Happy MLK Day, A Salute to Thurgood Marshall
One of the heroes of the law is the Honorable Thurgood Marshall. Marshall won his very first U.S. Supreme Court case, Chambers v. Florida, 309 U.S. 227 (1940), at the age of 32. That same year, he was appointed Chief Counsel for the NAACP. He argued many other cases before the Supreme Court, most of them successfully, including Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). His most famous case as a lawyer was Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the case in which the Supreme Court ruled that “separate but equal” public education, as established by Plessy v. Ferguson, was not applicable to public education because it could never be truly equal. In total, Marshall won 29 out of the 32 cases he argued before the Supreme Court. On June 13, 1967, President Johnson appointed Marshall to the Supreme Court, saying that this was “the right thing to do, the right time to do it, the right man and the right place.”
Marshall served on the Court for the next twenty-four years, compiling a record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects against the government. His most frequent ally on the Court (indeed, the pair rarely voted at odds) was Justice William Brennan, who consistently joined him in supporting abortion rights and opposing the death penalty. Brennan and Marshall concluded inFurman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled four years later that the death penalty was constitutional in some circumstances. Thereafter, Brennan or Marshall dissented from every denial of certiorari in a capital case and from every decision upholding a sentence of death.In 1987, Marshall gave a controversial speech on the occasion of thebicentennial celebrations of the Constitution of the United States.Marshall stated, “the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.” In conclusion Marshall stated “Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.” [This history was taken from Wikipedia: see HERE]
Modern voices, chief amongst them Justice Scalia, have denied the legitimacy of Marshall’s assertion that the Constitution is a living document that must be reflective of an evolving culture. Some conservative politicians have actively sought to roll back the accomplishments of Marshall and place limits on the government by locking the Constitution into its 18th Century context. Gains in civil liberties, abortion rights, privacy rights, gay rights, women’s rights, civil rights are vulnerable to attack by this philosophy of reverse judicial activism. For those of us who champion the accomplishments of Marshall and Brennan and believe that the Constitution only has relevance if it represents the evolving and dynamism of our culture. In his book “Making Democracy Work”, Justice Breyer argues restraint in casting aside the advances, of the Marshall-Brennan era. This argument of fighting the incremental chipping away of our liberties is a far cry from the boldness and purpose with which we were transformed by the likes of Thurgood Marshall. On this Martin Luther King holiday, let us remember a time when true giants walked among us.
Related articles
- The Death Penalty: Former Justice Stevens Joins the Debate (time.com)
- Seth Stern: John Paul Stevens, William J. Brennan and the Death Penalty (huffingtonpost.com)
