Mediocre justice

. . . A

July 01, 1991|By Terry Eastland

JUSTICE Thurgood Marshall will be lucky to rank somewhere in the middle of the 105 Supreme Court justices who have served the United States. He wrote few opinions of major significance, either for the Supreme Court or in dissent. He was not an intellectual force. Of course, he did vote, and during his 24 years on the court, his, a liberal vote, was always the most predictable one.

Marshall worked well with Justice William J. Brennan Jr.; the two voted together 94 percent of the time during the 1980s, the highest degree of congruence of any two justices. But Brennan, a great justice by any standard, was the senior man in this partnership, and when they managed to forge liberal majorities, it was usually due to Brennan's influence within the Supreme Court. It bears noting that Marshall is retiring a year after Brennan did.

Perhaps Brennan's departure helps to explain Marshall's. Still, welcome as it is, his exit comes as a surprise. Marshall had publicly indicated his desire to stay on the Supreme Court until a Republican no longer occupied the White House.

Marshall's typically irascible comments about Republican presidents did not become him or the seat he held, and sometimes his curmudgeonly comments were, to say no worse of them, bizarre. Marshall is the justice who a few years ago told Life magazine: "If it's a dope case, I won't even read the petition. I ain't giving no break to no drug dealer."

As the Supreme Court grew more conservative in recent years, Marshall not only grew older but also became less interested in its work and more reliant on his clerks. Marshall, 83, became an argument for a mandatory retirement age for members of the court.

Marshall is not to be confused with the other Marshall, the chief justice named John, who was indeed one of our greatest jurists. But Thurgood Marshall still deserves high praise. Not because he broke the last color barrier in high public service -- save for the one still there in the presidency itself -- but because he argued so courageously and effectively before the Supreme Court to which former President Johnson would one day elevate him.

In the line of "separate-but-equal" cases that culminated in the Supreme Court's historic 1954 decision in Brown vs. Board of Education, Marshall as counsel for the National Association for the Advancement of Colored People helped persuade the Supreme Court to align its constitutional law with our best principles as a nation. It is for this enormous contribution to our public life that Thurgood Marshall should forever be remembered.

Terry Eastland is a fellow at the Ethics and Public Policy Center 1/2

in Washington.

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