I attended public schools, which are funded through public tax dollars and, therefore, demonstrably socialist. So, it’s little wonder that I was miseducated into the belief that Thurgood Marshall was a national hero, a tremendous lawyer, and damn fine judge. Fortunately, I have people like Jon Kyl, Jefferson Beauregard Sessions, John Cornyn, and Chuck Grassley to give me proper instruction in history.
“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said…
…Sen. John Cornyn (R-Tex.) declared Marshall “a judicial activist.” So did Sen. Jeff Sessions (R-Ala.). Sen. Chuck Grassley (R-Iowa) said Marshall’s approach to the law “does not comport with the proper role of a judge or judicial method.”
Now, in a better country with less assholes, Thurgood Marshall never would have had to go begging for his rights to a bunch white, male judges because Congress would have passed laws (and enforced them) that assured him of his rights. Unfortunately, the Congress was filled with bigots who couldn’t be bothered to protect black people from systemic racism.
There is an argument that the courts are an inappropriate place to settle large societal debates and that efforts to resolve such disputes in the courts are ‘judicial activism’ or ‘legislating from the bench.” A generous treatment of this view would hold that the Supreme Court was right to step in to resolve the civil rights era but they should intervene in that manner as seldom as possible. You might make the same argument about Roe v. Wade. But, without providing such context, the attacks on Thurgood Marshall sound like a defense of Jim Crow (or worse, slavery).
In particular, Marshall had characterized the Constitution as having been “defective” as it related to issues like slavery. Republicans hoped to use this to attack Kagan, and the RNC’s Michael Steele demanded to know whether Kagan’s reverence for Marshall included “support for statements suggesting that the Constitution ‘as originally drafted and conceived,’ was ‘defective.'”
When it appeared the RNC’s line was indirectly pro-slavery, the party quickly dropped the criticism.
When Jon Kyl says that Thurgood Marshall was not a mainstream judge, I think he means that most judges serving in the current era are more reticent about contradicting Congress or stepping in to resolve irresolvable disputes. That’s true, and it’s not necessarily a bad thing. It’s always preferable for Congress to act on issues rather than let them languish for lack of the power to settle them one way or the other. It’s better to rely on the Civil Rights Act of 1964 than on Brown v. the Board of Education of Topeka. But that doesn’t mean that the Court erred in siding with Thurgood Marshall or that Marshall was wrong to believe that justices should make those types of decisions.
The Republicans would be on safer ground if they made clear that it was the fault of Congress that made the judicial activism of the 1950’s-1970’s necessary. But they’ll never admit that because they are still the same assholes they were back then.
