Sunday, July 23, 2017

Judge Lynn Adelman


Judge Lynn Adelman, The Glorious Jurisprudence of Thurgood Marshall, 7 Harvard Law & Policy Review 113 (Winter 2013)(201 Footnotes)


It was only slightly surprising that during the Senate confirmation hearing on the nomination of Elena Kagan to the Supreme Court, Republican senators attacked the jurisprudence of the nation's first African American Supreme Court Justice, Thurgood Marshall, for whom Kagan clerked. Senator Jon Kyl said that Marshall's philosophy was “not what I would consider to be mainstream,” Senator Jeff Sessions called Marshall a “well-known activist,” and Senator John Cornyn expressed “concerns” about Marshall's views. The Republicans criticized Marshall because he possessed traits that they regarded as undesirable in a judge, including a strong commitment to the concept of equal citizenship embodied in the Reconstruction Amendments, a belief that the judiciary should play an important role in implementing that concept and the temerity to point out that the Constitution “was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today.” Marshall was also an unacknowledged presence at Sonia Sotomayor's confirmation hearing, at which the Republicans objected intensely to the notion that Supreme Court justices should have empathy. Empathy is a quality for which Marshall's jurisprudence was well known.

While it might have seemed impolitic to attack Marshall, who was probably the greatest lawyer of the twentieth century and who argued its most important case, Brown v. Board of Education, the Republicans had little to worry about. Politically, the country has become much more conservative since 1967 when Lyndon Johnson appointed Marshall to the Court, a shift that began soon after Marshall's appointment and that made his work on the Court less satisfying than it might have been. The senators who attacked Marshall knew that while he was a hero to African Americans and aging veterans of the civil rights movement, his view of the Constitution was definitely out of fashion. Years of conservative attacks on the idea that the Constitution imposed an obligation on the federal judiciary to advance the project of equal citizenship enabled the Republicans to attack even an iconic figure like Marshall.

And Democrats made little effort to defend Marshall. To her credit, Kagan made no attempt to disavow her previously expressed admiration for Marshall, but at the same time, she declared, “If you confirm me, you'll get Justice Kagan, you won't get Justice Marshall.” And while another Marshall clerk, Harvard Law School dean Martha Minow, praised Marshall in an op-ed, she focused primarily on his role as the lawyer in Brown. Law professor Jonathan H. Adler responded that one can celebrate Marshall's work as an advocate without embracing his work as a Justice and went on to criticize Marshall's jurisprudence. Responses to Adler's blog post were similarly critical. The truth, however, is that Marshall's work as a Justice not only deserves a strong defense but should be enthusiastically celebrated, for the notion that Marshall was a less than stellar Supreme Court Justice is grossly mistaken. Although his influence as a Justice was naturally diminished by being in the minority, his jurisprudence is, in Kagan's words, “a thing of glory.” This is largely because Marshall consistently expressed the view that the Constitution in substantial part represents a promise to eradicate entrenched inequalities and that “the role of the courts, in interpreting the Constitution [is] to protect the people who [go] unprotected by every other organ of government.”

In this article, I explore some of Marshall's jurisprudence and particularly his understanding of the idea of equal citizenship. Marshall believed that the Reconstruction Amendments altered the Constitution in ways that, even now, have not been fully recognized. As he saw it, the Reconstruction Amendments transformed the Constitution into a document concerned as much with equality as with liberty, and conferred on the national government “the power to make certain that the fundamental rights of all persons were respected.” I contend that Marshall's jurisprudence is highly relevant to our present situation and that the legal community, including the progressive legal community, has erred gravely by distancing itself from it. More than the jurisprudence of any other Justice, Marshall's opinions speak directly to the most serious threat to America's hopes for a democratic future: the enormous economic and political inequality that has developed over the last three decades.

For over forty years, partly through the use of evocative words and phrases such as “law and order,” “strict construction,” and “judicial activism,” conservatives have portrayed themselves as reliable interpreters of the Constitution, while progressives have failed to articulate an emotionally resonant constitutional vision. I suggest that Marshall's view that the Constitution establishes the principle of equal citizenship--a principle that holds that all individuals are entitled to be treated as “respected, responsible and participating member[s] ” of society --is such a vision. Progressives could do worse than to champion a jurisprudence based on this principle.

In Section I of this article, I discuss some of Marshall's early experiences and work as a lawyer that are particularly relevant to his jurisprudence. In Section II, I briefly discuss Marshall's perspective on the development of the idea of equality in American legal history. In Section III, I focus on Marshall's conception of equal citizenship and some illustrative opinions, and in Section IV, I comment on the present-day relevance of Marshall's jurisprudence.

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