Remembering a SCOTUS Legend

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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17 Responses

  1. Hal_10000 says:

    I wish we had more justices like Marshall. Howard U, private practice, civil rights litigator, solicitor general. He had a good feel for how the law works in real life versus how it works in theory. A sharp contrast from the prep school-Ivy League-political/academia pipeline we have now.Report

  2. Burt Likko says:

    If Thurgood Marshall isn’t one of your heroes, and you’re an American citizen, you need to re-evaluate your definition of the word “hero.”Report

  3. Doctor Jay says:

    I’ve been thinking in the opposite direction. Ignoring any present candidate or sitting justice, who is the worst person to have ever been a Supreme Court Justice? We have some notably bad presidents, with whom I am familiar, but it stands to reason there have been a few stinkers on the Court. But who are they? I have no idea, though I think these stories tend to be suppressed in the name of maintaining the Court’s standing. You know, “respect the institution”.Report

    • Saul Degraw in reply to Doctor Jay says:

      How do you evaluate worst? I am not a fan of the Gilded Age courts which allied itself in the interest of corporations and the monied interests under abstract theories of “liberty” and “freedom of contract.” Justice McKrenna (appointed by Wilson) was a miserable racist and anti-Semite whom refused to sit next to Brandeis (also appointed by Wilson) and Cardozo (appointed by Hoover) because they were Jewish.

      Plenty of party loyalists have made it on the Supreme Court. Truman is an underrated President but his Supreme Court picks were less than inspired. The Gilded Age Supreme Court was packed with Railroad Lawyers.

      There are plenty of people who would take some of my favorites and call them horrible justices. These include Warren, Brennan, Blackmun, and Douglas.

      I think we have this myth that the Supreme Court is a non-political and non-partisan institution. I do not know if this is a true statement or not. There are ways we can contort the big decisions to make them look like non-partisan, non-political JUSTICE but this is a process involving lots of hindsight and retconning.

      Maybe we would be more honest if we admitted that the judiciary can be and often is a political institution.Report

      • Doctor Jay in reply to Saul Degraw says:

        Well, ok. Let’s take Dred Scott. Nobody thinks that was a good decision these days, but the SCOTUS voted for it 7-2 and Roger Taney wrote the opinion. Does that make Roger Taney in the running for worst Justice, just like Andrew Jackson and Andrew Johnson are on my short list of “worst presidents”?

        But I was more thinking about personal issues – criminal acts and so on. William Howard Taft was massively corrupt. Nixon lied, wiretapped, and stole his way to victory.

        Is there any record of all of Justices behaving in this way? I just don’t know, though my understanding of what humans are says that probably, yeah, there were a few.Report

      • Perhaps you mean McReynolds and not McKenna? McKenna was appointed by McKinley.

        I’m chary of claiming the “Gilded Age” court was aligned lock, stock, and barrel with corporate and moneyed interests. I mean, yes, you can find a train of cases that seem to support the interests of corporations, but the decisions don’t strike me as so unrelentingly pro-corporate. “Liberty of contract” arguments were used to strike down the New York bakers’ law, but not the Utah miners law (and there’s some pushback now against the view that Lochner exercised such a stranglehold against state-based regulation….I’m not particularly qualified to judge those claims, but they strike me as strong enough to deserve being engaged). In Munn v. Illinois, some state regulation was upheld even though at first glance one might have expected a negative commerce clause argument to prevail. The court invalidated the antitrust law’s application to the American Sugar Refinery Company, but approved the prosecution against Northern Securities. The Santa Clara decision seems at first glance to create a “corporations are people deserving of rights” attitude, but I understand the reality is more complex than that (again, I’m not enough of a lawyer–actually, not a lawyer at all–to comment knowledgeably about that, but take a look at this talk on cspan).

        It’s probably true that most of the “Gilded Age” justices had been railroad lawyers. But I’m not sure how many lawyers weren’t at some point railroad lawyers. I understand Lincoln had sometimes represented railroad companies. (I don’t know that, but it’s something I’ve heard.) If Elizabeth Warren were appointed to the court, an opponent might cite some of the high profile corporate interests she had represented in the past, but that wouldn’t by itself mean she’d be an unquestioning defender of their interests on the court.

        I’m not saying my points disprove what you’re saying. They certainly aren’t a definitive refutation. But to me, to say the Gilded Age court served the interests of corporations and moneyed interests–and to leave it at that–strikes me as a question-begging caricature. It’s question-begging because it assumes that because we know the outcome, we’ve demonstrated the court brought it about, and it’s a caricature because it ignores the contingencies the court had to deal with.Report

  4. Kolohe says:

    Marshall was confirmed 69-11


    Not so nice – the twenty Senators that abstained.

    Awkward – the title of the confirmation vote

    Curious – the abstentions weren’t all ‘old school’ Southern Democrats. Neither Muskie nor McGovern voted either.Report

    • Dark Matter in reply to Kolohe says:

      the abstentions weren’t all ‘old school’ Southern Democrats.

      Some of that might have been vote trades. I.e. I won’t vote if you don’t vote.Report

    • Mike Schilling in reply to Kolohe says:

      Nor Gene McCarthy, nor Mike Mansfield. Nor Richard Russell, surprising on the other side.

      The only No vote by the GOP was Thurmond, because the South was still Solid.Report

      • Kolohe in reply to Mike Schilling says:

        One of the bright spots is Spong’s vote from Virginia, who was an anti-segregationist and anti-(Harry) Byrd machine guy – and promptly lost his first re-election opportunity to a Republican (one of those ‘first Republican since Reconstruction’ victories) in Nixon’s ’72 wave.Report