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Beating Up Thurgood Marshall—A Commentary by Sam Ferguson ’09

The following commentary was posted on on September 14, 2009.

Beating Up Thurgood Marshall
By Sam Ferguson ’09

Chief Justice Roberts has gone for the rope-a-dope, and it appears that he just dealt the knock out blow.

Based on the tenor of the argument yesterday at the Supreme Court in Citizens United v. FEC, the Supreme Court is poised to overrule the 1990 decision in Austin v. Michigan Chamber of Commerce. If they do, corporations will be allowed to use general treasury funds to run advertisements and campaign on behalf of federal candidates. Corporate cash will flood our elections and special interests will be enshrined in the Constitution.

But the blow will not just be to the proponents of campaign finance reform. It will be a stinging uppercut to the legacy of Justice Thurgood Marshall.

Austin was one of Marshall's final decisions, written just a year before he retired from an illustrious career. Before becoming the first African-American to sit on the Supreme Court, Marshall lead the NAACP's fight against segregation and argued the historic case of Brown v. Board of Education. In Austin, Justice Marshall upheld a Michigan law that prohibited corporations from spending general treasury funds to support or oppose candidates for office. He reasoned that Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.

Austin was emblematic of Marhsall's judicial philosophy: He sided with the powerless and the voiceless, and he navigated through legal problems by steering towards equality.

Marshall was the conscience of liberal legal thinkers. He stood strong for everything that Chief Justice Roberts and the conservative wing of the Supreme Court are now fighting. The bout has been grueling, and Marshall is now on the ropes.

The rope-a-dope began at Chief Justice John Robert's confirmation hearings. Like Muhammad Ali against George Foreman in the Rumble in the Jungle, Roberts allowed his opponents to slip into a false sense of security. During the hearings, he promised to bring no agenda and to remain faithful to the law.

If that promise meant anything, it should have meant fidelity to the rules and values for which Justice Marshall fought for nearly 60 years as a lawyer and a judge. Marshall did more than perhaps any other person to change the legal landscape of the 20th century, and his contributions to the law - once radical - now seem like common sense. As a lawyer, he argued against Jim Crow in all its incarnations: in voting rights, in segregated housing, in schooling and in public accommodations. He gave content to the reconstruction amendments that promised an America steeped in equality. As a judge and justice, he wrote and joined dozens of opinions that expanded this legacy to make the law more fair, just and decent.

But, as soon as Chief Justice John Roberts took his seat on the bench, he came out swinging. In 2007, Roberts landed a heavy blow to Brown v. Board of Education, Marhsall's biggest accomplishment. In a school integration case, Parents Involved, the Roberts court held that the Seattle and Louisville, Kentucky, School Districts could not consider the race of pupils in making school assignments, even though the assignments were used to integrate the schools, rather than segregate. The case turned Brown on its head, and was a mid-round punch right in Marshall's face.

Roberts has landed other punches, mostly to the body. Marshall always stood for an expansive right to privacy, but in 2007, in Gonzalez v. Carhart, the Roberts court chipped away at a woman's right to choose. Marshall also joined a revolutionary opinion in 1969, granting school children important First Amendment rights. Though the decision still stands, it is all but irrelevant after an expansive 2007 decision by the Roberts court in Morse v. Frederick.

No doubt, Roberts now sees the chance for a KO. At least four other Justices - Kennedy, Scalia, Alito and Thomas - seem ready to overturn Austin.

If Marshall's legacy can muster the strength to stand back up, it has a fighting chance. Indeed, last term, the court took a swing against the Voting Rights Act, but missed. For now, the Act stands as a tired fighter of Marshall's legacy.

There was also another glimmer of Marshall's strength yesterday. The case was the first argument heard by Justice Sonia Sotomayor, Obama's nominee to the Supreme Court. She is the first Latino and the third woman to ever sit on our nation's highest court. Neither the election of president Obama nor the nomination of Sotomayor would have been possible without Marshall, and it would be tragic if Marshall's legacy were dismantled as soon as it was coming to fruition. Under their watch, let's hope the ref does not count to ten.

Sam Ferguson is a Yale Law School Robina International Human Rights Fellow.