Thurgood Marshall’s ascension to the Supreme Court in 1967 brought not only historical significance—he was the first African American justice—but also a distinctive legal vision shaped by his decades of civil rights advocacy. To fully appreciate his impact on American law, one must probe the underlying principles that animated his approach to constitutional interpretation. Far from seeing the Constitution as a static document, Marshall regarded it as a living instrument, capable of evolving to rectify social inequities and protect individual liberties. He blended this progressive interpretive ethos with a pragmatic understanding of how courts function within the broader political and societal context, drawing on his experiences in segregated courtrooms and within the corridors of federal power.
This chapter explores the key tenets of Marshall’s judicial philosophy. We begin by examining how his formative experiences as a civil rights litigator and federal appellate judge influenced his understanding of constitutional law. We then discuss his robust view of the Equal Protection and Due Process Clauses, focusing on how his long-standing commitment to civil rights extended into broader conceptions of liberty and fairness. From there, we analyze his stance on constitutional interpretation, situating him between traditional textualism and the “living Constitution” framework. We also delve into his views on the role of dissent—a vital outlet for Marshall when he found himself in the minority on an increasingly conservative Court. By the end of this chapter, readers will grasp why Marshall’s jurisprudence endures as a moral and intellectual force, even decades after his retirement and subsequent passing.
Throughout American history, many Supreme Court justices have begun their careers in private practice or academia, honing a theoretical command of the law before stepping onto the bench. Thurgood Marshall, by contrast, was forged in the crucible of civil rights litigation. In the 1930s, 1940s, and 1950s, he faced hostile judges, juries, and even legislatures while arguing for the dismantling of racial segregation. His numerous court battles—a hallmark of which was Brown v. Board of Education (1954)—were not intellectual exercises but existential struggles over the very definition of equality under American law.
These experiences profoundly shaped his judicial philosophy. As a litigator, Marshall saw how states and localities manipulated the law to maintain systemic discrimination. He witnessed firsthand that lofty constitutional promises, such as equal protection and due process, often meant little in practice unless courts were willing to enforce them rigorously. Indeed, he came to view the judiciary as an indispensable safeguard for marginalized groups. This view carried over into his years on the Supreme Court. In case after case, whether addressing the rights of criminal defendants or scrutinizing government policies with racially disparate impacts, Marshall advocated for a robust judiciary that could ensure the Constitution’s pledges were meaningfully upheld.
Marshall’s legal background also instilled in him a pronounced empathy for individuals who found themselves at the mercy of the legal system. He had represented indigent defendants and civil rights plaintiffs from rural backwaters to bustling cities, witnessing how a single ruling could mean freedom or incarceration, equality or continued discrimination. Consequently, when he evaluated constitutional questions from the bench, he consistently asked: how would this decision affect those with the least power in society? Would a particular interpretation of the Fourth Amendment, for instance, give police too much leeway to search the homes of the poor? Would a narrow reading of the Equal Protection Clause sanction persistent racial disparities in employment or voting?
These queries underscored Marshall’s philosophical stance that legal analysis should not be divorced from social realities. Unlike formalists who insist on the neutrality of legal rules, Marshall recognized that existing power structures often determine how the law is applied. This recognition made him keenly protective of individual rights, especially when the government’s actions threatened to jeopardize them. He believed that courts, as institutions less vulnerable to immediate political pressures than legislatures, had a duty to interpret constitutional guarantees with an eye toward protecting minorities—racial, social, or otherwise—from the tyranny of the majority.
No area of law drew more of Marshall’s attention—or showcased his influence more starkly—than the Equal Protection Clause of the Fourteenth Amendment. As an attorney, he had utilized the Clause to dismantle the legal architecture of Jim Crow. On the Supreme Court, he employed it to challenge policies that perpetuated racial, gender, and class-based inequities. His interpretive stance was clear: the Equal Protection Clause was not a narrow mandate but rather a dynamic tool capable of safeguarding marginalized communities in rapidly changing social contexts.
Marshall often contended that courts should look beyond a law’s face value or stated intent to its real-world effects. For instance, in cases involving employment discrimination, he was inclined to examine statistical evidence revealing that certain hiring practices adversely affected minority applicants. Even if legislators or employers claimed neutrality, Marshall believed the Equal Protection Clause demanded scrutiny of disparate outcomes. This perspective foreshadowed what would later be called the “disparate impact” theory in civil rights litigation.
One of the high-profile arenas for his expansive reading of equality came in Regents of the University of California v. Bakke (1978), where the Court grappled with affirmative action in higher education. Though the justices were fractured in their reasoning, Marshall penned a separate opinion underscoring how centuries of oppression demanded proactive measures to remedy the vestiges of slavery and Jim Crow. For him, affirmative action was neither preferential treatment nor a constitutional anomaly; it was a logical extension of the Equal Protection Clause, which he viewed as a promise that the government must actively combat racial inequality, not merely refrain from overt discrimination.
If the Equal Protection Clause provided the textual hook for Marshall’s commitment to racial justice, the Due Process Clause formed the backbone of his broader civil libertarian philosophy. He consistently voted to limit governmental intrusion into the private lives of citizens, whether that intrusion took the form of law enforcement overreach, censorship, or legislative efforts to restrict reproductive freedoms.
Marshall’s position on criminal procedure offers a clear illustration of this. Having witnessed how arbitrary policing and racially biased prosecutors could ruin lives, he was deeply suspicious of unchecked state power. In majorities, concurrences, or dissents—depending on the Court’s composition—he maintained that procedural protections were vital to prevent discrimination and wrongful convictions. He staunchly supported rulings that required rigorous due process safeguards, including robust standards for confessions and thorough disclosure of exculpatory evidence by prosecutors. When the Court in United States v. Bagley (1985) narrowly defined the scope of a defendant’s right to discover evidence that might impeach the credibility of government witnesses, Marshall joined Justice Blackmun’s dissent, underscoring his conviction that withholding such evidence subverted a fair trial.
Similarly, in the arena of reproductive rights, Marshall consistently voted to uphold the line of cases recognizing a constitutional right to privacy, as originally articulated in Griswold v. Connecticut (1965) and expanded in Roe v. Wade (1973). For him, the Due Process Clause was not confined to procedural niceties but encompassed substantive rights essential to personal autonomy and dignity. Although he did not author the seminal opinions on reproductive rights, he joined them wholeheartedly, seeing in them the same promise of human dignity that had guided his battles against racial segregation.
In the decades following Marshall’s appointment, legal thought in the United States saw a resurgence of originalism—the interpretive approach insisting that constitutional meaning is fixed at the time of its ratification. Figures like Justice Antonin Scalia championed originalism, positing that judges should discern the Constitution’s “original public meaning” rather than adapt it to current realities. Marshall took a diametrically opposed view.
He was candid in his belief that many of the Constitution’s framers had vested interests in preserving privileges for a small subset of the population. Furthermore, as a Black American, he was acutely aware that the original Constitution not only tolerated slavery but enshrined it through the infamous Three-Fifths Compromise. Consequently, Marshall argued that to treat the Founders’ 18th-century perspectives as sacrosanct was both historically naive and morally problematic. While he acknowledged the significance of historical context, he insisted that the Constitution must be interpreted in a way that advances its overarching principles of liberty and equality, even if doing so defies what certain Framers may have believed centuries ago.
Marshall’s stance aligned closely with the “living Constitution” approach. He saw the document as part of an ongoing project, one in which the American people continuously refine and expand their understanding of constitutional principles. This expansion was, in his view, evident in the post–Civil War amendments, the gradual extension of voting rights to African Americans and women, and the landmark civil rights legislation of the 1960s. Each of these developments underscored that the Constitution’s meaning was neither static nor easily encapsulated by historical intent.
In practice, this perspective led Marshall to read broad phrases like “equal protection” or “due process” as capacious enough to address modern forms of injustice. Far from betraying the Constitution, he believed such readings upheld its most important moral commitments. This tension between a living Constitution and a strict, historically anchored interpretation often placed Marshall in opposition to conservative colleagues. Yet, even as he found himself increasingly in dissent in the latter years of his tenure, Marshall’s moral conviction remained a guiding force in his jurisprudence.
Contrary to caricatures of Marshall as an unbridled activist, he was also sensitive to the principle of stare decisis—the notion that courts should generally respect established precedents. This was partly due to his pragmatic understanding of the law’s need for stability. In many cases, he weighed whether overturning a precedent would cause more harm than good, even if he believed the precedent to be imperfect.
Marshall’s tendency to honor stare decisis was particularly evident in areas like commerce regulation or administrative law, where he often joined majority opinions that adhered to existing lines of doctrine. Unlike some other liberal justices, he was less inclined to radically reshape settled areas of commercial or regulatory jurisprudence. Instead, he reserved his most forceful breaks from precedent for issues that touched upon fundamental rights, especially cases where adherence to old precedents perpetuated injustice.
Marshall’s approach also recognized the interplay between judicial restraint and activism. While he championed a proactive role for courts in safeguarding minorities, he believed that elected legislatures were better equipped to handle certain policy decisions, such as economic regulation. Indeed, his deference to Congress in those spheres evidenced a nuanced view of separation of powers: courts were not designed to manage the minutiae of regulatory frameworks but to ensure that legislation did not violate fundamental constitutional rights.
This balance between restraint and activism emerges most clearly when analyzing Marshall’s voting record. While he was consistently protective of First and Fourteenth Amendment claims, he often deferred to legislative decisions on matters that did not implicate equality or personal liberties. Nevertheless, the pattern of his rulings showed a clear tilt toward intervening when government action threatened civil rights. In this sense, Marshall’s judicial philosophy was neither a blanket endorsement of activism nor an unyielding restraintist approach. Rather, it was anchored in a substantive commitment to fairness and justice.
One of the most consistent threads in Marshall’s jurisprudence was his deep-seated skepticism toward state power in criminal proceedings. Having built his legal career battling unjust state practices—be they segregated school systems or racially biased juries—he understood all too well how the machinery of government could be manipulated to target the vulnerable. On the Supreme Court, his votes in criminal procedure cases often reflected this wariness.
Marshall joined or wrote opinions aimed at curbing police overreach under the Fourth Amendment, ensuring the right to counsel under the Sixth Amendment, and guaranteeing meaningful appellate review under the Fourteenth Amendment. In decisions involving search and seizure, he argued that robust protections were necessary to prevent law enforcement from using invasive techniques disproportionately in disadvantaged communities. He also believed that the Warren Court’s iconic rulings—such as Miranda v. Arizona (1966)—were essential bulwarks against coercive interrogation practices.
Nowhere was Marshall’s perspective on government power more evident than in his opposition to the death penalty. He famously concurred in Furman v. Georgia (1972), which temporarily halted capital punishment in the United States, arguing that the death penalty was “cruel and unusual” under the Eighth Amendment and thus unconstitutional in all cases. He maintained that view even after the Court reinstated capital punishment in Gregg v. Georgia (1976). From Gregg onward, Marshall dissented in every subsequent death penalty case, holding firm to the conviction that the practice was irreconcilable with the constitutional and moral values he believed the nation aspired to uphold.
For Marshall, capital punishment was not simply an academic or philosophical question; it had immediate real-world repercussions, disproportionately affecting racial minorities and the poor. He pointed to evidence of racial biases in sentencing decisions, as well as glaring disparities in the quality of legal representation afforded to capital defendants. These systemic flaws, in his view, eviscerated any notion that the death penalty was being fairly or reliably administered. His repeated dissents on this issue, though not adopted by a majority of the Court, became a clarion call for abolitionists and a moral reference point for future generations grappling with the same legal and ethical quandaries.
As the Supreme Court trended more conservative during the Burger and Rehnquist eras, Marshall found himself dissenting more frequently. Yet he did not regard dissents as futile gestures. Rather, he treated them as opportunities to articulate a more just legal framework, to document the ways in which he believed the majority erred, and to lay the groundwork for possible future changes in the law.
Marshall’s dissents were often characterized by a distinct moral force. Unlike some justices who penned dry, technical objections, Marshall used clear, forceful language to underscore the human consequences of the Court’s decisions. Whether criticizing the Court for upholding limitations on affirmative action or arguing against procedural shortcuts in capital cases, he continually reminded readers that these decisions had real impacts on people’s lives, particularly those historically sidelined by the legal system.
In Marshall’s view, dissent was not merely a venue to express disagreement; it was also a way to steer the course of legal thought. He was acutely aware that many of the rights expansions championed by the Warren Court had begun as minority viewpoints—sometimes as lone dissents in earlier decades. Over time, as societal values evolved and new justices ascended to the bench, those once-marginal ideas could gain traction and become law.
This long-range perspective explains the consistent tone of optimism that underpinned even his most impassioned dissents. Even when he vehemently disagreed with a ruling, Marshall believed that justice had a way of prevailing in the end if advocates continued to press their case both inside and outside the courts. His approach to dissent was thus pedagogical and generational: he provided arguments and frameworks that future litigators, lawmakers, and judges might utilize in a more enlightened era.
Thurgood Marshall’s judicial philosophy, rooted in a living Constitution, an expansive reading of individual rights, and unwavering advocacy for social justice, continues to influence American jurisprudence. Subsequent justices and legal scholars have cited his dissents in debates over the death penalty, affirmative action, and voting rights, seeing in them the seeds of modern arguments that challenge entrenched biases and systemic inequities. His legacy reminds observers that constitutional law is not merely a matter of text and precedent, but also of moral vision and empathy for those whom society marginalizes.
His willingness to engage in forceful dissent underscores a vital truth about the judiciary: minority viewpoints can shape the future of constitutional interpretation, especially when they are grounded in compelling arguments that speak to fundamental moral and ethical values. Marshall’s work on the Court, particularly his extensive writing on civil rights and liberties, has become a touchstone for progressive jurists who view the judiciary as a catalyst for social change. His stances on issues such as the death penalty remain highly relevant, as states and lower courts continue to grapple with its fairness and constitutionality.
Though Marshall’s approach to constitutional interpretation has left an indelible mark, it has also sparked robust debates that persist to this day. Critics argue that his living Constitution philosophy oversteps judicial boundaries, enabling justices to legislate from the bench. Supporters counter that the Constitution must be a flexible document, or else it risks failing to protect citizens in an evolving society. These debates echo in modern Supreme Court confirmations, where nominees are regularly questioned about their stance on precedent, judicial restraint, and constitutional interpretation.
In that sense, Marshall’s judicial philosophy is part of a broader dialectic about the role of courts in a democracy. Should justices primarily uphold historical interpretations of the law, or should they adapt it to contemporary moral standards? Should the Court show deference to legislatures, or act as a bulwark against majoritarian excesses? Marshall’s legacy offers a vivid illustration of how a justice can balance respect for institutional norms with a passionate commitment to expanding freedom and equality.
Thurgood Marshall’s judicial philosophy cannot be reduced to any single catchphrase or label. It was shaped by his experiences confronting racial injustice, informed by his deep faith in the Constitution’s capacity to grow, and animated by a moral clarity that placed the well-being of ordinary people at the center of legal analysis. His willingness to engage with evolving social norms, coupled with an unrelenting defense of the marginalized, gave his opinions a sense of urgency and compassion that still resonates.
From his formative years challenging Jim Crow to his final days on the Supreme Court, Marshall maintained an unwavering belief that constitutional principles must be interpreted to serve the needs of real people, rather than merely to preserve historical legal doctrines. In championing broad readings of the Fourteenth Amendment and robust procedural safeguards under the Fifth and Sixth Amendments, he sought to ensure that the Constitution delivered on its promises of liberty and equality for all—a vision that, if not always reflected in the Court’s majority opinions, reverberated in his eloquent dissents.
In the chapters to come, we will see how this judicial philosophy played out in specific cases, from landmark rulings that shaped the nation’s stance on affirmative action and abortion rights, to controversial decisions on capital punishment and free speech. While Marshall did not win every battle, he left behind a jurisprudential roadmap that continues to guide those who view the Constitution as a living, moral document—one that can and should be harnessed to create a more equitable society. His legacy underscores that law is not just about deciding cases; it is about fostering a justice system capable of uplifting every individual, especially the most vulnerable, to the full protection of American democracy’s constitutional ideals.