Table of Contents for The Transition
Introduction: Race, Schools, and the Justices of the Supreme Court
Transitions on the Supreme Court are rare and constitutionally unique events, but some are more impactful than others. The 1991 transition from Thurgood Marshall to Clarence Thomas was the most impactful of the past seventy years, as it cemented the Court's direction to where it is in the 2020s.
1.Brethren, of a Sort
The nation's first two African American Supreme Court justices do not appear to have much in common. However, despite their ideological and jurisprudential differences, both Thurgood Marshall and Clarence Thomas have been subjected to common criticisms of their intelligence and capacity to serve on the high court that echo racist stereotyping. This has led each to be underestimated for his skill as a justice and impact on the Court.
2.Mr. Civil Rights
From his roots in segregated Baltimore through his early career as a lawyer representing Black clients whose citizenship rights were being denied, Thurgood Marshall built a national reputation as Mr. Civil Rights. Marshall's time as a student at Howard University's law school under the tutelage of Charles Hamilton Houston helped him transform from merely a gifted storyteller and prankster into the nation's foremost legal advocate for African Americans. One of his earliest triumphs was in a case brought by an aspiring Black law student from Maryland like himself: in the Murray case, Marshall won the desegregation of the University of Maryland law school, a precedent that set his professional career toward overturning segregation across the nation.
3.Separate and Unequal
Of the cases that were consolidated to become Brown v. Board of Education, the one from South Carolina (Briggs v. Elliott) was the one that evinced the least progress since the time of slavery. This was the case Thurgood Marshall was most intimately involved in as he implemented the strategy to build on the prior victories to challenge segregation in public schools head-on. To prove the stigma created by segregated schools, Marshall and the NAACP legal team relied on the work of psychologist Kenneth Clark, whose work helped convinced the Supreme Court that separate educational facilities were unconstitutional.
4.Living a Post-Brown Reality
Clarence Thomas entered first grade the fall after the Supreme Court decided Brown v. Board of Education, but his schooling in the Black Catholic schools of Savannah, Georgia, kept his experience distant from the landmark desegregation case. Though his first years were marked by poverty and family instability, Thomas found solidity with his grandfather in Savannah, who instilled discipline and a fierce sense of independence. Meanwhile, courts across the South confronted the challenge of interpreting the Brown decision, determining just how far schools could be pushed to ensure students of different races learned together.
5.Pioneering at a Price
During the late 1960s and through the mid-1970s, Clarence Thomas experienced multiple disillusionments. First, after attending seminary as one of only a few Black students, he grew disappointed with the timidity of the Catholic Church in responding to the racial injustice being brought to the nation's attention through the civil rights movement. Then, after dabbling in Black nationalist thought while a student at Holy Cross, he began to lose faith in the mainstream responses to racial injustice and started questioning the wisdom of integration and affirmative action as well as the sincerity of liberal thinkers who championed such strategies. These disillusionments pushed Thomas toward an emerging conservatism that promoted independence and individual accountability, values he had carried with him from his Savannah upbringing into his increasing role in Republican politics.
6.To Enter a Burning House
For generations, advocates for ending the oppression of African Americans have debated the relative merits of integrating into mainstream institutions and building separate Black institutions. These debates have resulted in both pushes to break down structural barriers to full African American citizenship and to construct Black institutions to empower the community. This debate grew in relevance in the aftermath of Brown v. Board of Education as advocates, including Thurgood Marshall, worked to determine what would follow after the fall of legalized racial segregation. For Marshall, arguing at the Supreme Court, a functioning democracy required compliance with the Supreme Court's order, and the best evidence would be to push forward to guarantee and protect access for those Black students who sought to integrate schools from which they had been excluded.
7.Stigmatic Injury
In his first cases on school desegregation as a Supreme Court justice, Thurgood Marshall helped push his colleagues toward a view that required actual integration of students to comply with the Constitution. More than a decade after Brown, the Court clarified the directives for school districts to integrate and enlarged the tools lower courts had to meet those directives. Marshall's integrationist voice carried through, even as backlash steered the Court away from this more aggressive approach.
8.In Defense of Black Institutions
During his first term on the Court, Clarence Thomas struck a decidedly different tone on the question of integration. In his first writing on the topic as a justice, Thomas noted the centrality of historically Black colleges and universities (HBCUs) to Black empowerment and development and hoped that integration would not result in the shuttering of Black institutions, as it had to the Black Catholic high school in Savannah after integration. Thomas went further, critiquing the very idea of integration as rooted in assumptions of Black inferiority, an assessment that comported with his experiences in integrated schools that left him feeling stigmatized in a substantially different way than Marshall had during the era of segregation.
9.Cycles of Expansion and Backlash
From the founding of the nation, a persistent debate about the role of government has divided citizens between those who see government as the protector of freedom and those who prize freedom from government. Given the tenuous nature of African American citizenship, these debates have always had significant consequences for the nation's Black citizens. Thurgood Marshall and Clarence Thomas each rode waves of this enduring clash through their development in the twentieth century, with Marshall aligning with the New Deal–Great Society expansion of federal efforts to enhance the lives of citizens and Thomas connecting with the limited government conservative backlash against these policies. The evolution of the politics in this space ultimately translated into changes at the Supreme Court as well, and Marshall and Thomas each expounded their own perspectives from their positions on the Court.
10.Stepping Backwards
The work of implementing Brown v. Board of Education was part of broader efforts to improve education for the nation's most vulnerable citizens, and the early 1970s began to test the limits of how much federal intervention in schooling courts were willing to tolerate. In two landmark cases from Detroit and San Antonio, the Supreme Court began to signal limits on the power of courts and of the federal government to continue the push for more equal citizenship rights. From his seat on the Court, Justice Marshall dissented from these restrictions, using the language of government responsibility to critique the decisions as ensuring the perpetuation of racial and socioeconomic disparities that had long plagued the nation. After years of protecting broader citizenship, often due to the advocacy of Marshall at the Court, he saw these cases as signs of a giant step backwards.
11.Putting the Genie Back in the Bottle
Coming of age amid the increasing judicial withdrawal from desegregation, Clarence Thomas developed a view of the role of court and government that demanded local control of schooling with limited oversight. Combined with his skepticism about the motives of integration, Thomas used a desegregation case from Kansas City to articulate his philosophy within the longstanding debate about the size and power of government. Since the disparities of the 1990s were not, in his view, traceable to discriminatory actions of decades prior, Thomas insisted that it was time to put the genie of aggressive federal oversight of local education back into the bottle.
12.Quotas
A central feature of the American experiment has been diversity—diversity of institutions, ideas, and individuals. As full citizenship has been expanded to include a broader spectrum of Americans, the diversity of the nation's citizens has raised questions about the extent to which identity characteristics that once marked some for exclusion could be used as a foundation for inclusion. In the context of race, these questions included whether race could be used in filling seats in schools or opportunities for jobs. This very question lurked over the question of who President Bush would choose to replace the nation's only Black Supreme Court justice: for a president who had stated that race should not be a consideration, would race influence his decision? Ultimately, the Marshall-to-Thomas transition forced partisans on both sides to grapple with how to apply principles to a historically unique moment.
13.Getting Somebody In, Keeping Somebody Out
As schools and governments sought to undo the effects of years of racial discrimination, a new wave of antidiscrimination lawsuit emerged. White plaintiffs began to use the very same tools that advocates like Thurgood Marshall had wielded in tearing down discrimination to argue that efforts to increase access for long-excluded groups were themselves unconstitutional. These cases reached the Supreme Court in a variety of ways, including in cases brought by white students seeking admission to universities. Affirmative action cases had vexed the Court for years, but Thurgood Marshall made his position clear from the outset: these new cases should be treated differently because they were fundamentally different.
14.Fixed or Flexible
The constitutional law debates of the last quarter of the twentieth century, such as on affirmative action, were entwined with a parallel scuffle about the proper method for constitutional interpretation. Scholars and judges disagreed about whether clauses like the equal protection clause should be interpreted in a fixed manner, applicable in the same way to all circumstances, or should be more flexible, cognizant of the varying circumstances in which provisions would be applied. This was yet another transition furthered as Clarence Thomas brought his originalist view of fixed meaning to replace Thurgood Marshall's vision of a living constitution. The consequences of this transition determined how much scrutiny the Supreme Court of the twenty-first century would give when schools took affirmative steps to remedy persisting racial disparities.
15.Colorblindness Ascendant
In 2007, fifty-three years after Brown v. Board of Education, Clarence Thomas assisted a 5-4 Supreme Court majority that a school district that had once segregated students by race could not take steps to ensure racially integrated classrooms—the work of Louisville's schools to protect hard-won diversity were, the Court concluded, unconstitutional. The case provided a triumph for those arguing for a colorblind Constitution and for fixed application of constitutional principles; it also prompted Justice Thomas to author a concurrence that sought to redefine Brown, Thurgood Marshall's greatest triumph, as requiring an outcome Marshall had clearly thought unjust. The ascendence of Thomas's vision of the Constitution confirmed the conservative swing and set the Court that had once been Thurgood Marshall's most powerful tool for redefining citizenship into the Thomas Court of the twenty-first century.
Conclusion: The Rule of Law
In 2022, Justice Ketanji Brown Jackson was confirmed to the Supreme Court. Justice Jackson entered at a time of great peril for American democracy, where the limited government vision long embraced by Clarence Thomas had evolved to become an openly antigovernment movement that challenged the norm of the rule of law. This movement was inspired by the ideas that Justice Thomas had long championed and was largely endorsed in cases Thomas considered during this period. The rioters of January 6, 2021, seemed the descendants of those who openly resisted implementation of Brown v. Board of Education, a group Thurgood Marshall had warned would understand that the rule of law could be bent to their will if government and courts did not intervene. Thus, while Marshall would have lamented the crises within the nation and the direction of the Supreme Court, he understood the two to be related.