A Refresher Course On Justice Thurgood Marshall

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Guests

Nina Totenberg, legal affairs correspondent, NPR
Mark Tushnet, law professor, Harvard Law School

When the Senate Judiciary Committee questioned Supreme Court nominee Elena Kagan during her confirmation hearing, one name came up again and again: Thurgood Marshall. Often remembered as one of the heroes of American jurisprudence, some Republicans described Justice Marshall in stark terms.

NEAL CONAN, host:

This week, the Senate Judiciary Committee conducted hearings on the nomination of Elena Kagan to the Supreme Court. But at several points over the past three days, it seemed like the issue wasn't so much Elena Kagan but her mentor, Thurgood Marshall. Kagan clerked for Justice Marshall in the late 1980s, and Republican senators wanted to know if she shared his views.

Senator Jon Kyl of Arizona from his opening statement...

(Soundbite of confirmation hearing)

Senator JON KYL (Republican, Arizona): Ms. Kagan identified Thurgood Marshall as another of her legal heroes. Justice Marshall is a historic figure in many respects and it is not surprising that as one of his clerks she held him in the highest regard.

Justice Marshall's judicial philosophy, however, is not what I would consider to be mainstream. As he once explained, you do what you think is right and let the law catch up. He might be the epitome of a results-oriented judge.

CONAN: Thurgood Marshall, more often described as a hero of the civil rights movement and as the first African-American on the Supreme Court than as a results-oriented judge. Today we'll talk about Marshall and his legacy as a lawyer and a judge with NPR's Nina Totenberg and with Harvard law professor Mark Tushnet, the author of several books about Thurgood Marshall and the Warren Court, including "Making Constitutional Law: Thurgood Marshall and the Supreme Court." And welcome to you both.

Professor MARK TUSHNET (Harvard Law School): Thank you.

NINA TOTENBERG: Thank you.

CONAN: And Mark Tushnet, I wanted to hear - we also - we want to hear from our listeners - how would you describe the discussion of Justice Marshall in the Kagan hearings: 800-989-8255. Email: talk@npr.org.

And Mark Tushnet, I wondered how you responded as you listened to the conversation of the past couple of days.

Prof. TUSHNET: Well, of course, I was a law clerk for Justice Marshall as well, and so I have enormous affection for him and hold him in the highest regard. I thought the discussion was a little peculiar. He is one of the heroes of American law in the 20th century. When he died, then-Chief Justice Rehnquist described him in similar terms. And it seems to me strange to have him put forward as a bad example of what judging should be.

CONAN: Was he a results-oriented judge, by which I think the Republican critics meant somebody who looked for a certain result and then sought a legal principle to hang that result on?

Prof. TUSHNET: That's not the way I would describe him. He reached conclusions about what he thought the Constitution meant. And if those were - if that's being result-oriented, then sort of everybody is result-oriented. He had a vision of what the Constitution did, which was to - after its amendments in -after the Civil War - to promote a certain kind of equality. He thought that's what the Constitution meant and that's how he should interpret it.

CONAN: We have a tape of Thurgood Marshall himself while he was an attorney. Of course he served as the NAACP's chief counsel in the landmark Brown vs. Board of Education case. And here he is reflecting on the importance of that case around the time of the court's ruling.

(Soundbite of archived recording)

Justice THURGOOD MARSHALL (U.S. Supreme Court): And I am as certain as I'm sitting here that governmentally enforced segregation and governmentally imposed discrimination because of race, creed or color will be off the books within the foreseeable future. And I think that that is the real job ahead, as once the whole problem is laid bare and clear, then democracy will take over. And that means each individual.

CONAN: And of course Justice Marshall then - later Justice Marshall did live to see all of that happen in his lifetime, certainly the de jure of segregation.

And Mark Tushnet, did you find any irony in the fact that as this discussion was going on on Capitol Hill, Laurence Fishburne is portraying Justice Marshall in a play at the Kennedy Center and half the legislators who were in that room probably flew in to Marshall Airport in Baltimore, Maryland?

Prof. TUSHNET: I certainly did think it was ironic. I saw the play as well, and I thought it was a terrific portrayal of Justice Marshall as a man. It captured the way he talked. It described what he had done, mostly as a lawyer in advancing our understanding of what the Constitution really means. It's, again, I think strange for this person who is an icon of 20th century American law to be used as a sort of - I don't know what the right word is - devil figure about what judges shouldn't do.

CONAN: Nina Totenberg, NPR legal affairs correspondent, covered those hearings. Devil figure, is that what - what were the Republicans trying to do here?

TOTENBERG: I'm really not quite sure what they were trying to do because it just didn't - it seemed to me an odd, politically, a very odd thing to do since most of the people watching the hearing that they were seeking to persuade probably don't have much of a memory of Thurgood Marshall. And those who do have a memory of him as an icon.

You know, I remember going to the Marshall funeral. And he lay in the Great Hall at the Supreme Court. And there were, as far as the eye could see, there were people lined up to go just pay their respects at the casket. There were people in wheelchairs. There were secretaries. There were lawyers. There were janitors in their Sunday best with their grandchildren to take them by the casket of this great figure.

And it may be true that in - when the history of the Supreme Court is written, he will be remembered much more as an advocate than as a justice. But that is how he will be remembered, as the person who was the architect of the legal civil rights struggle that culminated in Brown vs. the Board of Education.

CONAN: And Mark Tushnet, is it - should we be careful to draw a distinction between his time as an advocate when he was a lawyer and his time when he was a justice?

Prof. TUSHNET: I think certainly it makes sense to do that. Of course, his career, he had a continuous career. He didn't change dramatically from the way he thought about the Constitution as a lawyer and the way he thought about it as a justice. But I don't remember when the quotation you do what thinks right - you think is right and let the law catch up - comes from. But certainly that's the way a lawyer who's advocating for substantial constitutional change would think. And he was a lawyer and a judge who thought that what we ought to do is bring our constitutional law in line with what our Constitution's aspirations really were.

CONAN: Is - as a justice, would he - would it be fair to describe him, as we heard him described, as an activist?

Prof. TUSHNET: My own view is that that term is so vague and broad that it doesn't really help to think of somebody as an activist. Everybody who interprets the Constitution thinks that what he or she is doing is figuring out what the Constitution means. Sometimes that means striking statutes down. Chief Justice Roberts did that on the last day of this term. If that's activism, then yes, Justice Marshall was an activist. But it's just not a helpful term.

CONAN: Let's get some listeners in on the conversation. 800-989-8255, email: talk@npr.org. Teddy is on the line from Kansas City.

TEDDY (Caller): Yes. I was talking about - to the person before, thanks for letting me on the air - but they were trying to set up Justice Marshall rather than talking to Miss Kagan about her becoming a judge. And I thought that was kind of odd for them to set an agenda for her not based on what she's going to do and what she thinks, but based on what a mentor thought. So - but we're all different from our mentors. We take some of the good things and we leave some of the other things, but it's us. It's that particular person. And in this case, nominee Kagan is going to make her own decisions based on what she does rather than on what Justice Marshall did.

CONAN: And she made that point during the hearings.

(Soundbite of confirmation hearing)

Ms. ELENA KAGAN (U.S. Solicitor General): I guess I don't want to spend a whole lot of time trying to figure out exactly what Justice Marshall would have said with respects to any question because the most important thing - I love Justice Marshall, he did an enormous amount for me. But if you confirm me to this position, you'll get Justice Kagan. You won't get Justice Marshall. And that's an important thing.

CONAN: And I wonder, Nina Totenberg, after - did this line of questioning dry up after a while?

TOTENBERG: It actually didn't. It came around again and again. But again, this was a sort of an odd thing that Republicans did, which was they found people who had been associated with Kagan, that she worked for.

CONAN: Mm-hmm.

TOTENBERG: Marshall, Judge Mikva, President Obama, who nominated her, even liberal columnist E.J. Dionne. And because they would say something nice about her or she would say something nice about them - in other words, the chief justice of the - the retired chief justice of the Israeli Supreme Court, they would then try to link her inextricably with that individual. That's a kind of associational connection that I think most of us would probably reject. We wouldn't even want to be associated with all the views of our own parents or our own siblings or our own children.

CONAN: Teddy, thanks very much for the phone call.

TEDDY: Thank you.

CONAN: Bye-bye. And I was wondering, as we look back in history, Mark Tushnet, are there any which - we remember, of course, Thurgood Marshall for Brown vs. Board. As a Supreme Court justice what do we remember him for?

Prof. TUSHNET: I supposed there are two things that he stands out for, one for the general public and one among lawyers. For the general public, he took the position, based on his experience as a lawyer, that capital punishment could not be administered fairly in the United States. He had represented capital defendants, and he'd seen how the system worked. And he thought that it was impossible to administer in a way that was consistent with our fundamental constitutional values. So he defended whenever the court was given a death penalty case and upheld the death penalty.

For lawyers, I think he's probably more likely to be remembered for an approach to thinking about general questions about equality that made much more sense than the way the justices, other justices, thought about it. It wasn't just about racial equality. He had an approach to thinking about gender equality, and it would have been equality of people based on sexual orientation, that turns out to be from a lawyer's point of view extremely helpful.

CONAN: Nina Totenberg, on the death penalty issue, I think it's useful to remember it was Dick Durbin, the Democrat from Illinois, who raised Justice Marshall as an example and asked nominee Kagan if she would follow Justice Marshall's example on the death penalty.

TOTENBERG: And she said no, she wouldn't. There's one other way in which I think he was significant. And this comes out of the mouths of the Supreme Court justices who served with him, not just liberals but conservatives and sort of middle-of-the-road justices as well. They all said that having him at the table made them think differently about questions of equality, and questions of race in particular, because he had a life experience that was so entirely differently from theirs.

Remember, he was the first African-American justice in the court's history, and he was serving with all-white justices who just didn't have his experience.

CONAN: We're talking about Justice Thurgood Marshall, who came up as a figure in the Kagan confirmation hearings this week. Our guests are NPR legal affairs correspondent Nina Totenberg and Mark Tushnet, who's a professor of law at Harvard and the author of several books about Justice Marshall and the Warren Court.

You're listening to TALK OF THE NATION from NPR News.

And here's an email from Matt in Oakland: People seem to forget that when Justice Marshall looked inside his heart, he usually arrived at what is now universally considered to be the correct legal result, i.e. that separate is inherently unequal, that indigent defendants are entitled to legal counsel, et cetera. Does Senator Kyl disagree with those legal propositions?

I don't mean to put words in Senator Kyl's mouth. I'm sure that Senator Kyl would uphold those provisions.

TOTENBERG: I think, you know, to be fair to Senator Kyl, Justice Marshall was very defendant-protective in the criminal justice system, for example. That, again, stemmed from his experience, in which - an experience in which he found that the poor and the minority often were subject to very unequal treatment and didn't have a fair shake in the system.

But law enforcement law enforcement very often thought that the rules that he espoused were unworkable and made their lives impossible and made the general society less safe. So that may have been some of what Senator Kyl had in mind. I can't read his mind particularly.

CONAN: Let's go next to Chris(ph), Chris with us from Tolatca(ph) - am I pronouncing that right?

CHRIS (Caller): Palatka.

CONAN: Palatka in Florida. Go ahead, please.

CHRIS: Yes. I like to be interested - thanks for taking my call, first of all. I'm interested in understanding or knowing what your guest and you feel about the role of racism and what it plays, you know, into (unintelligible) Senator Kyl's remarks. And isn't that what Thurgood Marshall was fighting against, the system of racism and inequality and injustice, you know, for people who really couldn't fight for themselves, you know?

CONAN: Mark Tushnet?

CHRIS: I just like to know what that - what they feel about that.

CONAN: I was going to ask Mark Tushnet if he thinks that played a role.

Prof. TUSHNET: Well, first of all, I certainly agree that Justice Marshall's career was devoted to challenging racism as it was embedded in the legal system, because he thought that was both unconstitutional and had very bad social consequences. I can't say anything about Senator Kyl's and other people's invocation of Justice Marshall as a result-oriented judge of the sort that we ought not have. I don't know why he thinks that's a useful way of raising questions about result orientation. It's just - as I've said before, it's just a puzzle to me.

CONAN: Chris, thanks very much for the call.

Nina, we just have a few seconds left. Is this in part a disagreement over the - your opinion of the Warren Court? For some people it's the good old days. For other people, well, it's the bad old days.

TOTENBERG: Of course the Warren Court did end segregated schools. It did create one person, one vote - otherwise we would have very unequal legislative systems. And I think we have to remember that Justice Marshall retired from the court in 1991. That's almost two decades ago. You're trying to transpose 20 years later, or 30 or 40 years later, value judgments on interpretation of the Constitution that existed decades and decades ago with very different social circumstances, and that's a tough fit.

CONAN: Nina Totenberg, NPR legal affairs correspondent. Mark Tushnet, professor of law at Harvard. We thank you both for your time today.

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