Thurgood Marshall Take 2

Let's take a look at this Thurgood Marshall as judicial activist meme that's coming out of the Kagan nomination a little closer. As has been noted, Marshall was a Supreme Court Justice for twenty-four years so he has no dearth of opinions to be looked at. First, a little Marshall history.

Marshall began arguing before the Supreme Court in 1940, the same year he became the Chief Council of the NAACP. During this part of Marshall's life he argued numerous cases including Chambers v. Florida that upheld confessions obtained under torture violate the 14th Amendment in an 8-0 decision, Smith v. Allwright that ruled that segregated political primaries were illegal in an 8-1 decision, and of course Brown v. Board of Education that struck down separate but equal as established by Plessy v. Ferguson (1896). That was a 7-1 decision. These are all race based cases and all of them are nowhere near split courts.

After Justice Marshall's appointment to the Supreme Court in 1967 he sat for many other important cases and expanded his reach outside of the race based cases he mainly worked with while with the NAACP. In Furman v. Georgia, a 5-4 decision, Justice Marshall sided with the court that the death penalty was cruel and unusual and when, four years later, the court reversed itself in Gregg v. Georgia that the death penalty was acceptable under the constitution he dissented in every other death penalty case he heard. In Teamsters v. Terry he held union members seeking backpay have a right to a jury trial.

If this case history describes an "activist judge" so be it. But if that's the case then Justices Brown, Fuller, Field, Gray, Shiras, White, Peckham, Brennan, Douglas, Stewart, Blackmun, O'Connor, Scalia, Kennedy, etc. are all activist judges too. Clearly, Justice Marshall has a liberal judicial record. That isn't under dispute. He's viewed by pretty much everyone in that context. But I think this simple  overview shows that there was nothing activisty about Justice Marshall