# Was Thurgood Marshall senile in his last few years on the Supreme Court? **URL:** \ **Category:** Factual Questions\ **Created:** [May 16, 2009, 5:43pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662 "2009-05-16T17:43:52Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![dalej42](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@dalej42](https://boards.straightdope.com/u/dalej42)\ **Post date:** [May 16, 2009, 5:43pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/1 "2009-05-16T17:43:52Z")
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. ---
**Author:** ![MikeS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MikeS](https://boards.straightdope.com/u/MikeS)\ **Post date:** [May 16, 2009, 6:01pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/2 "2009-05-16T18:01:17Z")
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](http://www.straightdope.com/columns/read/2693/there-goes-the-judge): > [@Cecil Adams](#): > > Thurgood Marshall (1967-1991) became disengaged in the 1980s, spending afternoons watching TV and letting his clerks do his work. A 1990 TV interview left some wondering if he’d lost it, and he retired the next year. BTW, your timeline is a little off — Marshall didn’t retire until the middle of 1991. ---
**Author:** ![dalej42](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@dalej42](https://boards.straightdope.com/u/dalej42)\ **Post date:** [May 16, 2009, 6:10pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/3 "2009-05-16T18:10:12Z")
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. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 16, 2009, 6:18pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/4 "2009-05-16T18:18:07Z")
> [@dalej42](#): > > 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. 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. ---
**Author:** ![Albrecht\_Durer](https://avatars.discourse-cdn.com/v4/letter/a/ccd318/32.png) [@Albrecht\_Durer](https://boards.straightdope.com/u/Albrecht_Durer)\ **Post date:** [May 16, 2009, 11:47pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/5 "2009-05-16T23:47:10Z")
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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 17, 2009, 1:40am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/6 "2009-05-17T01:40:35Z")
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: ---
**Author:** ![dalej42](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@dalej42](https://boards.straightdope.com/u/dalej42)\ **Post date:** [May 17, 2009, 1:56am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/7 "2009-05-17T01:56:09Z")
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. ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [May 17, 2009, 2:09am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/8 "2009-05-17T02:09:38Z")
IIRC [Marshall in his prime](http://en.wikipedia.org/wiki/Thurgood_Marshall)was 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. ---
**Author:** ![dropzone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dropzone/32/7515_2.png) [@dropzone](https://boards.straightdope.com/u/dropzone)\ **Post date:** [May 17, 2009, 2:24am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/9 "2009-05-17T02:24:42Z")
> [@Albrecht\_Durer](#): > > He also thought watching the dirty movies for obscenity cases was the best part of the job. Doesn’t sound like senility to me. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 17, 2009, 3:33am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/10 "2009-05-17T03:33:41Z")
> [@astro](#): > > IIRC [Marshall in his prime](http://en.wikipedia.org/wiki/Thurgood_Marshall)was 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’d say that’s a fair summary, from all I’ve read. ---
**Author:** ![jbaker](https://avatars.discourse-cdn.com/v4/letter/j/59ef9b/32.png) [@jbaker](https://boards.straightdope.com/u/jbaker)\ **Post date:** [May 18, 2009, 9:57pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/11 "2009-05-18T21:57:05Z")
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. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 18, 2009, 10:34pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/12 "2009-05-18T22:34:19Z")
> [@dalej42](#): > > 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’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. ---
**Author:** ![Cunctator](https://avatars.discourse-cdn.com/v4/letter/c/43a26b/32.png) [@Cunctator](https://boards.straightdope.com/u/Cunctator)\ **Post date:** [May 19, 2009, 1:24am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/13 "2009-05-19T01:24:59Z")
> [@Elendil\_s\_Heir](#): > > 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: Rumour here has it that the then Chief Justice of the High Court of Australia, [Sir Garfield Barwick](http://en.wikipedia.org/wiki/Garfield_Barwick), was similarly anxious to secure the resignation of the longest serving justice, the 84 year old, slightly dotty, [Sir Edward McTiernan](http://en.wikipedia.org/wiki/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. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [May 19, 2009, 2:31am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/14 "2009-05-19T02:31:18Z")
According to the April 21, 1989 edition of [_The National Review_](http://findarticles.com/p/articles/mi_m1282/is_n7_v41/ai_7518691/), the ultimate source for the thinking Conservative at the time: > [@](#): > > As for Marsball, well, Marshall is there. No one thinks he’s senile, and everyone agrees that he was once quite able. But most observers wonder about his continuing interest in the Court’s business. > [@](#): > > **astro** : He was borderline doddering physically when he left and didn’t look like he had the physical energy to walk 10 feet… 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. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [May 19, 2009, 4:43am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/15 "2009-05-19T04:43:33Z")
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. ---
**Author:** ![Measure\_for\_Measure](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/measure_for_measure/32/557_2.png) [@Measure\_for\_Measure](https://boards.straightdope.com/u/Measure_for_Measure)\ **Post date:** [May 19, 2009, 6:28am UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/16 "2009-05-19T06:28:02Z")
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](http://delong.typepad.com/sdj/2009/01/bob-woodwards-oeuvre.html). Apropos nothing, I understand that Potter Stewart provided much of the sourcing for The Brethren. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 19, 2009, 12:56pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/17 "2009-05-19T12:56:39Z")
> [@Zoe](#): > > 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. I think you’re confusing Bork with Rehnquist there. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 19, 2009, 1:33pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/18 "2009-05-19T13:33:47Z")
> [@jbaker](#): > > 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. I don’t see how this follows. The question asked was whether these opinions might have all been written by highly qualified law clerks. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 19, 2009, 1:56pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/19 "2009-05-19T13:56:54Z")
> [@Zoe](#): > > 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. 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. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 19, 2009, 3:24pm UTC](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662/20 "2009-05-19T15:24:35Z")
Randall Kennedy, now of Harvard Law, was Marshall’s law clerk from 1983 to 1984. Here’s what he had to say about him then (excerpt). > [@](#): > > I thoroughly enjoyed working for Justice Marshall. I especially enjoyed listening to the many stories he exuberantly told about struggles in which he had participated, dramas he had witnessed, and people he had known. Justice Marshall would regale us for hours about the generosity of Duke Ellington, the courageousness of Lyndon Johnson, the vices of W.E. B. Du Bois, the greatness of Roy Wilkins, the majesty of Lena Horne, the misguidedness of Paul Robeson, and the racism of Douglass McArthur. But Marshall’s storytelling, wonderful though it was, never obscured his primary focus, which was on the daunting mountain of work that the Justices confront every Supreme Court term. He was an exacting taskmaster who allowed nothing to stand in the way of producing the legal work that he saw as his duty and mission. > > Marshall did not care about formalities when dealing with his clerks. Thus, unlike certain members of the Court, he did not insist that we refer to him as “Justice;” indeed, his clerks typically called him “Judge.” (In moments of great pressure I slipped and simply called him “Boss.”) Justice Marshall cared intensely, however, about the quality of the work we produced for him. Early on he made it clear that he expected the work to be done excellently and on time. He also made it clear that if one of us disappointed him, he would take it out on all of us - a method of collective discipline that had the effect, if not the intent, of making all of the clerks keenly attentive to the doings of each of the clerks. I once asked him why he was hyper-obsessive about the timeliness and appearance of written work. Marshall’s answer indicates the lingering effects of the harsh regime under which he grew to maturity. He told me that he had once heard a court official say to an attorney that he could always tell when he received a “nigger brief” because of the misspellings. The Justice recalled that he had resolved at that moment never to allow himself or anyone with whom he was associated to submit any writing that could be dismissed in such a fashion. > > Some critics have asserted that Justice Marshall paid insufficient care to his duties as a member of the Court. I think here in particular of a caricature that appeared in The National Review which depicted the Justice asleep in his chambers. The best response to such allegations is to refer to the corpus of Marshall’s writings as a Justice. Although it is true that he showed less interest in commercial matters than some of his colleagues, it is also true that he consistently delivered high-level work on subjects - federal taxation, for example - outside of those that exerted the strongest pull on his energies. As for the issues that matter most to the proper functioning of a pluralistic and individualistic democracy - freedom of expression, decent limits on policing and punishments, protections against illicit prejudices - Marshall rendered opinions (all too often dissents) that eloquently gave voice to the best in American constitutional traditions. [Remembering Thurgood Marshall](http://americanradioworks.publicradio.org/features/marshall/kennedy.html) [Next page](https://boards.straightdope.com/t/was-thurgood-marshall-senile-in-his-last-few-years-on-the-supreme-court/496662.md?page=2)