PHOTOS BY BILL WILSON
Copyright © 2007 San Francisco Sentinel
BY PAT MURPHY
Sentinel Editor & Publisher
Copyright © 2007 San Francisco Sentinel
They shared a special friendship, Thurgood Marshall and Anthony Kennedy, seated together on the Supreme Court of the United States.
Neither man ever got over missing the actual practice of the law, Justice Anthony Kennedy told the House of Delegates of the American BAR Association in San Francisco Monday.
Thurgood Marshall, the fiery attorney from Baltimore who cracked discrimination by bringing Topeka school district segregation before the Supreme Court which rendered its historic ruling that “separate but equal” schools for black and whites were inherently unequal; and Anthony Kennedy, the confidante of Ronald Reagan and still today the youngest federal judge to be appointed to the United States Court of Appeals, both shared a deep-seated urgency to pro-actively improve the lives of coming generations.
Born in Baltimore, Maryland on July 2, 1908, Thurgood Marshall was the grandson of a slave. His father, William Marshall, instilled in him from youth an appreciation for the United States Constitution and the rule of law. In 1930, he applied to the University of Maryland Law School, but was denied admission because he was black. This was an event that was to haunt him and direct his future professional life. Thurgood sought admission and was accepted at the Howard University Law School. Thurgood Marshall followed his Howard University mentor, Charles Hamilton Houston to New York and later became Chief Counsel for the National Association for the Advancement of Colored People (NAACP). During this period, Mr. Marshall was asked by the United Nations and the United Kingdom to help draft the constitutions of the emerging African nations of Ghana and what is now Tanzania. It was felt that the person who so successfully fought for the rights of America’s oppressed minority would be the perfect person to ensure the rights of the white citizens in these two former European colonies. After amassing an impressive record of Supreme Court challenges to state-sponsored discrimination, including the landmark Brown v. Board decision in 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. In this capacity, he wrote over 150 decisions including support for the rights of immigrants, limiting government intrusion in cases involving illegal search and seizure, double jeopardy, and right to privacy issues. Biographers Michael Davis and Hunter Clark note that, “none of his (Marshall’s) 98 majority decisions was ever reversed by the Supreme Court.” Thurgood Marshall became the first African American to be appointed to the Supreme Court of the United States in 1967.
Justice Thurgood Marshall
For both men, advocacy lawyering had the satisfying feel of immediacy, a solace diminished when black judicial robes are donned.
But for these men they became the law. They say what the law is as the nation waits for them to so say.
They sat among nine diverse and powerful minds with rich exposure to the most intricate conflicts affecting American society, its past, and future well-being of everyday people.
Yesterday Anthony Kennedy, having served on the Supreme Court since 1988 and now in the late afternoon of his life, focused that experience before the ABA demanding members carry justice worldwide.
“A few decades ago the leaders of this association knew that the law had impelled them to ask whether or not the association was serving justice in the larger sense,” Kennedy reflected.
“They concluded that the condition of the removal of horror around the world is not beyond the objects of this association because justice for their defendants is at the very heart of that object.
“So it is that your president is now all over the world representing the American BAR.
“The American lawyer has a proud place in the whole history of human progress.”
In many nations production occurs outside the law making it difficult for law to deliver justice, Kennedy noted.
“In many countries these countries have probably three-quarters of those engaged in production and trade, not even counting agriculture, are in the so-called illegal or informal or shadow sector.
“They produce, they strive, they work, they trade, they build outside the protection of the law.
“In some cases in some countries it takes ten years to get a permit to operate a taxi. It take 107 to form a corporation.
“And it gets worse.
“In some developing countries over fifty percent of the people have no legal existence. They have no birth certificate. They cannot get medical care. They cannot get an education. They cannot vote.
“And for them the law is seen not as a guardian but as a predator, and this must change.
“We learned we cannot go to some foreign country and take visible packages of the rule of law, with a red, white, and blue ribbon on it — here it is thank you very much.
“To begin with our legal structure simply cannot be replicated easily or quickly or at all in developing countries.
“Our legal structure is sufficiently sophisticated and efficient that we can a require high degree of technical competence and technical performance.
“In the third world, the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college educated persons to make the system work.
“They must have a new system for devlivering legal services.
“We must rethink some day the context to protect property, to protect the environment, protect communal property that’s not just the source of sustenance for the original peoples but for many people who work and live and farm an area in Africa which show great promise in which small communal houses become stewards of the land.
“So the process of the law, the legal structure, the substance of the law in these countries has to change.
“Now, the problem is that if you were to go to a nation and the nation and the people were convinced that some specific changes had to be made — it would take decades, perhaps a lifetime, to show that real results were being made.
“What about the meantime? What about the young people?
“The definition of young people is impatience. What do you tell these young people?
“And there are not ’12 angry young men out there (a reference to the 1957 movie 12 Angry Men which portrayed a sequestered jury) — there are 12 times twelve million.
“There are 12 times twelve million angry young men out there who want justice, we want a better life, and want it now.
“As I’ve indicated, the law is something that goes from the general to the specific, and then goes from the specific to the general, and then back to the general and back to the specific.
“That’s what the case system is about — it’s as simple as that.
“When high school students come to visit me I say, “What do you think of those books on the wall are about?’
“Those books are the stories of human mistakes. Mistakes, misjudgement, malfeasance, malice, hopeless, copeless. And there are stories to tell.
“And so we must find narrative stories to tell these young people, and there are stories to tell.
“We can tell them about the dates that nine-year-old girls were kidnapped or sold by their own families to be held in houses where they become objects of the commission of the basest acts and most depraved acts that were committed by people who are so-called tourists.
“You can tell them in general that without the people here in Bangladesh they must serve 365 days in jail for want of a three dollar fine.
“You can tell them about a regulation, an official regulation, in the Republic of the Congo that it requires them to pay five dollars to file a complaint before your complaint will be investigated.
“You can tell them that there are prisons in many countries where dozens of people have been held for ten years with no trial whatever, no medical care, no visitors.
“You can tell them about a jail in Africa where three people had been shot and had gangrene because they hadn’t been treated for a month and a half.
“And as some of you read, the panel which your association had yesterday discussing the legacy of Nuremberg, you would know about the mass graves that are being found in Columbia, of the ongoing and looming greater disaster in Darfu.
“You will tell these young people that and you would have to say, ‘You’re right. There is crime. There is oppression. There is injustice.
“And we as and assocation, and we as a nation, can say, ‘Here is your cause.’
“Here is a cause for your passion, and for your youth, and your energy.
“We know that passion, as much as rationality, is dominant in the mindset of young people. Here’s something for your passion the law has to do.
“The law need not be a barrier to progress.
“If you stand with us we’ll all figure it out, but if you do not do this the law will be reviled and not revered.
“And the rule of law, the primacy of law, will be much in doubt.
“Your leaders, who urged you to take the case abroad, in effect said this, ‘We know that you are the lawyers of America but you have to be the lawyers for America.’
“What you have to do is understand that the rule of law cannot bring about security unless you address these problems in those other countries on whom we are so interdepent.
“And if there is any doubt about the fact that this association of American lawyers plays has no role in American society is still open and is still subject to change, and is still searching, they’re still working, look at the program that you had here over the last week.
“We want to help to bring the change.
“There is hurt to be assauged. There is inequality yet to be acknowledged, and there is injustice yet to be confronted.
“We want to know it. We want to make that plea.
“And the fact that you’ve done it is a cause of celebration.
“You might ask, ‘Why if there is a cause of celebration that I trespass upon your patience by listening to this tale of woes it’s difficult for the audience. What are you supposed to do with it — are you going to heave the mandatory sigh of despair and then go on with objects close to hand because there is no concrete solutions being offered?’
“But there is a lot of choice. In many countries unjust laws are seen as teaching that just laws cannot be effective, and that is not our heritage. That’s not our purpose.
“And so your view, your mettle, is very beautiful for giving definition, its purpose, and its design.
“It gives me an opportunity to thank you and to acknowledge your roles that you play, and to tell you once again that the work of freedom has just begun.”
Anthony Kennedy was born in Sacramento on July 23, 1936, and worked as an attorney in San Francisco from 1961 through 1963.
He recalls the San Francisco era as one in which hard-wired activists would long for 2:00 a.m. to arrive when the early edition of the San Francisco Chronicle became available as well as the best bars to await that bewitching hour.
A baseball fan, Kennedy received two baseballs yesterday from the ABA honoring his lifelong service — one signed by Hank Aaron and the second ball signed by Barry Bonds.
Kennedy married Mary Davis.
Mary Davis Kennedy with Justice Anthony M. Kennedy
Grandson Reese, left, with father Greg Kennedy and grandparents
ABA Medal of Honor
Kennedy received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard LawSchool. He was in private practice in San Francisco, California from 1961–1963, as well as in Sacramento, California from 1963–1975.
From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific.
He has served in numerous positions during his career, including a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities, subsequently renamed the Advisory Committee on Codes of Conduct, from 1979–1987, and the Committee on Pacific Territories from 1979–1990, which he chaired from 1982–1990.
Anthony Kennedy was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.
Sentinel Editor & Publisher
In his youth, Pat Murphy worked as a General Assignment reporter for the Richmond Independent, the Berkeley Daily Gazette, and the San Francisco Chronicle. He served as Managing Editor of the St. Albans (Vermont) Daily Messenger at age 21. Murphy also launched ValPak couponing in San Francisco, as the company’s first San Francisco franchise owner. He walked the bricks, developing ad strategy for a broad range of restaurants and merchants. Pat knows what works and what doesn’t work. His writing skill has been employed by marketing agencies, including Don Solem & Associates. He has covered San Francisco governance for the past ten years. Pat scribes an offbeat view of the human family through Believe It or What.
Bill Wilson is a veteran freelance photographer whose work is published by San Francisco and East Bay media. Bill embraced photography at the age of eight. In recent years, his photos capture historic record of the San Francisco LGBT community in the Bay Area Reporter (BAR). Bill has contributed to the Sentinel for the past three years.