While Thurgood Marshall was responsible for authoring numerous majority and dissenting opinions that revealed his distinctive constitutional perspective, he also participated in shaping Supreme Court jurisprudence through opinions he joined but did not personally write. When a justice joins an opinion authored by another, it indicates a broader judicial coalition—one that can illuminate shared reasoning, subtle ideological alignments, and the compromises struck among justices. In Marshall’s case, these joined opinions often underscored his commitment to expanding individual rights and civil liberties, as well as his willingness to find common ground when the Court’s center of gravity allowed.
This section examines five notable instances in which Justice Marshall joined opinions written by his colleagues:
Terry v. Ohio (1968) – a landmark Fourth Amendment case that tested the limits of police stop-and-frisk procedures.
Goldberg v. Kelly (1970) – a foundational due process decision ensuring procedural protections for welfare recipients.
Tinker v. Des Moines Independent Community School District (1969) – a seminal First Amendment ruling on students’ free speech rights in public schools.
Roe v. Wade (1973) – the transformative decision that established a constitutional right to abortion.
Texas v. Johnson (1989) – a free speech case affirming that flag burning is constitutionally protected expressive conduct.
By focusing on these joined opinions, we see how Marshall aligned with a broader Court majority in forging key expansions of civil liberties and procedural due process. Although he did not pen these opinions himself, his concurrence in them reveals both the limits and possibilities of the era, as well as the coalitions Marshall was willing—and able—to build or endorse.
Context and Issue
Shortly after Thurgood Marshall joined the Supreme Court in 1967, the Court heard Terry v. Ohio, a case that would profoundly shape the scope of police powers to stop and frisk individuals on the street. The case arose when a Cleveland detective, Martin McFadden, observed two men pacing back and forth near a store, suspecting that they were “casing” it for a robbery. McFadden approached them, identified himself, and conducted a quick search of their outer clothing, discovering concealed weapons. The defendants argued that such a search without probable cause for an arrest violated their Fourth Amendment rights.
Chief Justice Earl Warren authored the majority opinion, joined by seven other justices, including Thurgood Marshall. The Court recognized a narrowly defined exception to the usual requirement that searches be conducted pursuant to a warrant or at least probable cause for arrest. Under Terry, police may stop individuals based on “reasonable suspicion”—a lesser standard than probable cause—and frisk them if they suspect the individual is armed.
Marshall’s Agreement with the Majority
Balance of Interests
In joining Warren’s opinion, Marshall accepted that there may be situations where the government’s interest in preventing imminent crime or protecting officer safety outweighs the intrusion on individual liberty. The majority emphasized that a brief pat-down, strictly for weapons, is less invasive than a full-scale search, so the Court crafted an intermediate standard—“reasonable suspicion”—to justify such stops and frisks.
Contextualized Police Authority
By endorsing the Court’s decision, Marshall acknowledged that total prohibition of on-the-street investigative detentions might unduly hinder effective policing. Given his background in civil rights litigation, Marshall likely viewed Terry as a measured compromise: if the Court demanded probable cause for every stop, it risked invalidating certain legitimate policing tactics aimed at deterring violent crime. Yet the emphasis on “reasonable suspicion” was meant to cabin these searches to genuine concerns about safety or imminent criminality.
A Tightly Defined Exception
Although Marshall joined the opinion, he was nonetheless sensitive to potential abuses. Terry insisted the police officer must point to “specific and articulable facts” that reasonably warranted the intrusion, thus preventing purely hunch-based stops. This principle attempted to create a check on arbitrary or discriminatory enforcement, a concern that would echo throughout Marshall’s subsequent career.
Legacy and Reflections
Over time, critics argue that Terry opened the door to widespread “stop-and-frisk” programs that disproportionately targeted minorities—realizing precisely the danger Marshall consistently warned about in other contexts. While he concurred in the outcome, his broader record suggests he would not have condoned a lax application of “reasonable suspicion,” especially if it became a pretext for racial profiling. Indeed, modern controversies over stop-and-frisk practices in major cities reflect the gap between Terry’s formal safeguards and on-the-ground policing.
Marshall’s decision to join the opinion indicates an early willingness to accept a carefully constrained exception to the Fourth Amendment. Despite his general skepticism toward broad police powers—evident in subsequent opinions such as United States v. Leon (1984), where he dissented from a more lenient approach—Marshall recognized that the Court could not wholly ignore the realities of police work. Terry thus stands as a nuanced example of how his pragmatic side balanced with his staunch defense of civil liberties, hinting at the delicate coalitions he would forge in other landmark rulings.
The Evolving Concept of Due Process
In the late 1960s, the Supreme Court reexamined the meaning of procedural due process in the realm of social welfare. Goldberg v. Kelly challenged a New York state system that terminated Aid to Families with Dependent Children (AFDC) benefits without a pre-termination hearing. The plaintiffs contended that cutting off their sole subsistence support without giving them an opportunity to contest the decision violated the Fourteenth Amendment’s guarantee of due process.
Justice William J. Brennan, Jr. authored the majority opinion, joined by Marshall and others, which recast the contours of “property” interests protected by due process. It was a radical departure from older doctrines that treated welfare benefits as mere “privileges” that the government could revoke at will.
Marshall’s Alignment with Brennan’s Opinion
Welfare Benefits as Entitlements
By joining Brennan’s opinion, Marshall endorsed the view that recipients of public assistance possess a property interest in their benefits. Denial or reduction of these benefits has immediate, often dire consequences for recipients’ daily survival. From Marshall’s perspective, recognizing welfare as an entitlement essential for sustaining life matched his broader moral stance that legal protections must not ignore systemic poverty or treat the poor as second-class citizens.
The Necessity of an Evidentiary Hearing
Goldberg mandated that states provide an evidentiary hearing before terminating welfare assistance, ensuring recipients could challenge errors or misapplications of eligibility rules. Marshall’s support for this principle dovetailed with his overarching belief that procedural safeguards are crucial when the government wields power over individuals. A hearing allows beneficiaries to present their side and correct potential mistakes, thus embedding fairness into administrative processes that had historically been opaque and one-sided.
Recognition of Economic Reality
Marshall’s background as a civil rights litigator shaped his sensitivity to how government actions disproportionately harm the poor. While earlier jurisprudence might dismiss welfare cutoffs as “merely” administrative decisions, Goldberg concluded that due process demanded more than bureaucratic convenience. Marshall’s endorsement of that conclusion underscored his constitutional vision that the law must adapt to concrete social realities, particularly for individuals on society’s margins.
Impact and Ongoing Relevance
Goldberg v. Kelly heralded a wave of decisions that expanded procedural due process protections across various administrative contexts, from public employment to school disciplinary hearings. Although later courts would cabin or refine its application, the principle that the government cannot abruptly deprive someone of a crucial benefit without due process remains a cornerstone of administrative fairness.
For Marshall, joining Goldberg aligned perfectly with his unwavering view that constitutional rights must be more than theoretical. By endorsing Brennan’s articulation of property interests in welfare benefits, he helped establish a precedent that demanded respect for the dignity and survival needs of the poor. This stance illustrated Marshall’s readiness to join a majority that fused moral imperatives with doctrinal innovation, propelling the Court to take a more compassionate stance toward vulnerable populations.
Armbands and Symbolic Protest
Tinker v. Des Moines Independent Community School District arose from a public school policy prohibiting students from wearing black armbands in protest of the Vietnam War. When administrators suspended several students for violating this rule, the families sued, alleging a First Amendment violation. In a 7–2 decision authored by Justice Abe Fortas, the Court upheld students’ rights to engage in peaceful, non-disruptive symbolic protest on school grounds, provided it did not “materially and substantially” interfere with educational activities.
Thurgood Marshall joined Fortas’s opinion, which was deeply influenced by the Warren Court’s broad reading of free speech rights. “It can hardly be argued,” the Court famously stated, “that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Marshall’s Perspective: Speech vs. Authority
Endorsement of Individual Expression
By joining the majority, Marshall reaffirmed the principle that the government, including school officials, must demonstrate a valid, content-neutral reason for suppressing speech—especially political speech. As a champion of civil liberties, he believed that educational environments should foster, not quell, critical thought and democratic discourse.
Concerns About Equal Application
Although the opinion did not highlight racial or socioeconomic issues, Marshall’s broader record suggests he saw a potential for arbitrary or discriminatory enforcement of speech codes. In siding with Fortas, Marshall effectively supported a standard requiring schools to show that student speech caused a “material and substantial disruption” before restricting it, thus preventing administrators from punishing political expression simply because they disagreed with the viewpoint.
Symbolic Speech Precedents
Tinker extended the logic of symbolic speech cases like Stromberg v. California (1931) and West Virginia State Board of Education v. Barnette (1943), which recognized that expression is not limited to spoken or written words. In endorsing these precedents, Marshall joined a tradition that placed symbolic and political expression at the heart of First Amendment safeguards—a position that would resonate again two decades later in Texas v. Johnson, another joined opinion that reaffirmed expressive freedom.
Broader Impact
Tinker v. Des Moines became a bedrock principle of student rights and First Amendment jurisprudence. While subsequent cases, such as Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988), limited the scope of student speech, Tinker remains the high-water mark for affording robust expressive rights to young people. For Marshall, joining this opinion exemplified his broader inclination to protect political expression for all citizens, including those with relatively little social power (in this case, students under the control of school authorities). Tinker’s stance against viewpoint-based censorship aligned squarely with Marshall’s consistent theme of empowering the vulnerable to voice dissent and critique government policies.
Historical Backdrop and the Emergence of a “Right to Privacy”
By the early 1970s, the Supreme Court had recognized elements of a constitutional privacy right through cases like Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). However, the precise scope of this privacy right—and whether it covered abortion—remained unsettled. In Roe v. Wade, the Court confronted a Texas statute that banned nearly all abortions except those deemed necessary to save the mother’s life. Plaintiff “Jane Roe” argued that this law violated her constitutional right to decide whether to continue a pregnancy.
Justice Harry A. Blackmun authored the majority opinion, concluding that the Fourteenth Amendment’s Due Process Clause protected a woman’s decision to terminate her pregnancy, especially during the first trimester. Marshall joined this 7–2 majority, helping to codify one of the most transformative rulings in American constitutional law.
Key Elements of the Joined Opinion
Trimester Framework
Blackmun’s opinion established a trimester-based structure that recognized a woman’s near-plenary choice in the first trimester, allowed state regulation in the second trimester to protect maternal health, and permitted broader restrictions or prohibition in the third trimester—when the state’s interest in potential fetal life became more compelling. By joining, Marshall accepted the premise that states’ interests intensify over the course of pregnancy, but that the woman’s privacy right remains paramount in early stages.
Privacy as Fundamental
Building upon Griswold, the Court concluded that the right to privacy in decisions concerning childbearing was broad enough to encompass abortion. Marshall’s concurrence reinforced his consistent theme that fundamental rights, like privacy, should be shielded from government intrusion absent a compelling reason. He believed that forcing a woman to carry an unwanted pregnancy to term imposed significant bodily and psychological burdens, contravening the personal autonomy guaranteed by the Fourteenth Amendment.
Potential for Socioeconomic Equalization
Although not explicitly stated in the majority, Roe’s logic resonated with Marshall’s broader concern about how restrictive abortion laws disproportionately harm low-income women who lack resources to seek procedures in other states or countries. His broader jurisprudence suggests he joined Roe not merely as an abstract statement about liberty but as a practical measure to mitigate harmful consequences for vulnerable populations.
Roe’s Aftermath and Marshall’s Role
Roe v. Wade swiftly became a cultural flashpoint, fueling decades of legal and political battles over reproductive rights. While later decisions—particularly Planned Parenthood v. Casey (1992)—modified the trimester framework, the essence of Roe survived until Dobbs v. Jackson Women’s Health Organization (2022), when the Supreme Court overruled Roe and Casey entirely. During Marshall’s tenure, however, he continued to vote consistently with the Court’s liberal bloc in defending Roe’s core premise. His unwavering support underlined his belief that individual autonomy—especially in the most intimate aspects of life—formed an indispensable part of constitutional liberty.
Roe stands as arguably the most consequential joined opinion of Marshall’s career, profoundly reshaping American jurisprudence and society. For decades, it was the legal bedrock securing abortion access, anchoring an entire framework of reproductive healthcare regulations. Through this momentous alignment, Marshall bolstered the Court’s affirmation that personal privacy could not be left at the mercy of shifting majorities in state legislatures.
Flag Desecration as Political Expression
Texas v. Johnson arose from Gregory Lee Johnson’s act of burning an American flag outside the 1984 Republican National Convention in Dallas to protest Reagan-era policies. Charged under a Texas statute outlawing flag desecration, Johnson argued that his act of burning the flag was expressive conduct safeguarded by the First Amendment. The Supreme Court agreed in a 5–4 decision, with Justice William J. Brennan, Jr. writing the majority opinion and Justice Marshall joining, among others.
The Joined Opinion’s Central Themes
Strict Scrutiny for Content-Based Regulation
Brennan’s opinion emphasized that when government regulation targets speech or expressive conduct because of its communicative impact—particularly when the expression is political—the strictest constitutional scrutiny applies. By joining, Marshall reinforced his view that states cannot criminalize expression simply because it is offensive or provocative. The Court found that Texas’s interest in preserving the flag’s symbolic value was an impermissible viewpoint-based rationale, essentially punishing Johnson for conveying an anti-government sentiment in a dramatic fashion.
Unity with Earlier Symbolic Speech Cases
Texas v. Johnson built upon precedents like Stromberg v. California and Tinker v. Des Moines, both of which recognized that symbolic acts can be constitutionally protected. By voting with the majority, Marshall reaffirmed his belief that the First Amendment must cover not just polite discourse but also speech that unsettles or angers the majority. The principle that free expression is tested most severely—and must remain robust—when confronting unpopular or offensive speech found broad support in the majority, bridging the ideological divides among the justices who joined.
Moral and Constitutional Dimensions
In concurring with Brennan, Marshall implicitly concurred with the moral logic that the government cannot mandate reverence for national symbols. For him, the Constitution’s guarantee of free expression outweighs the emotional significance many attach to the flag. As with many of his other stances, Marshall’s alignment in Texas v. Johnson underscored that the remedy for offensive speech is counter-speech, not governmental prohibition.
Aftershocks and Significance
Public uproar followed the Court’s decision, prompting Congress to consider a constitutional amendment banning flag desecration. Yet the Court, in United States v. Eichman (1990), struck down a federal statute designed to criminalize flag burning. Marshall once again joined the majority, solidifying the principle that symbolic protest against the flag remains within the ambit of the First Amendment.
Texas v. Johnson stands as a vivid example of how Marshall, even in his later years on the Court, helped maintain an expansive reading of free speech. It also underscores how he united with a majority that included justices from varying ideological stripes (e.g., Antonin Scalia joined Brennan’s opinion) to uphold the bedrock notion that government suppression of speech for its content or viewpoint violates the Constitution’s core commitments. Indeed, Marshall’s consistent theme—protecting dissenting voices and marginalized viewpoints—found clear expression in a case that tested the boundaries of permissible protest.
Examining the opinions Marshall joined highlights several unifying threads that cut across issues like criminal procedure, due process, student speech, reproductive rights, and expressive conduct:
Protection of Individual Autonomy
Whether it was the realm of personal liberty in Roe v. Wade, the right of students to express political dissent in Tinker, or the ability to burn a flag in protest in Texas v. Johnson, Marshall repeatedly cast his lot with Court majorities that recognized broad personal autonomy. These joined opinions reinforced the principle that the Constitution’s enumerated and implied rights must adapt to defend freedom in contexts new and old.
Procedural Fairness for the Vulnerable
In Goldberg v. Kelly, Marshall sided with a majority that demanded fair procedures before the government terminates the sustenance of the poor. In Terry v. Ohio, although it granted a measured expansion of police authority, the opinion still underscored the need for “reasonable suspicion” grounded in articulable facts. Marshall’s concurrence in these cases demonstrates his drive to minimize arbitrary exercises of governmental power that disproportionately harm those with limited resources or social standing.
A Willingness to Forge or Join Coalitions
These cases also highlight the fact that Marshall was not a solitary voice in the wilderness. When the ideological configuration permitted, he happily joined opinions that advanced a progressive reading of constitutional rights. Indeed, part of Marshall’s influence lay in his capacity to work with colleagues—like Justices Brennan, Blackmun, and even sometimes centrist or conservative members—when a case’s facts or fundamental principles aligned with a robust defense of individual freedoms.
Incremental Yet Significant Victories
While some might regard the results in Terry or Roe as incomplete (for instance, Roe’s trimester framework or Terry’s potential for overreach), Marshall’s choice to join indicates a strategic acceptance of partial gains. He recognized that Supreme Court consensus often emerges through compromise, and that forging a majoritarian coalition might secure enduring precedent in areas where the Court could otherwise swing in a more restrictive direction.
A Commitment to Contextual Reasoning
Finally, each of these joined opinions highlights Marshall’s belief that the Constitution must be read with sensitivity to the historical, social, and personal contexts behind each case. From the plight of welfare recipients in Goldberg to the emotional charge around the American flag in Texas v. Johnson, Marshall’s record of joining certain opinions suggests that he favored an approach that balanced textual or doctrinal analysis with genuine empathy for the lived realities at stake.
Though overshadowed at times by the forceful logic of his authored majorities or the moral fervor of his dissents, the opinions Justice Thurgood Marshall joined offer rich insight into how he shaped American law from within the Court’s shifting coalitions. His participation in cases like Terry v. Ohio, Goldberg v. Kelly, Tinker v. Des Moines, Roe v. Wade, and Texas v. Johnson reveals a justice who was steadfast in upholding core constitutional protections yet astute about the delicate alliances needed to produce lasting doctrine.
For historians and legal scholars, these joined opinions help illuminate the interplay between Marshall’s personal convictions and the broader ideological currents of the Burger and early Rehnquist Courts. In some instances—like Terry—he accepted a cautiously expanded police power, trusting in the requirement of “reasonable suspicion” to forestall abuses. In others—Roe, Tinker, Texas v. Johnson—he joined opinions that set the high-water marks for personal liberty and free expression in the late twentieth century. In Goldberg, his alignment with a newly emerging concept of property interests in welfare entitlements played a pivotal role in transforming administrative law.
Together, these examples confirm that Marshall was not merely the lone “Great Dissenter” in capital punishment or racial justice cases. He was also a pragmatic coalition-builder who recognized that partial victories within a majority were sometimes the surest path to enshrining constitutional guarantees. Indeed, while many in the public recall his more dramatic written dissents or majorities, his history of joining opinions underscores a more nuanced style of judicial statesmanship—one that deftly balanced principle, persuasion, and compromise to expand the sphere of individual rights in American law.
In the final analysis, Marshall’s joined opinions stand as part of his enduring imprint on the Supreme Court. They underscore his role in shaping doctrine beyond what he personally authored, from policing standards to reproductive rights, from welfare due process to free speech in schools and public squares. By tracing this dimension of his record, we enrich our understanding of how Thurgood Marshall approached the grand project of constitutional interpretation: with a keen eye toward fairness, a readiness to work within the system’s constraints, and an unrelenting drive to bring the nation’s highest ideals closer to fruition.