Supreme Court - Appointment and Controversy

    When a seat on the Supreme Court was vacated as Ramsey Clark was appointed to attorney general, it came as no surprise that Marshall was chosen to fill that vacancy. He was a legend throughout the nation as a civil rights advocate. As Chief Counsel for the NAACP, he won 29 of 32 cases brought before the Supreme Court. As Solicitor General, he won 14 out of his 19 cases argued.  The nation’s reaction to his appointment was mixed; a New York Times editorial wrote that he did not “demonstrate the intellectual mastery…of his predecessor,” but in the next sentence concluded that he “brought to the Court a wealth of practical experience as well as a brilliant, forceful advocate.”¹ In contrast to Marshall’s appointment to the Circuit Court, the Senate only held five days of hearings for his appointment to the Supreme Court. Yet these days were filled with the attacks of his political enemies from the South. He was interrogated for hours on details of the Constitution and on his opinion about cases which were then being held before the Supreme Court. Marshall withstood the grilling and refused to answer many of the questions. The Senate was nevertheless impressed and on August 30, 1967, Marshall’s appointment was confirmed by a 69-11 vote. He was sworn in on October 1, 1967.

    At the time of Marshall’s appointment the Court was liberal, and Marshall was strongly liberal in his views as well. By 1969, however, the Court became increasingly conservative and Marshall often found himself a dissenting voice. He was an outsider on the Court not only because of his views but also because of his color. Marshall did have several close friends in the Court, such as Chief Justice Warren and Associate Justice Brennan, but he had not expected to encounter so much ironic racism on the Court itself. The discovery left him bitter, angry, and disillusioned. President Johnson, a week before his death, expressed to Marshall that he felt it was the decision to appoint Marshall to the Supreme Court, not how he had dealt with the Vietnam War, that led to his failure to be reelected. Presidents from Nixon to Bush expected Marshall to be forced to leave the Court because of his health habits, and hoped this would happen quickly so that they could fill his seat with a conservative jurist. Marshall resented this deeply, and during the early years of Reagan’s presidency he said to his clerks, “If I die while that man’s President, just prop me up and keep on voting.”² Derogatory rumors about his work and his competence circulated constantly, but Marshall for the most part bore this with patience and discipline, never losing sight of his goals. His legacy lives on today, both in his rulings as a Justice and in the amazing amount of change he brought about as an advocate.

1 A Defiant Life (p194)
2 A Defiant Life (p203)