Was Thurgood Marshall senile in his last few years on the Supreme Court?

[Mr.Moto]

I think Mr. Kennedy ducks the question by referring to the writings - as they couldn’t have been prepared without considerable help from the clerks.

When the question is whether the clerks did most of the work or just a good bit of it (which is normal) merely pointing to the opinions themselves is the very definition of a non-answer.

But then, that’s a lawyer for you.

[pravnik]

@Mr.Moto

I think Mr. Kennedy ducks the question by referring to the writings - as they couldn’t have been prepared without considerable help from the clerks.

When the question is whether the clerks did most of the work or just a good bit of it (which is normal) merely pointing to the opinions themselves is the very definition of a non-answer.

But then, that’s a lawyer for you.

I don’t think that’s a fair characterization of what Kennedy said, or for that matter the role of the law clerk in the federal courts. He’s obviously saying that as late as 1984 his interest in the quality of his work was still high, and his supervsion over his law clerks was still close and direct. Even if the clerks were doing 100% of the research and drafting, he’s still fulfilling his duty so long as they’re acting under his close supervision and direction. If Marshall was just shrugging his shoulders and saying “whatever, I don’t care, sign my name on it when you’re done” then he would definitely be asleep at the switch, but Kennedy is clearly saying that wasn’t the case during his term at the court.

[Mr.Moto]

Well, I see what he’s saying - but he offers as lone proof the opinions, per the last paragraph. And given what the allegations were at the time - that Marshall was outsourcing nearly all of the demanding court business and putting in minimal time and effort - the opinions as proof alone won’t suffice, right?

Mr. Kennedy is entitled to his remembrances. Others remember differently, and let’s recall that Marshall didn’t retire for a few more years, during which time these problems would likely have worsened had they been present.

In the news conference when he retired Marshall said he was “too old” and “worn out.” Maybe we ought to take him on his word on that one.

[Guinastasia]

Wasn’t Bork the one Reagan tried to appoint, but was rejected for being a little TOO out there?

After all, he was the one who fired the Special Prosecutor in Watergate at Nixon’s directive.

IIRC, wasn’t there a Justice who would still turn up for work even after resigning, who was a wee bit senile? (Not Marshall – he was one of the lesser known ones)

[friedo]

I’m not sure in what way Marshall could be considered a “lesser known” justice; he was one of the most famous ones in recent history.

But you’re probably thinking of William O. Douglas, as Cecil mentions here.

[jbaker]

I flatly reject the possibility that Marshall’s opinions in the 1982 - 1984 period were being written by law clerks without supervision. Supreme Court law clerks are new grads who have never practiced law, although they typically have spent a year or so clerking for a judge on a lower court. Someone like that is simply not going to be able to produce opinions of the quality that Marshall was putting out during that period. Of course, the clerks probably did most of the heavy lifting - as is the case for most Supreme Court Justices - but the finished products show the guiding hand of a master.

I’m not just guessing on the roles of law clerks and the capabilities of new grads. I clerked myself (though for a federal court of appeals, not the Supreme Court), and I have supervised new grads from top law schools.

[Bricker]

@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.

What’s this??

[Guinastasia]

@friedo

I’m not sure in what way Marshall could be considered a “lesser known” justice; he was one of the most famous ones in recent history.

But you’re probably thinking of William O. Douglas, as Cecil mentions here.

I mean, the person I was thinking of - Douglas, thanks! - was the “lesser known” one, not Marshall. Of course Marshall was DEFINITELY not “lesser known!”

[Captain_Amazing]

William Douglas wasn’t “lesser known” either. He was remarkably famous and influential.

[Guinastasia]

@Captain_Amazing

William Douglas wasn’t “lesser known” either. He was remarkably famous and influential.

Well, I couldn’t remember who it was, so I thought it was " lesser known" than Marshall.

[Captain_Amazing]

@Bricker

What’s this??

Like I said, I think she’s really talking about Rehnquist, who’s Arizona house had a defunct covenant banning sale to blacks (and who’s Vermont house had one banning sale to Jews).

[Northern_Piper]

@Bricker

@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.

What’s this??

Bork was apparently on record as saying that the Supreme Court was wrong to strike down racially restrictive covenants, but I’ve not found anything that suggested he personally would not sell property to blacks. Do you have a cite for that, Zoe?

Here’s what one of his colleagues from the Ford Administration, William Coleman, wrote about it in the New York Times at the time of the nomination:

Second, Judge Bork proposes step by step to reduce drastically the scope of the equal protection clause of the 14th Amendment. First, he argues that the clause does not address matters other than racial equality. Equality for women and many others is thereby simply read out of the Constitution. Having limited the 14th Amendment to racial equality alone, Judge Bork nevertheless labels ‘‘wrong’’ many of the leading constitutional cases in which blacks have won judicial redress for racial discrimination.

He has even asserted that Shelley v. Kraemer, the unanimous landmark decision in 1948 barring state court enforcement of racially restrictive covenants, was wrongly decided.

Finally, even though Judge Bork repeatedly insists that aggrieved individuals and groups should seek redress through the legislative process rather than the courts, when Congress has legislated to promote black equality Judge Bork has frequently argued that Congress’s efforts are unconstitutional or interfere with whites’ ‘‘liberty’’ to discriminate.

Thus, he has questioned the constitutionality of the public accommodations provisions of the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1970 amendments to the Voting Rights Act. The pattern is unmistakable. When it has counted, Robert Bork has often stood against the aspirations of blacks to achieve their constitutional rights and to remove the vestiges of racial discrimination. And as women and others move ahead to seek their equal share of the American Dream, there is the great risk that the pattern will repeat itself.

[Mr.Moto]

Well, Bork explains in his book The Tempting of America (p.152) that his opposition was based on his opinion that question of the Shelley v. Kraemer case was political in nature, and thus should have been handled by the legislature. Now, whether you believe this to be a correct or incorrect view, it seems unfair to ascribe the view to any sort of racist opinion without cause, especially since Bork had supported other civil rights laws politically and found in favor of others while on the bench.

Link to the section of the book in question.

[Measure_for_Measure]

@Mr.Moto

Well, I see what he’s saying - but he offers as lone proof the opinions, per the last paragraph. And given what the allegations were at the time - that Marshall was outsourcing nearly all of the demanding court business and putting in minimal time and effort - the opinions as proof alone won’t suffice, right?

But those allegations -which you did not cite- tended to be anonymous. In my book eyewitness testimony beats that any day.

Worse, the allegations against Marshall were based on the worst kind of hearsay: they were reports of gossip - testimony where even the name of the original witness is unknown.

Furthermore, Anthony Lewis tried to track down some of Woodward’s anecdotes in The Brethren and came up empty:

@Anthony Lewis in the New York Review of Books

But can The Brethren be trusted even on the trifling question of judicial swearing? The book describes a lunch during the Nixon tapes case: Justices Stewart, White, and Brennan with some of their clerks. In the car afterward, it says, Stewart said that as a white man he would not want to be tried in the District of Columbia, where juries are predominantly black—and Brennan commented, “You bet your ass.”

When the authors repeated that story in their letter, I decided to look into it. I talked with two people who were in the car. One said he had thought about it since the book but could remember nothing of that kind. The other, who was a law clerk to another justice than Brennan, said:

“I was in the car. Someone—it may have been a law clerk—said very casually and briefly, in the context of the Nixon case: ‘Whatever you think about the Nixon Administration, I wouldn’t want to be one of its officials—rich, white, and conservative—and be tried before a District of Columbia jury.’ I do not recall anyone saying ‘You bet your ass,’ and I think I would remember that. I do not recall any response at all from Justice Brennan.”

Shorter version: Woodward made shit up.

Here’s one sardonic view of Woodward (from link in my previous post) :

@Brad DeLong

Philoctetes: Are any of Bob Woodward’s books worthwhile?

Thrasymakhos: Oh, they are all worthwhile. But in every case the cover page is wrong. Maestro, for example, says in its cover page that it is by Bob Woodward. Actually it is by Alan Greenspan, as told to Bob Woodward. The Agenda is by Paul Begala, as told to Bob Woodward. Plan of Attack is by Donald Rumsfeld, as told to Bob Woodward. All the President’s Men and the Watergate stories are by Mark Felt, as told to Bob Woodward. Etc. Etc. Etc.

Philoctetes: But this makes the books useless!

Thrasymakhos: No, it makes them useful–as long as you know who the real author of each one is.

[Bricker]

Zoe? You going to return and clarify what you were talking about?

[Northern_Piper]

@Mr.Moto

Link to the section of the book in question.

This link just gives me the publishing info of the book, not a specific page - is there a way to see the page you refer to?

thanks.

[ZenPilot]

@astorian

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.

Take a look at some of his work when he appeared before the Supreme Court, where his briefs and arguments were impeccable, and his rhetorical skills were on full display. He was a magnificent writer, too. His clerks will tell you that, in his prime, he was a perfectionist.

Incidentally, I recently attended a seminar where SCOTUS opinions were analyzed mathematically, and Marshall’s votes and opinions were not as “liberal” as one might imagine. In fact, they fell between Rehnquist and Scalia!