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Monday, January 19, 2015

Thurgood Marshall and the limits of the judicial role

Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.

I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.

Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other words, Marshall spent the last half of a sixty-year career playing to less than his strengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (an admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.

Posted by Howard Wasserman on January 19, 2015 at 12:29 PM in Howard Wasserman, Law and Politics | Permalink


That Marshall was not an "advocate" while serving as a judge or justice is a great credit to him as a person and to the legal profession he served in for so many years. And imagine Marshall's impact on his fellow justices who knew well Marshall's accomplishments as an attorney serving in the trenches fighting Jim Crow and other injustices to African-Americans and who for the most part had less illustrious (but more lucrative) legal careers before getting on the bench.

Posted by: Shag from Brookline | Jan 20, 2015 7:50:39 AM

ETA: Other roles including academia, protest, advocacy movements.

He wasn't as comfortable as were others in regard to protests, having some negative comments even for some of the sit-in type protests many now see as positive developments. He was a good raconteur and perhaps might have thrived in some situation where that could be used, but unsure how.

I don't really see him thriving in academia. So, being a justice with a major platform & some influence by merely being in the room (Justice O'Connor referenced this) was significant.

It's an interesting though experiment.

Posted by: Joe | Jan 19, 2015 3:29:11 PM

"remained in a different role"

Interesting question. Not sure if he would have thrived in the "second generation" of litigation here. So what would be the ideal role here?

On that level, I think he played an important role as "a strong voice in dissent" that while "not directly shaping the law" having a role. Also, he was not always in dissent -- in various cases, he was a necessary vote or stretched the "Overton Window."

People like him or Brennan or Douglas not even being there changed the equation some. I think he was likely unhappy in this role as compared to a Douglas who thrived at it, but it might have realistically been the strongest role he could have play. It did however make him less likely to be as widely respected personage as MLK.

Posted by: Joe | Jan 19, 2015 3:23:14 PM

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