(NNPA)—At Elena Kagan’s Senate nomination hearings to be the next Supreme Court justice, I admit to being somewhat surprised when Sen. Jon Kyl of Arizona saw her clerkship with Justice Thurgood Marshall as an opening to define her as being a potentially “activist judge.”
Although conservatives had often made that charge, they had not been explicit in naming justices they believed acted in that manner. Although Sen. Dick Durbin strongly defended Marshall’s legacy, his role as a judge who understood the impact of the law on people should be emphasized.
I first met Thurgood Marshall in 1959 when he was a special guest at the Race Relations Institute at Fisk University. As a former NAAC youth council leader growing up in Kansas, I was enthralled by his exploits that he shared with us, especially the triumph of Brown v. Board of Education of Topeka, Kansas. But I will never forget his vivid description of the “massive resistance” movement then under way where Southerners were openly defying the dictate of the highest court in the land to integrate educational institutions.
It seems that the “activist judges” on the Warren Court had destroyed Plessy V. Ferguson (1896) which allowed racial segregation on the basis of a “separate but equal” standard. Marshall and his colleagues had exploded the myth that racial separatism could be done with equality in America and as such, upset the social frame of reference in the South and other places. So, the angst of modern conservatives can be traced all the way back to the Supreme Court decision in Brown and it suggests to us the kind of America they wanted to preserve. Rand Paul, the current Republican candidate for senator of Kentucky said it plainly that the First Amendment right to free association in the Constitution trumps others, which gives private establishments the right to decide whom they want to serve.
The other problem they have with Justice Marshall is his unrelenting criticism of the growing conservatism of the court that challenged the recent victories of the Civil Rights Movement. The 1978 Bakke case found racial set-asides unconstitutional and his dissent asserted that “bringing the Negro into the mainstream of American life should be a state interest of the highest order” and cautioned that failing to do so would forever make America a divided society.
When Nixon-appointed Chief Justice Warren Burger made a speech elevating the rights of victims as a new conservative direction of the court in February of 1981, Marshall struck back in a brilliant speech that May, “The Sword and the Robe,” in which he talked about the role of judging in humanistic terms, saying at one point: “We have seen what happens when the courts have permitted themselves to be moved by prevailing political pressures and have deferred to the mob rather than interpret the Constitution, “ naming Dred Scott, Plessy and others.
His role in opposition to this movement earned him the status of “the great dissenter,” as he fought a furious battle to keep the legacy of civil rights alive with more than 150 dissenting opinions. The coming of conservative governments, beginning with Ronald Reagan however, presented such a challenge to the legacy of civil rights that he often spoke out publicly, saying in a 1989 interview that, “I wouldn’t do the job of dogcatcher for Ronald Reagan.” In another place he said about George (H.W.) Bush, that, “…if you can’t say something good about a dead person, don’t say it. Well, I consider him dead.”
When the Rehnquist Court came about, Marshall was still fighting, because this “activist court” struck down equality in minority contracting in Richmond v. Croson in 1989. In doing so, it voided the precedent of the Fullilove case (1980) which held establishing the minority set-aside program was a constitutional exercise of congressional power. After Marshall retired, in the 2003 Michigan cases the court was “activists” in virtually eliminating affirmative action by voiding the precedent of Weber (1979) which found that the Civil Rights Act of 1964 did not prevent employers from favoring women and minorities.
A delicious irony here is that Justice Sandra Day O’Connor was a leader in striking down some of these past precedents that upheld the legacy of civil rights, but when Justice Marshall retired in 1992, she confirmed the fact that his role—and by inference other justices—on the High Court was not just to mechanically interpret the Constitution, but in doing so to bring about justice. In a moving tribute to him, she said in part: “His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. He was the mouth of a man who knew the anguish of the silenced and gave them a voice.” He was an activist for justice, but then, this is what Supreme Court justices should be.
(Dr. Ron Walters is an analyst and professor emeritus at the University of Maryland College Park.)