Thank you for the reminder. Little known is Justice Marshall's role in the writing of the Kenyan constitution as well as many, many contributions to the development of human rights thought in this country.

"I would like to take up a lot of bandwidth here and reprint his speech to the 2nd Circuit judges conference back in 1981. A famous talk, The Sword and the Robe.

It shows how a balanced and humane mind viewed the role of judges:

By Thurgood Marshall: THE SWORD AND THE ROBE

The task of interpretation is the cornerstone of the judicial process. As we undertake it, we must strive for neutrality. None of us is perfect, and I recognize that neutrality is more ideal than real. Each of us brings along to the judicial role certain preconceived biases. It is, I suppose, impossible to make a decision totally uninfluenced by them. But we as judges must try to do so to the extent we possibly can.

This ideal of neutrality is particularly hard to maintain in times such as these, when our society faces major unsolved problems. Indeed, we judges are frequently criticized these days for our neutrality. For example, it is argued by some members of our society that the judiciary has not taken an active enough role in combating crime. It is urged that we as judges, should take sides, that we should stand shoulder to shoulder with the police and prosecutors. Convictions should be easier, appellate review more rapid and resort to habeas corpus – what the founders of this republic called the Great Writ – drastically curtailed. All of this frightens me, because when I was in law school, I was taught not that judges were there to see the defendant convicted and punished in every case but that they were there to see justice done in every case. Of course the state had to carry a heavy burden to obtain a conviction. Of course appellate judges would weigh each case carefully. Of course an individual, once convicted, could attack his sentence later. This, so I was taught, was not to coddle the guilty but to protect the innocent. I was raised in the days when the prevailing maxim was: "It is better that a thousand guilty people go free than that one innocent person suffer unjustly.

Well, that's just what I was taught, and maybe I was taught wrong. But the suggestion that we as judges take sides frightens me for another, more fundamental reason as well. As I have said, judges are required in our system to be as neutral as they possibly can, to stand above the political questions in which the other branches of government are necessarily entangled. The Constitution established a legislative branch to make the laws and an executive branch to enforce them. Both branches are elected and are designed to respond to everchanging public concern, and problems. Indeed, as we were reminded just last November, the failure of either branch to respond to the will of the majority can quickly be remedied at the polls.

Bar the framers of the Constitution recognized that responsiveness to the will of the majority may, if unchecked, become a tyranny of the majority. They therefore created a third branch – the judiciary – to check the actions of the legislature and the executive. In order to fulfill this function, the judiciary was intentionally isolated from the political process and purposely spared the task of dealing with changing public concerns and problems. Article III judges are guaranteed life tenure. Similarly, their compensation cannot be decreased during their term in office – a provision, as we have recently seen, that certainly has its tangible benefits, Finally, the constitutional task we are assigned as judges is a very narrow one. We cannot make the laws, and it is not our duty to see that they are enforced. We merely interpret them through the painstaking process of adjudicating actual "cases or controversies" that come before us.

We have seen what happens when the courts have permitted themselves to be moved by prevailing political pressures and have deferred to the mob rather than interpret the Constitution. Dred Scott, Plessy, Korematsu, and the trial proceedings in Moore v. Dempsey, come readily to mind as unfortunate examples. They are decisions of which the entire judicial community, even after all these years, should be ashamed. There have also been times when the courts have stood proudly as a bulwark against what was politically expedient but also unconstitutional. One need only recall the school desegregation cases to understand why this ability to stand above the fray is so important.

Our central function is to act as neutral arbiters of disputes that arise under the law. To this end, we bind ourselves through our own code of ethics to avoid even the appearance of impropriety or partiality. We must handle the cases that come before us without regard for what result might meet with public approval. We must decide each case in accordance with the law. We must not reach for a result that we, in our arrogance, believe will further some goal not related to the concrete case before us. And we must treat the litigants in every case in an evenhanded manner. It would be as wrong to favor the prosecution in every criminal case as it would be to favor the plaintiff in every tort suit.

We must never forget that the only real source of power that we as judges can tap is the respect of the people. We will command that respect only as long as we strive for neutrality. If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the long run, however, we will cease to be perceived as neutral arbiters, and we will lose that public respect so vital to our function.

I do not suggest that we as judges should not be concerned about the problem of crime. Every thinking American is worried about it. And just about all of us have lurking somewhere in the back of our minds what we consider the ideal solution.

But when we accepted the judicial mantle, we yielded our right to advocate publicly our favored solutions for society's problems. The tools for solving these problems are in the hands of the other branches of government because that is where the Constitution has placed them. That is also where we should leave them. I therefore urge that you politely disregard any suggestion that you give up the robe for the sword."

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So this was one of the "activist" justices of the Warren Court as rightwing historiography would have us view him?

Oh yes, and yes, he was an evil activist judge, aparently! I tell you... Thanks for your comments.

And to think some folks thought Clarence Thomas was a fitting replacement for Mr. Justice Marshall.

And lest we forget:

William (Bill) Hastie
Leon Ransom
Charles Hamilton Houston
R J Brown
Louis Redding
Floyd McKissick
Constance Motley
Spottswood W Robinson III
A P Tureaud
C O Pearson
Jim (Little Jim) Nabrit Jr.

and so many more of name evergreen

It fills the heart with pride and sadness to read the old warrior's final opinions from the 1991 term. He anticipated in so many ways the changing temper of the nation from the relaxation of efforts to combat stigmatization caused by de facto segregation, through the growing judicially condoned powers of the state to infringe on civil liberties. He never quit fighting.

From Florida v Bostick Marshall authored the following dissent. At issue was police searches on public transportation...."Does an impermissible seizure result when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage?"

"The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far. If this Court approves such 'bus stops' and allows prosecutions to be based on evidence seized as a result of such 'stops,' then we will have stripped our
citizens of basic Constitutional protections. Such action would be inconsistent with what this nation has stood for during its 200 years of existence. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and question them, then the police will be free to accost people on our streets without any reason or cause. In this 'anything goes' war on drugs, random knocks on the doors of our citizens' homes seeking 'consent' to search for drugs cannot be far away. This is not America."..

It is exactly because this "choice" is no "choice" at all that police engage this technique.

In my view, the Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government's drug war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing. Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation's buses law enforcement-free zones."...
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Substitute airports for bus and rail, and we can see how Thurgood Marshall would have viewed the current state of affairs in our national transport.

For those interested, it is good to read the authored dissents he wrote in his last years on the Court. In cases like McCleskey and Payne he weighed in on fundamental issues of fairness and liberty that have gotten lost the last 17 years.

Did BHO make any remarks about TM Wednesday? It would be good to recognize his (and a lot of the names I listed above) as the true American heros they were.

I carried a gun and wore a uniform way back when but never considered myself a hero. We seem to glorify physical courage and underrate moral courage. The men and women of the civil rights movement in America had both qualities in abundance but are fading into the general culture amnesia of this country. How many black Americans now remember the name of A P Tureaud for example? And even how fewer other Americans?