Introduction for The Transition

INTRODUCTION

RACE, SCHOOLS, AND THE JUSTICES OF THE SUPREME COURT

“Sixteen.”

The interjecting voice was a new one amid that morning’s argument in 1982. It was uttered with a characteristic note of certainty, as well as a hint of disgust. Justice Thurgood Marshall had a low tolerance for injustice that could be openly apparent when he engaged with lawyers arguing at the Supreme Court.

Moments before, Marshall had been listening to the arguments of Frederick Merkin, the lawyer for the City of Los Angeles, who was trying to persuade the justices to lift an injunction against the use of chokeholds by the Los Angeles Police Department. Adolph Lyons, an African American man who had lost consciousness after being put in a chokehold by police during a traffic stop for a busted taillight, had won an injunction that aimed to stop police from using the practice absent urgent need. In front of the Court in November 1982, Merkin was arguing that such an injunction would only be appropriate if the Court concluded that choke-holds “shocked the conscience,” a very high threshold.¹

Marshall’s colleagues pressed Merkin, noting that chokeholds had caused deaths. Certainly, that would shock the conscience, they implied. “You had a number of deaths here, didn’t you?” asked Justice Harry Blackmun. “A number of them, aren’t there?” Justice Byron White followed up, after Merkin conceded that, yes, the LAPD had killed people when employing chokeholds.

As Merkin dithered, Marshall spoke up.

“Sixteen.”

Thurgood Marshall knew precisely how many deaths LAPD had caused by chokeholds between 1975 and 1982. And when Adolph Lyons’s case reached the Supreme Court, Marshall took the opportunity to put the chokehold on trial. In his dissent from the Court’s decision that the city’s voluntary chokehold moratorium made the case moot, Marshall was aghast that the Court would remove chokeholds from judicial oversight and left no doubt about who would bear the brunt of this outcome. He highlighted that twelve of the sixteen people killed by police chokehold were Black males in a city where Black males made up only 9 percent of the population. Adolph Lyons survived his encounter with LAPD, but sixteen people had not in the years since, and that group was disproportionately Black and male, like the dissenting justice.²

Among the Americans to serve on the Supreme Court, Thurgood Marshall must have been the most familiar with the potential for injustice when African Americans encountered law enforcement. In addition to simply living life as a Black man, Marshall’s lawyering career led him to defend many Black men accused of crimes. Marshall argued against all-white juries in capital cases, forced confessions, and wrongful arrest. In one case, Marshall argued that a confession could not be relied on since it had been secured after an eight-hour interrogation during which police dumped the victim’s bones into the defendant’s lap.³

On the Court, Justice Marshall used his experiences as a lawyer to inform his work on matters of criminal justice. He was the Court’s most passionate opponent of the death penalty, and he argued urgently that its discriminatory implementation further undermined its constitutionality. In the Lyons case in 1982, with the disproportionate effect of LAPD choke-holds on Black men fueling his revulsion, Marshall provided a detailed and clinical picture of the way chokeholds lead to deaths: “Depending on the position of the officer’s arm and force applied, the victim’s voluntary or involuntary reaction, and his state of health, an officer may inadvertently crush the victim’s larynx, trachea, or thyroid. The result may be death caused by either cardiac arrest or asphyxiation.”⁴

Marshall was describing a disturbing scene, one that foreshadowed another, nearly forty years later when a Minneapolis police officer was captured on video kneeling on the neck of George Floyd, killing him. Characterizing the Court’s decision in Lyons as an abandonment of judicial responsibility for restraining law enforcement and its potentially deadly tactics and highlighting the racial disparities in chokehold deaths, Marshall was arguing, essentially, that Black lives matter.

AN EVOLVING COURT

The racial justice protests of 2020 were a vivid reminder of how much of Thurgood Marshall’s work remained. Whether Black citizens in their encounters with law enforcement and the criminal justice system, Black students in their encounters with the nation’s education systems, or Black voters in their demands to have their voices heard, Marshall’s fight was for full inclusion of and fair treatment for African Americans in the American system. His career reflects an urgent demand for full Black citizenship. Moreover, the 2020 reckoning with the nation’s racial injustice elevated themes Marshall had frequently highlighted, such as structural racism and unconscious bias. As Marshall had always insisted, the 2020 demonstrators connected contemporary racial disparities to the nation’s long history of discrimination against and subjugation of African Americans and demanded remedies. Marshall had never been thrilled with the tactic of mass demonstrations, but he would undoubtedly have identified with the sentiments of those who took to the streets in the summer of 2020.

Marshall spent the final twenty-four years of his career as a Supreme Court justice applying a jurisprudence he had first constructed in his pioneering legal work to the wide range of contexts encountered on the nation’s highest court. Having seen the law construct a system of oppression, he developed an expansive view of the responsibility of law to de-construct the nation’s persistent disparities. That included enabling the federal government broader latitude in overriding the behavior of individual states as well as providing federal courts with the tools to craft effective remedies to stubborn social problems. And at its center was a belief that America’s constitutional structure depended on an equal citizenship that could best be produced in an integrated society in which diverse citizens engaged with one another. Marshall was an integrationist, yes, but on the grounds that affirmatively reversing the legally imposed distances between Americans was a requirement for the democratic structure embedded in the Constitution to function.

But by 2020, this was far from the prevailing vision on the Supreme Court. Thus, although they embraced his mission and his outrage, twenty-first-century demonstrators for racial justice did not see the tactics Marshall had placed at the center of his work to reshape the Constitution as particularly viable. Marshall’s undying faith in the law and the Constitution might have even seemed naïve. The Supreme Court certainly did not seem a place where racial justice was likely to be pushed forward, at least not in the way Marshall had envisioned it.

In the twenty-first century, the Court had prioritized a jurisprudence of colorblindness that was skeptical of efforts to pursue racial justice through law. The most frequent victors in civil rights cases were white plaintiffs arguing that they were being discriminated against due to their race when governments took affirmative steps to pursue racial justice in classrooms and workplaces. In 2007, the Court struck down school diversity plans that sought to maintain racially integrated classrooms. Two years later, the Court ruled in favor of white firefighters challenging a city’s decision to discard a test that had severely disadvantaged Black firefighters seeking promotion. Then, in 2013, the Court declared portions of the Voting Rights Act, a landmark bill passed during the height of the civil rights movement in 1965 and renewed several times in the decades since, unconstitutional. In that case, Shelby County v. Holder, the Court emphasized how much progress had been made on voting discrimination as justification for discarding Congress’s judgment to renew the act, an argument Justice Ruth Bader Ginsburg characterized in dissent as akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”⁵

These were not decisions in line with the jurisprudence of Thurgood Marshall. But a leading voice pushing the jurisprudence of colorblindness was Justice Clarence Thomas, Marshall’s successor and, to that point, the only other African American to sit on the Supreme Court. The Shelby County v. Holder decision embraced a position Thomas had taken several years earlier, arguing that “the lack of current evidence of intentional discrimination with respect to voting” made the Voting Rights Act unconstitutional. In Shelby County itself, Thomas wrote a concurrence, noting that he would declare portions of the act untouched by the Court’s opinion to be unconstitutional as well, a directive the Court largely acted upon several years later. Even when the Court delivered a result cognizant of persistent racial discrimination, Thomas demurred. In 2019, the Court vacated the conviction of a Black defendant on the grounds that prosecutors had unconstitutionally stricken Black jurors from participation in his trial. In dissent, Justice Thomas chided the Court for ignoring the race-neutral justifications for excluding the Black jurors, finding no problems where a 7–2 majority of the Court found discrimination.⁶

The evolution of the Supreme Court from a body Thurgood Marshall, the lawyer, saw as the best forum for confronting the nation’s state-sponsored racial discrimination in the 1940s and 1950s, to one that racial justice protestors in 2020 would have been reluctant to approach for fear of how it might further roll back civil rights protections, has many causes and countless reverberations. One undeniable cause is the change in identity of the justices on the Court over time, and no transition has contributed more to the Court’s transformation than that in 1991 from Justice Marshall to Justice Thomas. Moreover, the range of thought captured in the jurisprudence of Justices Marshall and Thomas vividly demonstrates the wide-ranging consequences resulting from a shifting Court. Those effects implicate legal, social, and political topics that go well beyond race and touch on foundational tensions of American citizenship.

On the structure of the government created by the Constitution: Where is the appropriate balance between federal authority and the autonomy of states and localities? Do judges have a responsibility to protect the rights of minorities who have limited influence on the elected branches of government? And if so, how much discretion ought judges have in crafting such protections?

On the tension inherent in working to promote equality among a diverse population: Does the Fourteenth Amendment’s equal protection clause prohibit only legal discrimination or also circumstances, often the result of private choices, that have discriminatory effects? Can classifications be used by the government to benefit previously disadvantaged groups, or must the government be colorblind and neutral altogether? And how direct must the line be between present disparities and prior discrimination to make affirmative remedial action appropriate?

And on the best strategies for pursuing social change: Are Americans better off working within systems that have historically been oppressive or working to create alternatives? Given persistent racial disparities, where is the appropriate balance between taking individual responsibility for personal uplift and vigorously pursuing systemic change?

These are questions that strike to the heart of the American experiment and the Constitution’s negotiation of the relationship between a people and their government. And while all Americans must negotiate that relationship, the intensity of the work has historically been greater for African Americans, whose very citizenship has been contested from the Constitution’s earliest drafts.

In their lives, Thurgood Marshall and Clarence Thomas have experienced the challenge of living and learning in a world and system that had enslaved their relatives and that continued to subjugate members of their racial group. In their early careers, each sought to eliminate racial stereotypes and barriers that held the nation’s racial caste in place, albeit in very different ways. And on the Court, Justices Marshall and Thomas have had ample opportunity to encounter the vast questions presented in this space and, with the power that comes with being one of only nine justices, have engaged the questions shrewdly.

The 1991 transition from Justice Marshall to Justice Thomas will forever tie these two jurists together, but it is their work, their contrasting visions of citizenship, and the broad effects of those visions that make that transition a crucial turning point in the transformation of the Supreme Court.

SUPREME COURT TRANSITIONS

Remaking the Supreme Court is an exceedingly gradual process. Of the branches of American government, the federal judiciary is the most stable. Justices to the Supreme Court are appointed with life tenure, so turnover is infrequent. Between 1953 and 2020, there was a Supreme Court appointment, on average, every two and a half years, but each appointment only changes the identify of one of nine justices. Changes on the Court happen infrequently and at unpredictable intervals, and each one has less consequence in the direction of the institution than any presidential or congressional election.

And Supreme Court transitions are not created equal. While every transition brings a new perspective into the conference room where the justices discuss cases, many transitions do not fundamentally alter the dynamics on the Court. Justices are well aware of the workings of the Court, and many time their retirements so that the president who will replace them will do so with a successor largely sharing their philosophy. Even in those instances where a transition brings a justice who differs markedly from a predecessor, such a shift will only lead to different outcomes on a closely divided Court. Further, some transitions that at first appeared to shift the Court’s balance have turned out to be less impactful due to shifts in the justices themselves over time.

It thus takes a perfect storm for a single transition to remake the Supreme Court. But by every measure, the transition from Thurgood Marshall to Clarence Thomas was just such a storm. It featured the replacement of a justice appointed by a Democrat (Lyndon Johnson) with a justice appointed by a Republican (George H. W. Bush). That difference actually translated into contrasting jurisprudence among the predecessor and successor justices. Indeed, the swing from one end of the ideological spectrum to the other that occurred between Marshall, one of the Court’s most liberal justices, to Thomas, one of the most conservative, was the largest such shift among any transition since 1953. Further, Justice Thomas has not wavered in philosophy over his three-decade tenure, consistently rating as one of the more conservative justices, just as Justice Marshall had consistently been one of the Court’s more liberal.⁷

The transition occurred at a time when the balance of the Court was fluid, and such a shift would truly remake the Court and many of its outcomes. The Court of the 1980s was somewhat paralyzed by its parity and often seemed to contradict itself in cases that ought to have been similar. This was precisely what Justice Marshall was complaining of in his final dissent when he noted that the Court was overturning a similar decision made only four years earlier. Thomas’s arrival established a conservative majority that has persisted as he has passed from the Court’s most junior justice to its most senior. Despite eight Court appointments between 1991 and October 2020, the Court’s ideological landscape remained largely unchanged from that established upon Justice Thomas’s arrival: the most significant potential disruption of that balance was averted when Republican senators refused to hold hearings for nominee Merrick Garland, whom President Barack Obama had picked to succeed the conservative Justice Antonin Scalia in 2016. The death of Justice Ginsburg in 2020 and her quick replacement by Justice Amy Coney Barrett (an election-year replacement that Republican senators did allow in a reversal of their position for replacing Justice Scalia) has further strengthened the conservative hold on the Court.⁸

Thomas’s confirmation created an enduring conservative tilt to the Supreme Court that has had an impact beyond the mere counting of votes and ideologies among the justices. Since the earliest days of the nation, there has been an American tendency to convert social and political questions into legal ones. As Alexis de Tocqueville observed in 1835, “There is hardly any political question in the United States that sooner or later does not turn into a judicial question. . . . Thus, judicial language becomes, in a way, the common language.”⁹ Thus, even though the Court is primarily confronted with narrow legal questions about constitutional and statutory interpretation, its decisions both reflect and shape the most pressing social questions of the moment. Given that influence, the nine justices who occupy the seats at One First Street have great power in defining the evolving meaning of American citizenship. This is one of the threads braided into the narrative of this book.

THE AMERICAN DILEMMA

While the Marshall-to-Thomas transition was ideologically impactful, it was also historically unprecedented. At the time of Thomas’s nomination, only 105 Americans had served on the Court in the nation’s two centuries, all of whom were white males except Thurgood Marshall and Sandra Day O’Connor. Replacing the nation’s only Black justice made the moment historically unique and fraught with the legacy of a nation where law had subjugated African Americans and where the relationship of race and law was ever contested. The American dilemma of race has presented the most confounding tests of the meaning of citizenship for courts and society.

Race cases implicate an array of legal and social issues that underscore the judicial role in defining citizenship, and both Marshall and Thomas regularly use race cases to expound on their political and judicial philosophies. That they are able to do so informed by lived experiences as Black Americans adds a dimension to their work on these topics that further exposes the complexity of the challenge.

Affirmative action was one of the topics the Court had been wavering on through the 1980s. Thurgood Marshall had made his position in favor of both the wisdom and constitutionality of such measures to remedy historical racial discrimination clear from his seat on the Supreme Court. Meanwhile, as head of the Equal Employment Opportunity Commission (EEOC), the federal agency charged with oversight of workplace discrimination, Clarence Thomas had shown great skepticism of such practices.

The topic haunted the Marshall-to-Thomas transition—both as a potential legal issue that would come before the Court and, more directly, in the very selection of Marshall’s successor. Less than a year before nominating Clarence Thomas to replace Thurgood Marshall, President Bush had rejected a proposed civil rights statute on the grounds that it improperly encouraged racial “quotas” in hiring. Yet Bush could hardly avoid the perception that race had played a factor in his selection of Thomas. Meanwhile, the sizable Black opposition to the Thomas nomination seemed also to contradict a prior position that race ought properly be a salient factor in filling jobs: having sanctioned consideration of race in hiring, Thomas’s opponents were left arguing, essentially, “not this African American!”

The transition was thus not only impactful and complex but bursting with irony. At the center of this moment were two Americans who, despite a surface commonality as African American judges, had reached the same pinnacle of American law with vastly different experiences and perspectives. Thurgood Marshall, a product of a life of segregated schooling, argued for the imperative of integration for guaranteeing better educational opportunities for Black students; Clarence Thomas, who came of age within predominantly white environments where he was among a small number of African American students, extolled the benefits of single-race educational options for Black students. Marshall, a lawyer whose entire pre-judicial career involved bringing suits against the government for its mistreatment of African Americans, put the responsibility for solutions on the government and was willing to empower courts to use a wide range of tools to remedy prior discrimination; Thomas, a lawyer whose pre-judicial career involved working almost exclusively for the government, expressed deep skepticism about any government practice utilizing an individual’s race—even to provide a benefit—and sought to restrict government power generally and judicial power in particular.

Such a transition, including its lasting and still unfolding consequences, demands attention. Yet these two justices, different as they are, have been chronically underestimated. Through shallow criticism of their performance on the bench and oversimplification of their judicial perspectives, both Thurgood Marshall and Clarence Thomas have often been reduced to caricature. As a result, the transition from Justice Marshall to Justice Thomas is often portrayed as a simple story about Mr. Civil Rights ceding his seat to a racial sellout; or, from another perspective, a story about a results-oriented judicial activist being replaced by a disciplined adherent to the Constitution’s first principles. Neither fans nor critics tend to capture the complexity of these two Americans and their judicial philosophies.

Race is at the root of the chronic underestimation of Thurgood Marshall and Clarence Thomas. The belittling of their intelligence reflects racist assumptions of Black intellectual inferiority. Their subjugation to superior white colleagues replicates the nation’s traditional racial hierarchy. The oversimplification of their work—by both enthusiasts and detractors—reflects a resistance to engaging with the breadth and nuance of Black thought and enables the coopting of ideas expressed by Black thinkers for others’ self-interest.

The range of legal, political, and social ideas represented in the work of Justices Marshall and Thomas is extraordinary. On a central question of American citizenship—the extension of professed ideals to an increasingly diverse group of Americans, including those once subjugated through law—Marshall and Thomas offer contrasting testimonies with deep roots in the nation’s history. In their work on the Court, their perspectives are filtered through the prism of the cases they have encountered, but their judicial writings on narrow legal topics, and often in concurrences with or dissents from the Court’s primary opinions, grapple with foundational challenges for a nation still working to deliver on its founding promises, particularly for African Americans.

Some of the issues encountered are unavoidably connected to race, such as school and housing segregation, the value of Black institutions as opposed to integration or diversity, the connection of prior discrimination to present disparities, and the purpose of the equal protection clause of the Fourteenth Amendment. But others are not, such as the size and scope of the federal government, the appropriate role of the federal judiciary, and the proper method for interpreting the Constitution. Through American history, Supreme Court justices have confronted these issues across various types of cases, but there is one area where questions of race, citizenship, law, and belonging have triggered particularly fertile investigation by courts generally and particularly passionate writings by Justices Marshall and Thomas in particular. That place is schools.

THE NURSERIES OF DEMOCRACY

When courts talk about schools, they are primarily talking about citizenship. In a recent case, Justice Stephen Breyer referred to schools as the “nurseries of democracy,” a sentiment that echoed the Court’s 1954 assertion in Brown v. Board of Education that education was “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values.” To access Marshall and Thomas’s jurisprudence on crucial legal and social issues—and thus measure the profoundness of the 1991 Supreme Court transition—the book will utilize school decisions because while these cases are about education, they touch on so much more.¹⁰

In addition, in no area are the connections for Marshall and Thomas between personal experience and foundational constitutional questions more robust than in education. This is not unique to these two justices. According to legal scholar Justin Driver, “the public school has served as the single most significant site of constitutional interpretation within the nation’s history.”¹¹ More specifically, in the enduring effort to navigate the difficult relationship between American government and African American citizens, schools have proven a central forum. Marshall’s most famous triumph, Brown v. Board of Education, is the most visible example, but because of education’s potential to either limit or expand the future of individuals, schools have occupied a prominent place, both symbolically and practically, within the African American freedom struggle.

For both Marshall and Thomas, their own schooling experiences were similarly impactful. Marshall’s experiences in the segregated public schools of Baltimore and the all-Black campuses of Lincoln University and Howard University law school drove his work as a lawyer and informed his judicial philosophy. Clarence Thomas entered first grade the fall after Brown v. Board of Education and thus experienced an education system in transition, beginning in Savannah’s all-Black Catholic schools before entering predominantly white environments for high school in Savannah, college at Holy Cross, and law school at Yale. Thomas’s experiences, too, would shape his worldview, though in a very different way.

School cases, then, provide an especially fertile source. They intersect with foundational constitutional questions; they are central to the African American freedom struggle; and they provide the opportunity to trace the way the two justices’ lives informed their philosophies on the bench. School cases offer a lens with outsized importance to the lives, careers, and legacies of Thurgood Marshall and Clarence Thomas, whose judicial work on school cases reverberates well beyond the classroom. As the justices write about school segregation, affirmative action, or racial diversity, they are at the same time confronting some of the biggest questions in American citizenship and constitutional governance.

THE THOMAS COURT

September 2020 was a most explosive moment in modern American history. The transformative energy of global racial justice protests triggered by the suffocation of George Floyd continued into the fall. But even before the protests, the world was deeply in the throes of the upheaval brought by the COVID-19 pandemic. The pandemic had only intensified a polarization within American society that had divided families and communities into hardening ideological factions, which seemed to find it increasingly difficult to even speak to one another. Indeed, the paralysis caused by fundamental disagreements about basic facts had shattered the nation’s response to the pandemic. No figure had done more to accelerate this deterioration of community than Donald Trump, who was facing reelection in November. For Trump supporters and opponents alike, the election seemed an existential moment for the country.

Into this tinderbox arrived yet another shock. On September 18, Justice Ruth Bader Ginsburg passed away after having battled multiple episodes of cancer over two decades. Ginsburg’s death produced another of those most unpredictable of constitutional moments: the replacement of a Supreme Court justice. The stakes were immediately apparent and brought to mind stakes similar to when Thurgood Marshall retired nearly three decades prior.

If Ginsburg were replaced by Trump, it would be the first Supreme Court transition since 1991 that would flip a Court seat ideologically and thus held the potential of disrupting the Court’s balance for the first time in three decades, as it could create a 6–3 supermajority of reliably conservative justices. It was an opportunity Republican leaders could not pass up, particularly with great uncertainty about who would win the White House. Just over a week removed from Ginsburg’s death and less than a month before the presidential election, Trump nominated Judge Amy Coney Barrett to succeed her. After four days of hearings and a failed boycott and filibuster by Democrats, Barrett was confirmed on October 26. The presidential election was held a week later, and Democrat Joe Biden won.

The confirmation of Amy Coney Barrett could be viewed as a culmination of the Court’s transformation, a crucial moment of which had been Thomas’s 1991 succession of Marshall. But it also created for Clarence Thomas a situation somewhat akin to that Thurgood Marshall experienced upon his own confirmation in 1967. Marshall had joined a Court dominated by like-minded justices, a supermajority under the helm of Chief Justice Earl Warren. For Marshall, this experience was short-lived, as President Nixon appointed four justices between 1969 and 1972, which began the Court’s movement in a more conservative direction. Indeed, the first justice appointed by a Democrat after Marshall would not come until Justice Ginsburg in 1993, two years after Marshall’s retirement.

However, when Marshall joined a supermajority in 1967, he was the Court’s most junior justice; in 2020, Thomas was the Court’s most senior. Over his three decades, he had staked out conservative positions that the Court seemed to be moving toward. His skepticism regarding the Voting Rights Act was just one example. As early as 1994, in a case about voter dilution (circumstances in which the relative value of votes seems to differ due to the way districts are drawn), Justice Thomas wrote a concurrence criticizing efforts to increase the number of African American elected officials, lamenting that federal courts had been encouraged through the Voting Rights Act to “segregate voters into racially designated districts to ensure minority electoral success.” A guiding principle for Thomas, and a very personal one, was a rejection of any assumption that all members of any group think alike, and he opposed even remedial efforts like the Voting Rights Act for giving credence to such assumptions. Nineteen years later, a Court majority struck down portions of the act in Shelby County v. Holder. Then, in Justice Barrett’s first term, the Court went a step further, narrowing the applicability of provisions of the act Shelby County v. Holder had left intact. Notably, Justice Elena Kagan—a former clerk of Justice Marshall—dissented in the case, Brnovich v. D.N.C., observing that “the Court decides this Voting Rights Act case at a perilous moment for the Nation’s commitment to equal citizenship.”¹² Given Thomas’s role as a leader among the conservative justices, some have begun to refer to the newly constituted nine, including Justice Barrett, as the Thomas Court. It is a dynamic unlikely to change even with the 2022 arrival of the Court’s third African American justice—and first Black woman—Ketanji Brown Jackson.

The transformation of the Court that led inexorably to the Thomas Court of 2020 and beyond began before Thomas’s confirmation in 1991. But it was the replacement of Justice Marshall with Justice Thomas that tipped the process. At the center of the Court’s remaking are two Americans whose lives informed their work and whose work has both reflected foundational tensions in the American system and pushed that system in contrasting directions from its highest court.

In Marshall, one can find the cocky lawyer eager to prove himself as good as if not better than any white peer. Having made his reputation tearing down systems of discrimination, Marshall easily found long-lasting effects of the historic subjugation of African Americans and was eager to charge government with the responsibility of crafting remedies, even when that process seemed ineffective. He always applied the Constitution in the context of the real world that citizens encountered and focused on the ways systems impacted groups of individuals.

A generation younger than Marshall, Thomas came of age in a world Marshall had help remake. In his work as a justice, one finds in Thomas the fiercely independent and stubborn individual raised by his self-made grandfather who still bristled at the snubs and condescension of others. Having experienced life within largely white institutions and finding a more subversive form of racism than Marshall had encountered, Thomas was deeply skeptical of all government efforts to confront discrimination or promote equality of opportunity. Instead, he favored self-reliance and individual responsibility over systemic change, seeing contemporary disparities as the effect of individual private decisions rather than as legacies of a subjugating past. Thomas believed in fixed principles, such as colorblindness, even when applying them seemed to perpetuate inequality and to distance himself from the Black community for which he professed to be working.

This book first introduces its central figures, their distinct educations, and the ways in which they are bound together by history, including their status on either side of one of the Supreme Court’s most impactful transitions. Then, in separate parts, it uses school cases to unpack the underlying legal, social, and political issues impacted by the justices’ contrasting worldviews. These include a fundamental question facing advocates confronting racial subjugation and denial of full citizenship: whether to prioritize access to institutions that had excluded African Americans or to strengthen existing Black institutions. From their differences on this question, differences that echo generations of work by Black advocates, Justices Marshall and Thomas formed radically distinct visions for the Constitution and the nation that are reflected in their broader jurisprudence. Through the school cases, the book explores the contested meanings of Black citizenship; and by exploring Black citizenship, it examines American citizenship and constitutional governance more broadly—topics like the balance of state and federal governments, the appropriate role of courts among the nation’s system of checks and balances, and the responsibility (or lack thereof) of government to remedy historical discrimination. In conclusion, the book will return to a broad concern raised in Justice Marshall’s final dissent, in which he foresaw a “far-reaching assault” by the Court itself on the rule of law, an assault furthered in part by changes in the Court’s personnel.

Though not a school case, Lyons—the police chokehold case that prompted Justice Marshall to remind the lawyer for Los Angeles of the potential for death and the disproportionate risk faced by Black men in police custody—illustrated the stakes of a shifting Court. As a legal matter, Marshall lamented that “the Court’s decision removes an entire class of constitutional violations from the equitable powers of a federal court.”¹³ But it was not the narrow legal question that truly bothered Marshall. Rather, it was the sixteen lives, mostly Black lives, lost in encounters between citizens and representatives of their government.

The choice of how courts would evaluate such encounters touched on social issues that remained urgent decades later and triggered the racial justice protests of 2020. It is a choice that effectively defines the boundaries and rights of American citizenship. As arbiters of those boundaries, the justices of the Supreme Court have an extraordinary role in our society. For more than a half century, one seat on that Court has been occupied by two men whose lives and work vividly capture the importance of navigating those questions of citizenship and a wide spectrum of possible answers.

NOTES

1. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

2. Lyons, 461 U.S. at 137 (Marshall, dissenting) (“The federal judicial power is now limited to levying a toll for such systematic constitutional violation” because only damages and not injunctions are available unless a plaintiff can show that they will suffer the violation again in the future); Lyons, 461 U.S. at 115–116 and n.3 (Marshall, dissenting).

3. Patton v. Mississippi, 332 U.S. 463 (1947); Taylor v. Alabama, 335 U.S. 252 (1948) (confession coerced by threats and physical violence); Watts v. Indiana, 338 U.S. 49 (1949) (confession obtained after four days in solitary confinement); Tinsley v. City of Richmond, 368 U.S. 18 (1961) (due process claim of individual arrested for loitering while protesting outside of a department store); Lyons v. Oklahoma, 322 U.S. 596 (1944) (the Court did find that the confession was not admissible, but since Lyons had also confessed without coercion, his conviction was upheld).

4. See Furman v. Georgia, 408 U.S. 238, 363 (1972) (Marshall, concurring); Lyons, 461 U.S. at 116–118 (Marshall, dissenting). “The victim experiences extreme pain. His face turns blue as he is deprived of oxygen, he goes into spasmodic convulsions, his eyes roll back, his body wriggles, his feet kick up and down, and his arms move about wildly.” Id. Eric Garner was also killed by a chokehold from police in 2015.

5. PICS v. Seattle School District, 551 U.S. 701 (2007); Ricci v. Destefano, 557 U.S. 557 (2009); Shelby County v. Holder, 570 U.S. 529 (2013) at 590 (Ginsburg, dissenting).

6. Northwest Austin Municipal District v. Holder, 557 U.S. 193, 216 (2009) (Thomas, concurring in part and dissenting in part); Shelby County v. Holder, 570 U.S. at 557 (Thomas, concurring); Brnovich v. DNC, 594 U.S. ___, 141 S.Ct. 2321 (2021); Mississippi v. Flowers, 588 U.S. ___, 139 S.Ct. 2228, 2252 (2019) (Thomas, dissenting).

7. Daniel Kiel, “A Bolt of Lightning: Measuring the Impact of Modern Transitions on the Supreme Court,” 42 Cardozo Law Review 2813, 2828 (2021); see Figure 4, noting the difference in average Martin-Quinn score of justices on either side of a Court transition. See Andrew D. Martin and Kevin M. Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999,” 10 Political Analysis 134 (2002). See also “Measures,” Martin-Quinn Scores, accessed July 7, 2022, https://perma.cc/DMB5-4P6N

8. The durability of the majority Thomas solidified can be seen in the fact that Justice Thomas’s first term (1991–92) was also the first term in which Justice Sandra Day O’Connor occupied the ideological median of the Court (utilizing Martin-Quinn scores). Either Justice O’Connor or Justice Anthony Kennedy, both ideologically conservative during their tenures, occupied the median seat until both had retired by 2018. See generally Kiel, “A Bolt of Lightning.”

9. Alexis de Tocqueville, Democracy in America, trans. George Lawrence (New York: Perennial Classics, 2000), 270.

10. Mahanoy Area School District v. B.L., 594 U.S. __, 141 S.Ct. 2038, 2046 (2021); Brown v. Board of Education, 347 U.S. 483, 493 (1954).

11. Justin Driver, The School House Gate: Public Education, The Supreme Court, and the Battle for the American Mind (New York: Pantheon, 2018), 9.

12. Holder v. Hall, 512 U.S. 874, 892–893 (1994) (Thomas, concurring); Brnovich v. DNC, 594 U.S. ___, 141 S.Ct. 2321 (2021) at 2356 (Kagan, dissenting).

13. Lyons, 461 U.S. at 137 (Marshall, dissenting).