George E.C. Hayes, Thurgood Marshall and James Nabrit congratulating one another following 1954 Supreme Court decision Brown v. Board of Education
    What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that – thumbs up or thumbs down – as their personal preferences dictate.

    ~ Justice Antonin Scalia

During times of introspection, I have come to realize that being a true philosopher or an intellectual is an existential experience – an exceedingly lonely place to be. Why? This person has to think on such a transcendent level where few men fear to tread – beyond politics, beyond consensus, beyond conventionalism, beyond status quo, yea, beyond orthodoxy. It is here where I will launch my critique against one of America’s great heroes, Justice Thurgood Marshall (1908-93).

First, let me say at the onset that I believe that Justice Marshall in many respects was a great man. His ascent from the social, physical and intellectual bondage of de jure(by law) and de facto(by practice) racial discrimination and naked racism to the chair of the U.S. Supreme Court is the stuff legends are made of. However, let’s set aside some of the mythology and look at the real man.

I first came to know of Justice Marshall’s work in a substantive way 20 years ago while a graduate student at Harvard. Since I was mulling over the idea of changing my major, a law school friend of mine named Leon Betchet encouraged me to take a couple of law classes. One of the classes I took was “Human Rights Law,” a class that explored the apartheid legal system of South Africa. It was taught by that noted legal scholar of critical race theory and civil rights, Randall Kennedy.

Later, I discovered that professor Kennedy actually clerked for Justice Marshall and in his books and law review articles wrote reverently of his mentor, so I started reading books and articles about Justice Marshall as well as some of his Supreme Court opinions. As I read, I had an ominous revelation.

The rhetoric regarding Justice Marshall, whether it was from cases he argued as a young lawyer and later as chief counsel of the NAACP, or as a judge on the Second Circuit Court of Appeals, flattering biographies, but most disturbingly his many dissenting and majority opinions he authored with his jurisprudence compatriot, Justice William Brennan, simply did not line up with the blackletter text of the U.S. Constitution. Was I crazy?

I held my peace and kept on reading and studying caselaw, yet questions about Justice Marshall abounded. For example, in my constitutional law class, I quickly deduced that whatever the original intent of the Constitution’s framers was, that Justices Brennan and Marshall would mechanically vote against that understanding of the Constitution. One of my classmates bluntly summarized Marshall’s view of the Constitution in this wise – “F— the framers!”

I wrote about this bulletproof Brennan/Marshall pact in an earlier column about my mentor, Justice Clarence Thomas, an excerpt of which follows below:

    I believe Justice Thomas has a judicial record that is even more praiseworthy than his early mentor, Antonin Scalia, as well as John Jay (the first chief justice), John Marshall (the second chief justice), Joseph Story, Louis Brandeis, Oliver Wendell Holmes, Benjamin Cardozo, Felix Frankfurter, Earl Warren, William Brennan, William Rehnquist and yes, even Thomas’ predecessor, the venerable Thurgood Marshall, who few constitutional scholars have the courage to admit could care less about what the original intent of the Constitution’s framers was.

Excuse my candor, but Justice Marshall’s so-called liberal view of the Constitution treats that sacred covenant like toilet paper: A document to be manipulated for his own political ends. Yet Dr. Martin Luther King once famously uttered, “All I want from America is to be true to what you wrote on paper.”

Do words matter? If so, then how can we reconcile these two diametrical views (Scalia [King] vs. Marshall) to understand the real meaning of Constitution? Is the Constitution a contract between “We the People” and our government, to protect and defend our liberties, natural rights and allow each individual’s “pursuit of Happiness,” or is it a weapon used by activist judges to annihilate one’s political enemies and to promote what liberals call “social justice”?

For 20 years I kept on reading and studying Marshall’s oeuvre and came to the following conclusions:

    [A]long with his “Scalia,” William Brennan, [Thurgood Marshall] left a legacy of liberal activist jurisprudence and shameless legislating from the bench that their opinions are considered sacred scripture and revered orthodoxy by the law academy and in all Democrat circles, even to this day.

Despite Marshall’s heroic virtuosity in the 1930s and 1940s where he successfully integrated the University of Maryland Law School and other segregated universities, despite in 1954 starting America down the road of racial integration in the public schools arguing the case of Brown v. Board Education, despite his legal brilliance in court rooms throughout America, despite appearing before the Supreme Court 32 times (winning 28 of those battles), despite his legacy as an “activist Justice” for black people, for the poor and the disenfranchised, despite all of that, something critical was lacking in the man. But what?

For the sake of argument, I will accede that the majority of Marshall’s legal arguments and judicial opinions were the right decision, yet tragically, I argue that they followed the wrong judicial reasoning. As Shakespeare would say, “… and there’s the rub.”

Because Thurgood Marshall came of age during an era of American history that had virulent racism hurled at him and his people in the most venal and appalling ways, his understanding of the Constitution was irrevocably (and I contend incorrectly) viewed solely through the prism of the color line.

Ironically, Justice Marshall’s racialist and activist understanding of the Constitution as an vehicle for social change, most times caused him to ascribe to a Machiavellian, “the end justifies the means” approach to constitutional interpretation. A judicial interpretation in the words of Justice Scalia leaves the Constitution to the tyrannical whims “as their personal preferences dictate.”

For example look at the end/means paradigm below of some of Justice Marshall’s essential Supreme Court decisions:

  • Brown v. Board of Education (1954): The End = Blacks should be allowed to attend public school with whites. The Means = Overrule the “separate, but equal” philosophy of Plessey v. Ferguson (1896) by judicial fiat and pseudo science regarding dolls, rather than reliance on the explicit text of the Constitution.
  • Furman v. Georgia (1972): The End = Abolish the death penalty because it violates the Eighth Amendment’s “cruel and unusual punishment” provision of the Constitution. The Means = A judicial activist rant by the Stewart/White majority that totally ignored the original intent of the Constitution’s framers. That history and the Constitution supported the death penalty as a bulwark against mankind’s anarchist and savage tendencies against man. (The death penalty is mentioned three times in the Fifth Amendment alone).
  • Despite the death penalty being reinstated four years later in Gregg v. Georgia (1976) Justices Marshall and Brennan never accepted the legitimacy, which ruled 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.
  • Roe v. Wade (1973): The End = A women alone has the sole constitutional right to kill her baby if she desires, and if she can’t afford to do so, the government (“We the People”) will pay for it. The Means = Brennan and Marshall enthusiastically codified into law the racist suppositions of Margaret Sanger – a vile eugenicist who taught that blacks were inferior to whites on every measure; a Jezebel-like woman who, in order to facilitate black genocide, founded Planned Parenthood in 1916 where her Holocaust against my people is realized today according to the 2007 U.S. census where 503 per 1,000 viable black births are terminated.
  • In Cottage Savings Association v. Commissioner of Internal Revenue (1991): The End = Giving the poor access to home loans. Justice Marshall weighed in on the income tax consequences of the savings and loan crisis, permitting a savings and loan association to deduct a loss from an exchange of mortgage participation interests. The Means = Overruling the common law traditions dating back to medieval England protecting the “right to contract” by mandating banks insure obvious bad loans of the poor and when defaulted upon, banks deduct the loss (i.e., pass the loss on to the taxpayers, “We the People”).

America’s current mortgage crisis is a direct effect caused by Justice Marshall’s opinion in that case and the Congress, Clinton and Obama wants to encourage more Americans to live way above their means by taking out exorbitant mortagages they and the bank know they cannot pay. Who pays? We the People.

I will end my critique of Justice Marshall by quoting an earlier colleague of his that Marshall would have had little respect for, Justice Roger B. Taney, chief justice of the supreme court from 1836-1864 and a notorious rascist who in the infamous Dred Scott decision of 1857 not only upheld slavery, but helped drive America headlong into a genocidal civil war four years later. Taney wrote:

“[The Negro] has no rights that the white man was bound to respect.”

Likewise, Justice Thurgood Marshall, as well as supporters of the so-called “living constitution” theory must understand that his legacy of liberal activist jurisprudence ultimately will have no force of law that the Constitution’s framers are bound to respect.

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