WASHINGTON – He called her Shorty. She called him the most important lawyer of the 20th century.
Now, in a case of uncanny timing, the story of former Supreme Court Justice Thurgood Marshall is taking center stage at the Kennedy Center for the Performing Arts just as the Senate prepares to take up the nomination of his one-time clerk, Elena Kagan, to join the high court.
Marshall, the first Black justice on the court, is brought to life by actor Laurence Fishburne in the one-man play “Thurgood.” The production opened on Broadway in 2008 and earned Fishburne a Tony Award nomination.
Its debut in Washington is hugely symbolic. This is where Marshall attended Howard University Law School, where he argued and won the landmark Brown v. Board of Education case to make school segregation illegal, and where he later mentored Kagan as a law clerk.
Kagan, who worked for Marshall when he was nearing 80 and in poor health, doesn’t figure in the play. But she has spoken often of her admiration for the justice, calling him “the most important and probably the greatest lawyer of the 20th century.”
While the timing is all coincidence, Fishburne, who stars in TV’s “CSI: Crime Scene Investigation,” said the play’s inspiring history from Marshall’s legal mind will remind people of the Supreme Court’s role in shaping the country.
“How does the Supreme Court function best now? That’s I think the big question,” Fishburne said in an interview with the AP. “It did function well when Brown was announced. It was a unanimous decision.”
It’s hard to imagine that kind of unanimity on a difficult issue from today’s divided court.
The show at the Eisenhower Theater through June 20 is a big hit; the entire Washington run is sold out. It’s expected to draw members of Congress, Obama administration officials and some current Supreme Court justices. Three members of the current court, Chief Justice John Roberts and justices Stephen Breyer and Ruth Bader Ginsburg, attended last Thursday night’s opening performance. The production moves to the Geffen Playhouse in Los Angeles June 27 through Aug. 8.
First-time playwright George Stevens Jr., based in Washington as the creator of the Kennedy Center Honors and founder of the American Film Institute, said the script for “Thurgood” grew out of his 1990s miniseries “Separate But Equal,” starring Sidney Poitier as Marshall.
For Stevens, Marshall was the most important civil rights figure of all for his “heroic imagination.”
“Thurgood was the architect,” he said. “You think that, in the 1950s, 100 years after slavery, segregation was rampant in the South and places in the North. He had the imagination to believe that he could use the law to change that.”
The story unfolds with Marshall addressing students at Howard University. He recalls growing up in Baltimore, attending segregated schools and seeing police beat Black people in custody down the street. He remembers the first time he was called the N-word and the letter denying him admission to the University of Maryland law school because he was Black.
“Am I going to go through life being humiliated because of the color of my skin?” Marshall asked himself.
His mother, a teacher, pawned both her wedding and engagement rings so her son could study at Howard, taking the train each day to Washington.
Lesson No. 1: Using the law to obtain justice. Marshall studied under the school’s dean, Charles Hamilton Houston, who created the legal basis to end segregation by focusing on the 14th Amendment’s equal protection clause and arguing that separate facilities being provided were not equal to those for Whites.
From there, the young lawyer for the NAACP set out to create a strategy to dismantle legalized racial discrimination piece by piece. The words over the Supreme Court entrance fueled his work: “Equal Justice Under Law.”
Marshall’s arguments and philosophy led to the Brown victory, then to a federal judicial appointment by President John F. Kennedy and eventually to his seat on the high court.
In a nod to Marshall’s mentor, Kagan chose to be named the Charles Hamilton Houston Professor of Law at Harvard’s law school when she was dean. She chose that in place of the traditional title of Sir Isaac Royall Professor, after the colonial slave owner who helped create the school.
Marshall is not without his critics especially during Republican administrations. In the play, Marshall jokes that President Richard Nixon inquired about his health during a hospital stay, but the justice wasn’t ready to quit.
Throughout the show, he repeats a phrase heard early on in his legal education that could grate on conservative ears: “The law is a weapon, if you know how to use it.”
Critics cast Marshall as an activist, liberal judge, and some Senate Republicans have signaled they might make an issue of Kagan’s clerkship under him. She may well be questioned on memos she wrote for him on issues ranging from the rights of women and prisoners to religion and gun control.
Others say Marshall’s fight for civil rights was neither liberal or conservative but did require some activism.
“I don’t think he would shy away from the characterization of being an activist, given the challenges of the time,” said Howard Law School Dean Kurt Schmoke, who has taken students to see the play. “The law simply was not being applied fairly to all of our citizens, so you needed some centurions out there fighting that battle for equality.”
As Fishburne delves into the Marshall character, he reflects on the gravity of the times. It was Marshall’s sense of humor through it all, though, that surprised the actor most.
“He was a cheeky monkey,” Fishburne said. “It’s as close as I’ve ever come to doing what a standup comedian gets to do.”
That humor and Marshall’s sense of narrative are what gave an otherwise wonky legal history the ingredients for a good story, Stevens said.
“People are very surprised. They come to it thinking it’s going to be good for them, and then they find it’s very, very funny,” Stevens said. “It’s a great story for this city.”
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