Marshall resigns from Supreme Court Human touch--and faith in Constitution

June 28, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- When William J. Brennan Jr., left the Supreme Court last year, a good bit of elegance of thought and depth of wisdom departed, too. When Thurgood Marshall left yesterday, a whole lot of the humanity and a lot of the fun started to go out of the place.

Both were symbols, both were "unique." And they were so often on the same side of any issue that "Brennan, joined by Marshall," or "Marshall, joined by Brennan," graced hundreds of opinions.

It was no real surprise yesterday that it was "Brennan, joined by Marshall," in retirement, too. It took just a year.

No two justices among the 105 who have sat could have been so different in so many ways:

Mr. Brennan was the Catholic Democrat picked by a Republican president who went on to earn nearly everyone's accolade -- or condemnation -- as the founding parent of modern judicial liberalism, and was the best behind-the-scenes playmaker anyone around the court had ever seen -- the twinkling-eyed Irishman who could usually make even unwilling colleagues say yes, or at least maybe.

Mr. Marshall was the only black named to that bench, who merely needed to sit there to make history but who did his share of the work and wrote many of the hard-to-understand cases at the margin (not the landmarks) because he was so good a lawyer. He knew securities law the way Justice Harry A. Blackmun knows tax law: cold.

And he was the story-teller, the behind-the-scenes yarn-spinner who deflated some of his more pompous colleagues and entertained nearly all of them with homely tales that he called "catfish" stories.

In the courtroom, Mr. Brennan was all business; Mr. Marshall had a good time and teased lawyers with little mercy. Mr. Brennan spoke little and to the point; Mr. Marshall took the lawyers off into excursions, many of which were thinly veiled efforts to keep them honest.

Mr. Brennan was always taken seriously by lawyers at the lectern; Mr. Marshall seldom was. Attorneys would perk up when Mr. Brennan spoke to them; they would shift nervously and act threatened when Mr. Marshall playfully questioned them. Some tried to brush him off, only to pay for the insult.

No matter, at this point, that they were both liberals; their votes have not been counting much lately, because the conservatives control nearly all the outcomes. Justice Marshall, in fact, says he has been telling his law clerks that they would only get to write dissenting opinions.

And, little matter that they were unique in their individual ways. They leave behind other "unique" justices, ones who, like Mr. Brennan and Mr. Marshall, have a chance to become legends of their own. Some -- like Justices Antonin Scalia and Sandra Day O'Connor -- are already well on their way to that stature.

But Mr. Brennan and Mr. Marshall were the last of the "old court," the majority of win-every-time liberals that swept grandly through the history of the '60s and much of the '70s, making a lot of law that made a lot of people uncomfortable but that won a lot of hearts -- many of them of the "bleeding" variety.

The mechanics of the law had the respect of that "old court," too, but not as much as the spirit. Without apology, they thought the law was supposed to be an engine of reform, and that they were the engineers.

Mr. Brennan was the lead engineer, Mr. Marshall one of the steadiest of the hands. With Hugo L. Black and William O. Douglas and Earl Warren, they practically completed the "civil rights revolution" that Thurgood Marshall had helped set off as a lawyer with the National Association for the Advancement of Colored People.

When Mr. Brennan retired, an observer with a passing acquaintance with the court could tick off the major precedents he had written. But he had Mr. Marshall's often-necessary vote for virtually every one of them.

With Mr. Marshall, there is really only one major precedent under his name, and the court has lately cut back on that -- Stanley vs. Georgia, a 1969 ruling that says the government has no business poking around in the dirty movies or magazines that an individual keeps at home.

But, on a court of nine when Justice Brennan was one of the nine, there were not many landmark majority opinions left over for Justice Marshall to write. But the deposit of work that his many loyal law clerks look to most proudly are his -- and their -- dissenting opinions.

That is where the depth of Thurgood Marshall's judicial feelings, his constitutional beliefs, are most revealingly displayed. There are many more of those than majority opinions under his name.

It is there, his partisans say, that one finds the deep thinker as well as a real-life-issues philosopher and the civil rights lawyer who never forgot what he experienced and what he learned in the "revolution."

And it is there, they say, that one will find the best evidence of the judge who thought the Constitution was forever and reliably generous-spirited, that it was an "emancipation proclamation" all of its own.

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