Justice Thurgood Marshall's Last Stand

In the thirty years since he retired from public life in 1991, Thurgood Marshall has remained an inspiration to advocates of all sorts. Generations of aspiring lawyers, at home and abroad, have cited Marshall’s work as the reason to pursue a career in law.1 The exaltation of Marshall has transcended beyond the legal profession as his name graces schools, scholarship programs, libraries, and an airport in recognition of his public service transforming the national understanding of citizenship. Marshall’s continued resonance results, in part, from the fact that the work of his career remains unfinished. The nation continues to confront both the broadest questions about building a citizenry within a diverse nation as well as narrower legal questions about individual rights and constitutional interpretation that animated Marshall’s legal and judicial work. But for at least one person, the outcome Marshall argued for during his final Term on the Court was finally realized three decades later. In 1991, Pervis Payne’s fate rested in the hands of the Supreme Court. The justices considered whether Payne’s death sentence should be vacated due to alleged constitutional violations at his trial. Though a majority decided against Payne, Justice Marshall used his final written opinion as a member of the Supreme Court, a dissent in Payne v. Tennessee,2 to argue that Payne’s sentence should be invalidated and to warn of the direction of the Court. In the years that followed, Payne and his lawyers continued to fight for his death sentence to be removed, either by proving his claimed innocence or by challenging his eligibility for execution.3 In July 2021, Payne’s attorney Kelley Henry stood in a trial court in Shelby County, Tennessee, advocating—as Marshall had thirty years prior—that Payne should be spared execution. By November, her work had succeeded. Using a newly-enacted state law, Henry presented evidence that Payne suffered from an intellectual disability and was thus constitutionally ineligible for the death penalty. And, after the state district attorney’s office conducted an evaluation, the state announced its intention to remove