Thurgood Marshall

Most of what has been written about Thurgood Marshall, a former United States Supreme Court justice who served from 1967 to 1991, has just focused on his judicial record and on the ideological content of his earlier achievements as a lawyer pursuing civil rights issues in the courts. But when Marshall’s career the opportunity arose, set up a predetermined legal campaign that was meticulously crafted and carefully coordinated.

One aspect of this campaign, the test case strategy, involved sponsoring litigation of tactically chosen cases at the trial court level with careful evaluation of the precedential nuances and potential impact of each decision. This allowed Marshall to try out different approaches and discover which was the best to be used. An cases with sympathetic litigants, whose public appeal, credibility, and commitment to the NAACP’s goals were unsurpassed.

In addition, Marshall used sociological and psychological statistics—presented in expert testimony, for example, about the psychological impact of enforced segregation—as a means of transforming constitutional law by persuading the courts that certain discriminatory laws produced public harms in violation of constitutional principles. This tactic, while often effective, has been criticized by some in their justifications for decisions where the purely legal principles appear inconclusive.

Since the time of Marshall’s work with the NAACP, the number of public interest law firms in the U.S. has grown substantially, and they have widely adopted his combination of strategies for litigation, devoting them to various public purposes. These strategies have been used, for example, in consumer advocacy campaigns and, more be a radical departure from accepted conventions—have become the norm for U.S. public interest litigation today.