Forty-one years ago today, on August 30, 1967, the United States Senate confirmed Thurgood Marshall's nomination to the U.S. Supreme Court. Exporting American Dreams tells the story this way:
It was Marshall’s fate to be nominated for the Supreme Court in 1967, a year writer Robert L. Allen would call “an important turning point in 
the history of black America. It was a year of unprecedentedly massive and widespread urban revolts. It was the year that so-called riots became an institutionalized form of black protest.”
the history of black America. It was a year of unprecedentedly massive and widespread urban revolts. It was the year that so-called riots became an institutionalized form of black protest.”The Court was not immune to the actions in the streets. In June 1967 the justices issued an important ruling about the rule of law and civil rights protest. Walker v. City of Birmingham involved a peaceful civil rights march in Birmingham, which had been led by Martin Luther King Jr., Ralph Abernathy, and Fred Shuttlesworth. The city had obtained a preliminary injunction against the marchers, but the protesters, believing that the injunction and underlying city ordinance were unconstitutional, violated the injunction and marched. The Alabama trial court found them in contempt for ignoring the injunction and sentenced them to jail. The protesters challenged the ruling, but the Supreme Court held that they were bound to follow the lower court order and challenge it through the judicial process, rather than violate it and question its constitutionality afterward.
Writing for the majority in Walker, Justice Potter Stewart saw the case as involving the fundamental idea of a rule of law. “This Court cannot hold,” he argued, that the demonstrators “were constitutionally free to ignore all the procedures of the law and carry their battle to the streets.” Their “impatient commitment to their cause” might be understandable, “but respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
Justice Brennan saw it differently. “We cannot permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans like ‘Black Power’ to divert our attention from what is here at stake,” he wrote in a dissenting opinion. The case was not about “violence or the right of the State to control its streets and sidewalks,” but whether Alabama could insulate from judicial review unconstitutional restrictions on civil rights protest. The Court was “arming the state courts with the power to punish as a ‘contempt’ what they otherwise could not punish at all.” Although the march’s leaders had rejected a Black Power philosophy, Brennan’s opinion shows that the fear of African American militancy affected the Court. Justices differed in Walker on which path would lead to law, which to anarchy. The majority felt that allowing demonstrators to disobey a court order, even if patently unconstitutional, was a recipe for chaos. For the dissenters, a true rule of law was one that constrained rulers as well as ruled. To expect compliance, enforced by federal courts, the government must issue orders that were lawful.
Handed down June 12, 1967, Walker was a 5–4 decision. Retiring Justice Tom Clark was in the majority. President Johnson nominated Marshall the next day.
When Marshall’s Supreme Court confirmation was debated in the Senate, Walker v. City of Birmingham was argued again. Senator Strom Thurmond of South Carolina first drew the attention of his colleagues to the case. On June 15, 1967, he introduced into the Senate record an editorial from the Washington Evening Star titled “Dr. King’s Conviction.” The editorial argued that the Walker ruling was sound and hoped it would last as controlling precedent. But, it added, “This would be a very dubious assumption in view of the President’s nomination of Thurgood Marshall to replace Justice Clark.” With Marshall on the Court, there was “a high probability that the holding in the case of Dr. King will be overruled by a new 5 to 4 decision.” Senator Sam Ervin of North Carolina put the Evening Star editorial first on the list of six sources cited in his opposition to Marshall when the nomination was debated in the full Senate. Two of Ervin’s other sources also raised Walker. “Certainly the Rev. Martin Luther King and eight other clergymen might not be going to jail if Marshall had been on the court last week when it upheld contempt convictions of the ministers,” Clayton Fritley wrote in the Washington Evening Star. James J. Kilpatrick’s op-ed simply asked, “Would Marshall have voted to send Martin Luther King to jail?”
The man who had called for an end to “anarchy” was now attacked for being a source of it. Marshall’s nomination was directly linked by members of Congress to the turbulence of the times. Congressman John Rarick of Louisiana argued that the nomination was “more salt” in the “despairing wounds” of a country “already subjected to racial riots, civil disorders, and an ever-increasing national crime wave.” For Rarick, Marshall was “one of the originators and activists of the problem that now plagues America.”
Others used Marshall’s nomination as a vehicle to critique the Warren Court. Senator Spessard Holland of Florida thought Marshall “would further destroy the balance of the U.S. Supreme Court and would further entrench the ultraliberal activists among its members.” Senator Robert Byrd justified voting against Marshall by saying that “if we want to really come to grips with the spiraling crime rate, the place to start is in the appointments to the Supreme Court.”
Most senators saw it differently, however. Wayne Morse of Oregon thought Marshall’s nomination “a shining moment for American democracy,” evidence of the nation’s progress and reflecting “our growing maturity as a people and a nation.” Thomas Kuchel, Republican from California, argued that Marshall’s nomination “reflects the American tradition in its finest sense.” While many stressed that Marshall’s appointment was due to his experience, not his race, Kuchel thought that “the world and the American people will not ignore completely the fact that as a member of an ethnic minority, he will now sit on our supreme tribunal.” Marshall’s nomination exemplified the American dream of “equal justice and opportunity under law.” By confirming Marshall, argued Kuchel, the Senate would “express confidence in the American dream, a dream which says that every man, regardless of race, color, or creed, may achieve the goals he seeks in a free society.”
Thurgood Marshall’s nomination to the U.S. Supreme Court was confirmed by the Senate by a vote of sixty-nine to eleven, on August 30, 1967. Compared with his difficult and drawn-out confirmation to the Second Circuit in 1961–62, it had been easy sailing. Still, Marshall said of LBJ: “I don’t see how he got it through, but he did.”
“This is a shining hour,” Senator Michael Mansfield said in announcing the news to Johnson. "We have come a long, long way toward equal access to the Constitution’s promise,” but the nation would go “further along that way” with Marshall on the Court. For Marshall himself, a wide chasm remained between the ideal of constitutional equality and the actual conditions under which African Americans lived. He hoped that the Court would provide new opportunities to move the nation forward. For many Americans, his appointment was instead a sign that the American dream had already come true.
Writing for the majority in Walker, Justice Potter Stewart saw the case as involving the fundamental idea of a rule of law. “This Court cannot hold,” he argued, that the demonstrators “were constitutionally free to ignore all the procedures of the law and carry their battle to the streets.” Their “impatient commitment to their cause” might be understandable, “but respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
Justice Brennan saw it differently. “We cannot permit fears of ‘riots’ and ‘civil disobedience’ generated by slogans like ‘Black Power’ to divert our attention from what is here at stake,” he wrote in a dissenting opinion. The case was not about “violence or the right of the State to control its streets and sidewalks,” but whether Alabama could insulate from judicial review unconstitutional restrictions on civil rights protest. The Court was “arming the state courts with the power to punish as a ‘contempt’ what they otherwise could not punish at all.” Although the march’s leaders had rejected a Black Power philosophy, Brennan’s opinion shows that the fear of African American militancy affected the Court. Justices differed in Walker on which path would lead to law, which to anarchy. The majority felt that allowing demonstrators to disobey a court order, even if patently unconstitutional, was a recipe for chaos. For the dissenters, a true rule of law was one that constrained rulers as well as ruled. To expect compliance, enforced by federal courts, the government must issue orders that were lawful.
Handed down June 12, 1967, Walker was a 5–4 decision. Retiring Justice Tom Clark was in the majority. President Johnson nominated Marshall the next day.
When Marshall’s Supreme Court confirmation was debated in the Senate, Walker v. City of Birmingham was argued again. Senator Strom Thurmond of South Carolina first drew the attention of his colleagues to the case. On June 15, 1967, he introduced into the Senate record an editorial from the Washington Evening Star titled “Dr. King’s Conviction.” The editorial argued that the Walker ruling was sound and hoped it would last as controlling precedent. But, it added, “This would be a very dubious assumption in view of the President’s nomination of Thurgood Marshall to replace Justice Clark.” With Marshall on the Court, there was “a high probability that the holding in the case of Dr. King will be overruled by a new 5 to 4 decision.” Senator Sam Ervin of North Carolina put the Evening Star editorial first on the list of six sources cited in his opposition to Marshall when the nomination was debated in the full Senate. Two of Ervin’s other sources also raised Walker. “Certainly the Rev. Martin Luther King and eight other clergymen might not be going to jail if Marshall had been on the court last week when it upheld contempt convictions of the ministers,” Clayton Fritley wrote in the Washington Evening Star. James J. Kilpatrick’s op-ed simply asked, “Would Marshall have voted to send Martin Luther King to jail?”
The man who had called for an end to “anarchy” was now attacked for being a source of it. Marshall’s nomination was directly linked by members of Congress to the turbulence of the times. Congressman John Rarick of Louisiana argued that the nomination was “more salt” in the “despairing wounds” of a country “already subjected to racial riots, civil disorders, and an ever-increasing national crime wave.” For Rarick, Marshall was “one of the originators and activists of the problem that now plagues America.”
Others used Marshall’s nomination as a vehicle to critique the Warren Court. Senator Spessard Holland of Florida thought Marshall “would further destroy the balance of the U.S. Supreme Court and would further entrench the ultraliberal activists among its members.” Senator Robert Byrd justified voting against Marshall by saying that “if we want to really come to grips with the spiraling crime rate, the place to start is in the appointments to the Supreme Court.”
Most senators saw it differently, however. Wayne Morse of Oregon thought Marshall’s nomination “a shining moment for American democracy,” evidence of the nation’s progress and reflecting “our growing maturity as a people and a nation.” Thomas Kuchel, Republican from California, argued that Marshall’s nomination “reflects the American tradition in its finest sense.” While many stressed that Marshall’s appointment was due to his experience, not his race, Kuchel thought that “the world and the American people will not ignore completely the fact that as a member of an ethnic minority, he will now sit on our supreme tribunal.” Marshall’s nomination exemplified the American dream of “equal justice and opportunity under law.” By confirming Marshall, argued Kuchel, the Senate would “express confidence in the American dream, a dream which says that every man, regardless of race, color, or creed, may achieve the goals he seeks in a free society.”
Thurgood Marshall’s nomination to the U.S. Supreme Court was confirmed by the Senate by a vote of sixty-nine to eleven, on August 30, 1967. Compared with his difficult and drawn-out confirmation to the Second Circuit in 1961–62, it had been easy sailing. Still, Marshall said of LBJ: “I don’t see how he got it through, but he did.”
“This is a shining hour,” Senator Michael Mansfield said in announcing the news to Johnson. "We have come a long, long way toward equal access to the Constitution’s promise,” but the nation would go “further along that way” with Marshall on the Court. For Marshall himself, a wide chasm remained between the ideal of constitutional equality and the actual conditions under which African Americans lived. He hoped that the Court would provide new opportunities to move the nation forward. For many Americans, his appointment was instead a sign that the American dream had already come true.
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