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

New Post: Arizona's "Papers Please" Law

So this has been bandied about the internet for several days now and coverage has ranged from blogs to the mainstream media like Olbermann and Maddow. People have dissected this bill, sorry law, in every way they know how. Even the President has weighed in. But I feel compelled both by the gross nature of this unconstitutional bid to enshrine racial profiling into our country and my sheer boredom as I wait for my semester to end to say something myself.

This whole thing is so out of left....wait. Scratch that. This is right where our country has been headed. This is the logical conclusion to things that we've been dealing with and not objecting loudly to for several years if not decades by now. Like this or this. In a country where a sitting senator can say that he "supports racial and ethnic profiling" even when such things have proven to be both wrong and ineffective we shouldn't be a surprise. In a country where, 15 years ago, a horrible terrorist attack was carried out in that Oklahoma senator's home state by a white man who was a citizen of this country and yet we continue to view terrorists and immigrants as  something foreign or other or different, we shouldn't be surprised.

This sort of bad mouthing of immigrants, and this sort of government endorsed hatred towards immigrants has a long and well documented history from the Chinese Exclusion Act in 1882 to the No Irish Need Apply situation on the East Coast especially following the Potato Famine all the way up to the present day. The only thing that has changed is who we've decided is not as good as us. Now it's this Papers Please law and guys like Tom Tancredo (who thought he could be President!) standing up and saying we should make English the national language and require literacy tests before voting. Really? Literacy tests? I don't know how much you remember about domestic US history from...ohh...about 1875 until the 1960s. America has a history of using such tests and ideas to limit who gets to vote. They were applied in no uniform manner (only to people we wanted to discriminate against) and asked questions that most US citizens, white or otherwise don't know the answers to.

Veterans of the Civil Rights Movement has PDFs of one such literacy test in Alabama from the early 1960s. It asks questions like, "If a person charged with treason denies his guilt, how many persons must testify against him before he can be convicted?" Know the answer? I didn't either.

The point to be made here is that this kind of bunk has been an ugly part of our history for longer than we should care to remember. And it will continue to be a part of our history until we stand up and say that it's not okay. Remember, you can tell if someone's an illegal just by looking at their shoes!