Thurgood Marshall Saw It Coming

By 1991, nearly a quarter century after he became the first Black Supreme Court justice, the venerable Thurgood Marshall saw the coming right-wing takeover of the courts for what it was: a legal coup powered by a bad-faith interpretation of the U.S. Constitution that would one day allow the American right to roll back the civil rights gains of the 20th century. Marshall in the early 90s was largely alone in calling out what he correctly saw as a coordinated, well-funded effort to stack the federal courts with judges trained in the ultimate bad-faith tradition: Constitutional originalism.

Marshall's warnings for what was to come were largely ignored by mainstream media outlets, liberals, and certainly congressional Democrats, who bumbled along for an entire generation while their Republican counterparts slowly built an unstoppable legal Goliath that today can ensure any and all progressive efforts are thwarted, and that all Republican criminals avoid legal consequences of any kind. The American right, since Marshall's retirement, has created a legal advantage that serves both as a backstop against liberal legislation and as a weapon for frontal assaults on basic human rights won by Marshall and his cohorts in the latter half of the 20th century.

Since Marshall left the Court, Republican appointees have overturned numerous decisions once considered untouchable legal precedent. This includes Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, a case that severely weakened abortion rights protections; Citizens United v. FEC in 2010, a catastrophic decision that opened the floodgates for oligarchal domination of American politics; 2018’s blow to labor rights in the Janus decision; and, of course, 2022’s decision in Dobbs vs. Jackson, repealing the longstanding precedent of Roe vs. Wade and allowing Republican-held state legislatures to outlaw all abortion access. 

This is a coup. There is no other word for it.

More clearly than anyone, Marshall—a civil rights champion who endured the government-enforced degradation of segregation and fought for the downtrodden and dispossessed—saw all this coming. In his final Supreme Court opinion, he pulled the alarm on the right wing's intention to ignore Court precedent and instead make law from the bench. The Republican-held Court—which was about to see Marshall replaced by our era's most fanatical, dangerous jurist, Clarence Thomas—had just struck down two precedents protecting affirmative action programs. 

For Marshall—who in 1930 was denied entry to the University of Maryland law school because he was Black—this was intolerable. He had successfully fought for decades as an attorney to undo the evils of segregationist policies implemented by violent, wretched white supremacists determined to legalize hate as official government policy. 

In his final opinion, you can almost feel Marshall's outrage, his fury, and ultimately his helplessness about what was to come from a radicalized Supreme Court bent on returning the nation to a less equal, less democratic, more Darwinian state. Marshall's final words as a Supreme Court justice will ring in your ears if you care at all about right and wrong, about the powerful against the powerless.

Power, not reason, is the new currency of this Court’s decision making. ... In dispatching [these two recent cases] to their graves, today’s majority ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store. . . . [T]he majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. . . . [T]he continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court. [T]his impoverished conception of stare decisis cannot possibly be reconciled with the values that inform the proper judicial function. . . . [S]tare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of “the judiciary as a source of impersonal and reasoned judgments. . . .” [T]he “strong presumption of validity” to which “recently decided cases” are entitled “is an essential thread in the mantle of protection that the law affords the individual. . . . It is the unpopular or beleaguered individual—not the man in power—who has the greatest stake in the integrity of the law.”

Marshall knew the undeniable power of bad faith, of pretending to believe what one does not believe. In the case against affirmative action, this meant purporting to believe racism and discrimination had been solved in the United States less than thirty years after passage of the Voting Rights Act. 

It was 14 years after Marshall died that the Supreme Court, taken over by the right wing after the Court's Republican appointees staged what amounted to a coup in the 2000 presidential election, delivered the final blows to affirmative action, or what were once called race-conscious programs.

Writing for the right-wing majority in a 2007 case considering race-conscious school admission policies in Seattle and Louisville, John Roberts dropped a bad-faith bomb that would reverberate for years. Roberts wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Public programs designed to give people of color a fair crack at education, business success. and what some may call the American Dream was, in fact, racist, Roberts wrote. Roberts and his conservative Court counterparts might as well have worn "It's OK To Be White" t-shirts while hearing the affirmative action case. The intellectual rigor of Roberts' argument and those vapid, racist shirts are not dissimilar. One just sounds slightly dumber (the shirt, I think).

Justice Stephen Breyer, one of the liberal justices who simply could not comprehend the level of bad faith deployed by the Court's right wing, pointed out the obvious in the dissent against the 2007 ruling against affirmative action programs. Operating in unsullied good faith, Breyer sounds almost childlike in his pushback against Alito.

[These programs do not use race] to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. [They do not] stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.

I want to pat Breyer on the head. He sounded adorable, and completely unable to counter the villainous bad-faith politics of his far-right colleagues. 

Originalism: The fountain from which all bad faith flows

Originalism, for the uninitiated, is the theory that the U.S. Constitution should be read as a document frozen in time, not as a living legal guide can (and should) be interpreted to account for factors like, say, human progress. 

No one, even originalists, really believes this is a valid theory. Originalism's lack of seriousness is as jarring as it is comical. There are no true originalists, only true-believing political actors donning long black robes.

Originalism ran into a PR problem when conservative Supreme Court justices ruled in the infamous 1857 Dred Scott decision that free Black people could not be American citizens. Justice Taney said this was the original intent of the nation’s founders. 

The stink wafted into the 20th century and helped sink the Supreme Court nomination of Robert Bork, an admitted originalist considered radical in the 1980s; he would be a centrist justice on today's Court. Originalism then festered underground, mostly in right-wing legal think tanks and law schools for the next couple decades, forging the bench of activist conservative judges who rule the Court (and many circuit courts) today. 

Shoutout to the right for playing the long game with constitutional originalism. It didn't matter to conservatives that the American public was and is repulsed by such a legal theory. These folks kept on keeping on—under the radar, out of view—until they got back power and rammed through John Roberts and Samuel Alito and Donald Trump's big, beautiful, contemptible Supreme Court justices, all of whom are unfit for the Court.

The bad-faith legal interpretations have only gained momentum since the hardened right wing took over the Court in the early 2000s. In June 2022, Clarence Thomas—whose life goal seems to be triggering the libs—wrote the majority opinion in the landmark gun rights case New York State Rifle & Pistol Asso­ci­ation v. Bruen, in which the Court struck down New York’s 1911 law largely prohib­it­ing people from carry­ing a concealed weapon—amid almost weekly mass slaughterings of innocents across the US. 

More than a decade of extremist bad-faith Supreme Court politics had seemingly changed the way Justice Breyer viewed the approaches of his disreputable conservative colleagues. In response to Thomas' extraordinarily dishonest analysis of New York's gun law, Breyer took a mocking tone. In a helpless, toothless Court minority, it's all he could do. 

Some of the laws New York has iden­ti­fied are too old. But others are too recent. Still others did not last long enough," Breyer wrote. "Some applied to too few people. Some were enacted for the wrong reas­ons. Some may have been based on a consti­tu­tional rationale that is now impossible to identify. Some arose in histor­ic­ally unique circum­stances. And some are not suffi­ciently analog­ous to the licens­ing regime at issue here.

Thomas, Alito, Roberts, Gorsuch, Kavanaugh, and Coney-Barrett have discovered the beauty of bad faith: In a single week, these justices allowed Republican-controlled states to ban the essential health care that is abortion and barred Democratic-held states from regulating the proliferation and usage of guns. With originalism, you can have it all. 

A jurist can simply say that this is what the Founders wanted, and that they have no choice but to rule this way or that way. All of these rulings just happen to fall perfectly in line with the goals of the Republican Party in the third decade of the 21st century. That there are myriad ways to apply the Founders’ guiding legal principles to matters of modernity never enters the equation. 

The ascension of Bork to Supreme Court nominee had rattled both liberals and centrists who had forged a caretaker government in a post-Watergate era defined by a relatively strong legislative branch and a relatively weak executive. The rise of radical right wingers like Bork—who pledged to throw the country back to its deeply unequal and unjust origins—threatened that project.

In a 1985 speech at Georgetown University, Justice Brennan said:

We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

He then quoted from Justice McKenna's ruling in the 1910 Weems v. United States:

Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision or events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.

The supercharged bad faith of constitutional originalism threatens everything we hold dear. The Supreme Court’s originalist majority has just delivered the final body blow to the Voting Rights Act using their One Weird Trick to achieve political dominance from the bench. One day, it will come for you and your loved ones. In striking down Roe vs. Wade, Clarence Thomas made clear his next targets include same-sex marriage and contraception. Thomas and his cohorts will not stop until they are stopped.

There are few prospects for breaking the far right's hold on the Supreme Court in the short or medium term without a dominant Democratic performance in 2026 and 2028. 

Reforming the Court—forcing it back in line with Constitutional jurisprudence—has to be a major priority for any member of Congress or president who wants to preserve the republic. We have seen what it’s like when federal judges abide by the Constitution: they can fend off almost any authoritarian assault on our institutions and our people, rejecting the ridiculous legal arguments and theories that emerge from the American right’s vast unreality. This, naturally, has put the federal judiciary at war with the Roberts Court.

The American left's only goal in the coming years should be expanding the Court. The Court must be brought in line with the rest of the judiciary, our only real defense against democratic decline. Without that—without draining the Court of its bad-faith poisoning every aspect of our nation—nothing else matters.

Featured image is "Official portraits of the 1976 U.S. Supreme Court: Justice Thurgood Marshall," cropped. Robert S. Oakes, 1976.