Three years ago Mark Tushnet published the companion volume to this book cataloging Thurgood Marshall's profound influence
on civil rights law as a lawyer for the NAACP Legal Defense Fund (LDF). That book was widely praised for its meticulous use
of the documentary record and interviews with protagonists. Joel Grossman, reviewing the book for the LAW AND POLITICS
BOOK REVIEW, described it as a "fascinating narrative history" that "effectively reveals the qualities of mind and heart and
speech that produced one of our greatest public advocates" (Grossman 1995, 137).
Tushnet's second book is no less impressive. Weaving a narrative mainly from the public records of Marshall and other justices,
interviews with colleagues, and his own personal recollections as a clerk for Justice Marshall, Tushnet has delivered another
impressive account of Justice Marshall's influence on the making of civil rights and constitutional law. It is a book deserving of a
close reading by scholars of Supreme Court jurisprudence. There are several theses that are uncovered throughout the reading of
this book. Most important perhaps are the two that relate to Marshall's overall impact on the Court and its jurisprudence. First, and
perhaps most ironic, is the thesis that Marshall had a greater impact on civil rights law before his appointment to the Supreme
Court, than he did on constitutional law while serving on the Court. This thesis is not new, and was widely identified even by
justices on the Court at Marshall's retirement. Still, Tushnet's discussion of cases and controversies decided by the Court clearly
reveal that Marshall was increasingly marginalized as the make-up of the Court evolved and "swung to the right."
Tushnet's discussion of memos between chambers, and the opinions drafted by Justices helps to amplify this thesis in a clearer
light. A second thesis, and perhaps less well-known in the public at large, is the thesis that Marshall contributed greatly to the
jurisprudence of equal protection theory. Of course Marshall's presence as the first African-American on the Court makes this no
great surprise, but the reason for it has less to do with his race than with his common-sense approach to the notions of equal
treatment under the law. Tushnet's book emphasizes Marshall's unique rejection of the two-tier approach adopted by the Court for
analysis of equal protection claims (strict scrutiny versus the intermediate/rational basis standard). An entire chapter is devoted to
the problems inherent in cases that separate "suspect classifications" and the strict scrutiny test from non-suspect classifications
and the rational basis test. Instead, Marshall advocated a "sliding scale" approach to equal protection cases, one that would
balance the interests of competing claims, and arrive at a decision on the basis of those claims (Tushnet, chapter 5). The great
irony here is that Marshall lost this argument as well, leaving his jurisprudential legacy in a string of dissents challenging the Court's
continued reliance on a frustrating tiered system that appeared to be applied in an ad hoc form.
A third thesis, implicit throughout the book, is the obvious point that the writing of draft opinions is an important factor in the
Court's ultimate rulings. This is no earth-shattering finding to report to public law scholars, but Tushnet's description of the way in
which memoranda are exchanged, and the approach taken by justices toward modification of some opinions on controversial cases
is remarkable. Tushnet could have been more explicit in developing this thesis of the importance of post-conference writing
through stages of revision, but the cumulative effect of reading this book is clear: Justices' opinions are often the result of
bargaining, horse-trading, deleting, inserting, melding, cajoling, and re-shaping.
Tushnet's service as a clerk for Justice Marshall might have predisposed him to write sympathetically about his former boss. While
much in the book is sympathetic, Tushnet deserves credit for presenting a relatively balanced and objective picture of Marshall in
this work. In other words, Marshall does not evade Tushnet's criticism. In particular, Tushnet does an effective job describing
Marshall's weakness as Solicitor General before his appointment to the Supreme Court (see chapter 1). Marshall gets balanced
reviews here, with positive comments about his work style and relations with subordinates in the Justice Department, but criticism
for his occasional failure to prepare well for oral argument, especially in cases pertaining to business and labor issues. The moral
of the story is that if the case was peripheral to Marshall's passionate interests in inequality and discrimination, the case got less
attention from his critical mind.
Marshall's opinions also receive critical treatment as well. While much of the commentary points to Marshall's ability (with Justice
Brennan) to crystallize an argument in favor of a powerless underdog or minority group, his opinions are not simply applauded by
Tushnet. Indeed, the discussion of the equal protection theory advocated by Marshall is criticized precisely for its simplicity. While
Marshall advocated a sliding scale of balancing interests in these cases, Tushnet is right to point out that the sliding scale can be
very subjective and open to the ideological whims of justices on the Court.
Tushnet's book also deserves praise for its thematic organization. The chapters are presented sequentially to focus on areas of law
as distinctive threads. In order of presentation, the book cycles through topics and case law dealing with working relationships on
the Court, school desegregation, equal protection cases, affirmative action, the death penalty, and the overall jurisprudence of
Marshall. Cases are presented in a chronological order in those thematic chapters, with discussion of internal disputes over draft
opinions highlighted throughout.
The story that emerges is one that is layered and textured, and rooted in the debates that spilled out of conference deliberations.
This method is put to particularly good use in the chapter on death penalty cases (chapter 7), where the Court seemed most
bitterly divided -- ironically more so than with the race discrimination or desegregation cases (Tushnet, 146).
Marshall's opposition to the death penalty was firmly rooted in the Eighth Amendment, but changing attitudes toward the death
penalty left him in the minority in the mid-1970s. His opposition was also predicated on statistical evidence that race plays a
disproportionate role in death sentences, but once again, Marshall was left in the position of dissent on an increasingly conservative
Court.
While my impression of Tushnet's book is largely positive and full of praise, there are a few weaknesses that do deserve mention.
First, and most important, is the fact that several critical areas of law are omitted from the book, most notably First Amendment
cases and a host of cases relating to criminal due process rights. Reading Tushnet's book, one is left to wonder whether Justice
Marshall had any significant impact in those areas of law. To Tushnet's credit, there is some brief commentary on significant
cases in the second chapter highlighting critical early opinions by Marshall in these areas. The examples include BENTON V.
MARYLAND (1968), incorporating the double jeopardy provision as applying to the states; STANLEY V. GEORGIA (1969), the
seminal obscenity ruling asserting the right to be left alone at home to view material; and AMALGAMATED FOOD
EMPLOYEES V. LOGAN VALLEY PLAZA (1968), upholding the First Amendment right to picket at a mall. Still, I was looking
for more detailed discussion of these other areas of law. On a more nit-picky level, I was constantly frustrated by the book's
failure to place cases in italics in the notes and list of cases in the appendix. This may seem minor to some readers, but it is
difficult to find citations in long end notes when everything is in plain text.
Overall, the strengths of the book clearly outweigh the weaknesses. Perhaps the most lasting impression from the book emanates
from Tushnet's ability to convey the spirit of Thurgood Marshall. Through Tushnet's words, we perceive all the positive and few
negative qualities of Marshall's personality. Words like gregarious, passionate, charming, self-confident, a quick study, a delegator,
earthy, social engineer, impatient, and raconteur come to mind. Tushnet's book is also very moving in conveying the deep personal
attachments many American citizens still feel toward Marshall. The book closes with a particularly telling description of Marshall's
gravesite in Arlington National Cemetery. Quoting Tushnet:
Visitors at Marshall's gravesite at Arlington National Cemetery who arrive at the right time may be struck by what they
find there. Occasionally, scattered on the marker with its simple description "Civil Rights Advocate" may be a few pennies.
Evoking the African-American tradition of grave decoration, the pennies have a deeper meaning as well...The pennies
reflect the judgment of visitors on what Marshall had done with what he had: For them, Abraham Lincoln, depicted on the
pennies, was the first "Great Emancipator;" Thurgood Marshall was the second (Tushnet, 196).
Tushnet has captured much of Marshall's essential qualities in this book, and I recommend it to readers of the LAW AND
POLITICS BOOK REVIEW.
