The photo was taken 40 years ago Tuesday, the day Thurgood Marshall was sworn in as the first black justice in the history of the Supreme Court.

Of course, the appointment was significant because Marshall was the first. But it took on even more meaning because he had spent a lifetime fighting racial injustice, arguing before that same court years earlier that "separate but unequal" schools were unconstitutional.

For most in the black community (other than those in the black power movement), the appointment was the pinnacle of the civil rights movement -- the sit-ins, the lynchings, the marches. Perhaps that day was a victory. The message to white people was that black Americans were capable of great things outside of singing, dancing and playing ball -- the stereotypes that linger today.

"Marshall was the embodiment for most Americans of all the best aspects of the civil rights movement," says Ken Gromley, a constitutional law professor who interviewed Marshall in 1991. "The hard work that led to decisions like Brown vs. Board of Education -- but other decisions regarding education, employment -- were essential in the broader picture ensuring equality for African-Americans."

But the photo of Marshall and his wife conveys a bit of sadness.

There were high hopes that things were going to change with Marshall on the bench. But there was no dramatic transformation. The court was already a liberal one when he joined it, and he was often overshadowed by fellow justices during his early days on the bench. In the '70s, the court started to swing to the right. And in the '90s, his replacement was hardline conservative Clarence Thomas.

"When he was first appointed it was a feeling that this was kind of the beginning of a permanent change in American politics that might see a much more progressive kind of treatment of the minority experiences," says Darrell Millner, professor of black studies at Portland State University. "By the time he got to the 1980s, in many ways, he became a footnote to the Supreme Court."

Certainly, progress has been made since then. Today, blacks head Fortune 500 companies, hold Cabinet posts and are in top positions at predominantly white institutions of higher learning. But at the same time, affirmative action remains a contentious issue; racial disparity in the criminal justice system persists; and the black unemployment rate is twice as high as whites, according to Black Issues in Higher Education. And on top of that, Millner says, the black community was "almost universally" insulted by Marshall's replacement.

Some find this disheartening -- another reminder of a long road ahead.

Gromley says Marshall would be disappointed too. He said the justice was clearly "not enthused" by the selection of Thomas as his replacement.

"I believe if you were to ask Thurgood Marshall if he was alive today and Charles Hamilton Houston -- he was Thurgood Marshall's law professor, mentor and the first African American on the Harvard Law Review -- I think they would be very disappointed, disillusioned, almost exacerbated with the lack of progress."

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Megan Scott is an asap reporter based in New York.

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