When Thurgood Marshall joined the Supreme Court on October 2, 1967, he became part of an institution already steeped in transformative change. Under Chief Justice Earl Warren, the Court had reshaped constitutional law on race, criminal procedure, and voting rights, extending protections that defined the so-called “Warren Court era.” Yet, as the 1960s gave way to the 1970s and beyond, the Supreme Court underwent a series of shifts in membership—some subtle, others dramatic—that influenced how decisions were made and how ideological blocs formed. Marshall’s arrival, decisions, and gradual emergence as a leading liberal voice took place against this backdrop of evolving Court composition. Over the ensuing decades, retirements, deaths, and controversial nominations would transform the group from the last days of Warren’s leadership to the ascendance of William Rehnquist as Chief Justice in the mid-1980s. Understanding Marshall’s role in shifting Court dynamics requires, in part, a close look at who served alongside him, how the justices’ philosophies converged or diverged, and how Marshall strategically navigated those transitions in order to influence outcomes whenever possible.
The Lineup When Marshall Arrived
Thurgood Marshall’s appointment came during the final two years of Chief Justice Earl Warren’s leadership, a period in which the Court still reflected the impact of Warren’s transformative vision. At the time of Marshall’s swearing-in, the justices were:
Chief Justice Earl Warren – the driving force behind major rulings such as Brown v. Board of Education (1954), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966). He was widely regarded as a champion of civil rights and due process.
Justice Hugo Black – a former senator from Alabama appointed by Franklin D. Roosevelt, known for his textualist approach to the First Amendment yet also supporting broad expansions of criminal defendants’ rights.
Justice William O. Douglas – a staunch civil libertarian, recognized for his defense of First Amendment freedoms and an expansive view of individual rights.
Justice John Marshall Harlan (the second) – the Court’s leading conservative voice by this time, often dissenting from the Warren Court’s more expansive rulings on criminal procedure and desegregation.
Justice William J. Brennan, Jr. – widely considered the intellectual leader of the Court’s liberal bloc, shaping many landmark rulings on civil rights, due process, and free speech.
Justice Potter Stewart – a moderate conservative who sometimes sided with liberals on First Amendment or privacy issues but was more restrained on matters such as criminal procedure.
Justice Byron White – appointed by John F. Kennedy, known for a more pragmatic approach, often joining the liberal side on civil rights but taking more conservative positions on criminal law.
Justice Abe Fortas – a close ally of Chief Justice Warren, especially on civil liberties. As Marshall arrived, Fortas was influential but soon became mired in ethical and political controversies that led to his resignation in 1969.
In joining this constellation, Marshall stepped into a Court that was still shaping landmark decisions that aligned with his longtime commitments: protecting civil rights, expanding voting rights, and safeguarding the accused. The final phase of the Warren Court thus afforded him a relatively receptive environment in which to find his footing. Marshall’s early participation in decisions like Stanley v. Georgia (1969) exemplified how his liberal outlook meshed with the Warren Court’s progressive legacy, particularly regarding individual freedoms and the right to privacy.
Aligning with Warren’s Vision
Marshall’s relationship with Earl Warren was built on mutual respect and a shared commitment to civil rights. Warren, famously responsible for forging unanimity in Brown v. Board of Education, viewed Marshall’s appointment as a triumph for racial justice and an opportunity for the Court to sustain its direction on civil liberties. Marshall, for his part, admired Warren’s leadership style, which prioritized building majorities around moral imperatives—an approach that resonated with Marshall’s personal philosophies.
During this short overlap (1967–1969), Marshall proved a dependable vote for Warren-era expansions of constitutional protections. He supported the Warren Court’s broad reading of the Fourth, Fifth, and Sixth Amendments in criminal procedure, recognizing how such decisions served to combat the arbitrary power of the state over minorities and the poor. Not surprisingly, Marshall often joined Justices Brennan and Douglas, forming a reliably liberal wing on issues ranging from free speech to church-state separation.
The End of an Era
Warren announced his retirement in 1968 but agreed to stay on until President Lyndon B. Johnson’s successor could appoint a replacement. However, the confirmation battles and political upheavals around this time—including resistance to Johnson’s attempt to elevate Abe Fortas to Chief Justice—signaled a major change. Although Marshall had only two years under Warren, that interval gave him time to establish himself as a liberal mainstay. When Warren formally stepped down in 1969 and President Richard Nixon elevated Warren Burger to Chief Justice, the Court began a new epoch. Marshall would soon confront a less uniformly progressive environment, requiring more strategic coalition-building if he wished to maintain or extend the Warren Court’s legacy.
The Emergence of Warren E. Burger as Chief Justice
Richard Nixon named Warren E. Burger as the new Chief Justice, reflecting his campaign pledge to appoint “strict constructionists” who would counter what conservatives perceived as judicial activism under Earl Warren. Burger, a former judge on the U.S. Court of Appeals for the District of Columbia Circuit, held more conservative views on criminal procedure and executive power. Nonetheless, the early Burger Court years did not abruptly reverse Warren Court precedents. Instead, changes were more gradual, with some expansions of rights continuing. Marshall recognized that forging majorities would now often require persuading moderate or pragmatic justices like Potter Stewart and Byron White.
Initially, the Court’s composition post-1969 included: Chief Justice Warren E. Burger. Justices: Black, Douglas, Harlan, Brennan, Stewart, White, Marshall. (Fortas’s seat vacated in 1969, replaced by Harry Blackmun in 1970)
Key Departures and Appointments
Resignation of Abe Fortas (1969)
Fortas’s forced departure over ethical controversies robbed Marshall of a strong liberal ally. Nixon’s subsequent nominations to that seat were critical in tipping the Court’s ideological balance. After the failed nominations of Clement Haynsworth and G. Harrold Carswell, Nixon succeeded in placing Harry A. Blackmun on the Court in 1970. Blackmun would become famous for writing the majority opinion in Roe v. Wade (1973), but he also displayed moderate-conservative instincts in many other areas.
Deaths of Hugo Black and John Marshall Harlan (1971)
Within weeks of each other in late 1971, Justices Black and Harlan departed—Black retired due to declining health and died shortly thereafter; Harlan, who also fell ill, similarly ended his tenure. Nixon replaced them with Lewis F. Powell, Jr. and William H. Rehnquist. These appointments moved the Court on the whole to the right, especially with Rehnquist, who would become a stalwart conservative voice—and later Chief Justice in 1986. For Thurgood Marshall, the arrival of Rehnquist heralded significant philosophical clashes, as Rehnquist’s strict conservative reading of the Constitution contrasted sharply with Marshall’s expansive, evolving-standards approach.
Marshall’s Place in the Early Burger Court
With these changes, the Court’s liberal bloc—Douglas, Brennan, and Marshall—often found itself outvoted by a new conservative or moderate majority. Justices Stewart, White, and Powell sometimes joined the liberals on specific issues, but the overall atmosphere was more cautious about broad expansions of individual rights. Marshall responded by defending Warren Court precedents, especially in areas like criminal procedure, search and seizure, and suspect rights. While the Court did not wholly overturn major rulings like Miranda v. Arizona (1966), it trimmed their scope with doctrines such as the “good faith” exception (though that was not recognized until 1984 in United States v. Leon) or narrower interpretations of the exclusionary rule.
During this transitional stage, Marshall forged key alliances where possible. For instance, he joined Harry Blackmun’s majority in Roe v. Wade (1973), a landmark decision that extended constitutional privacy to include reproductive autonomy. This outcome was a crucial example of how the moderate-liberal coalition—Brennan, Douglas, Marshall, Blackmun, and Stewart—could still form majorities on issues concerning personal liberty, even within a more conservative environment. Despite often being in the minority, Marshall proved adept at working with the Court’s swing votes—particularly Justice Potter Stewart and, on certain topics, even Byron White—to preserve or refine certain Warren-era principles rather than see them dismantled entirely.
The Resignation of Nixon and Appointment of Ford’s Nominee
The Watergate scandal precipitated the first and only resignation of a U.S. president when Nixon stepped down in August 1974. Gerald R. Ford succeeded him, inheriting a delicate political atmosphere. Ford’s single Supreme Court appointment was John Paul Stevens (1975) to fill the seat of Justice William O. Douglas, who retired due to health. Douglas’s departure was a profound loss for the Court’s liberal wing, as he had been a consistent ally of Marshall and Brennan. Stevens, initially perceived as a moderate conservative, would later evolve into a more liberal justice, occasionally aligning with Marshall on civil liberties and constitutional constraints on executive power.
The Transition from Liberal Stronghold to Liberal Minority
By the mid-1970s, the once-dominant liberal coalition had become a minority. Brennan and Marshall, in particular, often found themselves penning dissents in cases that chipped away at Warren Court precedents. For example:
Capital Punishment: After the temporary moratorium achieved in Furman v. Georgia (1972), the Court reinstated the death penalty in Gregg v. Georgia (1976). Marshall and Brennan filed passionate dissents, affirming their belief that the death penalty was inherently cruel and unusual under the Eighth Amendment.
Affirmative Action: In Regents of the University of California v. Bakke (1978), the Court struck down rigid quotas but left room for race-conscious admissions policies. While Marshall joined the majority to allow some form of affirmative action, the fracturing of opinions illustrated that the Court was no longer fully united on expanding civil rights.
Criminal Procedure and Fourth Amendment: The Court continued to refine or limit criminal procedure protections, with Marshall often dissenting from decisions that, in his view, whittled down suspects’ rights.
Despite these challenges, Marshall maintained a critical presence, often writing or joining impactful majority opinions in narrower contexts. In cases like Bounds v. Smith (1977), which required states to ensure inmates had meaningful access to courts, Marshall wrote the majority himself. Even within a more conservative environment, pockets of liberal success remained feasible when he could build alliances around issues of fundamental fairness and due process.
Emergence of “The Two Geniuses” Alliance
At the same time, Marshall deepened his longstanding alliance with William J. Brennan, Jr.—sometimes referred to colloquially as “the two geniuses” for their intellectual clout and unwavering liberal convictions. Though they occasionally took different tacks, especially regarding certain procedural doctrines, they consistently teamed up to defend robust interpretations of the Bill of Rights and Fourteenth Amendment. Observers noted that while Brennan often approached constitutional questions with a deft strategic sense, Marshall was more forthright, grounded in both moral argument and personal insight into social injustices.
This alliance became especially significant as Justice John Paul Stevens gradually shifted leftward and Harry Blackmun began to champion more liberal positions. A new liberal bloc of sorts formed in the late 1970s, typically anchored by Brennan and Marshall, with Blackmun, Stevens, and sometimes Powell or Stewart providing swing votes depending on the issue. Although not as cohesive as the Warren Court’s liberal majority, this group could occasionally outmaneuver the conservative faction—Chief Justice Burger, Rehnquist, and sometimes White—when the latter lacked cohesion.
Ronald Reagan’s Appointments and Ideological Shift
Ronald Reagan’s 1980 election heralded another conservative tilt. During his administration, Reagan named two justices to the Court before 1986:
Sandra Day O’Connor (1981) – the first woman on the Supreme Court, often described as a moderate conservative. On certain social issues, O’Connor embraced a pragmatic approach that sometimes aligned with liberal concerns (as in cases like Roe v. Wade’s incremental reaffirmation through Planned Parenthood v. Casey (1992), though that came later).
Antonin Scalia (1986) – a forceful conservative intellectual who would champion textualism and originalism, frequently clashing with Marshall’s broad, “living Constitution” perspective.
Additionally, in 1986, William H. Rehnquist succeeded Warren Burger as Chief Justice, marking the official start of the “Rehnquist Court.” By this stage, Marshall was the second most senior associate justice after William Brennan. The liberal minority found themselves under increasing pressure as Rehnquist’s vision for a more limited judiciary gained traction.
Marshall’s Strategies in the Reagan Era
Bolstering Individual Rights
Marshall, often joined by Brennan, sought to maintain the Warren-era expansions in areas like criminal procedure, capital punishment, and equal protection. Although the Court’s majority frequently moved in a different direction, Marshall persisted in advancing arguments about the Eighth Amendment’s evolving standards, the need for robust Fourth Amendment enforcement, and the importance of race-conscious measures for redressing systemic discrimination.
Dissent as a “Blueprint”
As the Court grew more conservative, Marshall’s dissents became even more pointed, laying down markers for future legal reform or potential shifts in public opinion. Scholars often note that these dissents, while not immediately influential in altering the Court’s results, served as a moral counterweight to the majority’s holdings. In some issues—like the death penalty—Marshall and Brennan’s unwavering stance offered a consistent critique, which later justices or advocates might adopt in narrower contexts (for instance, banning capital punishment for juveniles or the intellectually disabled).
Collaborations with Stevens and Blackmun
During the early Rehnquist Court, Justices Stevens and Blackmun at times drifted into more liberal territory, forming a small but consistent bloc with Brennan and Marshall. This group faced an uphill battle on many issues but was able to eke out victories on certain First Amendment claims—like in cases expanding or securing free speech rights—and in some lesser-known procedural rulings where the conservative wing was not solidly unified.
Tensions and Shifting Alliances
While Marshall was a reliable liberal anchor, the rest of the Court had fluid ideological alignments on specific issues:
Justice White continued his pragmatic approach, sometimes backing states’ rights or law enforcement over civil liberties, but on occasion siding with Marshall on issues like due process or the right to vote.
Justice Powell had become something of a swing vote on affirmative action and certain civil liberties questions; his retirement in 1987 would lead to the appointment of Anthony Kennedy, introducing yet another variable into the Court’s dynamic.
Justice O’Connor was difficult to categorize neatly, as she favored incremental rulings, especially in sensitive areas like abortion, thereby steering the Court toward more moderate paths than a Rehnquist-Scalia axis might have achieved alone.
Throughout these fluctuations, Marshall continued to champion broad interpretations of constitutional rights. He was, by this time, frequently in dissent, but his rhetorical power and moral arguments resonated in the press, legal scholarship, and among progressive advocates. Moreover, the alliances he formed—though rarely culminating in a broad liberal majority—helped temper the Court’s rightward shift, compelling conservative justices to craft narrower opinions in certain areas to avoid losing moderate colleagues.
Anthony Kennedy Joins the Court (1988)
After the failed nomination of Robert Bork and the short-lived nomination of Douglas Ginsburg, Ronald Reagan named Anthony M. Kennedy to replace Lewis Powell. Confirmed in 1988, Kennedy quickly revealed a willingness to compromise, embracing a mix of conservative stances and moderate-liberal rulings (e.g., he became a key figure in reaffirming Roe v. Wade in the 1992 Planned Parenthood v. Casey). During Marshall’s remaining years on the Court, the presence of Kennedy, O’Connor, and sometimes Stevens as potential swing votes introduced more unpredictability in outcomes.
Marshall’s Increasing Dissents and Notable Alignments
By the late 1980s, Marshall was the second-most senior justice (after Brennan), yet found himself, more often than not, outvoted in high-profile cases, especially those concerning the death penalty, affirmative action, and restrictions on criminal procedure. However, he maintained a formidable presence:
Capital Punishment Cases: Marshall steadfastly dissented in every death penalty case, reaffirming his stance that capital punishment violated the Eighth Amendment’s evolving standards of decency. Though these dissents did not halt executions, they kept moral and constitutional objections on the record.
Privacy and Speech: The Court’s free speech decisions—like Texas v. Johnson (1989), which invalidated flag-burning bans—often included Marshall in the majority. Aligning with Brennan and sometimes Scalia, Marshall illustrated that the Rehnquist Court was not monolithic, and alliances could form across ideological lines when fundamental speech principles were at stake.
Government Power vs. Individual Rights: In disputes over qualified immunity for law enforcement or the scope of the exclusionary rule, Marshall consistently resisted expansions of police and prosecutorial latitude. However, the Court generally upheld or extended these doctrines, often leaving Marshall’s voice in dissent.
The Retirement of Brennan (1990) and Marshall’s Reaction
One of the most significant moments in Marshall’s final years on the bench was the retirement of William J. Brennan, Jr. in 1990. Brennan’s departure removed Marshall’s closest intellectual ally and the Court’s leading liberal strategist. Appointed by Dwight D. Eisenhower in 1956, Brennan had worked alongside Marshall through pivotal expansions of constitutional rights. Their combined efforts formed the Court’s “liberal conscience,” especially in matters of racial justice, free expression, and the rights of criminal defendants.
With Brennan gone, Marshall took on an even more pronounced role as the senior liberal justice. Yet the climate had grown colder to his viewpoint. President George H. W. Bush’s nomination of David Souter—initially unknown in his jurisprudential leanings—did little to shift the Court leftward in the short term. Marshall recognized that the liberal bloc was dwindling, and he responded by intensifying his dissents, continuing to articulate an alternative constitutional framework grounded in robust protections for the underrepresented and the disadvantaged.
Marshall’s Retirement (1991)
By 1991, Thurgood Marshall’s health was declining. He publicly lamented that he did not wish to retire but felt he could no longer fulfill his duties at the highest level. Reflecting on his impending retirement, Marshall famously said, “I’m old, I’m getting old and coming apart,” highlighting practical considerations rather than giving in to political pressure. President George H. W. Bush appointed Clarence Thomas, another African American jurist but one whose conservative philosophy diverged dramatically from Marshall’s. This transition symbolically ended an era: the seat that once belonged to the architect of Brown v. Board of Education’s legal strategy now passed to a justice who would frequently vote to limit the very civil rights expansions Marshall championed.
Across these decades—1967 to 1991—the Supreme Court’s membership shifted from a liberal-leaning Warren Court to a more conservative Rehnquist Court. Marshall’s presence was pivotal in ways that transcended vote counts:
Anchoring the Liberal Wing: From the Warren Court’s twilight through the Rehnquist Court, Marshall remained a dependable liberal anchor, ensuring that progressive arguments on race, capital punishment, and civil liberties never disappeared from the Court’s discourse. Even as the Court moved rightward, he offered a consistent interpretive framework that future generations could revisit.
Alliance-Building: Marshall’s interpersonal relationships with figures like William Brennan, Harry Blackmun, John Paul Stevens, and even some moderate conservatives helped shape crucial rulings in areas where broad consensus was achievable—like certain free speech issues, or privacy-based rights. Though often overshadowed by more prolific opinion-writers like Brennan or Douglas, Marshall was recognized for forging calm, persuasive relationships in conferences and behind the scenes.
Dissent as Foundation: As the Court’s composition grew more conservative, Marshall’s reliance on dissent turned his opinions into far-reaching critiques that spelled out an alternative constitutional vision. These dissents, while not controlling law at the time, served as moral barometers and intellectual wellsprings that subsequent justices, lawyers, and scholars could draw upon. In capital punishment, they formed a persistent counterargument to the Court’s acceptance of state executions.
Continuity of the Civil Rights Legacy: Finally, Marshall’s mere presence—an accomplished civil rights litigator turned Supreme Court justice—underscored the significance of diversity and lived experience in shaping jurisprudence. His vantage point as a Black man who personally confronted institutional discrimination injected a vital real-world understanding into Court deliberations. While the Court’s composition steadily bent more conservative, Marshall’s voice reminded his colleagues—and the public—that constitutional interpretation must account for the Constitution’s promise of genuine equality, not merely formal colorblindness.
Thurgood Marshall served during one of the most tumultuous eras in Supreme Court history. In 1967, he arrived on a Court still under the formidable leadership of Earl Warren, which fostered progressive expansions in civil rights and liberties. But by the time Marshall retired in 1991, the Court had transitioned through the Burger era into the Rehnquist era, featuring a firmly conservative majority on many core questions. The membership changes—resignations, deaths, and politically charged appointments—continually tested Marshall’s capacity to influence the course of American constitutional law.
Through it all, Marshall remained true to a moral and legal vision forged in decades of civil rights advocacy. He recognized that forging coalition majorities was often essential for sustaining or extending the Warren Court’s legacy; thus, he adeptly aligned with moderate allies like Stewart, Powell, or O’Connor on certain issues. When the Court shifted away from his broad interpretations of rights, Marshall turned to powerful dissents that documented a competing constitutional framework for future advocates and jurists.
In reviewing the composition of the Court during Marshall’s tenure, one perceives a slow but undeniable rightward shift, culminating in the reaffirmation or expansion of state authority in criminal procedure, more caution around race-based remedial measures, and ambivalence about the scope of privacy rights. Nevertheless, Marshall’s longstanding presence ensured that the progressive arguments, rooted in the belief that the Constitution must safeguard the vulnerable and the historically oppressed, never vanished entirely from the Court’s deliberations. Even as his allies retired or passed away and conservative justices ascended, Marshall’s voice remained a steadfast emblem of what the Court could yet be—a guardian of justice for all Americans, especially those on society’s margins.