Supreme Court Justice Clarence Thomas last Friday issued a concurring opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade. Thomas argued that additional precedents–concerning the constitutional guarantees of gay marriage, contraception access, and even consensual same-sex intimacy–-may also fall outside of the rights enumerated by the Due Process Clause of the 14th Amendment. On this week’s episode of Now & Then, “Processing Roe’s Reversal in Real Time,” Heather Cox Richardson and Joanne Freeman discussed the long drift of the Court away from safeguarding civil rights. The 1991 retirement of Thomas’s predecessor, Justice Thurgood Marshall, served as a particularly consequential moment in this move toward the Court’s current orientation. 

On June 27th, 1991, Supreme Court Justice Thurgood Marshall offered his final dissent, in Payne v. Tennessee. The petitioner, Pervis Payne, had been sentenced to death for the killing of a 28-year-old female acquaintance, Charisse Christopher, and her two-year-old daughter. Payne–who lived with an intellectual disability–claimed he had discovered the bodies but was not the murderer. The judge had allowed the jury to hear an impact statement from the victim’s mother, who revealed that Christopher’s surviving son “cries for his mom” and would one day want to know “what type of justice was done.” 

The Court ruled 6-3 that the mother’s impact statement was admissible under the Constitution, overturning two 1980s cases–Booth v. Maryland and South Carolina v. Gathers–that limited the use of such statements during sentencing for capital cases. 

Marshall, a career-long opponent of the death penalty, had ruled with the 5-4 majority in the earlier cases, signing opinions that argued the statements unfairly tipped juries against defendants based on emotional appeals rather than legal arguments. In the interim, Marshall’s two surest liberal allies on the Court, Justices Lewis Powell and William Brennan, had retired. 

Marshall excoriated the Court in his Payne dissent: “Power, not reason, is the new currency of this Court’s decisionmaking,” he judged. He also rang the alarm about the willingness of conservative Chief Justice William Rehnquist and his increasingly strident majority to overturn precedent: “Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent.” 

In a moment of particular prescience, Marshall argued that the Payne decision–which relied on a narrow reading of the Due Process Clause–could one day lead to the type of 14th Amendment-related rights rollbacks for which Thomas is now advocating: “The majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination.”

Only hours after the Payne decision announcement, at 1 PM, the 82-year-old Marshall sent President George H.W. Bush a terse retirement announcement: “The strenuous demands of court work and its related duties required or expected of a justice appear at this time to be incompatible with my advancing age and medical condition.”  Marshall’s surprise decision left only Harry Blackmun, aged 82, and John Paul Stevens, aged 71, as the only remaining members of the Roe v. Wade majority–and general liberal jurists–left on the Court. 

Bush issued a cordial statement, acknowledging the “extraordinary and distinguished service” that had marked Marshall’s remarkable rise. A graduate of Howard Law School, Marshall started work as a lawyer at the NAACP in 1934. Over the next 25 years, he won 29 of the 32 cases he argued before the Supreme Court, from voting rights cases in Texas to the famed Brown v. Board of Education case that desegregated American public schools. He served as President Lyndon Johnson’s Solicitor General before his confirmation as the first Black Supreme Court Justice in 1967.  

“We wish him the best in his retirement. I intend to nominate a successor very soon,” Bush ended. 

The pleasantries between Marshall and Bush belied tensions that had burst into the public eye the previous year, during Bush’s July 1990 nomination of David Souter to replace Brennan. 

Marshall fiercely criticized Bush’s cagey approach to picking a successor for his close friend. During an interview with ABC News anchor Sam Donaldson, Marshall argued that Bush’s mercurial chief of staff, John Sununu, was “calling the shots” in the nomination battle. When Donaldon asked Marshall what he would like to say to President Bush, the Justice did not mince words: ”It’s said that if you can’t say something good about a dead person, don’t say it. Well, I consider him dead.”

While Marshall was not in full battle mode in the immediate aftermath of his resignation, he still had moments of rebellion. When the Associated Press, only moments after the news broke, asked the Justice who he would like to see replace him on the bench, Marshall replied, “Me.” 

The day after his resignation, Marshall’s trademark caustic wit emerged again during a press gaggle in the Supreme Court’s East Conference room to formally mark his retirement. The Justice denied that he was leaving out of frustration with the Court’s conservative direction. He called reports of his anguish in the New York Times “a double-barreled lie,” and argued that his health issues–he had suffered a serious fall in Chicago the previous year–were the only factor in his leaving the bench. “What’s wrong with me?” Justice Marshall said. “I’m old. I’m getting old and falling apart.”

Chicago Tribune commentator Clarence Page asked Marshall, “How do you want to be remembered?” “That he did what he could with what he had,” the Justice succinctly replied.  

Marshall also offered a barbed but somewhat impressionistic warning to President Bush, who many believed would pick a conservative Black jurist to replace the legendary liberal. “My dad told me way back that you can’t use race. For example, there’s no difference between a white snake and a black snake. They’ll both bite.” 

As Marshall displayed his wit and wisdom to the press corps, saddened editorials streamed from the pens of legal and political scholars. New York Times political commentator Tom Wicker, nearing the end of his 26-year run authoring the “In the Nation” column, offered an angry elegy for Marshall on the same day as his press conference, in a column entitled “This Radical Court.” 

Wicker argued that the oft-trumpeted “judicial restraint” of conservative justices under Chief Justice William Rehnquist had given way to right-wing activism–a stunning reversal of the Warren Court. “Probably nothing could make most of the decisions of the Rehnquist Court palatable to its critics,” Wicker wrote. “But a little less hypocrisy would be a welcome show of real judicial restraint.”

Wicker also predicted the long-lasting impact of Marshall’s retirement: “The current cycle is particularly distressing to those in sympathy with William Brennan and Thurgood Marshall because recent Republican dominance of Presidential politics, the likely continuation of that trend and shrewd Republican choices of younger conservatives mean that the present Court majority is not likely to be much altered for decades.”

Kate Michelman, the leader of NARAL Pro-Choice America, brought up the likelihood of Roe v. Wade’s eventual demise the day after Marshall’s announcement: “The departure of Justice Marshall is another step toward the destruction of any constitutional protection for the right to privacy and the right to choose.”

Stanford Law Professor Gerald Gunther rang the alarm in the Los Angeles Times on June 29th: “Since the early ‘70s, there has been talk of a counterrevolution. Now there’s no question: the counterrevolution is here.” 

And Georgia Congressman and civil rights icon John Lewis expressed his surprise at Marshall’s abdication–particularly under a Republican president– and his fear for Bush’s plan of succession: “We thought he would stay on there until they literally had to carry him out…I’m not for someone being appointed to the court simply because he’s Black. You can have the president appoint a Black conservative or reactionary, a strict constructionist. I would like to see him appoint someone in the tradition of Thurgood Marshall.”  

Lewis did not have to wait long to find out Bush’s plan. On July 1st, 1991, only four days after Marshall’s retirement letter, Bush announced his pick for Marshall’s successor: D.C. Circuit Court of Appeals Judge Clarence Thomas, a vocal foe of affirmative action and a loyal congregant at a Virginia church whose pastor likened abortion to “a holocaust.” 

The speculation over Thomas’s potential undoing of Marshall’s legacy was overshadowed by Anita Hill’s October 1991 accusations that Thomas had sexually harrassed her while serving as her boss at the Department of Education and the Equal Employment Opportunity Commission. Marshall largely avoided comment during the contentious hearings that followed. Thomas was narrowly confirmed, 52-48, to his seat on the Court. Carl Rowan, Marshall’s friend and a trailblazing Black diplomat and journalist, later wrote that Marshall–despite his public silence on the scandal–criticized the Senate’s unwillingness to scuttle Thomas’s nomination, saying, “We’ve gone from chicken salad to chicken shit.” 

Yet even in retirement, Marshall’s legacy influenced his former colleagues. In December 1991, Justice Sandra Day O’Connor–typically stridently pro-death penalty in her jurisprudence–uncharacteristically co-signed an opinion with Stevens and Blackmun refusing to hear a Virginia death penalty case and calling on the Virginia Supreme Court to review the evidence in the case. 

Then, in the Spring 1992 Supreme Court term, the Court heard Planned Parenthood v. Casey, a case concerning Pennsylvania’s strict abortion regulations that had the potential to overturn Roe. Justice Souter, up until this point a question mark on abortion rights, was the swing vote in an opinion that–while leaving most of Pennslyvania’s restrictions in place–reiterated the central holding of Roe

The unexpectedly pro-civil rights turn was accompanied by glowing Marshall tributes that Justices O’Connor and Anthony Kennedy published in a commemorative Summer 1992 edition of the Stanford Law Review. Kennedy offered a poem that William Wordsworth wrote for Haitian freedom fighter Toussaint Louverture and waxed nostalgic on Marshall’s lessons for justice-seekers: “Justice Marshall reminds us of our moral obligation as a people to confront those tragedies of the human condition which continue to haunt even the richest and freest of countries.”

O’Connor, meanwhile, argued that Marshall’s experiences served as “a source of amazement and inspiration, not only because of what they reveal about him, but also because of what they instill in, and ask of, us.”

New York Times Supreme Court reporter Linda Greenhouse drew some implicit lines between Marshall’s influence and their unexpectedly Marshall-like opinions: “Justice O’Connor’s and Justice Kennedy’s emphasis on the impact of Justice Marshall on the Court is particularly striking. It suggests that they may now be concerned that arguments that need to be accounted for, even if not always accepted, are not being heard at all over the strong voices emanating from the Court’s conservative wing.”

Marshall was not only influencing justices, but also continuing to preach his beliefs. On July 4th, 1992–Marshall’s final Independence Day–the Justice received the Philadelphia Liberty Medal, presented by a consortium of the city’s largest private corporations. 10,000 people crowded the grass between the Liberty Bell Pavilion and Independence Hall to hear Marshall’s acceptance speech, dubbed “We Must Dissent.” 

Shortly before the remarks, 17 abortion rights protestors were arrested after occupying the Liberty Bell Pavilion. “What do we have to celebrate today? Nothing,” a 28-year-old activist named Erika Sutherland said through a bullhorn. “Why aren’t people mad about what the Supreme Court is doing? We are talking about private rights and they should be protected.”

Perhaps aware of the rancor that had visited the area just moments earlier, Marshall acknowledged the racial and cultural tensions that faced the nation: “Look around. Can’t you see the tension in Watts? Can’t you feel the fear in Scarsdale? Can’t you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?”

Marshall’s solution was simple: to fight against the overriding hostility. “We cannot play ostrich,” he warned. “Democracy just cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. America must get to work. In the chill climate in which we live, we must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a nation that has buried its head in the sand, waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away.”

Marshall was slated to swear in Vice President Al Gore on January 20th, 1993, but had to cancel due to health concerns. He died four days later. Now, thirty years on from his rousing Philadelphia address, the right-wing Court that he feared would emerge–and which his own influence may have delayed for a time–has come to fruition. 

For more on Marshall’s legacy, read Carl Rowan’s 1993 Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall

And head to the Twitter account of author and Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.

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