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Time For a New Thurgood Marshall on the Supreme Court

Michael Avery is a Professor of Constitutional Law at Suffolk University School of Law.

Thurgood_marshall_photoSaturday, July 2, was Thurgood Marshall’s birthday, and it is high time President Obama remembers who Marshall was and what he meant to the struggle for civil rights and social justice in this country. Obama should announce now that at the first opportunity he intends to appoint someone to the Supreme Court with the experience, vision, courage and integrity that made Marshall such a great lawyer and great justice. 

The son of a railroad porter who was born in 1908 in Baltimore, Maryland, Marshall endured racism first-hand. The future Supreme Court Justice was barred from the University of Maryland School of Law in 1930 because it was segregated. Marshall addressed that problem soon after graduating from Howard Law School, joining Charles Hamilton Houston in persuading the Maryland courts to order the school integrated in 1936. Marshall argued: “What’s at stake here is more than the rights of my client. It’s the moral commitment stated in our country’s creed.” In 1980 when the school named the law library after Justice Marshall he refused to attend the dedication ceremony, declining to be used as a vehicle for the school to salve its conscience.

As a lawyer, Marshall literally risked his life to argue for civil rights. He traveled through the Jim Crow South in a 1929 Ford, writing papers on a manual typewriter in his car, representing common people who had the courage to challenge the prevailing order. He sat in their homes, listened to their stories, felt their pain and then told truth to power, taking their cases to the highest court in the land. He worked for the NAACP for twenty-five years, twenty-three as lead counsel. He won 29 of 32 cases he argued in the U.S. Supreme Court, including of course, Brown v. Board of Education.  

President George H.W. Bush replaced Thurgood Marshall on the Supreme Court with the conservative Clarence Thomas, whose principal civil rights “contribution” had been undermining the mission of the Equal Employment Opportunity Commission as its chair. When George W. Bush ran for office he promised to appoint conservative justices like Thomas and Antonin Scalia, and, as president, he did, making John Roberts the chief justice and putting Federalist Society stalwart Samuel Alito on the court. President Obama should have campaigned on the promise he would find a worthy replacement for Justice Marshall.

My argument is not that Obama needs to appoint an African-American justice. It is that he needs to appoint someone who has a visceral understanding-- based on repeated exposure and opposition to injustice-- of what the Constitution promises and how those promises have been broken. 

Many such lawyers exist. Stephen B. Bright, senior counsel at the Southern Center for Human Rights, is a brilliant lawyer, author and professor who has devoted his life to fighting racial discrimination and representing poor people accused of crime, particularly in death penalty cases. If the president wanted a somewhat younger person with the promise of a longer tenure on the court, he could choose Bryan Stevenson, the executive director of Equal Justice Initiative. Stevenson, recipient of a MacArthur Fellowship and a professor at NYU Law School, has represented capital defendants and death row prisoners in the South for more than 25 years. Mary Bonauto has been the civil rights project director at Gay & Lesbian Advocates and Defenders since 1990. She argued the Massachusetts case where the Supreme Judicial Court held that prohibiting marriage to same-sex couples is unconstitutional.   As a principal architect of the campaign for marriage equality in New England, she evokes the experience of Thurgood Marshall, Charles Hamilton Houston and the NAACP in overcoming state-sponsored apartheid.  All three are widely respected, and any of them would be a worthy heir to Justice Marshall. It is time for the president to honor his memory by promising to nominate a civil rights veteran to the Supreme Court.