Forgetting Justice Marshall

During the recent Supreme Court confirmation hearings, several Republican Senators asked Elena Kagan about her views of Justice Thurgood Marshall.  Kagan clerked for Justice Marshall and had expressed admiration for his approach to the law.  Senate Republicans acknowledged Marshall’s pioneering and inspirational work as a civil rights attorney, but challenged Kagan’s apparent embrace of Marshall’s jurisprudence — what he once described as: “You do what you think is right and let the law catch up” — as “activist” and improper.

Harvard Law School dean Martha Minow, who also clerked for Justice Marshall, was “astonished” by this line of questioning, and wrote an op-ed in the Boston Globe (reproduced on Balkinization).  According to Minow, “these criticisms revealed not only a lack of knowledge of Marshall’s precise adherence to rules and precedent but also a failure to appreciate the significance of his contributions to American law.”  And yet Minow’s op-ed has almost nothing to say about Justice Marshall’s jurisprudence on the court, let alone his “precise adherence to rules and precedent.”  Instead, the balance of her essay celebrated Marshall’s work as an advocate and the legacy of his most important case, Brown v. Board of Education.

Minow rightly notes that Marshall was among the most important lawyers of his generation, an iconic figure in the civil rights movement who ably and nobly challenged racial segregation and successfully litigated Brown. It’s safe to say our country would be a very different place were it not for his efforts. Yet one can celebrate Marshall’s work as an advocate without embracing his work as a judge.  To question his approach to, say, the death penalty or the due process clause is not to question the importance of Brown, nor does it reveal some unspoken desire to “appeal to and perhaps feed anxieties of some whites about desegregation — and about black men in power.”  One can admire Marshall’s pioneering efforts as an attorney and yet find his constitutional jurisprudence wanting.  One could also find Justice Marshall’s record on the Court admirable and inspirational without believing his judicial philosophy was characterized by precise adherence to rules and precedent.”

When asked whether she subscribes to Justice Marshall’s judicial philosophy, Kagan demurred, telling Senators that (if confirmed) she’d be Justice Kagan, not Justice Marshall.  While repeating her admiration for him, she avoided defending his work as a judge. Interestingly enough, in an op-ed responding to Republican critiques of Justice Marshall’s performance on the Court, Dean Minow does not either.