**Criticism or Praise of Justice Thurgood Marshall

My article in Benicia Herald 7/21/10

Ones criticism, or praise of Justice Thurgood Marshall in most cases comes down to ones position on the Constitution, human rights, tradition, and progressive change. The upcoming confirmation of Elena Kagan has caused the ugly face of racism, backward Traditionalism ,and resistance to positive progressive social change to rear its ugly head. “Marshall” is being used as the poster child for “Activist Change”, as if this euphemism for trying to better the plight of the oppressed is a dirty word. The first immigrants to America from England were “Activists” protesting the crowns oppressive controls. Our country was founded on the premise that dissent, activism, and protest are constitutional rights that make a healthy democracy work for the masses. The reality of the universe is that energy, ideas, and human needs continually change and evolve to try to meet a compromise for the overall needs of a society.
For those who are not that familiar with “Marshall”, he was our first black Supreme Court justice. His philosophy for social change was primarily trying to change laws through the courts, rather than MLK Jrs’ tact of peaceful non violent protest. “Marshall” grew up in a typically middle class family in Baltimore, his father was a railroad porter, and his mother was a teacher, who pawned her wedding ring so that “Marshall” could attend law school. Marshall applied to the University of Maryland Law School, but was denied admission due to racial segregation. Marshal then attended Howard University Law School. After graduation he opened a small practice and then continued with an illustrious career at the NAACP as a chief legal advocate. He won 28 of the 31 cases that he brought before the highest court. “Marshall’s” success was to due to a combination of sincere passion to overturn the remnants of segregation, a bright intellect, and a tenacious resolve to prevail for human justice. At the time, due to his color, he was seen as a definite threat to the oppressive traditional controls of the white male south.
Plessy v. Ferguson (1896), the U.S. Supreme Court decided that a Louisiana law mandating separate but equal accommodations for blacks and whites on intrastate railroads was constitutional. This decision provided the legal foundation to justify many other actions by state and local governments to socially separate blacks and whites. The reality of “Plessy” was that blacks were subjugated to inferior accommodations and education. The culmination of this effort was Brown v. Board of Education (1954), which Marshall argued before the Supreme Court. The decision in Brown overruled the “Separate but Equal” law of 1896.
Some of Marshall’s other outstanding cases were Loving v. Virginia, (1967), a landmark civil rights case in which the United States Supreme Court, by a 9-0 vote, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States. Unfortunately the voting populace does not always have the humanistic tolerance, education, and sociological enlightenment to fully understand the full gravity of their poor voting decisions.
Many African-Americans "think of Thurgood Marshall as being an even more important figure than the Rev. Martin Luther King Jr.," says David Bositis, an expert on African-American voters and politicians at the Joint Center for Political and Economic Studies."
"I cannot imagine who mobilized this," says Michael Greve, a scholar with the American Enterprise Institute. "It makes your jaw drop. At least mine," says Greve, who adds that Kagan has such a slim record that Republicans have decided to go after her mentors instead. It's just bad luck for the Republicans that the man Kagan clerked for 25 years ago was a civil rights legend. Robert Alt of the conservative Heritage Foundation agrees. You can laud his accomplishments both personally and professionally, but still question whether or not he approached the law in an objective fashion. Robert Alt of the Heritage Foundation said, "I don't think it makes sense to attack Thurgood Marshall, but I think Thurgood Marshall weighs heavily on these hearings," Alt says.
Marshal may be considered a judicial activist, which is not a bad thing for the betterment of society. A Senator said, "It's clear that he considered himself a judicial activist and was unapologetic about it." "He described his judicial philosophy as quote, 'Do what you think is right and let the law catch up,' "
The real underlying issue is not Kagan or Marshall, but our attitudes about viewing the Constitution as a “Living Document”, or something akin to the Bible that we are resistant to critique or make relevant to the current society. I believe that this position of saying the Constitution is not a “Living Document” is to support a position of traditionalism and opposing changes that are in concert with the current times. The mere fact that the Constitution had appended to it, a Bill of Rights, and twenty seven Amendments is living proof that it continues to survive as a “Living Document”.
My conclusion is that “Marshall” was a brilliant caring jurist who caused the enactment of laws that made America a more just and civilized society ultimately benefitting everyone, no matter what the color of one’s skin. It is very “Dirty Gamesmenship” to use “Marshall” as anything that is negative in order to thwart Kagan’s confirmation. Kudos to those intelligent moderate Republican’s who have tried to distance themselves from some of the Plebian “Knuckle Draggers” on the extreme right. Kagan’s comparison to Marshall in my perception should only be taken as a compliment, and shame on those who use Marshall to cast any aspersions on Kagan.
History is well evidenced with the fact that societies change and morph socially, economically, religiously, and technologically in spite of the Traditional class patricians who try to oppose progress at every turn. We have admittedly become a better society due to the “Activist” enactment of women’s rights, laws against segregation, workers rights and safety, consumer protection laws, environmental protection, and other laws that protect human rights and our planet. If we left the outcome of legislation just to the Traditionalists and strict Constitutionalists, who seem to fight most change, we would be back in the Nineteenth Century.
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