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Randall Kennedy on Thurgood Marshall’s career as “Mr. Civil Rights”

April 18, 2012

Linda Wang, C’12

On April 12 Randall Kennedy, the Michael R. Klein Professor of Law at Harvard Law School and currently Penn Law’s Raymond Pace and Sadie Tanner Mossell Alexander Visiting Professor of Civil Rights, gave a lecture in the Michael A. Fitts Auditorium in Golkin Hall on U.S. Supreme Court Justice Thurgood Marshall’s career as the chief attorney for the NAACP between the late 1930s through 50s.

During his lecture, Kennedy, who clerked for Marshall when he was a Supreme Court justice, brought his perspective to two key questions: How did Marshall earn the moniker “Mr. Civil Rights”? Are there any decisions that he took in those years as the chief attorney for the NAACP that, looking back, people might disagree with?

To begin explaining how Marshall earned the title “Mr. Civil Rights,” Kennedy discussed two of his favorite cases where Marshall, in his role as an appellate litigator, demonstrated his commitment to challenging racial discrimination.

The first case he discussed was Murray v. Pearson. “The reason why I like it,” Kennedy said, “is because it has such poetic justice.” According to Kennedy, Marshall earned his law degree at Howard University Law School even though he wanted to attend University of Maryland, because blacks were excluded there. “As it turns out, that may have been a case in which case racial injustice actually steered someone in a good direction because at Howard Law School, [Marshall] fell under the sway of the great Charles Hamilton Houston” Kennedy joked.

When Marshall returned to Baltimore, he convinced Donald Murray to sue the University of Maryland for not allowing him to enroll in the law school due to his race. According to Kennedy, Marshall “wanted to attack the system of racial exclusion” that prevented him from going to the school of his choice. He argued that the state of Maryland was supposed to provide separate but equal opportunities, and if there was not a black law school that was equal to the white law school, then a black student should be allowed to go to the white law school. The U.S. Supreme Court agreed, and Marshall won his first big case.

The second case Kennedy talked about was Elmore v. Rice. “One of the reasons why it’s one of my favorites,” Kennedy said, “is because I’m from South Carolina, and I grew up hearing about [it]… My father, over and over again, talked about going to see Thurgood Marshall argue Elmore v. Rice before the Fourth Circuit.”

But Kennedy said that his father never focused on the legal issues involved. The most memorable thing on which his father focused was “a feature that showed what Thurgood Marshall had to confront in 1947,” when he had to argue the case.
“During the argument, the judges referred to Thurgood Marshall as ‘Mr. Marshall,’” Kennedy recounted. “Now, you might say, what’s the big deal? The big deal was, under the etiquette of segregation black people were not referred to as ‘Mister.’ If you were a black physician, you might be referred to as ‘Doctor.’ If you were a minister, you might be referred to as ‘Reverend.’ Otherwise, you were typically called by your first name, or otherwise, ‘boy.’ It was a big deal that Thurgood Marshall was referred to in that courtroom as Mr. Marshall.’”

Marshall’s achievements as an appellate litigator are just part of the story of how he got the name “Mr. Civil Rights,” Kennedy explained. He was also a trial attorney and defended blacks who were charged with various crimes when he believed there had been a miscarriage of justice.

Randall KennedyRandall Kennedy on Thurgood Marshall’s career as “Mr. Civil Rights” 
Marshall was also an investigator for the NAACP. “The NAACP sent him to Detroit” in 1943, Kennedy noted, after the infamous race riot in the city. “They sent him to Korea when a disproportionate number of black soldiers were being disciplined in ways that gave cause for suspicion. Yes, he was an investigator,” Kennedy stated matter-of-factly. In times of trouble, “Black people all across the United States were rumored to say the following: Hold on, Thurgood’s coming,” Kennedy said.

Kennedy stated that he reveres Marshall as “one of the greatest jurists not only in the history of the United States, but in the history of the world.” But he also acknowledged that Marshall had to make tough decisions that would lead some people to disagree with the positions that he took.

One controversial position of Marshall’s was that he was against the Tuskegee Institute for pilots because the school was segregated. Marshall’s mentor, Charles Hamilton Houston, believed the school was still a step forward for black people because it would train them to be pilots.

Another position that Kennedy discussed was Marshall’s insistence on not assisting Winfred Lynn, a black man who refused to answer when he was called for military service during World War II because he would not fight in a segregated army. Not only did Thurgood Marshall refuse to help Winfred Lynn, but he also convinced the American Civil Liberties Union to deny support to Winfred Lynn.

Kennedy felt that Marshall’s position was such that “in a time of war, it would be a mistake on various levels for the NAACP’s ultimate loyalty to the United States to be questioned in any way.”

Kennedy also discussed Marshall’s refusal to defend anybody who he believed was guilty, his cooperation with the United States government to persecute the Communist Party, and his decision to choose Jack Greenburg, a white man, as his successor at the NAACP instead of Robert Carter.

Kennedy did not pass judgment on Marshall for making these controversial decisions, but he did believe in having debates about them. “I think Thurgood Marshall’s career and stature can stand disagreement. We shouldn’t engage in hagiography. We should engage in a critical examination of this great man’s career.”