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We Could Use Thurgood Marshall's Wisdom These Days

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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Last month marked the 25th anniversary of Justice Thurgood Marshall’s announcement that he was retiring from the Supreme Court after 24 years of service. Hardly anybody noticed. That’s too bad. We could use his wisdom in this badly fractured moment.

Many people within a decade or two of my age miss Marshall because of the way he voted. But that attitude, although common when we look at the court, masks something terribly cynical and even illiberal.  The justice whom we love because he votes the right way isn't valued for who he is, but for the benefit we derive from him. We see him less as public servant than as simply a servant -- an ideological captive over whom we are able to exercise control.

 Let me offer a different perspective. I will admit, first, to a bias. I loved that old man. I served as one of his law clerks back in the early 1980s. After leaving the court in 1991, Marshall asked me to be the interviewer for his official oral history. He passed away before we could finish, but not before covering nearly all of his life before he joined the Supreme Court -- the decades of litigating civil rights cases for little money, and often at risk to his life. (Some successful plaintiffs simply disappeared.) And for those who care about the human being more than the votes, that earlier part of his life is where the most important lessons are to be found.

Marshall was a raconteur in the grand tradition. His tales of the old days could be mesmerizing. He would tell us of presidents he had known and admired (particularly Harry Truman and Lyndon Johnson), and of segregationist politicians with whom he had negotiated. He talked about the pain of the ordinary black people he met in his work, and the perilous, hand-to-mouth existence of black civil rights lawyers back in the 1930s and 1940s. But he didn’t speak just to hear himself talk. He told stories in order to teach. What he taught us was more than love of justice or tolerance of disagreement.  He taught through example the importance of loving our neighbor across our differences.

Once, while clerking for Marshall, I had occasion to ask him what he thought of John W. Davis, the distinguished New York attorney and former Democratic presidential nominee who argued the pro-segregation side in Briggs v. Elliott, one of the school cases decided by the Supreme Court in 1954 alongside Brown v. Board of Education. (Marshall represented the other side.) Davis was no mere hired gun. He had argued more than two hundred cases before the Supreme Court, winning most of them. And he himself was an ardent (if genteel) segregationist.

Given that Davis was on the wrong side of the most divisive and important moral issue of the 20th century, I assumed that Marshall would respond to my prompt by heaping hellfire and damnation upon his head. (I was, after all, young enough to know everything.) But his answer surprised me.

“John W. Davis?” Marshall intoned. “A good man. A great man ... who just happened to believe in that segregation.”

He wasn’t being either ironic or sarcastic. He was sincere.  Across the bitter divide of Jim Crow, Marshall had a remarkable ability to find the common humanity in his opponents. His admiration for Davis was not unique. Again and again, he spoke highly of governors or members of Congress who were on the wrong side of the issue. He didn’t care, Marshall used to say, what a man had to do to get elected.  What he cared about was whether, when you shook hands on a deal, “his word was good.”

Many of his tales were about making secret deals, often in smoky back rooms -- “playing cards and drinking whiskey,” as he put it. He loved to tell the story of how he persuaded a particular Southern governor to hire the first black nurses at the state’s hospitals, and while the details involve language not quite fit for publication, the bottom line was that he managed to pull off this coup because he and the governor, if not precisely friends, were close enough to sit down together privately and work out a way to avoid either litigation or protests.

The point is not that Marshall considered litigation or protests to be wrong. The point is that he was able, in the most tumultuous of times, to keep lines of communication open with those on the other side. And he did this not just as a strategy, but out of a genuine belief in the breadth of human capacity. Marshall’s highest praise for others, as he reflected on his long and stellar career, was this:  “You could do business with him.” His opponents may have been wrong on the greatest issue of the day, but they were still just people.  People who were wrong, yes, but also people worth getting to know well enough (“playing cards and drinking whisky”) so that business could be done.

In our own sharply divided era, we’ve become all too accustomed to thinking of our opponents as either mendacious or malevolent. But we can learn from Marshall’s example. He risked life and livelihood in a cause that inflamed far greater passions and fury than those over which we battle today. If we heed his example -- if we look past our differences to embrace our common humanity -- maybe we, too, can learn to do business again.

That’s the reason, 25 years after his retirement, that we should miss Thurgood Marshall. Human beings of his caliber come along far too seldom.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net