African Americans throughout the U.S. finally saw the nation live up to its lofty creeds as stated in the Declaration of Independence 72 years ago, when the Supreme Court of the United States (SCOTUS) unanimously ruled that racial segregation in public schools was unconstitutional.
As the lead attorney for the NAACP, Thurgood Marshall and his team ushered in the modern-day civil rights movement with their victory in the landmark 1954 case of Brown v. Board of Education.
And because the Supreme Court, despite public sentiment, ignored prevailing partisan notions and ruled based on the tenets of the Constitution, the doctrine of “separate but equal”— which the Court had previously affirmed in the 1896 Plessy v. Ferguson case— was declared unconstitutional.
Marshall long believed the courts should be proactive in protecting individual rights, correcting historic injustices, and advancing equality rather than just interpreting the law. So, it should come as no surprise that after President Lyndon B. Johnson appointed him to the Supreme Court in 1967, as a staunch liberal and the first African American to serve on the Court, Marshall frequently dissented as SCOTUS became increasingly conservative.
But today, with the court having moved even further to the right, and unapologetically so, “what would Thurgood say?”
Of course, it’s impossible to determine what Justice Marshall would say because American society has changed so much since he retired from the Court in 1991 and died in January 1993.
However, most scholars agree that his legacy reflects both his commitment to transforming the U.S. legal system into a tool for progress, and his dedication to ensuring that every individual, regardless of background, is entitled to the same constitutional rights.
During his tenure on the Supreme Court, Marshall proposed a “sliding scale” interpretation of the Equal Protection Clause in which he and his colleagues would weigh government objectives against the rights of affected, often disadvantaged, groups.
He also believed, unlike the Court’s majority today, that affirmative action was necessary to address the “sorry history of discrimination” and ensure the inclusion of minorities into the mainstream. Marshall saw this as being in the best interest of our states and the nation.
Finally, because he strongly believed in and fought for the protection of First Amendment rights, Marshall supported abortion access and advocated for the rights of the accused and prisoners.
Marshall was a visionary, a strategist, and an optimist, among other notable qualities, who never wavered from his commitment to working through the legal system to ensure that all Americans had equal access to civil rights and justice, race, gender, and other differences notwithstanding.
What would Marshall say today? His decisions and stances while on the Supreme Court more than 35 years ago offer pretty clear insight as to what he would say as civil rights freedoms are threatened in 2026.
The Court just needs more justices willing to follow his lead.