, if there’s not something better, which I would hope there would be, that you’d be more amenable to, there’d be security for you because I’m going to be here for quite a while.” Of course, that wasn’t entirely true. “But I want to do this job that Abraham Lincoln started and I want to do it the right way.”
And that recalls the lecture that I gave last week, that Abraham Lincoln had had a commitment not only to the abolition of slaves, but to the idea of citizenship for Americans notwithstanding their race. And so this is a remarkable exchange recorded between Marshall and Johnson in which Johnson, as I say, rather remarkably, is suggesting that and says to Marshall as a Black man, “I want the solicitor general to be Black.” There is another, in one of the biographies of Johnson, there’s some suggestion that Johnson said, “I also want these racists to see a Black man behind the desk of the solicitor general just to show them what kind of commitments we have.” But it is remarkable to me that it wasn’t all that long ago, certainly in my lifetime, that a president of the United States of America thought so carefully about the dream that had not been fulfilled of citizenship for all on an equal footing. And literally a decade after Brown versus Board of Education, wanted, he said, to carry on the job that Abraham Lincoln started. And so Marshall became the solicitor general. And then two years later, on June 13th, 1967, what in effect Johnson had promised came about, when he announced that Thurgood Marshall would be the nominee for the Supreme Court Justice to fill the vacancy created by Justice Tom Clark’s departure. Some of the senators in the South, particularly Strom Thurmond, fought bitterly against confirmation. But he was confirmed. And on the 2nd of October, 1967, at the age of 59, Marshall became the first Black person to serve in the United States Supreme Court. And it’s fascinating to look at some of his judgements. I can’t possibly look at all of them at all. But before I do that, I thought I’d just give you this clip, which, of course, is taken when Marshall’s much older, in 1988, after he’s been on the bench for 21 years. But I think it gives you some flavor of the man we are talking about, when he is addressing a whole group of lawyers about his understanding of racial equality and the perilous state of play still in '88. So let’s have that clip.
Stop talking about how far we’ve come and start talking about how close we are. I repeatedly tell young people, “You’re better off than before and be patient and things will get better.” And the thing that gets me now is not only telling me, “That’s what you told my father,” they say, “That is what you told my grandfather and things are no better for me.” It is admitted in the Times, New York Times reports or Time Magazine, that a recent survey shows that racism is broader and stronger than before. We are not gaining ground, my friends. We might be losing. But one thing I’m sure of, this is no time to stop. We recognize there’s a terrific problem and we believe that the people I represent have been very considerate about this. They’ve taken it for 70 or 80 years and we believe that now is the time to get around to having our Constitution apply to all sections of the country equally and to the same effect in a more or less uniform fashion.
[Reporter] Thurgood Marshall, the first Negro to serve on the United States Supreme Court, puts on his robes with the assistance of his wife. President Johnson called the pioneer civil rights lawyer most qualified by training for the post. Justice Marshall, the great-grandson of a slave, swore to do equal right to the poor and to the rich.
All of us have a job. And one thing, we can’t do it as an individual and we can’t do it as small groups. We’ve got to have the one thing in mind. And I’m going to close with what I’ve been saying for 50 to 60 years. I don’t care about the Constitution alone or the Declaration of Independence or all of the books together. It’s not that important. What is important is a goal toward which you are moving, a goal that is a basis of true democracy, which is over and above the law. And it’s something that won’t happen, but you must pray for it and work for it. And that goal is very simple, that goal is that if a child, a Negro child, is born to a Black mother in a state like Mississippi or any other state like that, born to the dumbest, poorest sharecropper, is, by merely drawing its first breath in a democracy, there and without any more, is born with the exact same rights as a similar child born to a white parent of the wealthiest person in the United States. No, it’s not true. Of course it’s not true. It never will be true. But I challenge anybody to take the position that that is not the goal that we should be shooting for. And stop talking about how far we’ve come and start talking about how close we are. Thanks again.
And it seems to me that’s the interesting point about it. What is the goal? It’s not just the text, it’s the question of how you render justice. It’s the question of how you read these documents in order to ensure a better world for all. And I’d like to illustrate that, if I may, by just two cases, or let me put it this way, two themes of cases that Marshall was in, not in order that I suddenly get you into a law class, but just to give you a sense of what he was all about. So there was a famous case just a couple of years after he was appointed to Court called Dandridge versus Williams, where the plaintiffs had challenged a regulatory scheme in Maryland that limited welfare benefits under the federal aid families with dependent children. And the legislation was challenged by the plaintiffs because what it said, that “Any single family may receive an upper limit of $250 per month in certain counties in Baltimore City and $240 per month elsewhere in the state.” But the caps were there because of the size of the families. In other words, the statute discriminated against larger families 'cause the amount of money per child gradually decreased as the number of children in the family increased. And therefore the question was whether this was against the equality provision of the US Supreme Court, sorry, the US Constitution.
The majority of the Court said the following, “In the area of economics and social welfare, a state does not violate the equal protection clause merely because the classifications are imperfect, if the classification on some reasonable basis doesn’t offend the Constitution.” And the Court therefore basically said that the limitation on the benefits did not violate the equal protection. There was some justification for it. Capping the benefits for large families is justified by the government’s legitimate interest in encouraging people to get jobs and avoiding distinctions between families and poor families. Marshall in a dissent said this. “The Court holds today that regardless of the arbitrariness of the classification, it must be sustained if any state goal can be imagined that is oddly furthered by its defects.” And he went on to say the cap on welfare benefits yielded the consequence of fewer benefits for members of larger families. “In practice, of course,” he wrote, “the excess children share in the benefits that are paid with respect to the other members of the family, result being that support for the entire family is reduced below minimum subsistence levels, and the maximum grant regulation produces a basic denial of equal protection, because persons who are considerably similarly situated, dependent children and their families, are not afforded equal, even approximately equal treatment under the maximum grant regulation.” In other words, a class of people who generally were poor and of course Black, were being discriminated against indirectly. But that was a form of breach of the equality provision. Marshall was prepared to look at the reality of the conditions under which people lived in order to determine.
The majority were deferential to the state. It marked the beginning of his journey towards the insistence that the American Constitution did promote a concept of substantive equality, which he thought was central to the Constitution. And there are strings of cases of this, I’m not going to bore you with all of them. I wanted to give you just one to illustrate, but perhaps even more interesting is the vexed question of the death penalty. Marshall was, together with his great brother on the Court, William Brennan, were outspoken opponents of capital punishment and they consistently were so, and in 1976, in a case, Greg versus Georgia, Marshall said a number of things which I believe to be very pertinent today, if I may put it that way. He said, “The death penalty is a cruel and unusual punishment, prohibited by the eighth and 14th amendments.” Why? He said, “In the earlier case of Furman versus Georgia, I had concluded that the death penalty is excessive. And secondly, the American people, fully informed as to the purpose of the death penalty and its liabilities, would reject it as morally unacceptable.” He went on to say, “An excessive penalty is invalid under the cruel and unusual punishment clause, even though popular sentiment may favor it. The inquiry is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty such as life imprisonment would do as well.” And then he went on to say, “The two purposes that sustain the death penalty as non excessive are general deterrence and retribution.”
That’s what people argue. We talk about capital punishment, it’s about general deterrence and retribution. And he went on to say, citing evidence provided by the United Nations Committee, which had at that point examined the whole issue of the death penalty, “It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exists show no correlation between the existence of capital punishment and lower rates of capital crime.” He said that’s what the evidence shows. By the way, the evidence has never really changed. The other principle purpose said to be served by the death penalty is retribution. “The notion that retribution can serve as a moral justification for the sanction of death finds credence in the majority opinions of my brothers, Stewart and Powell and Stevens. It’s this notion that I find to be most disturbing today.” He says, “They say the following, the instinct for retribution is part of the nature of man. Channeling that instinct, the administration of criminal justice serves as an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, there are sown the seeds of anarchy, of self-help, of vigilante justice, and of lynch law.” He says the following, Marshall. “This statement is wholly inadequate to justify the death penalty. As my brother William Brennan stated, there is no evidence whatsoever that utilization of imprisonment rather than death encourages private blood feuds and other disorders.
It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands. It is inconceivable that any individual concerned about conforming his conduct to what society says is right would fail to realize that murder is wrong if the penalty was simply life imprisonment.” He went on to say, “There remains for consideration what might be termed the purely retributive justification for the death penalty, that it’s appropriate not because of its beneficial effect in society, but because the taking of a murderer’s life is itself morally good. Some of the language of the majority appears positively to embrace this notion. They state, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” I should remind you that when I lectured on Hannah Arendt and Eichmann, she, of course, argued that but only in relation to Eichmann because of the egregious nature of his crimes. Marshall says, “To be sustained under the Eighth Amendment, the death penalty must comport with the basic concept of human dignity as the core of the Amendment. The objective in imposing it must be consistent with our respect for the dignity of other men. Under these standards, the taking of life because the wrongdoer deserves it surely must fail, for such a punishment has at its very basis the total denial of the wrongdoer’s dignity and worth. It’s unnecessary to promote the goal of deterrence or to further legitimate notion of retribution. It’s an excessive penalty and it’s forbidden by the Constitution.”
And he had that view his whole life. And that tells me a couple of really important things. It tells me this. It tells me, firstly, that when you are a judge, you try to put the law in its most coherent, plausible way. And what he was saying is, well, if you are going to have the death penalty, which is a very drastic penalty and which, given the nature thereof, is certainly drastic and certainly cruel, then the question is, why would you do it? Well, the first answer is because it deters crime. But if you can’t find evidence for that, well, then, what then? Can you then use that as a justification simply because you use false information? Or try to do what we do today, which is make up our own facts. Or alternatively, if it’s about retribution, why would life imprisonment not suffice? And if we argue that all life, even those of those who have committed egregious crimes, has some worth, something, then the notion of dignity, which is central to the very enterprise of the Constitution, should hold sway. And that itself should deter us from imposing the idea that retribution justifies the death penalty. Now, I know there will be people listening to this call who will have a totally, this lecture, who’ll have a totally different view to that which Marshall and Brennan argued. Should I ever tell you that when we argued Makwanyane, that is a South African death penalty case, which was the very first case argued before the South African Constitutional Court and in which I was privileged to be one of the counsel at the time.
I remember so distinctly at the tea adjournment, a number of American academics who’d come to watch this great, momentous event in which South Africa was now a constitutional democracy, and we were now arguing the very, very first case before the Constitutional Court of South Africa. The question arose, “Why were you relying on Brennan and Marshall, who, of course, were minority opinions, rather than the majority who supported the death penalty? To which I gave the reply, because we are arguing that in South Africa, we no longer want to use the death penalty, that we want to break from our past where we were one of the greatest executors of people and therefore the judgments of Marshall and Brennan accord with the spirit of important objects of our new Constitution. They are inspirations to us, to what kind of Constitution we want, what kind of constitutional society we want. They were. And so when I thought about this lecture, I thought to myself, what a contrast between a man who had argued all of these cases in the most heroic and difficult circumstances of racist America during the '30s, '40s and '50s, who had persuaded the Court in Brown versus Board of Education that "separate but equal” was a pernicious and arguably, utterly wrong doctrine, who then became the solicitor general because Johnson quite correctly saw him as a talented lawyer who happened to be Black, and that was going to make the kind of statement that Johnson felt was just continuing the legacy of Lincoln, and then became a judge of the Supreme Court, holding firm to these particular values throughout the 24 years that he happened to grace the bench. And you ask, what is a great judge? A great judge for me is one who actually acts on principle, whose principle can be sourced in putting the Constitution in the best possible light.
And what does that mean? That means, surely, a society where democratic values count, where the dignity of every single human being counts for something, where ultimately the fact that the freedom of all should be protected, not just of some, and you basically don’t try to gerrymander the Constitution for short term political gain rather than long term political principle. And it seems to me that Johnson, sorry, that Marshall in his legacy stands in such sharp contrast to the judges of the US Supreme Court of today that it’s actually very sad for someone who once upon a time revered that institution as terribly important for the pursuit of constitutional democracy to see what the state of play is. Now I’m sure that Marshall would feel equally, equally mortified by the manner in which the degradation of that Court had taken place. And so why I chose to to lecture on him and to answer the question, “What makes a great judge?” What makes a great judge is someone, when they end their term on the bench, have made the place a better one than when they came onto the bench. And if you think about it, Marshall was appointed by Johnson in '67, left in '91. Sure, America was an imperfect place both in '67 and '91. But at the end of the day, if you read the judgments he gave, you read the contribution he made, he left it in a better place. And whilst he said, as I put in my clip, that we’ve got a long journey to go before everybody, particularly Black Americans who come from poor backgrounds and let me say, white ones too come from poor backgrounds who are able to actually fulfill their promise, because the obstacles of society are destroyed so that they can fulfill their promise.
That seems to me what constitutes a great judge. We are now in a situation where we don’t have great judges. I look at Marshall and Brennan as giants of the US landscape. I look at the present lot as people who use the law for expedient political reasons. You cannot on any possible justification, in law, justify the latest judgment where Trump was granted immunity in the manner in which the majority of the Court did. And that seems to me to be in sharp contrast with what I’ve been trying to lecture this evening. Let me end by just making one final anecdote about Johnson. The story is told that, and I remember this very distinctly, there’s a lift in the US Supreme Court, 'cause when I was a guest of the American government, I was taken there and I had the privilege of meeting William Brennan, which was one of the highlights of my life, even if it was but for a few minutes. He was a charming man. And the story is told that when a whole bunch of guests, sort of visitors like me, got into the lift, they got into the lift in the early '70s with Marshall and they thought, 'cause he was Black, he was the lift man. And they said, “First floor, please.” And he said, “Where would the rest of you like to go?” “Second floor.” Actually in a sense, seeing the humor of their racism that instead of actually being in the lift with a distinguished United States Supreme Court Justice, they thought they were in the lift with a lift man. And I do think, therefore, that when Trudy asked me to do a lecture about lawyers who’ve changed the world, I think in some ways, Marshall did do that, even if we are in a perilous situation now. Let me see what questions we have. Sorry, let me just get to the beginning.
Q&A and Comments:
Q: “I wonder,” says Jean, “what decision the current US Supreme Court would have come to, vouchers for private schools funded by school districts and thus our tax dollars, undermining US public schools?”
A: Well, of course, it’s hard to know Jean, but I would not bet. Certainly as you know, the Supreme Court, the majority have turned their face on affirmative action of any particular kind. And I would certainly think that Thomas, who’s a vigorous opponent of all this, Alito, who follows in those footsteps, and you can’t really say more about Gorsuch and Kavanaugh in particular. I think that the idea that they would seek to locate a judgment within the social realities of the society in which they live as opposed to some arcane and rather pathetic escape into what the 18th century might have produced is all the more likely, and that therefore if a case of a similar controversy came before them, you probably should know, as you probably do, that the progressive solution, the solution of developing the Constitution to extend rights as opposed to curbing rights would unquestionably be the result of the day.
Thank you very much, Carol.
Ruth. “Another argument against the death penalty is that innocent people can and have been put to death.” Oh, for sure. “In the US and Canada, it’s happened, I’m sure.” In the US, it’s happened a lot. There are, I’m sorry that I haven’t dug out the the figures tonight, but I can tell you that there are quite a few studies within the American Supreme Court, of innocent people who’ve been sentenced to death.
And may I just give you one example, an anecdotal but true example in South Africa. There was the case in which I myself was involved. I was, and I have to confess this now, the chair for the Society of the Abolition of the Death Penalty in South Africa before the end of apartheid. And there was a wonderful man who ran Lawyers for Human Rights, called Brian Curran. And Brian Curran phoned me one day and said, “They’re trying to get an application for the postponement of an execution of a particular man who’d been sentenced to death.” And Brian said, “I’m pretty convinced that we’ve got a good case because I’m sure he’s innocent, but they’ve convicted him, and the Supreme Court of Appeal or the appellate division had confirmed that, but we can go back to court on new evidence if we could get a stay of execution.” So he asked me in my capacity as the chair of the Society for the Abolition of the Death Penalty to phone Kobie Coetsee, the then Minister of Justice. I managed miraculously get hold of Coetsee. And this was shortly after a considerable controversy in South Africa about the execution of a whole group of people on what was called the common purpose doctrine for a crime that they may or may not have committed. And South African government had come under severe public criticism. So I threatened Coetsee in this particular way.
And after three calls, which extended into about 12, 12:30 at night, he finally said, “Fine.” I phoned Brian and said, “Brian, great luck, Coetsee says he’ll phone the prisons and they’ll stay the execution pending our application for further evidence before the court.” Brian phoned me back at three in the morning and said, “Coetsee has not done the necessary. They’re going to execute the man at five.” So I woke up Coetsee at 3:30 and said he’d been acting in bad faith. It appeared he hadn’t been, that there was some lack of communication. At 4:20, I’ll never forget this, 14 minutes before the event, the call came through to stay the execution. I remember thinking to myself, “If I fall asleep now,” 'cause it was like, four o'clock in the morning, “this man will die.” The long and the short of it, they stayed the execution. The court accepted that extra evidence had to be brought and the man was clearly innocent and left scot free. But if Brian Curran had not initiated this, an innocent man would’ve been hanged. So I do not need to be persuaded, certainly, that this happens. And I agree entirely with your argument and we should think about that very carefully.
“Margaret Thatcher,” Maxine, “used to say that of course we had the death penalty, we would try harder to be sure to reach perfect verdicts in all cases.” Complete nonsense. We’re all imperfect. Let me tell you something, Maxine, I don’t know about the United States of America, I know about South Africa. The people who defended most of these poor accused were the most inexperienced counsel who’d just come out of law school. We weren’t talking about the great advocates representing them. The system is always imperfect and therefore we’ve got to be cautious. Thank you very much, Esther and Rita.
“The Dobbs case,” says Sandy, “leaving the denial of abortion .” Absolutely! Why on earth should the Court preclude women from at least having the advantage of Roe versus Wade? And what is absolutely shameful is Trump’s nonsense about people wanting to have abortions in the ninth month and ripping children out of wombs and goodness knows what. It just adds to the complexity of this narrative. But Dobbs, Roe versus Wade, which had been a precedent for over 50 years, and simply because the campaign of some had been to ensure that it could be repealed, that it was, throwing away all the precedent 50 years and reducing the freedom of women to have choice in that first trimester. Well, one doesn’t have to say more.
Fiona says, “Because of different ways that local schools in America are funded, there’s rarely an equal feature. The conflict in local,” yes, I accept that, and that may well be the fact that there is inherently no equal protection. Understand that. Because it seems to me that the law cannot solve the social problems in its entirety. And there are people who argue that Brown versus Board of Education, as monumental a judgment as it was, because it wasn’t accompanied by the requisite social change over a period, perhaps was counterproductive. But that’s another debate in time.
Q: “What is the frequency of recidivism in South Africa?”
A: Yeah, I mean, there is recidivism, no question, I accept that. The question is whether they should be released early and that’s the imperfection of the system. But I think I’ve managed to answer all the questions. Thank you very much and again, may I say I hope that you’ve learned something about a great American judge. Goodnight to all of you.