an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Confirmation Battle: Justice Thurgood Marshall and Justice Elena Kagan
During the recent Senate confirmation hearings, the questions raised about Justice Thurgood Marshall frankly astonished me. I wrote this recent op-ed, published Sunday in the Boston Globe, and would welcome other people's interpretations of the questions raised at the hearings about Justice Marshall's work and legacy.
Also confirmed: Marshall’s legacy
By Martha Minow | August 8, 2010
NOW THAT the Senate has confirmed Elena Kagan to the Supreme Court, there will be post-mortems about the confirmation process. Many members of the Judiciary Committee criticized Kagan for her admiration of Justice Thurgood Marshall, for whom she clerked. I also clerked for Marshall, and found that these criticisms revealed not only a lack of knowledge of Marshall’s precise adherence to rules and precedent but also a failure to appreciate the significance of his contributions to American law. Kagan’s confirmation is not only a victory for her, but also a confirmation of Marshall’s enduring legacy.
In the confirmation process, Republican Senator Jeff Sessions of Alabama questioned Marshall’s concern for “the little guy.’’ Senator John Cornyn of Texas labeled him “a judicial activist.’’ Senator Chuck Grassley of Iowa announced that Marshall’s legal views “do not comport with the proper role of a judge or judicial method.’’
They seemed determined to find some way to paint then-Solicitor General Elena Kagan as someone other than the accomplished and mainstream lawyer that she is. As Washington Post columnist Dana Milbank put it, “Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint . . . added to the Episcopal Church’s list of ‘Holy Women and Holy Men,’ which the Episcopal Diocese of New York says ‘is akin to being granted sainthood.’ ’’
How times have changed. It is almost inconceivable to try to tar the most recent Supreme Court nominee by association with the iconic civil rights lawyer who successfully argued Brown v. Board of Education, widely viewed as the finest modern moment of the Supreme Court.
Brown v. Board of Education inspired not only legislative and administrative reform of legally-mandated racial segregation in this country; it also stimulated judicial and legislative school reforms to ensure equal opportunity regardless of gender, disability, language, immigrant status, or socio-economic class. It triggered a movement for school choice — initially as a mechanism to avoid court-ordered racial desegregation, but later as a technique to achieve integration and now as a motor for educational reform. It inspired reformers seeking equal treatment of religious schools in the contexts of vouchers and school aid.
A sign of the ruling’s uniquely honored status appears as courts cite it for propositions far beyond the contexts of equality and racial justice — such as the treatment of gender in calculating pension benefits, the duty of state officials to obey the Constitution when dealing with extradition, and the design of voting districts.
Even opponents in political battles point to Brown v. Board of Education as their touchstone. Hence advocates for and against same-sex marriage or special schools for immigrant youth or gay and lesbian youth, each claim the Brown ruling. President George W. Bush invoked it in opposing race-conscious college admission practices even as defenders pointed to the same precedent.
Although President Nixon participated in the vigorous enforcement of school desegregation between 1964 and appointed Supreme Court Justices who also did so through the 1970s, a retreat from the goal of racial integration in schools marks political majorities and judicial behavior from the mid-1970s to the present. The brief period of strong enforcement of desegregation yielded soaring high school graduating rates for blacks and closed the racial gap in achievement — while the high school graduation rate and test scores of whites rose.
Nonetheless, white families with financial means have in large numbers moved to suburban schools, taking advantage of the district line and racially-separate residential patterns announced by judges as the borders of court ordered desegregation.
The country’s conservative political shift and election of Republicans reflected and also shaped these trends. No new justice after Thurgood Marshall would reach the Supreme Court through a Democratic president’s nomination for 26 years.
Invoking Justice Marshall now, some want to appeal to and perhaps feed anxieties of some whites about desegregation — and about black men in power. And as the population has grown even more diverse, with increasing numbers of Hispanics and immigrants from many regions, racial desegregation may seem outdated; racial desegregation seems vaguely appealing but not worth the effort. And as a legal matter, Brown v. Board of Education has come to mean freedom from racial classification rather than racial integration or even equal educational opportunity.
It’s time for a deep breath and a rejection of ignorance and distortion. It is time to reclaim and celebrate the concrete and symbolic influence of Marshall’s ruling in struggles for equal opportunity regardless of gender, disability, language, immigrant status, religion, sexual orientation, or socio-economic status.
It is time to think about how our Supreme Court once again be a beacon of justice.