Wednesday, March 04, 2020

Asymmetrical Hardball and Criticizing Supreme Court Judges

Mark Tushnet

The April 21, 1989, issue of the National Review had a cover depicting Thurgood Marshall dozing on the bench. The article was written by Terry Eastland, whose biography includes stints as a speechwriter for Reagan Attorney General William French Smith and director of public affairs for Attorney General Edwin Meese. Substantively the article discussed -- in terms that we would call today genteel snark -- the effects of aging on the performance of Supreme Court justices.

The cover is, I think, different, and transformed the snark into racism. The Federalist Society was founded in 1983. I may have missed them at the time and in my research on Justice Marshall, but I don't recall comments from conservative academics in 1989 describing the National Review's cover as "inexcusable" or the like.

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