By Juan Williams
The Wall Street Journal
July3, 2010
Was Thurgood Marshall a conservative? J. Edgar Hoover, an indisputably right-wing voice, certainly thought so: The FBI chief sent Marshall a note congratulating him on his nomination to the high court. So did Malcolm X, who branded the first black Supreme Court justice a "fool" because he didn't embrace mass protest or excuse riots.
But at last week's confirmation hearings for Elena Kagan, the reality of Marshall's record was eclipsed by the myth of the late justice as a wild-eyed, left-wing activist. Several Republican senators expressed concern that Ms. Kagan, a former Marshall clerk, might replicate his approach to applying the law.
"Justice Marshall's judicial philosophy . . . is not what I would consider mainstream," said Sen. Jon Kyl (R., Ariz). The senator depicted Marshall, who sat on the court from 1967 to 1991, as a "results oriented" justice who interpreted the law to fit his political aims and had no regard for a strict reading of the Constitution.
Sen. Jeff Sessions (R., Ala.) piled on, claiming that Marshall's record as an "activist" judge constituted a violation of a responsible jurist's oath to apply the law without political favor. Such judging, added Sen. Chuck Grassley (R., Iowa), "does not comport with the proper role of a judge or judicial method."
Thankfully, Ms. Kagan appears to have escaped any damage from these attempts to paint her as the second coming of this devilish caricature of her former mentor. But the justice's own legacy took some hits, and the truth about his record needs to be set straight before this distortion becomes fixed in the public mind.
First, there are the hard numbers. As a lawyer, Marshall argued 32 cases before the Supreme Court and won 29. That's hardly the record of a man operating outside of the legal mainstream. Marshall's rulings on the Second Circuit Court of Appeals were never overturned by the Supreme Court, and in most of his appellate opinions he joined with the majority of what was then viewed as a conservative circuit. As solicitor general of the U.S. he lost only five of the 14 cases he argued before the Supreme Court.
Even on the high court, Marshall always tailored his opinions to adhere to constitutional principles—not political ideology. For example, in making the case for affirmative action, Marshall did not try to discard constitutional protections for individual rights. In his dissent in the 1978 Regent of California v. Bakke affirmative action case, Marshall wrote: "It must be remembered that during most of the past 200 years, the Constitution as interpreted by this court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier . . . "
What's at the heart of any charge of judicial activism is Marshall's work as a lawyer. As lead counsel for the NAACP Legal Defense and Education Fund from 1938 to 1961, Marshall won Brown v. Board of Education—the case that ended school segregation by overturning the 1896 case, Plessy v. Ferguson. His argument was that the law must be applied without any distinction based on color or class.
The Supreme Court's unanimous ruling in that 1954 decision required courage, given that segregation, either by law or in fact, had become the norm in much of the nation. If one argues that Marshall encouraged judicial "activism" by seeking to have this overturned, that means Plessy was correctly decided, and racial segregation should have been protected under the Constitution. History has long ruled that is not a winning argument.
Marshall's fidelity to the Constitution was evident outside the court as well. He is a man who bravely stood before crowds of militant black people in the 1950s and '60s to rebut calls for black solidarity in boycotts and protest marches. "Let's stop drawing the line [between] colored and white," he told one group. "Let's draw the line on who wants democracy for all Americans." For this outlook, Nation of Islam leader Elijah Muhammad wrote a newspaper column condemning Marshall. "He is in love with the white race," Muhammad wrote.
Ms. Kagan clerked for Marshall at the end of his time on the Supreme Court when he gave a speech saying the Constitution was "defective from the start," because it allowed slavery while denying women the right to vote. He said the Civil War and the constitutional amendments that followed had saved the Constitution and the nation.
That is not a rant from a crazed liberal with no regard for the rule of law. It is a clear-eyed ruling from a judge who by the measure of fellow civil rights activists, as well as fellow lawyers and judges, believed in a very conservative principle: liberty and justice for all.
Mr. Williams, a political analyst for National Public Radio and Fox News, is the author of several books, including "Thurgood Marshall: American Revolutionary" (Three Rivers Press, 2000).
