Marshall Law

Good morning, it’s Wednesday, Oct. 2, 2019. Last night, the Washington Nationals (or the Washington “Internationals,” as Tom Boswell dubbed them) pulled off a win so thrilling that baseball fans in this area will be talking about it for years.

On paper, the Nats are better than the Milwaukee Brewers, especially when the visiting team was without its best player. But baseball is funny that way: The best teams only win six out of 10 times they take the field, meaning that a one-game playoff is almost by definition a crap shoot.

Down 3-1 in the 8th inning, the Nationals needed a few baserunners and a big hit — and they got them. The timely hit was the least surprising part of the sequence, coming as it did from a 20-year-old Dominican slugger hitting in the cleanup spot.

That budding young star had, to that point, struck out twice and misplayed a ball in left field. Even this morning, the box score has him at one hit in four at-bats in his postseason career, for a modest .250 batting average. Which hardly tells the story.

Fifty-two years ago today, a man with a much higher success rate was sworn in as a Supreme Court justice. Thurgood Marshall had been appointed by John F. Kennedy to the U.S. Court of Appeals for the Second Circuit in 1961. Four years later, Lyndon B. Johnson made him solicitor general.

“Marshall is already in the front ranks of the great lawyers of this generation,” said LBJ. “He has argued 32 cases before the Supreme Court; he has won 29 of them. And that is a batting average of .900.”

Later, Johnson nominated Marshall to the nation’s highest court. He was confirmed on Aug. 30, 1967 and sworn in on Oct. 2.

By the time Thurgood Marshall took the oath of office as the first African American justice of the U.S. Supreme Court, he was well-known in legal circles as an NAACP lawyer whose career had been dedicated to persuading the high court to start reversing a century’s worth of ill-considered jurisprudence that enabled the official edifices of racism and segregation.

In other words, 52 years ago today Thurgood Marshall swore fealty to a Constitution he’d already been trying to shape and improve. This work, which would now continue with him on the bench, was no small task — as he knew better than most.

“I have a lifetime appointment and I intend to serve it,” he quipped. “I expect to die at 110, shot by a jealous husband.”

Like every African American reformer of his generation, Thurgood Marshall drew on lessons from his personal experience. He was the son of a Baltimore railroad porter who later worked at a Maryland country club open only to whites. His mother was a schoolteacher at a segregated school. When Marshall graduated from college in 1930, he was denied access to the University of Maryland law school because of his race.

He was accepted at Howard University’s law school — his mother pawned her wedding and engagement rings to help pay the tuition — graduating first in his class in 1933. When Thurgood Marshall argued as an advocate against the ills of “separate but equal” education before a court he would join a decade later, he knew what he was talking about.

He didn’t die while serving on the court as a very old man, and he didn’t live to be 110. This was unlikely for someone who eschewed any exercise more strenuous, he joked, than lifting a poker chip. In any event, on June 27, 1991, he wrote a letter to President George H.W. Bush announcing his retirement.

Justice Marshall left behind a generation’s worth of jurisprudence on a wide-ranging set of issues. He was, for one thing, a staunch defender of the First Amendment. Here, courtesy of legal scholar David L. Hudson Jr., are Marshall quotes from five free-speech cases.

— “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. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” (Stanley v. Georgia, 1969)

— “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Police Department of City of Chicago v. Mosley, 1972)

— “The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity.” (Procunier v. Martinez, 1974)

— “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” (Rankin v. McPherson, 1987)

— “The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” (Bolger v. Youngs Drug Products, 1983).

Carl M. Cannon
Washington Bureau chief, RealClearPolitics
@CarlCannon (Twitter)
ccannon@realclearpolitics.com

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