Thurgood Marshall: The Writer

Abstract

This article provides a brief biography of Thurgood Marshall, primarily profiling Marshall as a writer. In his roles as a lawyer and civil rights activist, a legal scholar, and a Supreme Court Justice, Thurgood Marshall mastered writing techniques that informed and persuaded his audiences throughout his life-long endeavor to achieve equality for all. This examination of Marshall’s legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society.

The article first studies Marshall’s arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a murder trial in which the prosecution sought the death penalty. The article explains how Marshall’s creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still-segregated society.

The second profile explores the ethical dilemma that Marshall faced when drafting the appellate brief for Brown v. Board of Education and how the dilemma combined with the social context of 1954 to influence his use of persuasive writing techniques. The article explains how Marshall’s choices as a writer proved to be an effective strategy that was simultaneously principled and practical.

The article then considers Thurgood Marshall the moral activist by examining the speech he wrote for the Constitution’s Bicentennial Celebration in 1987. In that Bicentennial speech, Marshall famously refused to applaud the United States Constitution. The article compares the contemporaneous reaction to Marshall’s speech with the controversy that arose during the 2010 Senate confirmation hearings of Marshall’s most famous clerk, Elena Kagan.

Finally, the article explores Justice Marshall the writer by examining his dissent in Payne v. Tennessee, a capital sentencing case. The article demonstrates that by choosing to attack the assumptions underlying the majority’s argument, Marshall was able to craft a broad and powerful writing in which he not only advocated his opposition to the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining equality for everyone.

Keywords: Constitutional Law, Civil Rights, Legal History, Legal Writing, Jurisprudence, Law & Society

JEL Classification: K10