Giants Once Walked Among Us

After the more substantive discussion, this week's "One First" #SCOTUS trivia introduces the (Texas-specific) story of how LBJ (as only LBJ could) engineered a vacancy in 1967 so that he could appoint Thurgood Marshall as the Court's first Black Justice:https://t.co/jcJjJusAg3 pic.twitter.com/RcmqJCgJDB

— Steve Vladeck (@steve_vladeck) December 6, 2022

Clark, an alumnus of the Finest Law School For 1000 Miles In Every Direction (which, entirely unrelatedly, is my current employer), was appointed to the Court by President Harry S Truman in 1949 after serving for four years as Truman’s Attorney General. Although Clark is not nearly as well-known as many of his contemporaries on the Court, his tenure is perhaps best known for his majority opinions in the landmark 1964 cases Heart of Atlanta Motel v. United States and Katzenbach v. McClung, which upheld Congress’s prohibition of racial discrimination in places of public accommodation in Title II of the Civil Rights Act of 1964. Tom Clark being sworn in as an Associate Justice of the Supreme Court by Chief Justice Fred Vinson (with President Truman looking on), August 24, 1949 But the “trivia” is how Clark was effectively forced off of the Court in 1967. It all has to do with his fellow Texan, then-President Lyndon Baines Johnson. LBJ desperately wanted to appoint the Court’s first non-white Justice. And in legendary civil rights lawyer Thurgood Marshall, he had his man. Marshall had already served four years on the Second Circuit, and LBJ had successfully appointed him Solicitor General in 1965. There was just one problem: There were no vacancies on the Court. 

So, as the story goes, LBJ orchestrated one. First, he persuaded Attorney General Nicholas Katzenbach to step down (to become Undersecretary of State). Why Katzenbach? Because his deputy, and now the Acting Attorney General of the United States, was Ramsey Clark—one of Justice Clark’s two sons. Johnson promptly nominated Ramsey Clark to succeed Katzenbach as Attorney General, correctly predicting that the senior Clark would feel impelled to recuse from every case in which the United States was a party, which would make it untenable for him to remain on the Court. Ramsey Clark was sworn in as Attorney General on March 10, 1967; Tom Clark retired on June 12. The very next day, President Johnson announced Marshall’s nomination.

You’ve got to admire the ability to come up with a plan like that and execute it, and benefit the country at the same time. Justice Marshall was the most consequential Justice of the last century (he argued Brown v Board before he was appointed to the Court).

Justice Jackson is shaping up to be as consequential. We’ll see.