In college, I remember reading a scathing attack on Thurgood Marshall in a political magazine. I’m almost sure this would have been in 1987 or 1988 as Reagan’s presidency was coming to an end. The article attacked Marshall saying he was completely senile and there was a group of specially selected ‘liberal elite’ law clerks that were 100% responsible for writing his opinions.
Now, I can see Marshall trying to wait until the end of the 1988 election to see if a Democratic president would have been elected. When Marshall resigned, it appeared that Bush was going to easily be reelected.
Still, is there any evidence that Marshall was senile and that all his work was done by a ‘special group of selected liberal elite law clerks?’
I put this in GQ to see if there is a simple answer. If it turns into a debate, then please move accordingly.
I’m sure someone will be in with more detailed information soon, but while we’re waiting, Cecil mentioned Marshall in his column on forced removal of judges:
BTW, your timeline is a little off — Marshall didn’t retire until the middle of 1991.
My timeline was that Marshall was probably waiting in 1988 to see if a Democrat would win. When he decided to retire, that was right after Desert Storm and Bush the 1st looked like his was going to easily win in 1992.
I can’t offer anything specific about Marshall, but there is nothing sinister about justices having “elite law clerks.” All justices select their own law clerks. They’re presumably all “elite” since they’re being picked to work at the Supreme Court.
It’s been awhile since I’ve read The Brethren by Bob Woodward, but it always sort of seemed to me that Justice Marshall was just kind of lazy. He would work, yes, but only for four-five hours a day, and he would let his clerks do most of the heavy lifting. He also thought watching the dirty movies for obscenity cases was the best part of the job.
He wasn’t at his best in his later years, and his work ethic definitely suffered, but I don’t know any objective observers who’d say he was actually senile.
In early 1989, when I was a reporter, I interviewed former D.C. Circuit judge and Supreme Court nominee Robert Bork. He said it was an open secret in Washington that a mutually-trusted White House staffer approached Justice Marshall late in Jimmy Carter’s term, praised his service on the Court, oh-so-tactfully noted his age and suggested it would be best for Carter to appoint his replacement rather than take the chance that the GOP won the 1980 election. Marshall told him to go to hell. :rolleyes:
And thus we got Clarence Thomas. Marshall could have had a few years on the speaking circuit. Not sure he could have stopped the Scalia appointment, but I bet he would have been a loud voice against it.
IIRC Marshall in his primewas considered to be a gifted courtroom orator and good tactical lawyer, but was never considered to be all that great as a legal thinker or opinion writer.
He was borderline doddering physically when he left and didn’t look like he had the physical energy to walk 10 feet much less burn the midnight oil writing opinions, he wasn’t truly senile, just a very tired old person and motivationally I suspect he had been checked out for some time.
I’ve heard this stuff about Marshall before, and I’m skeptical. I had occasion to do some detailed work with some of his opinions in the early 1980s, after The Brethren came out. They were very well-constructed and stood up to detailed scrutiny; I was still learning things from them weeks later. He tended to be assigned technical cases that nobody else wanted to deal with. He may not have impressed the law clerks, who probably wanted to work on the big cases that make the front page, but I think he clearly was very much with it.
It’s possible, of course, that the quality of his work deteriorated later - I haven’t given his cases from that period the same detailed study. But finding that the earlier criticism of his was exaggerated makes me distrust the later criticism as well.
I’d be surprised if all the work on every opinion of Marshall’s was done by the law clerks, but delegating a significant portion of the drafting and research to the law clerks is pretty commonplace. Ginsburg, Thomas, and Kennedy all reportedly delegate first drafts according to their instructions to law clerks; Stevens is actually sort of unusual in that he always does the first draft himself. If a law clerk has written an opinion that more or less says exactly what the Judge or Justice wants it to say, they’ll sometimes sign off on it with very few substantial changes.
Rumour here has it that the then Chief Justice of the High Court of Australia, Sir Garfield Barwick, was similarly anxious to secure the resignation of the longest serving justice, the 84 year old, slightly dotty, Sir Edward McTiernan. McTiernan refused all suggestions that he should retire. His health gradually deteriorated and he was confined to a wheelchair. Barwick is said to have forced the issue by refusing to allow the installation of a wheelchair access ramp in the new High Court building that was under construction in Canberra.
According to the April 21, 1989 edition of The National Review, the ultimate source for the thinking Conservative at the time:
That didn’t disqualify FDR from being President. SC Justices are rarely required to perform their duties while they are walking.
I wouldn’t put a lot of faith in what Bork had to say about Marshall. He really put me off by stipulating that he would not sell his property to blacks.
From what I’ve read, he wasn’t senile so much as lazy and alienated. As the Court began to shift rightward, he was increasingly isolated and powerless, and stopped caring much about his cases. He spent a lot of time sitting around in his pajamas, watching soap operas, occasionally taking time to tell his clerks, “Find out how Brennan wants me to vote.”
That was the biggest difference between Brennan and Marshall. Even when he was in an ideological minority, Brennan never stopped working to piece together 5-person majorities- and occasionally he still pulled it off. But unlike Brennan, Marshall had absolutely no rhetorical skills or charm, and ended up doing little but sniping and writing cranky dissents.
Ok, but let’s recall that Bob Woodward’s The Brethren is the ultimate source for many of the slams against T. Marshall’s later years. Woodward is known to shiv those who don’t grant him access, as he allegedly ghostwrites for those who do.
Apropos nothing, I understand that Potter Stewart provided much of the sourcing for The Brethren.
Baloney! Many homeowners have the same covenants in their deeds - they were once extremely common, and the covenants convey as in many states they are nearly impossible to remove. And to hold this against individual homeowners frankly is silly since they have no legal validity - the Shelley v. Kraemer decision invalidated them in 1948.
Look closely at your deed - there is a chance similar language is there if you are a homeowner. They were used in California to discriminate against blacks, Mexicans, Jews and Chinese. California only got around to amending the law to allow for removal of these covenants just a few years ago, but the process isn’t automatic. It goes through upon transfer or when an application is made to do so.