July 16, 2010 -- 3:45 p.m. EDT
The Odd Couple
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During Elena Kagan's confirmation hearings, some Republican senators criticized Justice Thurgood Marshall, for whom the solicitor general served as a clerk. Predictably, this criticism prompted indignation from liberal commentators: How dare Republicans criticize Marshall, the first black justice and a civil-rights hero? (We noted one example on July 1.)
"Well," writes National Review's Ed Whelan, "it turns out that someone else who didn't think much of Marshall's performance on the Court . . . was Justice William J. Brennan Jr., Marshall's longtime liberal colleague." As evidence, Whelan offers three passages from "Justice Brennan: Liberal Champion," a forthcoming biography by Seth Stern and Stephen Wermiel:
Few understood just how much Marshall's performance on the Court came to disappoint Brennan. It was a topic Brennan did not like to talk about with anyone. Brennan believed that Marshall had never gotten his due for all he had achieved as the NAACP LDF's [Legal Defense Fund's] chief lawyer. . . .
Still, Brennan privately wondered what had come of the skilled lawyer who so dazzled him at oral arguments. "What the hell happened when he came on the Court, I'm not sure, but he doesn't seem to have had the same interest," Brennan said [in a 1988 interview]. "He has some areas where he does and when he really gets involved with a case . . . he does an absolutely superb job. But when he's not interested, whatever I do, that's all right with him." As best as Brennan could tell, Marshall had simply given up, convinced that all he had worked for as a civil rights lawyer was now coming undone. . . .
Brennan did resent Marshall for not carrying his share of the workload as they fought to preserve the gains of the Warren Court. The death penalty was one of the few areas of the law where Marshall was engaged and displayed some of his old passion. Yet here, too, Marshall disappointed Brennan.
It should be emphasized that Marshall, the man who successfully argued Brown v. Board of Education, was--as Brennan suggests in the first quoted paragraph--a great and consequential lawyer before he ever arrived on the bench. It does Marshall no injustice to observe that the job of judge seems to have been less well suited to his temperament and abilities than that of litigator.
And Brennan would not agree with the GOP senators' criticisms of Marshall, which were on grounds of judicial philosophy, not job performance. The philosophy they were criticizing, after all, was Justice Brennan's.
What's most interesting about this, however, is that Brennan's characterization of Justice Marshall's detached attitude--"whatever I do, that's all right with him"--exactly matches the liberal stereotype of Clarence Thomas, Marshall's successor and the second black justice. Thomas has often been described as an intellectual sluggard who merely does the bidding of Antonin Scalia, a more senior justice who happens to be white.
Anyone who knows Justice Thomas or his jurisprudence knows this to be false. He is, in fact, highly engaged with the court's work and is arguably the most independent-minded currently sitting justice. He and Scalia may reach the same result more often than not, but Thomas frequently contributes lone concurrences or dissents that get there via a drastically different route.
A pertinent recent example is McDonald v. Chicago (2010), in which the court held that the Second Amendment limits the power of states as well as the federal government. Scalia joined Justice Samuel Alito's opinion, which grounded the conclusion in a doctrine known as substantive due process. Thomas, while concurring with the judgment and with part of Alito's opinion, wrote a lengthy and erudite concurrence in which he questioned this doctrine and argued instead for reviving the 14th Amendment's Privileges or Immunities clause. (Scalia, who joined the entire Alito decision, also wrote a lone concurrence.)
The liberal stereotype of Thomas reflects not only evident racial prejudice but also a shallow and politicized view of the Supreme Court's role, one encouraged by media coverage depicting the court as a sort of policy-making commission in which "liberals" and "conservatives" cast "votes" on "issues." This view is not wholly inaccurate, but it is severely dumbed-down. It sees McDonald, for instance, as merely a 5-4 decision in which the "conservative bloc" prevailed, ignoring the philosophical distinctions among Scalia, Thomas and the other justices in the majority.
The court has encouraged this view of its work by acting politically--by ignoring or twisting the law in order to reach preferred political or ideological outcomes. This is known as judicial activism, and its practice long predates the Warren Court. In 1896, for instance, Plessy v. Ferguson essentially ignored the Equal Protection Clause of the 14th Amendment in order to uphold state-mandated segregation.
In living memory, however, there has been no more effective or enthusiastic practitioner of judicial activism than William Brennan. His judicial philosophy was one that reduced the role of a judge to that of a politician. As Adam Winkler, a constitutional law professor at UCLA, describes it:
Brennan used to ask his new law clerks what the most important rule in constitutional law was. They would ponder the question and respond, "freedom of speech," "separation church and state," or "separation of powers." No, Brennan would respond with a wry smile. And then he would hold out one hand with his fingers outstretched. "Five," he would say. A justice needs five votes to make a majority on the nine-member court. With five votes, a justice could do anything.
Brennan's cynical attitude toward the Constitution was a major contributor to the politicization and partisanship that surround the court today. And it turns out he wasn't even sincere in his cynicism. If he had been, his only criticism of Marshall would have been that the court didn't (have) three more of him.