Thurgood Marshall Was a Great JusticeThe record should be...

SATURDAY MAIL BOX

February 06, 1993

Thurgood Marshall Was a Great Justice

The record should be set straight concerning the late Justice Thurgood Marshall, so the critical impression created in James J. Kilpatrick's column of Jan. 25 does not prevail.

Mr. Kilpatrick attempts to belittle Mr. Marshall's accomplishment a practicing attorney before his elevation to the bench.

Although he concedes that Mr. Marshall was peerless as a civil rights lawyer, Mr. Kilpatrick argues that the field of civil rights law is narrow and that Mr. Marshall's preeminence in that field only proves the cynical adage that persons tend to rise to the level of their incompetence.

The implication is that Mr. Marshall would not have excelled in other legal specialties; but it is obvious that Mr. Marshall applied himself tirelessly to civil rights litigation precisely because that area of law was of paramount importance to African-Americans, not because Mr. Marshall could not effectively practice another specialty.

To understand civil rights as a narrow field of law is not to understand it at all.

Mr. Marshall's victory in Brown v. Board of Education, finding the separate-but-equal doctrine unconstitutional, was the basis for a civil rights revolution challenging discrimination based on age, disability, gender, religion and national origin.

These other victims of systemic discrimination, particularly white women, have probably benefited more than African-Americans from the civil rights revolution which Mr. Marshall set in motion.

Mr. Kilpatrick asserts that Mr. Marshall's performance as a judge on the Court of Appeals for the Second Circuit, where he sat from 1961 until his appointment as solicitor general in 1965, was "generally undistinguished."

In fact, Mr. Marshall wrote 112 opinions on that court, none of which was overturned on appeal. Several of his dissenting opinions were eventually adopted as majority opinions by the Supreme Court.

Mr. Kilpatrick states that Mr. Marshall cannot honestly be ranked among the "great justices of all time," that none of his opinions for the Supreme Court was a "landmark," and that his passion was for justice, not for law.

It is impossible to know what Mr. Kilpatrick means by a "great" justice or a "landmark" decision because he offers examples of neither. Such tags tend to be meaningless because they are undefined or undefinable.

Certainly Mr. Marshall wrote effectively in all areas of the law considered by the Supreme Court during his 24-year tenure, and no less an authority than Justice William J. Brennan Jr. considered Mr. Marshall's constitutional vision in the areas of the First Amendment, the rights of criminal defendants and the death penalty to be outstanding.

Nor do I consider a strike against Mr. Marshall Mr. Kilpatrick's apparent criticism that his passion was for justice and not for law. Some of Mr. Marshall's key dissents, based on his notions of justice, later became law.

In a dissenting opinion in City of Mobile v. Bolden, he expressed his view that discriminatory intent was not required to find violations of the Voting Rights Act, and two years later that position was made the law by Congress.

In Santa Clara Pueblo v. Martinez, Mr. Marshall demonstrated the discipline of a great justice in refusing to strike down a law with which he clearly disagreed.

A Native American tribe had adopted an ordinance that denied )) tribal membership to the children of female members who married outside the tribe, but not to similarly situated children of male members.

The issue presented was whether the ordinance violated Title I of the Indian Civil Rights Act of 1968, which provided that "[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within the jurisdiction the equal protection of its laws." Mr. Marshall held that no suit could lie against the tribe because of the tribe's sovereign immunity.

Mr. Kilpatrick observes that Mr. Marshall's last two years on the court were frustrating to him since the solid majority of conservative justices showed an increased willingness to overturn constitutional precedents which Mr. Marshall had participated in establishing.

But Mr. Kilpatrick's statement that Mr. Marshall "quit" the court is disingenuous and disrespectful. By the time Mr. Marshall announced his retirement in 1991 he had served longer than all but one of the sitting justices -- Byron R. White -- and health was the reason for his retirement.

To say that he "quit" is no more apt of the ailing, 82-year-old Mr. Marshall than it would be of Oliver Wendell Holmes Jr., who stepped down from the court at age 91.

Burton H. Levin

Baltimore

Purify Camden Yards Games!

I was pleased to see the overwhelming support for banning smoking at Camden Yards in a recent Saturday Mail Box. I would also like to applaud the suggestion to ban beer in certain areas of the stadium.

Now, as the founder of the vegetarian ecology group hoping to eliminate animal deaths, I would like to propose the banning of eating meats at ballgames.

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