U.S. Second Circuit Court of Appeals and
Solicitor General (1961-1967)
By 1961, Marshall had been working with the NAACP for twenty-five years and was ready to leave. He said of his decision that “I thought I’d kind of outlived my usefulness, in original ideas, in the NAACP hierarchy.”1 Robert Kennedy, Attorney General under his brother, President John F. Kennedy wanted Marshall to take a position on the federal district court, but Marshall replied that he would rather serve on the court of appeals. Kennedy did not want to give Marshall the job, although there was an open position. Marshall ended the meeting, saying “The trouble is that you are different from me. You don’t know what that means, but all I’ve had in my life is nothing. It’s not new to me, so goodbye.”2 And he walked out.
President Kennedy nominated Marshall for the court of appeals in 1961, and despite what Robert Kennedy said to Marshall in person, he vouched for his appointment. The vote on his nomination was delayed for eight months by southern Democratic senators, who were opposed to Marshall’s appointment because of his long involvement with the NAACP. Questions were raised about Marshall's ability as a lawyer and a judge, and whether he was a racist and/or a communist. The southern senators seemed to oppose him because of his race and his defense of civil rights laws. After the eighth month of delay, they conducted strenuous hearings which lasted six days over a three month period. He was confirmed as a judge on the U.S. Second Circuit Court of Appeals on September 11, 1962, amidst a cheering crowd of supporters.
The Second Circuit Court was then and is now the most esteemed of the thirteen federal appellate courts, and its judgments in many controversial cases were upheld by the Supreme Court. When Marshall was appointed to the court, there were more cases about constitutional rights than ever before. Marshall wrote 118 opinions - 98 majority opinions, 8 concurring opinions, and 12 dissenting opinions. None of his 98 majority opinions were ever overturned by the Supreme Court. Throughout his four years as a Circuit judge, Marshall remained a liberal on many issues, including academic freedom, the right to a fair trial, and the right of civil rights demonstrators to picket and protest.
In 1965, Solicitor General Cox resigned, and President Lyndon B. Johnson appointed Thurgood Marshall to the position. In contrast to the year-long confirmation process he experienced being appointed to the Second Circuit, his confirmation process for the Solicitor General position lasted only one month. As Solicitor General, Marshall’s responsibility was to decide which of the appealed cases from the lower federal courts would be heard by the Supreme Court; his judgment was final. It was an important, powerful position, and although it paid less and was not as secure as his job on the Circuit Court, he loved the job. For Johnson, the appointment was political strategy. He said, “I want folks at the Justice Department to walk down the hall and see a nigger sitting there.”3 Johnson’s actions as a civil rights advocate spoke louder to the nation than did his sometimes unfortunate words.
Arguing for the government as solicitor general between 1965 and 1967, Marshall won fourteen of his nineteen cases. He fought for desegregation, the rights of minority groups, the right to privacy, and the enforcement of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. His view was that “all discretionary treatment by government…against identifiable groups…-owing to their social, racial, economic, religious, or other neutral characteristics - had to be invalidated by the Supreme Court.”4 Marshall had become a national symbol of racial peace and equality.
1 Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (p224)
2 Thurgood Marshall and the Persistence of Racism in America (p181)
3 Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (p244)
4 Thurgood Marshall and the Persistence of Racism in America (p192)