Stop dis­parag­ing a pa­triot

Austin American-Statesman - - OPINION -

As Sens. Jeff Ses­sions, Jon Kyl and John Cornyn dis­par­aged the late Supreme Court Jus­tice Thur­good Mar­shall on the open­ing day of Elena Ka­gan’s con­fir­ma­tion hear­ings, dis­miss­ing him as an “ac­tivist judge” in what ap­peared to be a raw at­tempt to score po­lit­i­cal points, I won­dered: “Have you no sense of de­cency, at long last?”

Let me put it plainly, sen­a­tors: Far from be­ing the out-of-the-main­stream car­i­ca­ture you seek to cre­ate, Mar­shall de­serves your un­yield­ing grat­i­tude and re­spect. Among other things, he saved this nation from a sec­ond civil war.

It was Mar­shall who, with Howard Law School Dean Charles Hamil­ton Hous­ton, his men­tor, con­ceived and then painstak­ingly ef­fec­tu­ated the ju­rispru­dence that led to the strik­ing down of the odi­ous “sep­a­rate but equal” doc­trine that threat­ened to de­stroy this coun­try. While many de­cry “ac­tivist judges” (by which they seem to mean judges who up­hold civil rights for mi­nori­ties and women), those judges who un­der­mine civil rights of­ten demon­strate the most ex­treme forms of ac­tivism. Judges such as those who de­clared in Plessy v. Fer­gu­son that racial seg­re­ga­tion was con­sti­tu­tion­ally sound turned the Con­sti­tu­tion on its head and made a mock­ery of equal pro­tec­tion. Those ac­tivist judges sub­jected an en­tire seg­ment of Amer­i­cans to more than half a cen­tury of state-im­posed degra­da­tion, sub­ju­ga­tion and hu­mil­i­a­tion.

A nation thus di­vided can­not stand. And sim­mer­ing be­low the sur­face was anger, frus­tra­tion and grow­ing hope­less­ness. We know what hap­pens to a dream de­ferred. It explodes.

But Thur­good Mar­shall did not let that hap­pen. As gen­eral coun­sel for the NAACP, he thought­fully laid the ground­work for change. He and a cadre of bril­liant lawyers, black and white, spent nearly two decades paving the way for the Supreme Court’s unan­i­mous rul­ing in 1954 that “sep­a­rate but equal” was an­ti­thet­i­cal to our con­sti­tu­tional prin­ci­ples. Far from ac­tivists, they were pro­tec­tors of the Con­sti­tu­tion. Un­like many of his de­trac­tors, past and present, Mar­shall showed the ut­most rev­er­ence for the Con­sti­tu­tion, dig­ging it out of the trash heap on which Plessy and its progeny had tossed it and help­ing the nation be­gin to heal.

Were it not for Mar­shall and the Brown v. Board of Ed­u­ca­tion de­ci­sion, the Mont­gomery bus boy­cott that in­tro­duced the world to the Rev. Martin Luther King Jr. prob­a­bly would have been an ex­er­cise in fu­til­ity. With­out Mar­shall, the civil rights move­ment of the 1960s — which re­lied heav­ily on the pro­tec­tions pro­vided in a se­ries of crit­i­cal fed­eral rul­ings based on the prece­dents he cre­ated — could have gone an­other way.

Mar­shall stood up for the rights of mil­lions of or­di­nary Amer­i­cans who, were it not for him, would have con­tin­ued to be sec­ond-class cit­i­zens, un­able to vote, at­tend state uni­ver­si­ties or share pub­lic ac­com­mo­da­tions by virtue of the color of their skin.

And he car­ried forth this work on the Supreme Court. “Whether in the ma­jor­ity or in dis­sent, Jus­tice Mar­shall’s faith in the Con­sti­tu­tion en­com­passed more than the racial is­sues of his civil rights days. In­deed, he saw the pro­tec­tion pro­vided by the Con­sti­tu­tion as ex­tend­ing be­yond color and racial con­straints to pre­vent­ing of­fi­cial gov­ern­men­tal abuse of any dis­ad­van­taged per­son,” mem­bers of the Supreme Court bar noted in an unan­i­mous res­o­lu­tion hon­or­ing the late jus­tice in 1993. “Mar­shall staunchly be­lieved that equal pro­tec­tion meant On Aug. 22, 1958, Thur­good Mar­shall, cen­ter, sat on the steps of the Supreme Court af­ter he filed an ap­peal in the in­te­gra­tion case of Lit­tle Rock’s Cen­tral High School. equal — re­gard­less of color. In Peters v. Kiff, Jus­tice Mar­shall de­liv­ered the opin­ion of the court up­hold­ing a white de­fen­dant’s claim that the Con­sti­tu­tion was vi­o­lated by the ex­clu­sion of blacks from the petit and grand ju­ries. ‘The ex­is­tence of a con­sti­tu­tional vi­o­la­tion does not de­pend on the cir­cum­stances of the per­son mak­ing the claim.’ ”

Mar­shall was a great ju­rist who used his skills to move the U.S. closer to be­ing a more per­fect union. As a lawyer and a jus­tice, he pro­tected us from ac­tivist judges and the cramped think­ing of politi­cians who tried to keep our coun­try in the muck. And he never for­got how the high court’s rul­ings af­fect the least of us.

Jus­tice San­dra Day O’Con­nor wrote: “His was the eye of a lawyer who had seen the deep­est wounds in the so­cial fab­ric and used law to help heal them. His was the ear of a coun­selor who un­der­stood the vul­ner­a­bil­i­ties of the ac­cused and es­tab­lished safe­guards for their pro­tec­tion. His was the mouth of a man who knew the anguish of the si­lenced and gave them a voice.”

But per­haps the most elo­quent trib­ute to Mar­shall was expressed in two words. Dur­ing some of the dark­est times in our nation’s his­tory, when rights were de­nied, lives were threat­ened and African Amer­i­cans knew they could not turn to their govern­ment for help, calls would go out to the NAACP. When the an­swer came, the words whis­pered in homes, churches and com­mu­ni­ties were enough to calm fears, lift despair, as­suage anger and give enough hope to hold on a bit longer: “Thur­good’s com­ing.”

Thur­good came. And he came through. He taught us all what it means to love our coun­try enough to work to make it a lit­tle bet­ter, a lit­tle stronger and a lit­tle closer to what it’s sup­posed to be. That’s not ac­tivism. That’s pa­tri­o­tism.

And for that, Thur­good Mar­shall de­serves re­spect and thanks, not sneers.

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