Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 / Edition 1

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Following on Making Civil Rights Law, which covered Thurgood Marshall's career from 1936-1961, this book focuses on Marshall's career on the Supreme Court from 1961-1991, where he was the first African-American Justice. Based on thorough research in the Supreme Court papers of Justice Marshall and others, this book describes Marshall's approach to constitutional law in areas ranging from civil rights and the death penalty to abortion and poverty. It locates the Supreme Court from 1967 to 1991 in a broader socio-political context, showing how the nation's drift toward conservatism affected the Court's debates and decisions.

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Editorial Reviews

From the Publisher
"Tushnet has produced an account of what went on within the Supreme Court during Marshall's tenure that is not only well researched but also well written. Readers without a legal background will appreciate his very clear explanations of arcane doctrines...Tushnet offers readers extremely informative accounts of the court's internal arguments over civil rights and the death penalty."—America Historical Review

"By sticking to constitutional law issues...Tushnet is able to tie the pieces together into a fascinating and worthwhile journey through the life of the nation's first African American Supreme Court justice. Highly recommended for both general and academic readers at any level interested in law, political science, history, ethnic studies, or cultural studies."—Choice

"Weaving a narrative mainly from the public records of Marshall and other justices, interviews with colleagues and his own personal recollections as a clerk for Justice Marshall, Tushnet has delivered another impressive account of Justice Marshall's influence on the making ofcivil rights and constitutional law. It is a book deserving of a close reading by scholars of Supreme Court jurisprudence."—Ihe Law and Politics Book Review

"Tushent boldly and honestly portrays Marshall's constitutional jurisprudence...[a] fine study of Marshall."—Los Angeles Daily Journal

"Making Constitutional Law stands as a learned tribute to a man who never forgot what the civil rights struggle was about and the centrality of the Constitution in that struggle.Marshall truly fought the good fight, and departed with his head high. Professor Tushnet has reminded us why we are so proud of this man in whom so many of us placed our faith."—Nathaniel R. Jones, United States Court of Appeals for the Sixth Circuit

Matthew Wetstein
Three years ago Mark Tushnet published the companion volume to this book cataloging Thurgood Marshall's profound influence on civil rights law as a lawyer for the NAACP Legal Defense Fund (LDF). That book was widely praised for its meticulous use of the documentary record and interviews with protagonists. Joel Grossman, reviewing the book for the LAW AND POLITICS BOOK REVIEW, described it as a "fascinating narrative history" that "effectively reveals the qualities of mind and heart and speech that produced one of our greatest public advocates" (Grossman 1995, 137). Tushnet's second book is no less impressive. Weaving a narrative mainly from the public records of Marshall and other justices, interviews with colleagues, and his own personal recollections as a clerk for Justice Marshall, Tushnet has delivered another impressive account of Justice Marshall's influence on the making of civil rights and constitutional law. It is a book deserving of a close reading by scholars of Supreme Court jurisprudence. There are several theses that are uncovered throughout the reading of this book. Most important perhaps are the two that relate to Marshall's overall impact on the Court and its jurisprudence. First, and perhaps most ironic, is the thesis that Marshall had a greater impact on civil rights law before his appointment to the Supreme Court, than he did on constitutional law while serving on the Court. This thesis is not new, and was widely identified even by justices on the Court at Marshall's retirement. Still, Tushnet's discussion of cases and controversies decided by the Court clearly reveal that Marshall was increasingly marginalized as the make-up of the Court evolved and "swung to the right." Tushnet's discussion of memos between chambers, and the opinions drafted by Justices helps to amplify this thesis in a clearer light. A second thesis, and perhaps less well-known in the public at large, is the thesis that Marshall contributed greatly to the jurisprudence of equal protection theory. Of course Marshall's presence as the first African-American on the Court makes this no great surprise, but the reason for it has less to do with his race than with his common-sense approach to the notions of equal treatment under the law. Tushnet's book emphasizes Marshall's unique rejection of the two-tier approach adopted by the Court for analysis of equal protection claims (strict scrutiny versus the intermediate/rational basis standard). An entire chapter is devoted to the problems inherent in cases that separate "suspect classifications" and the strict scrutiny test from non-suspect classifications and the rational basis test. Instead, Marshall advocated a "sliding scale" approach to equal protection cases, one that would balance the interests of competing claims, and arrive at a decision on the basis of those claims (Tushnet, chapter 5). The great irony here is that Marshall lost this argument as well, leaving his jurisprudential legacy in a string of dissents challenging the Court's continued reliance on a frustrating tiered system that appeared to be applied in an ad hoc form. A third thesis, implicit throughout the book, is the obvious point that the writing of draft opinions is an important factor in the Court's ultimate rulings. This is no earth-shattering finding to report to public law scholars, but Tushnet's description of the way in which memoranda are exchanged, and the approach taken by justices toward modification of some opinions on controversial cases is remarkable. Tushnet could have been more explicit in developing this thesis of the importance of post-conference writing through stages of revision, but the cumulative effect of reading this book is clear: Justices' opinions are often the result of bargaining, horse-trading, deleting, inserting, melding, cajoling, and re-shaping. Tushnet's service as a clerk for Justice Marshall might have predisposed him to write sympathetically about his former boss. While much in the book is sympathetic, Tushnet deserves credit for presenting a relatively balanced and objective picture of Marshall in this work. In other words, Marshall does not evade Tushnet's criticism. In particular, Tushnet does an effective job describing Marshall's weakness as Solicitor General before his appointment to the Supreme Court (see chapter 1). Marshall gets balanced reviews here, with positive comments about his work style and relations with subordinates in the Justice Department, but criticism for his occasional failure to prepare well for oral argument, especially in cases pertaining to business and labor issues. The moral of the story is that if the case was peripheral to Marshall's passionate interests in inequality and discrimination, the case got less attention from his critical mind. Marshall's opinions also receive critical treatment as well. While much of the commentary points to Marshall's ability (with Justice Brennan) to crystallize an argument in favor of a powerless underdog or minority group, his opinions are not simply applauded by Tushnet. Indeed, the discussion of the equal protection theory advocated by Marshall is criticized precisely for its simplicity. While Marshall advocated a sliding scale of balancing interests in these cases, Tushnet is right to point out that the sliding scale can be very subjective and open to the ideological whims of justices on the Court. Tushnet's book also deserves praise for its thematic organization. The chapters are presented sequentially to focus on areas of law as distinctive threads. In order of presentation, the book cycles through topics and case law dealing with working relationships on the Court, school desegregation, equal protection cases, affirmative action, the death penalty, and the overall jurisprudence of Marshall. Cases are presented in a chronological order in those thematic chapters, with discussion of internal disputes over draft opinions highlighted throughout. The story that emerges is one that is layered and textured, and rooted in the debates that spilled out of conference deliberations. This method is put to particularly good use in the chapter on death penalty cases (chapter 7), where the Court seemed most bitterly divided -- ironically more so than with the race discrimination or desegregation cases (Tushnet, 146). Marshall's opposition to the death penalty was firmly rooted in the Eighth Amendment, but changing attitudes toward the death penalty left him in the minority in the mid-1970s. His opposition was also predicated on statistical evidence that race plays a disproportionate role in death sentences, but once again, Marshall was left in the position of dissent on an increasingly conservative Court. While my impression of Tushnet's book is largely positive and full of praise, there are a few weaknesses that do deserve mention. First, and most important, is the fact that several critical areas of law are omitted from the book, most notably First Amendment cases and a host of cases relating to criminal due process rights. Reading Tushnet's book, one is left to wonder whether Justice Marshall had any significant impact in those areas of law. To Tushnet's credit, there is some brief commentary on significant cases in the second chapter highlighting critical early opinions by Marshall in these areas. The examples include BENTON V. MARYLAND (1968), incorporating the double jeopardy provision as applying to the states; STANLEY V. GEORGIA (1969), the seminal obscenity ruling asserting the right to be left alone at home to view material; and AMALGAMATED FOOD EMPLOYEES V. LOGAN VALLEY PLAZA (1968), upholding the First Amendment right to picket at a mall. Still, I was looking for more detailed discussion of these other areas of law. On a more nit-picky level, I was constantly frustrated by the book's failure to place cases in italics in the notes and list of cases in the appendix. This may seem minor to some readers, but it is difficult to find citations in long end notes when everything is in plain text. Overall, the strengths of the book clearly outweigh the weaknesses. Perhaps the most lasting impression from the book emanates from Tushnet's ability to convey the spirit of Thurgood Marshall. Through Tushnet's words, we perceive all the positive and few negative qualities of Marshall's personality. Words like gregarious, passionate, charming, self-confident, a quick study, a delegator, earthy, social engineer, impatient, and raconteur come to mind. Tushnet's book is also very moving in conveying the deep personal attachments many American citizens still feel toward Marshall. The book closes with a particularly telling description of Marshall's gravesite in Arlington National Cemetery. Quoting Tushnet: Visitors at Marshall's gravesite at Arlington National Cemetery who arrive at the right time may be struck by what they find there. Occasionally, scattered on the marker with its simple description "Civil Rights Advocate" may be a few pennies. Evoking the African-American tradition of grave decoration, the pennies have a deeper meaning as well...The pennies reflect the judgment of visitors on what Marshall had done with what he had: For them, Abraham Lincoln, depicted on the pennies, was the first "Great Emancipator;" Thurgood Marshall was the second (Tushnet, 196). Tushnet has captured much of Marshall's essential qualities in this book, and I recommend it to readers of the LAW AND POLITICS BOOK REVIEW.
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Product Details

  • ISBN-13: 9780195093148
  • Publisher: Oxford University Press, USA
  • Publication date: 3/28/1997
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 256
  • Product dimensions: 6.31 (w) x 9.50 (h) x 0.76 (d)

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