>> IT WAS THE FACT THAT HE COULD DO SO MANY THINGS THAT MAKES THURGOOD MARSHALL THURGOOD MARSHALL.

PARIS: WELCOME TO GBH NEWS' ROOTED, I'M PARIS ALSTON.

THIS MONTH WE'RE BRINGING YOU SOMETHING EXCITING CALLED ROOTED REMEMBERS.

WE'RE DIGGING THROUGH THE ARCHIVES OF SAY BROTHER AND BASIC BLACK, WHICH PAVED THE WAY FOR GBH NEWS ROOTED, TO REMEMBER SOME OF THE STORIES AND PEOPLE THAT BROUGHT US TO THE PRESENT.

WE BEGIN WITH A PROFILE ON THE LATE SUPREME COURT JUSTICE, THURGOOD MARSHALL, WHO WAS THE FIRST BLACK AMERICAN APPOINTED TO THE NATION'S HIGHEST COURT.

MARSHALL STARTED AS A CIVIL RIGHTS ATTORNEY WHO SUCCESSFULLY ARGUED AND WON THE 1954 DECISION IN BROWN V. BOARD OF EDUCATION.

TODAY, AS THE SUPREME COURT WEIGHS EVERYTHING FROM IMMIGRATION TO GENDER AFFIRMING CARE FOR MINORS, WE ASK, HOW MIGHT JUSTICE MARSHALL RULE?

SAY BROTHER'S DELORES HANDY BROWN SHARED THIS STORY OF ONE OF THE MOST INFLUENTIAL LEGAL FIGURES OF THE 20TH CENTURY.

>> HE WAS BORN IN BALTIMORE, MARYLAND ON JULY 2, 1908.

THE SON OF A SCHOOLTEACHER AND A DINING CAR WAITER.

HE WAS AS -- IT WAS A DANGEROUS A TIME AS ANY TO BE BLACK IN AMERICA.

IN THE YEAR OF HIS BIRTH, WHITE MOBS LYNCHED AT LEAST 89 AFRICAN-AMERICANS.

DESPITE THE TURBULENCE OF THE TIMES, MARSHALL PERSEVERED.

IN AN ERA IN WHICH FEW BLACKS WERE FORTUNATE ENOUGH TO ATTEND COLLEGE, MARSHALL RECEIVED HIS BACHELOR’S DEGREE FROM LINCOLN UNIVERSITY IN 1930.

AFTER BEING DENIED ADMISSION TO THE ALL-WHITE LAW SCHOOL WITH THE UNIVERSITY OF MARYLAND, MARSHALL ENROLLED IN HOWARD LAW SCHOOL.

THERE HE STUDIED UNDER THE LEGENDARY DEAN CHARLES HAMILTON HOUSTON, WHO IS CREDITED WITH TRANSFORMING HOWARD UNIVERSITY’S LAW SCHOOL INTO A LABORATORY FOR CIVIL-RIGHTS LEGISLATION.

MARSHALL GRADUATED IN 1933, FIRST IN HIS CLASS.

IT WAS NOT LONG BEFORE HE JOINED HIS MENTOR, CHARLES HAMILTON HOUSTON, IN THE LEGAL STRUGGLE FOR EQUAL RIGHTS.

HOUSTON BY THEN WAS SPECIAL COUNSEL TO THE NAACP.

AND IN 1939 WHEN HOUSTON RESIGNED, MARSHALL ASSUMED THE POSITION OF SPECIAL COUNSEL.

IT WAS IN THAT CAPACITY THAT HE PERSUASIVELY ARGUED CIVIL RIGHTS CASES BEFORE EVERY LEVEL OF THE U.S. COURT SYSTEM.

HE LED THE TEAM OF ATTORNEYS WHICH ARGUED THE CASE KNOWN TODAY AS BROWN VERSUS BOARD OF EDUCATION, ARGUABLY THE MOST SIGNIFICANT DECISION IN MODERN AMERICAN JUDICIAL HISTORY.

>> MAY IT PLEASE THE COURT, SO FAR AS THE APPELLANTS ARE CONCERNED, THE SIGNIFICANT FASTER RUNNING THROUGH THESE ARGUMENTS UP TO THIS POINT IS THAT FOR SOME REASON NEGROES ARE TAKEN OUT OF THE MAINSTREAM OF AMERICAN LIFE IN THESE STATES.

DOES NOTHING INVOLVED IN THIS CASE OTHER THAN RACE AND COLOR.

THE STATUTE CLEARLY INDICATES -- >> COUNSEL, WASN’T THE STATUTE PAST BY THE LEGISLATURE WHICH REPRESENTS THE WILL OF THE MAJORITY OF THAT STATE?

>> WE ARE TALKING ABOUT THE FEELING OF THE PEOPLE IN SOUTH CAROLINA.

I THINK WE MUST ONCE AGAIN EMPHASIZE THAT UNDER OUR FORM OF GOVERNMENT, THESE INDIVIDUAL RIGHTS AMONG MINORITY PEOPLE ARE NOT TO BE LEFT TO EVEN THE MOST MATURE JUDGMENT OF THE PEOPLE, AND THAT THE ONLY TESTING GROUND AS TO WHETHER OR NOT INDIVIDUAL RIGHTS ARE CONCERNED IS IN THIS COURT.

>> ARE YOU TELLING THIS COURT THAT THE RIGHTS OF THE MINORITY CAN NEVER BE SUBVERTED TO THE WILL OF THE MAJORITY?

>> IF WHAT IS TO BE CONSIDERED THE PUBLIC POLICY OF THE STATE OF SOUTH CAROLINA RUNS CONTRARY TO THE RIGHTS OF THE INDIVIDUAL, THEN THIS COURT RELUCTANTLY OR OTHERWISE IS OBLIGED TO SAY THAT THIS POLICY HAS RUN AGAINST THE 14TH AMENDMENT.

AND FOR THAT REASON THE INDIVIDUALS’S RIGHTS HAVE TO BE AFFIRMED.

>> WHY SHOULDN’T THE STATE LEGISLATURE BE THE FORUM FOR WEIGHING THE ADVANTAGES AND DISADVANTAGES OF SEGREGATION?

>> THE MAIN POINT OF THIS CASE IS NOT WHAT IS BEST FOR THE MAJORITY OF THOSE IN THE STATES, BUT THE RIGHTS OF THE MINORITIES.

OUR WHOLE FORM OF GOVERNMENT HAS BEEN PROTECTED BY OUR CONSTITUTION, AND THE ULTIMATE AUTHORITY FOR DETERMINING THAT IS THIS COURT.

AS TO WHETHER OR NOT I AS AN INDIVIDUAL AND BEING DEPRIVED OF MY RIGHT IS NOT LEGISLATIVE, BUT JUDICIAL.

>> WE BELIEVE NOW IS THE TIME TO GET AROUND TO HAVING OUR CONSTITUTION APPLY TO ALL SECTIONS OF THE COUNTRY, EQUALLY AND TO THE SAME EFFECT IN A MORE OR LESS UNIFORM FASHION.

>> IF YOU ASK PEOPLE AROUND THE WORLD ABOUT THE SUPREME COURT -- >> THEY ARE ALL FORMER LAW CLERKS FOR JUSTICE MARSHALL.

THEY ARE AMONG EIGHT CURRENTLY ON THE FACULTY OF THE HARVARD LAW SCHOOL.

>> JUSTICE MARSHALL PAVED THE WAY TO BROWN VERSUS BOARD OF EDUCATION, AND IT’S STILL THE CASE THAT THERE HAS BEEN NO LAWYER IN AMERICAN HISTORY WHO HAS OVERSEEN A CAMPAIGN OF LEGAL REFORM THAT HAS BEEN MORE SUCCESSFUL THAN THE ONE JUSTICE MARSHALL OVERSAW AND DIRECTED.

>> NOT ONLY IN THE RANGE OF LEGAL EXPERIENCES HE HAD, BUT HE HAD WON MORE CASES BEFORE THE SUPREME COURT.

HE WAS THE BEST CRAFTSMAN OF LAW, AS WELL AS THE PERSON WHO HAD SEEN THE KINDS OF ARENAS THAT WERE THEN PRESENTING LEGAL CASES.

>> JUSTICE MARSHALL CHANGED EVERY PROCESSION HE WAS -- EVERY PROFESSION HE WAS IN, THE WAY IN WHICH HE MADE ARGUMENTS IN THE SUPREME COURT.

HE CHANGED THE PROFESSION OF JUDGING END OF THE WAY IN WHICH HE WROTE OPINIONS.

ONE OF THE MESSAGES IS IT ISN’T JUST WHEN A NEW PEOPLE COME INTO THE PROFESSION THAT THEY SIMPLY ADAPT ALL THE STANDARD PRACTICES OF, THE PEOPLE ALREADY THERE BUT THEY CAN ALSO HAVE A TRANSFORMATIVE ROLE BY BRINGING IN A NEW VISION.

>> AFTER ONE OF THE MOST DISTINGUISHED CAREERS OF ANY LITIGATOR IN THE 20TH CENTURY, IN 1961, THURGOOD MARSHALL WAS APPOINTED BY PRESIDENT JOHN F. KENNEDY TO SERVE AS FEDERAL JUDGE TO THE SECOND CIRCUIT COURT OF APPEALS.

FOR YEARS LATER IN 1965, MARSHALL GAVE UP THAT LIFETIME APPOINTMENT.

PRESIDENT LYNDON JOHNSON HAD NOMINATED HIM TO SERVE AS SOLICITOR OF THE U.S. MARSHALL WAS THE FIRST AFRICAN-AMERICAN EVER TO HOLD THAT POSITION.

>> WHEN I CAME INTO THIS ROOM, I HAD THE DETERMINATION TO DO THE BEST JOB THAT COULD BE DONE IN THIS POSITION WITH AS MANY HOURS IN THE DAY AS I COULD STAY AWAKE.

BUT AFTER LISTENING TO OUR PRESIDENT AND MR. JUSTICE BREAK, THE ONLY THING I CAN ADD TO IT IS I WILL JUST HAVE TO FIND SOME MORE HOURS AND MORE DAYS TO BE ABLE TO LIVE UP TO THE FAITH THAT THE TWO OF THEM HAVE IN WHAT HAS TO BE DONE FOR THE COUNTRY.

THANK YOU VERY MUCH.

>> MARSHALL WAS AS EFFECTIVE IN HIS POSITION AS LITIGATOR FOR THE GOVERNMENT AS HE HAD BEEN IN THE NAACP.

>> I KNOW OF NO REASON THAT I WOULD -- THAT WOULD PREVENT ME FROM DOING THE BEST JOB I COULD, AND MY BACKGROUND AS AN ADVOCATE ON ONE SIDE, USUALLY ON THE DEFENDANT’S SIDE, AND WHILE ON THE COURT I HAVE PARTICIPATED IN EVERY TYPE OF CASE THAT COMES BEFORE THE FEDERAL COURTS.

I DON’T KNOW OF A SINGLE FIELD IN WHICH I HAVE NOT WRITTEN AT LEAST ONE OPINION.

>> AS A SOLICITOR GENERAL FOR THE U.S. AND A SPECIAL COUNSEL DIRECTOR GENERAL OF THE NAACP, MARSHALL WON OVER 80% OF THE CASES HE ARGUED BEFORE THE SUPREME COURT.

IN 1967, WHEN THERE WAS A VACANCY ON THE HIGHEST COURT OF THE LAND, PRESIDENT JOHNSON LOOKED TO MARSHALL AGAIN.

>> HE EARNED THE APPOINTMENT.

HE DESERVES THE APPOINTMENT.

HE IS BEST QUALIFIED IN TRAINING AND BY THEIR VALUABLE SERVICES TO THE COUNTRY.

I BELIEVE THE RIGHT THING TO DO AND THE RIGHT TIME TO DO IT, THE RIGHT MAN IN THE RIGHT PLACE.

♪ >> I’M ESPECIALLY INTERESTED IN THE CLARK OF JUSTICE MARSHAL BECAUSE I HEARD ABOUT JUSTICE MARSHALL THROUGHOUT MY LIFE.

IN MY HOUSE, JUSTICE MARSHALL WAS MR. CIVIL RIGHTS.

MY FATHER SAW HIM ARGUE A CASE IN COLUMBIA, SOUTH CAROLINA IN 1948.

THE NAME OF THE CASE IS RICE V. ELMORE.

MY FATHER USED TO TO TALK ABOUT HOW THRILLING IT WAS TO SEE A BLACK MAN BE SO MASTERFUL IN THE COURTROOM.

>> I CONFESS I WENT TO LAW SCHOOL BECAUSE I WAS VERY MUCH INFLUENCED BY JUSTICE MARSHALL.

I FELT THAT IF LAW COULD BE USED TO BRING ABOUT RACIAL JUSTICE, THIS IS SOMETHING I WANTED TO DO WITH MY LIFE.

>> I WENT TO LAW SCHOOL IN MANY WAYS LIKE MANY BLACK PEOPLE OF MY GENERATION, BECAUSE I WANTED TO TRY TO BE LIKE JUSTICE MARSHALL.

MY FATHER WAS A LAWYER AND SORT OF A STORY LIKE RANDY’S, JUSTICE MARSHALL ONCE USED MY FATHER’S LAW OFFICE WHEN HE WAS IN CHICAGO TO WORK ON A CASE.

THAT WAS SOMETHING MY FATHER WAS PROUD OF UNTIL HIS DYING DAY.

>> DID HE CHANGE ANY OF YOUR PERCEPTIONS OF WHAT BEING A LAW PROFESSOR WAS ABOUT?

>> THE ANSWER IS DEFINITELY YES, IN MANY WAYS.

JUSTICE MARSHALL’S LIFE AND THE WAY HE CONDUCTED HIMSELF BOTH AS A PRACTICING PLAYER AND ON THE BENCH, HAS A LOT TO TEACH US ABOUT THE BEST OUR PROFESSION CAN ACHIEVE.

THERE ARE MANY NEGATIVE IMAGES OF LAWYERS IN THE WORLD.

MANY OF THEM WILL DESERVE -- WELL DESERVED.

WHAT IS QUITE IMPORTANT FOR ALL OF US TO REMEMBER IS THE POTENTIAL OF LAW AND OF LAWYERING TO ACHIEVE SOME OF THE NOBLEST THINGS OUR SOCIETY HAS TO OFFER.

>> ONE OF THE WAYS IT IS HIS FOCUS ON THE CONCRETE IMPACT OF LAW ON PEOPLE’S LIVES.

THERE’S A REAL DANGER I THINK FOR JUDGES OF THE HIGHEST COURT TO BE CAPTIVATED BY THE ABSTRACTIONS OF LEGAL CONCEPTS.

JUSTICE MARSHALL RELENTLESSLY REMINDED HIS FELLOW JUSTICES AND THE READERS OF HIS OPINIONS THERE ARE REAL PEOPLE.

HERE IS WHAT THIS ACCESS FEE MEANS TO THESE PEOPLE.

IT MAY NOT SOUND LIKE MUCH MONEY TO YOU, BUT LET ME TELL YOU WHAT THAT AMOUNT OF MONEY WOULD MEAN TO THIS KIND OF PERSON.

I THINK THAT WAS A UNIQUE QUALITY OF HIS JURISPRUDENCE.

>> I THINK HE WAS A TYPICAL IN THE RANGE OF HIS TALENTS.

ON THE ONE HAND, HE WAS THE LAWYER’S LAWYER AND COULD BE VERY TECHNICAL, AND TALK LAWYER’S TALK.

THERE WERE OTHER PEOPLE THAT COULD DO THAT, BUT WHAT OTHER PEOPLE COULD NOT DO WAS RIGHT AFTER THAT DISCUSSION HE COULD GO RIGHT DOWN TO THE CHURCH AND PREACH A SERMON TO RAISE MONEY, PREACH A SERMON TO GET A PLAINTIFF.

PREACH A SERMON TO STEAL THE RESOLVE -- TO STEEL THE RESOLVE OF A COMMUNITY.

HE WAS NOT SIMPLY A LAWYER.

HE WAS PART STATESMAN, PART DIPLOMAT, AND WHEN THE NEED WAS THERE HE WAS PART PREACHER AS WELL.

IT WAS THE FACT THAT HE COULD DO SO MANY THINGS THAT I THINK MAKES THURGOOD MARSHALL, THURGOOD MARSHALL.

>> MARSHALL RARELY GAVE INTERVIEWS.

WHEN HE DID, HE REVEALED A HUMOROUS AND OFTEN CONTROVERSIAL SIDE.

CONSIDERED HIS REFLECTIONS ON THE COURT’S BROWN DECISION, ORDERING THE DE SEGREGATION OF PUBLIC SCHOOLS WITH ALL DELIBERATE SPEED.

>> WE WOULD SIT DOWN THE TABLE UP IN MY OFFICE.

ABOUT 10 OR 12 OF US LAWYERS TRYING TO FIGURE OUT WHAT THIS WORD MEANT.

MY SECRETARY, WHO ALWAYS WAS A SHARP TACK, SHE WENT OVER TO THE WEBSTER DICTIONARY.

SHE SAYS, HEY, WHY DON’T ALL OF YOU SHUT YOUR MOUTH AND KEEP QUIET?

LOOK WHAT THE FIRST DEFINITION OF DELIBERATE IS IN THE DICTIONARY.

SLOW.

>> HIS COMMENTS ABOUT PRESIDENTS WERE OFTEN CONTROVERSIAL AS WELL.

>> IT’S SAID THAT IF YOU CANNOT SAY SOMETHING GOOD ABOUT A DEAD PERSON, DON’T SAY IT.

>> WHO?

>> BUSH.

>> STILL ALIVE, MR. JUSTICE.

>> DAMN RIGHT HE IS.

>> I REMEMBER WHEN I GOT THERE, IT WAS TWO WEEKS BEFORE I HAD A CONVERSATION WITH THE JUSTICE.

WE WERE WORKING EVERY DAY.

HE WOULD COME IN AND I WOULD LOOK AND SAY, HELLO JUSTICE MARSHALL.

HE WOULD LOOK AT ME AND SORT OF GRUNT AND GO INTO HIS OFFICE.

AFTER TWO WEEKS, HE FINALLY CALLED US ALL IN.

YES, HE COULD BE INTIMIDATING.

HE WAS A NICE MAN, BUT HE WAS ALSO A HARD TASKMASTER.

>> MUCH TO OUR CHAGRIN, HE WOULD BE COMING INTO THE JUDGE AND SAY, JUDGE, ON THIS CASE YOU HAVE TO DECIDE THIS WAY, YOU HAVE TO SEE IT THIS WAY, AND HE WOULD SEE TO US, I ONLY HAVE TO DO TWO THINGS, STAY BLACK AND DIE.

[LAUGHTER] >> OH YES.

>> WHEN PUSHED, HE WOULD TURN AROUND AND POINT TO THE WALL AND SAY PRESIDENT JOHNSON SIGNED MY COMMISSION, WHO SIGNED YOURS?

[LAUGHTER] THERE WAS NO DOUBT WHO DECIDED THE CASE.

>> I HAVE TO TELL YOU ABOUT MY JOB INTERVIEW.

I HAD THE FLU.

I WAS REALLY ON MY SICKBED.

THEY CALLED UP AND SAID WOULD YOU LIKE AN INTERVIEW?

BUT NOT NOW, I AM SICK.

I GOT THE WORD WITH NO UNCERTAIN INDICATION FROM THE CURRENT CLERK THAT TIME, YOU DO NOT SAY LATER TO JUSTICE THURGOOD MARSHALL, HE WANTS TO SEE YOU NOW, YOU COME NOW.

I CAME WITH MY BOX OF KLEENEX AND SAT IN A CHAIR IN FRONT OF THIS VERY LARGE MAN.

HE SAID, LET ME TELL YOU ABOUT MY DAD’S CURE FOR WHAT YOU HAVE.

HE SAID YOU TAKE QUININE AND MIX IT WITH WHISKEY AND LEAVE OUT THE QUININE.

[LAUGHTER] >> I BELIEVE IT.

>> SO INTIMIDATING I THINK IN IMPORTANT WAYS, BUT VERY HUMAN.

>> THE SUPREME COURT UNDERWENT A DRAMATIC SHIFT DURING MARSHALL’S 24 YEAR TENURE.

THE LIBERAL COURT IN PLACE WHEN MARSHALL WAS APPOINTED WAS DECIDEDLY MORE CONSERVATIVE BY THE TIME MARSHALL ANNOUNCED HIS RETIREMENT IN 1991, WITH WILLIAM REHNQUIST SERVING AS CHIEF JUSTICE.

DESPITE BEING ON THE DISSENTING SIDE OF MANY OPINIONS IN HIS LATER YEARS ON THE COURT, MARSHALL STILL HAD CONSIDERABLE INFLUENCE.

>> THERE ARE A NUMBER OF EXAMPLES WHERE JUSTICE MARSHALL’S RELENTLESS NAGGING, REALLY, OF HIS COLLEAGUES, CHANGED THEM TO -- CAUSED THEM TO CHANGE THEIR MIND ON IMPORTANT ISSUES.

ONE IN PERIPHERY CHALLENGES IN 1965, AN ATROCIOUS DECISION CALLED SWAIN VERSUS ALABAMA RULED THAT PROSECUTOR’S PERIPHERY CHALLENGES ARE ESSENTIALLY OUTSIDE OF THE REACH OF THE CONSTITUTION.

THE SUPREME COURT RULED THAT IT WAS PERFECTLY PERMISSIBLE FOR A PROSECUTOR TO EXCLUDE A JUROR ON THE BASIS OF RACE.

JUSTICE MARSHALL IN 1982, 1983, RELENTLESSLY CAMPAIGNED TO HAVE THAT DECISION REVIEWED.

HE FINALLY SUCCEEDED IN GETTING HIS COLLEAGUES TO REVIEW THE CASE.

AND IN A DECISION, SWAIN VERSUS ALABAMA WAS OVERRULED.

THERE ARE OTHER CASES ONE COULD POINT TO AS WELL, BUT I THINK THAT WAS PROBABLY THE MOST CONSEQUENTIAL.

>> THE WAY IT WORKS IS THE JUDGE ORDERS IN A PANEL OF USUALLY SOMEWHERE BETWEEN 40 AND 60 JURO RS FROM THE JURY POOL.

FOR A LESS SERIOUS CASE, IT WOULD PROBABLY BE A SMALL ONE, SMALL POOL OF JURORS.

>> ALL RISE.

>> THE CONSTITUTION SAYS THAT YOU HAVE TO HAVE A FAIR TRIAL, THAT YOU HAVE TO BE TRIED BY A JURY OF YOUR PEERS.

HOW CAN YOU BE TRIED BY A JURY OF YOUR PEERS IF YOU ARE BLACK OR HISPANIC OR SOME OTHER MINORITY AND EVERYBODY ON THE JURY IS WHITE?

OR NOT OF YOUR COLOR?

I THINK IT HAD A SIGNIFICANT IMPACT ON THE WAY TRIALS ARE HANDLED, AND ESPECIALLY HOW JURORS ARE PICKED.

>> WILL MEMBERS OF THE JURY PLEASE RISE AND RAISE THEIR RIGHT HAND?

>> WE SOLEMNLY SWEAR TO MAKE -- [INDISCERNIBLE] SO HELP YOU GOD.

THANK YOU.

PLEASE BE SEATED.

>> GOOD MORNING, LADIES AND GENTLEMEN.

WELCOME TO THE SUFFOLK SUPERIOR COURT.

BEFORE I GO ANY FURTHER, I WANT TO EXPRESS MY APPRECIATION TO YOU FOR YOUR WILLINGNESS TO SERVE.

>> JUDGES WILL ASK CERTAIN QUESTIONS OF THE JURORS PRIOR TO THEIR TAKING THEIR SEAT.

>> I WILL HAVE A NUMBER OF QUESTIONS TO ASK YOU.

IF YOU DESIRE TO ANSWER YES TO ANY QUESTION THAT I POSED, KINDLY RAISE YOUR HAND.

PLEASE DON’T SPEAK ALOUD, JUST RAISE YOUR HAND AND HAVE YOUR JUROR NUMBER HANDY.

WHEN I HAVE COMPLETED ALL OF MY QUESTIONING, I WILL ASK YOU TO COME TO THE SIDEBAR TO THE BLACKBOARD AND I WILL SPEAK WITH YOU AWAY FROM THE PRESENCE OF THE ATTORNEYS ABOUT YOUR PARTICULAR ANSWERS.

>> THEY HAVE CHALLENGES FOR CAUSE.

IN OTHER WORDS, FOR WHATEVER REASON, THAT JURORS SHOULD NOT BE PUT ON BECAUSE THAT JUROR WILL PROBABLY NOT BE ABLE TO GIVE A FAIR DECISION TO THAT PARTICULAR DEFENDANT.

>> HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN A VICTIM OF A CRIME?

>> THE WHOLE IDEA OF HAVING A FAIR TRIAL IS BASED IN LARGE MEASURE ON WHETHER OR NOT YOU HAVE FAIR JURORS.

>> ARE YOU AWARE OF ANY BIAS OR PREJUDICE YOU MAY HAVE AGAINST THE COMMONWEALTH OR THE DEFENDANT?

>> YOU HAVE AN UNLIMITED NUMBER OF CHALLENGES FOR CAUSE, BUT ONLY A LIMITED NUMBER FOR PREEMPTORY CHALLENGES.

>> WHAT IS A PREEMPTORY CHALLENGE?

>> IT IS A CHALLENGE WITHOUT CAUSE.

I DON’T HAVE TO SAY THE REASONS I DON’T WANT YOU ON THAT JURY.

I SIMPLY AS A DEFENSE LAWYER SAY I DO NOT WANT THAT PERSON ON THAT JURY.

>> THAT WAS IN 1987 THAT YOU WERE SHOT?

WAS NOT A ROBBERY?

>> BASICALLY I DON’T KNOW WHAT IT WAS.

>> WELL SIR, IS THAT EXPERIENCE LEAVE YOU WITH ANY FEELINGS THAT COULD AFFECT YOUR SERVICE AS A JUROR?

>> IF YOU ARE ALLOWED TO USE PREEMPTORY CHALLENGES TO DISMISS A PERSON ON A JURY FOR WHATEVER REASON, NO MATTER WHAT, HOW THEN CAN RACE BE A FACTOR?

>> RACE BECOMES A FACTOR WHEN YOU HAVE A JURY WHICH IS NOT OF THAT INTERVAL DEFENDANT -- THAT INDIVIDUAL DEFENDANT’S PEERS.

THAT OCCURS IF YOU HAVE A JURY OF, SAY, ALL WHITE AND THE DEFENDANT IS BLACK.

>> TWO BLACK MEN THAT WERE ON DRUGS.

MY COUSIN WAS BUSTED AND STABBED BY GUYS ON DRUGS.

>> I ASSUME EVERYBODY IS TELLING THE TRUTH.

WILL YOU PLEASE WAIT FOR MY QUESTION?

YOU SAY YOU HAVE MANY PEOPLE IN YOUR FAMILY THAT ARE POLICE OFFICERS.

DOES THAT MEAN ANYTHING TO YOU IN TERMS OF HOW YOU VIEW YOUR SERVICE AS A JUROR?

ARE YOU MORE LIKELY TO SIDE WITH THE PROSECUTION BECAUSE OF THAT?

>> WHEN IT COMES TO DRUGS.

>> IF THE COMMONWEALTH TRIES TO TAKE OFF THE MAJORITY OF THE BLACKS SIMPLY BECAUSE OF RACE, THEN YOU HAVE A VIOLATION OF THAT DEFENDANT’S CONSTITUTIONAL RIGHT TO BE TRIED BY A JURY OF HIS PEERS.

>> I WOULD LIKE IN THE RECORD MY CHALLENGE.

I AM LOOKING TO ALL THE JURY.

WE ARE LOOKING FOR PEOPLE OVER 29, 30.

>> HOW WOULD A JUDGE KNOW YOU ARE EXERCISING THAT OPTION TO TAKE SOMEONE OFF THE JURY SIMPLY BECAUSE OF RACE?

>> AS A DEFENSE COUNSEL, YOU HAVE TO BE ATTUNED TO THAT SITUATION.

YOU HAVE TO BE AWARE OF THOSE POSSIBILITIES.

THE ISSUE IS WHETHER OR NOT THE COMMONWEALTH SHOULD BE ALLOWED TO EXCLUDE INDIVIDUALS BASED STRICTLY ON RACE.

AND WHAT JUSTICE MARSHALL FELT, WHAT I FEEL, AND WHAT I THINK MOST DEFENSE ATTORNEYS IN THIS COMMONWEALTH FEEL, AND I THINK MOST PROSECUTORS DO TOO, THAT SHOULD NOT BE THE SOLE CRITERIA BY WHICH YOU EXCLUDE A JUROR.

THERE HAS TO BE SOMETHING MORE.

>> YOUR HONOR, WE HAVE OUR JURY.

♪ >> IT ALSO HIGHLIGHTS THE WAYS IN WHICH JUSTICE MARSHALL’S CONFIDENCE IN THE SYSTEM WAS ANYTHING BUT NAIVE.

HE’S OFTEN CITED AS THE MAN THAT PLAY BY THE RULES, AND MAY HE WAS NOT ENOUGH OF A LEADER COMPARED TO THOSE ON THE STREETS.

WHAT IS HIS RELATIONSHIP TO MARTIN LUTHER KING, MALCOLM X, SOME ARE ASKING?

HE WAS QUITE EXPLICIT THAT HE BELIEVED IN THE SYSTEM, BUT ONLY IF THE SYSTEM LIVED UP TO ITS OWN IDEALS.

HE STOOD FOR THE VOICE OF CONSCIENCE.

OKAY, YOU SAY YOU ARE COMMITTED TO EQUALITY, WHERE IS THE EQUALITY?

>> WE SHOULD NOT RESTRICT HIS IMPACT JUST TO THOSE AREAS WHERE HE WAS ABLE TO TURN THE SUPREME COURT AROUND.

THAT IS PART OF WHAT THE SUPREME COURT IS, IS A VOICE FOR MORAL DEBATE IN OUR COUNTRY.

JUSTICE MARSHALL IN MANY OF HIS OPINIONS LAID THE SEED FOR THINGS THAT WERE USED, PERHAPS PICKED UP IN THE POLITICAL REALM INSTEAD OF THE JUDICIAL REALM.

TAKE ONE OF THE DISSENTS HE WAS MOST PROUD OF IN SAN ANTONIO VERSUS RODRIGUEZ WHERE HE ARGUED THERE OUGHT TO BE A CONSTITUTIONAL RIGHT TO EDUCATION.

THAT STILL HAS NOT HAPPENED, BUT THE CALL FOR THE CENTRALITY OF EDUCATION AND THE FACT THAT EVERYONE DESERVES A QUALITY EDUCATION AND IT IS THE RESPONSIBILITY OF GOVERNMENT TO PROVIDE THAT, CALL HAS BEEN TAKEN UP BY A NUMBER OF LEADERS.

>> THAT IS ANOTHER EXAMPLE OF PEOPLE RUNNING WITH THE BALL IN A SENSE.

JUSTICE MARSHALL’S DISSENT IN A CASE CALLED CITY OF MOBILE VERSUS BOLTON, A VOTING RIGHTS CASE.

JUSTICE MARSHALL WROTE A BLISTERING DISSENT IN WHICH HE SAID HOW CAN YOU EXPECT BLACK PEOPLE TO ACCORD THE SYSTEM LEGITIMACY IF THE SYSTEM EXCLUDES THEM FROM EQUAL PARTICIPATION IN GOVERNANCE?

A COUPLE YEARS AFTER JUSTICE MARSHALL’S DISSENT WE HAD THE AMENDMENTS TO THE VOTING RIGHTS ACT OF 1955.

>> WHAT AND LEGEND.

WE OFTEN ASK FOLKS AROUND HERE, WHAT KEEPS THEM ROOTED?

WHILE WE CANNOT ASK JUSTICE MARSHALL FOR HIS ANSWER, I DID A LITTLE RESEARCH AND FOUND OUT THAT HE LOVED PULLING PRANKS ON PEOPLE.

IN FACT, ACCORDING TO NATIONAL GEOGRAPHIC KIDS, AS PUNISHMENT FOR PULLING A HIGH SCHOOL PRANK, MARSHALL’S PRINCIPAL MADE HIM READ THE U.S. CONSTITUTION, WHICH OUTLINES THE RIGHTS OF ALL AMERICANS SHOULD HAVE.

ONCE MARSHALL RECOGNIZED PEO -- RECOGNIZED BLACK PEOPLE DO NOT HAVE THE SAME RIGHTS AS AMERICANS, HE DECIDED THE BEST WAY TO FIGHT FOR JUSTICE WAS THROUGH THE LAW.

WHAT KEEPS YOU ROOTED?

WHAT ARE THE THINGS THAT MATTER TO YOU?

DROP US A LINE AND CHECK US OUT ON INSTAGRAM, YOUTUBE, AND RIGHT HERE EVERY TUESDAY NIGHT AT 7:30.

FROM ALL OF US HERE AT WGBH NEWS ROOTED, I’M PARIS ALSTON.

HAVE A GOOD NIGHT.

♪