Thurgood Marshall Was a Complete Judicial Activist

Let’s get serious.

Thurgood Marshall was a great American. But, as a Supreme Court Justice, he was not so hot.

As a lawyer, Marshall won several very important civil rights cases in the 1950’s. He was the lawyer in Brown v. Board. In this great work, he was awesome.

But as a Justice, he was known for  making up his mind before the case was even heard. If it was a death penalty case, he and Justice Brennan let it be known – they were voting against the government, no matter what. It was this way on virtually any politically sensitive case. Marshall was going to vote on the liberal side of things, without any real examination of the issues.

Read Edward Lazarus’ book Closed Chambers  about his time at the Court as a clerk. Your jaw will drop when it comes to the passages on Marshall.

The problem with Marshall as a Justice was that he voted based on political considerations, not legal ones. He helped turn the court into a political institution, a place that put its nose into the tent of Congress. He was instrumental in the Great Fake Out – the idea that every political issue could be settled by the courts, the notion that every controvesy could be turned into a question of constitutional rights.

This produced good results early on. We got Brown v Board and several other important civil rights decisions. But once the basis for judicial decision making was based on the judge’s individual political views, a rot set in. Twenty years after Brown, the court had gone too far. They issued Roe v. Wade, in which they basically pretended they were a legislature. No serious Constitutional scholar defends the reasoning in Roe anymore. Justice Blackmun based his opinion on social science research, and the opinions of professional organizations .

Justices should never base a legal decision on social science research. They are completely ill suited to knowing which research is valid. So, they pick the research that is pleasing to their cause. Professional Organizations are not neutral things; they are political things that are often controlled by people who say things directly counter to the beliefs of their members.

Marshall was a great guy,a raconteur and an ebullient, fun man. There is no question that he was a great American. There is no question that his role in the civil rights struggle was monumental.

But he was a lousy justice. He helped turn an institution that was supposed to be about calling balls and strikes into a place that was concerned with helping its political friends.

When certain people came to bat, Marshall shrunk the strike zone. When others came to bat, he enlarged it.

That’s not right. Obama says that the courts are the places where the little guy should be protected against the big guy. That’s not accurate. Congress is the place to do that. Legislation is the way to do that. And let’s face it. The littlest guy of all is not encompassed in Obama’s philosophy; an unborn baby is given no rights in Obama’s world.

Contrary to what Obama says – law is not about helping your friends. Politics is the place for that.

Judging is not.


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