The Noblest Roman of Them All: A Tribute To Justice Marshall Louis F. Claiborne THURGOOD MARSHALL. The name must be writlarge, in bold, unadornedcapitals. Straight Roman: no elegantly leaning English script or Gothic curlicues. Come to think of it, Justice Marshall is very like a Roman, Not, needless to say, one ofthose stem marble busts that adorn public spaces. Our subjectisnotunsmilingstone. Nortruncated. But before immortality, Romans, too— Romans, especially— wereverymuchalive. Onlyremotely do I invoke the severe and tragic heroes ofancient Rome: Horatius at the bridge, Cato the Elder, the Gracchi, Marius, Cicero, Brutus. And not at all the too frequent abusers of power mercilessly depicted by Suetonius and Tacitus. There is, however, a common threadwiththe giants: Julius Caesar, Pompey, Antony, Augustus, Trajan, Hadrian, MarcusAurelius,Constantine, Justinian. Besides, the life of Rome offers innumerable exemplars, named and unnamed, who bring to mind-or, at least, to my mind- the particular qualities of Thurgood Marshall. One such attribute is largeness—largeness of body, of mind, of spirit. The first time I saw Marshall was in 1960 when I was an over-age law clerkto U.S. DistrictJudge Skelly Wright in New Orleans. The huge federal courtroom waspacked for one of the many disreputable chapters in Louisiana’s full-fledged resistance to school desegregation. Ifl rememberright, a three-judge court was about to hear a challenge to a series of specially concocted state statutes designed to avoid or at leastretard, the inevitable. At counsel table, on one side, were the Louisiana Attorney General, Jack Gremillion, along with a coterie of state lawyers. On the other side were the U.S. Attorney and the attorney for the New Orleans School Board, intent on obeying the Court’s desegregationorders. Then, as I picture it, in came ThurgoodMarshall,“bestridingthisnarrowworld like a Colossus.” No doubt, Marshall, too, had assistants with him, local NAACP lawyers helping to represent the African-American plaintiffs in the case. But everyone else was eclipsed. When his turn came, the chiefNAACP lawyerunbentto his full stature and, once silent expectation had taken hold, addressed the court with simple eloquence. He was forceful, clear, calm, understated, and to the point. A briefer Cicero, though not as pithy as the Marshall of the bench. He was winning and he won althoughtherewere other lawyersthereofno meantalent. Atallevents, itwasclearto everyone that Marshall had entirely dominated the scene.1 Long before my time, Marshall had demon strated the Roman qualities ofcourage and lead 20 JOURNAL 1992 ership. But my next encounter with our Roman revealedtwo relatedvirtuesthatPlutarch attributes to the best citizens of Rome, generosity and for bearance. I was one of the senior lawyers in the Office when Thurgood Marshall became Solici tor General in the Summer of 1965. Immediately, he showed restraint and kindness. Thus instead of insisting on the traditional prerogatives, he in vited his predecessor, Archibald Cox, to preside in his place at the meeting ofthe Supreme Court Bar when it prepared memorial resolutions in honor ofJustice Frankfurter in October, and per mitted Dean Acheson to read those resolutions to the Court.2 This was the generosity of a big man who knew how much Harvard graduates would cherish the honor. But it was also good Roman policy: winning gratitude at little cost. And Thurgood Marshall did the same with us, his senior colleagues in the Solicitor General’s Office. He flattered us with unusual deference. But, as we soon learned, although he was good at delegation,therewasto beno abdication. Marshall read all the papers, with extraordinary speed and SolicitorGeneral Thurgood Marshallwith Attorney General Nicholas Katzenbach, left, in front of the SupremeCourt October 11,1965, openingday ofthe 1965 Term. Thiswas Marshall's first“FirstMonday” as Solicitor General. retention. Nor was he reluctant to take the really important decisions himself. And he backed his lawyersto the hilt, assumingfullresponsibilityfor what was done, even when the controversial act was initiated by us. There were otherreasons, also, for Marshall’s effectivenessas arbiterof federal litigatingpolicy- - a not unimportant role ofthe Solicitor General. Like the best of the Romans, he was entirely lackinginpompousness or affectation:his straight forward questions and unassuming manner, com bined with a commanding presence and a keen sense ofthejugular, disarmed those with contrary views. And, if this were not...
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