Fanfare for an Uncommon Man

By RANDALL KENNEDY Randall Kennedy is a professor at Harvard Law School and editor of Reconstruction magazine. He clerked for Justice Marshall in 1983.

Last Wednesday, Thurgood Marshall lay in state in the Great Hall of the Supreme Court of the U.S. From 10 in the morning until 10 that night, a steady flow of people filed past his casket, which was draped with a flag and supported by the same bier on which Abraham Lincoln's coffin had rested. By evening, the number of mourners had reached nearly 20,000.

The Justice would have been surprised by the breadth and intensity of this outpouring of gratitude. A strong and consistent liberal, he was no sentimentalist. He possessed a rather dim view of human nature, a view nurtured by his constant battling against social cruelties and reflected by the nature of the stories he loved to tell.

The Justice's skillfully rendered tales were seldom sweet. He liked to tell his law clerks about the time he confronted a "moderate" white-supremacist politician in the Jim Crow South with the fact that contrary to the segregationist promise of separate but equal facilities for blacks and whites, the whites in the state had a school for nursing while the blacks had none. The politician told Marshall that he could get the state to build a school for blacks, but that Marshall had to allow the politician to use his own methods. Marshall agreed, whereupon the politician immediately called a press conference and announced that he had just witnessed a most sickening spectacle: a white female nurse washing the back of a black man. The politician then demanded that the state legislature immediately appropriate money for "a nigger school" so that this sort of thing would not happen again.

The money was appropriated, the school was built, and some good was accomplished, albeit by foul means. Justice Marshall's telling of this story could elicit laughs. But it also imprinted upon the minds of scores of clerks the degradations that the Justice -- and many millions of other blacks -- had had to endure.

As a realistic appraiser of human nature, Marshall knew that people often quickly forget those things that should never be forgotten. When I clerked for him in 1983, I heard him bitterly grumble about the way that in his view, many people seemed to have forgotten completely the civil rights champions of the '30s, '40s and '50s: people like Roy Wilkins, Walter White, William Hastie and Charles Hamilton Houston. I got the impression that Justice Marshall felt that he too had been slighted in favor of those who led the protest demonstrations of the '60s, particularly Martin Luther King Jr. At last week's memorial services, however, people from all walks of life showed their appreciation of how indelibly he has marked our society. Beneath a portrait of the Justice that was displayed alongside his casket, a mourner placed a copy of the Supreme Court's opinion in Brown v. Board of Education, the landmark case in which Marshall the lawyer successfully argued that the Constitution prohibits racial segregation in public schooling. At the bottom of the first page of the opinion, the anonymous admirer wrote, "You shall always be remembered."

As I stood with other clerks and family members beside Justice Marshall's casket, my own memories grew more vivid: his delightfully unfashionable dress (the Justice often wore white socks with black shoes); his way of letting clerks know that their advocacy for a certain course of action had degenerated from advice to nuisance ("I'm the one who was nominated by President Lyndon B. Johnson and confirmed by the Senate of the United States . . . not you); his insistence upon using the word Negro to identify an African American (though recently he had begun to use the term Afro-American); his deep and passionate sympathy for all downtrodden people; the uniqueness of his questioning of attorneys at oral argument (in a case involving the constitutionality of a regulation prohibiting people from sleeping in public parks, the Justice asked the Deputy Solicitor General whether he had ever been homeless).

The Justice entertained his clerks for hours by recalling the wide range of people he had come to know throughout his life. He could talk as easily about his encounters with Duke Ellington (whom he liked and admired) as he could about his testy confrontations with General Douglas MacArthur (whom he disliked and considered a racist). To a remarkable extent, he inoculated himself against the tiresome affectations that often afflict famous, high- achieving people. He didn't stand on formality (clerks simply called him "Judge"; he often called us "Knucklehead" and shared his macadamia nuts when our work pleased him). He spoke cordially to everyone, high and low, though his unpretentiousness sometimes tempted people to underestimate him. Every time I did, he caught me. Late in the court's term, I wrote a draft of an opinion in which, in an obscure footnote, I proceeded to grind my own little ax. He returned the draft quickly, having etched a big X across the offending text.

At the end of my year with Justice Marshall, a year in which he found himself on the losing side of many of the cases that meant the most to him, particularly those involving capital punishment, I asked whether he felt discouraged by the court's increasingly conservative tilt. He told me that he did not, that he had seen a lot worse than was remotely conceivable nowadays, that the progressive changes wrought by the civil rights revolution would prove more lasting than the reaction against them, and that, in any event, hand wringing was a futile response to challenge.

I thought of his words as the Howard University choir led the congregation in singing Lift Every Voice and Sing, long known as the Negro National Anthem, at the conclusion of the service that was held at the National Cathedral the day after the Supreme Court's memorial ceremony. As the pallbearers slowly rolled the Justice's casket across the cathedral's floor, I imagined that he would have especially appreciated this stanza:

Stony the road we trod,

Bitter the chastening rod,

Felt in the days when hope unborn

had died;

Yet with a steady beat,

Have not our weary feet

Come to the place for which our

parents sighed?