Thurgood Marshall: An Activist Judge

By far my favorite Supreme Court Justice has got to be Ruth Bader Ginsburg. More often than not she’s the only justice that seems to have some inkling of compassion for people without a lot of zeroes in their bank accounts or for people who are not corporations. While some justices, like Clarence Thomas, can’t bare the thought of voting against their peers, Ms. Ginsburg never appears to forget that the people who she works for are the flesh and blood people of the United States and not the corporate money makers of the United States. She’s my favorite because I have first hand experience with her serving and I don’t read about her in history books, at least not yet.

My second favorite Supreme Court Justice is none other than Thurgood Marshall, the first and, in my humble opinion, the only truly black justice to ever serve on the high court. I’m sure if I was alive when he was hitting his stride, I’m sure Mr. Marshall would have been my number one. This is the man that helped put some kind of brake on America’s institutionalized racial discrimination. Why, if it wasn’t for Mr. Marshall the black community might still be dealing with the dominant community’s overt forms of racism that could compete with South Africa’s apartheid and Israel’s treatment of the Palestinians for its capacity for cruelty based on nothing but race. Mr. Marshall helped America to turn the page in its growth with respect to racial harmony. And although the country has never really put its knack for racial discrimination firmly in its past, it wasn’t because people like Mr. Marshall weren’t trying. He was not a perfect person by any stretch of the imagination. But one can do much worse.

And yet, in the confirmation hearings for President Barack Obama’s Supreme Court nominee Elena Kagan, the junior Senator from Alabama and the ranking Republican on the Judiciary Committee, Jefferson Beauregard Sessions III, referred to Mr. Marshall as a liberal activist judge. By activist, Mr. Sessions meant that Mr. Marshall was one of the many dangerous and horribly scary judges in the judicial branch that used their power to redefine the meaning of our Constitution and our laws in ways that have resulted in the advancement of personal and preferred social policies and agendas.

The Republican Senator Orrin Hatch from Utah said that there was no doubt that Mr. Marshall was an activist judge. Mr. Hatch claims that although Mr. Marshall should be admired as a man who accomplished great things, his greatness doesn’t wipe out the fact that he did things that made no sense as an obedient student of the practice of law. Damn that activist Marshall for working to end America’s policy of racially separate and far from equal when he argued Brown vs. Board of Education. As a follow up to his rants against the civil rights era pioneer, Mr. Hatch was asked if he would have voted for Mr. Marshall’s confirmation if he had the opportunity, Mr. Hatch replied that it would be hard to say.

Senate Minority Whip Republican Jon Kyl from Arizona wagged a damning finger at Mr. Marshall’s legacy for his unshakable determination to protect the underdog. Mr. Kyl complained that Ms. Kagan herself said that Justice Marshall believed that it was the role of the courts to interpret the Constitution to protect the people who went unprotected by every other areas of government. Ms. Kagan wrote that Mr. Marshall believed that the court existed primarily to fulfill this mission. The way Mr. Kyl told the story you’d think that Mr. Marshall was one cold hearted bastard the way he constantly threw the Constitution to the ground and tramped all over it. If only Mr. Marshall stood to the side and let people get trounced like he trounced the foundation of American law and principles.

So now some of our conservative legislators want to throw Mr. Marshall under the political bus in an attempt to discredit Ms. Kagan and derail her bid for the high court to replace the aging liberal Justice John Paul Stevens on the liberal side of the bench. These Senators, and others that think like them, know that they don’t have the political ground to squelch Ms. Kagan’s nomination on the facts. But nevertheless, they have to drum up some excuse to give Ms. Kagan a hard time and score political points. Ms. Kagan’s association with Mr. Marshall for whom she clerked only in her legal career is more than enough to question her legitimacy as a candidate for the high court. What can anyone expect from members of a political party that appears to be hell bent on protecting white privilege?

But what makes this all the more disturbing was the fact that all of this happened shortly after Democratic Senator Robert Byrd of West Virginia died. Mr. Byrd was the longest serving member of the Senate and a self confessed member of the ku klux klan. While everyone admitted that Mr. Byrd made mistakes in his career, he was largely remembered as someone who did great things for the nation despite his segregationist past. Everyone remembers this self described racist as a down to earth, wonderful man.

In fact, it was Mr. Hatch who put out a press release saying that Senator Byrd was a towering figure and a tireless advocate for the people of West Virginia. Mr. Hatch described Mr. Byrd as a loyal friend and a fierce adversary who reached the highest echelons of government from the humblest of beginnings. He went on to describe Mr. Byrd as a man with a prodigious knowledge of ancient and modern history. Mr. Hatch had nothing but praise for Mr. Byrd, but can barely contain his contempt for that activist Marshall who would allow his personal values for fairness and equal justice under the law to assure that the people of the United States received their fare share of protection under the law. Where are those judges who have no compassion for people when you need them?