It’s time for a deep breath and a rejection of ignorance and distortion. It is time to reclaim and celebrate the concrete and symbolic influence of Marshall’s ruling in struggles for equal opportunity regardless of gender, disability, language, immigrant status, religion, sexual orientation, or socio-economic status.
It is time to think about how our Supreme Court once again be a beacon of justice.
The words above are offered by Martha Minow, Elena Kagan's successor as Dean of Harvard Law School and, like Kagan, a former clerk to Supreme Court Justice Thurgood Marshall. They appear in a Boston Globe op ed, Also confirmed: Marshall’s legacy. I suggest you read the entire piece, because it makes a number of important points, including the influence of Brown v Board beyond the issue of race in the schools. I want to explore one part - the idea of equal opportunity and equal justice, because in my mind they cannot be separated.
Thurgood Marshall was a strong opponent of the death penalty, in part because of how he saw it applied inequitably throughout the South. He was a key part of persuaded the Court to temporarily ban capital punishment in Furman v Georgia in 1972. The decision was only 5-4, with two justices - Marshall and Brennan - opposing the death penalty in all cases. What is interesting in that case is to see in the concurrence by moderate conservative Potter Stewart (he of the idea that he could not define pornography but knew it when he saw it) an important point, clearly made to him by Marshall:
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race.
Stewart acknowledges that racial discrimination was not proven - this was key, because while 5 justices agreed on the decision, they each offered different reasoning. Douglas in his concurrence cites in detail statistics on race of offenders versus their percentage in the population in 19767 book. Brennan argues on the basis of the history of the idea of cruel and unusual punishment and writes
It is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a "cruel and unusual" punishment.
. Unfortunately, as the reaction to the decision demonstrated, the American people did not agree with this reasoning, so three years later the Court reinstated the death penalty in Gregg v Georgia by a 7-2 vote.
Marshall's reasoning is somewhat different. Allow me to offer a few brief selections:
Perhaps the most important principle in analyzing "cruel and unusual" punishment questions is one that is reiterated again and again in the prior opinions of the Court: i. e., the cruel and unusual language "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 35 Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today.
This leads to the key part of Marshall's opinion, and something that indicates his approach to reading law and Constitution, which is why I quote it:
There is also overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed since 1930, while 3,827 men have met a similar fate. 153 It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes. 154
It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged [408 U.S. 238, 366] members of society. 155 It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated and apathy soon becomes its mate, and we have today's situation.
If I may briefly return to Minow's op ed, we read
In the confirmation process, Republican Senator Jeff Sessions of Alabama questioned Marshall’s concern for "the little guy.’’
Sessions is right that Marshall had such a concern - he considered essential to proper understanding of our system of law, starting with the Constitution and Bill of Rights. To me one of the most surprising parts of the process of confirmation of Supreme Court justices is that Democratic members of the Senate Judiciary Committee have not been asking and getting on record every single nominee's positions on equal justice, on insuring that their understanding of the Constitution does not allow it to be interpreted in a fashion that allows it to be used to oppress or exclude some for the benefit of others. That was clearly, for all their faults, not the intent of the Founders, as can be ascertained by the beginning words of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - these words protected the free exercise of unpopular religions, and would include not banning a mosque two blocks from ground zero. Free exercise was something already guaranteed for the territory around the Great Lakes in the Northwest Ordinance.
President Obama was criticized for saying he wanted Justices who had some sense of empathy. I think he should be applauded for applying that standard in his judicial selection process. The law should, if true to the Constituion and Bill of Rights, remember the source of power in this country is We the People collectively, albeit it with some restrictions on absolute majority rule, hence the restrictions established in the Bill of Rights.
If we look at the history of Amendments to the Constitution, we see an unmistakable trend in increasing of liberty and of political participation. The only exception on expanding political participation - seen in 15th, 17th, 19th, 23rd, 24th and 26th Amendments - is the restriction of the President to two terms in the 22nd. As for liberty, we made one attempt at the 18th to restrict libery, which was repealed by the 21st.
Our understanding of the reach of the Amendments, or if you will their applicability in changing times and situations, has usually been to expand their reach. Thus through the 14th and its due process clause paralleling that of the 5th we have seen restrictions on actions by state to parallel the restrictions on actions by the Federal government established by the first ten amendments.
Marshall clearly understood the importance of applying the principles of the Constitution and Bill of Rights to all Americans. He understood that using the law in a fashion the continued the unequal treatment, even if only in denial of equal opportunity, undermined the very principles established in the idea of We the people and of the protection of rights established in the Bill of Rights.
In some ways our current Supreme Court is among the least diverse we have had. Some have noted that we now have for the first time no Protestant members of the Court, instead 6 Catholics and 3 Jews. Yet think of how many years when the Court contained neither Catholic nor Jew. We have just come off a period when every single Justice came to the Supreme Court directly from a Federal Court of Appeals - Kagan returns to the Court the bringing of a wider range of experiences, as did Sotomayor, even as she came to the Court with the most total judicial experience of any nominee in almost a century. We also have for the 1st time 3 women on the Court, broadening the perspective by their inclusion. We should remember that not only do women make up a majority of the population, they now make up a majority of those attending most law schools.
It is of course ironic that some Republican senators used as an argument against Kagan her lack of prior judicial experience - clearly that was not a bar when Republican President Richard Nixon nominated William Rehnquist to the Court, nor was it when Republican President Dwight Eisenhower nominated Lewis Powell.
Yet my focus is Equal Opportunity and it connection with Equal Justice. Absent opportunity, people with the potential to flourish are denied. Even the rhetoric of leaving no child behind is based on this concept. We may well have moved away from Affirmative Action as the primary means of providing equal opportunity, but to a large degree we have accepted as normative in this society the principle that if someone is denied equal opportunity for any reason, they have been denied equal justice. We struggle with how to achieve that, but for the most part Americans accept that idea. If there is one American whom we should thank for that, it is Thurgood Marshall, first as an advocate for the NAACP Legal Defense Fund, then in his role on the Court, not always visible, in helping The Brethren (for until O'Connor joined the Court in 1981 it was all male) understand the implication of law and of decision, on how the impact of both had been disparate, and not just on matters of race. Marshall understood the impact of poverty in a way that most Justices had never encountered.
For many, they remember Marshall only in the context of his successfully arguing Brown (and the related cases). The Brown decision, which I might remind some Republican members of the Senate was unanimous, in a sense is far more reaching than merely the question of using race as the basis for segregating school children. As Minow writes
it also stimulated judicial and legislative school reforms to ensure equal opportunity regardless of gender, disability, language, immigrant status, or socio-economic class.
I think it fair to say that Marshall applauded that reading, to expand equal opportunity.
We now have something I had hoped would have been eliminated in my lifetime. We again have politicians seeking office by arguing to limit opportunity, to limit liberty, to deny equal justice, to some as a means of appealing to others. They have lost sight of what a truly great President once described as the better angels of our nature. That saddens me.
Thurgood Marshall understood that equal opportunity and equal justice should not be viewed as a zero sum game, that increasing the opportunity and justice for some did not mean that real opportunity and justice were being limited for others. Liberty and justice increase for all as we bring in those for whom it had been limited. As Minow also writes,
The brief period of strong enforcement of desegregation yielded soaring high school graduating rates for blacks and closed the racial gap in achievement — while the high school graduation rate and test scores of whites rose.
Elena Kagan has two brothers who teach in public schools. She retains roots with people whose life status is far from the elite environment of Harvard Law where she was dean, or the cocktail parties of our National Capital. She is genuinely warm to people with whom she disagrees, as one could see by the efforts she took to ensure that those law students at Harvard who were interested in the JAG corps had opportunity to explore it, even as she rightly enforced the University's policy on limiting the access of those organizations that discriminated. This, too, can be seen as a reflection of how Marshall approached the tasks that he took on. He understood that one needed to build bridges where possible so that more people could cross over to a proper understanding of how our Constitution and legal system should be ensuring equal justice for all by providing equal opportunity for all.
We now have on the Court a law clerk for Rehnquist (himself a law clerk to Robert Jackson) in the Chief Justice, and a law clerk to Thurgood Marshall in the newest Associate Justice. We have a continuity of representation of a wide range of legal interpretation. We here may not be happy with the jurisprudence of the Chief Justice, as we were not happy with the jurisprudence of his predecessor. Yet I would remind people that his fellow Justices greatly respected the openness with which Rehnquist ran the Court, and considered him very much a warm person. Marshall had some of those same qualities, which is part of what enabled him to persuade the likes of Potter Stewart on an issue like that of Furman. Kagan brings a different set of experiences, but she also brings through her connection with Marshall the possibility of remembering the importance of equal opportunity to achieving equal justice. And if she ever forgets it, she need merely look to the Justice on the far end of the Supreme Court dais, because Sotomayor in her life exemplifies the impact of equal opportunity.
Today we can celebrate the confirmation and swearing in of our newest Associate Justice. She is an never married woman, of a middle class Jewish family, whose own life is a testament to how equal opportunity can allow one of modest personal means but exemplary personal skill and work ethic to rise to a position of importance and influence. She is not only a continuation of the the legacy of Thurgood Marshall having served as his clerk, she - and Sotomayor - are illustrations of the impact of that legacy.
I will disagree with the President on many issues. He was right to see empathy as an important trait for a justice to have. It can enable her (or him) to find a connection with the other justices across their diverse experiences, for the purpose of interpreting and applying the law and the Constitution of behalf of all of us, all of We the people
Equal opportunity, a necessary component to our achieving equal justice. This is truly an important part of the legacy of Thurgood Marshall.
Peace.