Updated: Jun 18, 2020
When listening to Brooke Williams speak at her uncle’s funeral about laws already in place for African Americans to fail, Justice Thurgood Marshall came to mind. Along with Sherlock Holmes, he is a role model of mine. Of the two men, one is a fictional character and in spite of this difference the similarity between them concerning invented stories is quite revealing.
Holmes is the imaginary figure, yet during Justice Marshall’s 24-year tenure on the United States Supreme Court many viewed his legal decisions as make-believe. I’m convinced they chose to willfully avoid the wisdom contained within them. Marshall is well known for his dissenting legal opinions on the erosion of the 4th Amendment protections, and welfare policy. These cases were decided in the latter part of 80’s and point to a precise moment when racial inequality and discrimination develop into hard-core, systemic problems in America.
It happened under our watch. We had a chance to move our country into a more compassionate direction. It was on track in the 1960’s under the constitutional revolution of Chief Justice Earl Warren. His court ruled in favor of desegregation, and individuals being informed of the “Miranda” rights upon arrest. To better understand what made us go off-course, we must look at William Rehnquist who is the ideological opposite of Thurgood.
In similar fashion, Rehnquist also wrote many dissenting opinions as an associate justice on the more liberal Burger Court, and was known as its most conservative member. He voted against a woman’s constitutional right to an abortion in Roe v. Wade, and had to recuse himself in United States v. Nixon because of his connections to a number of Watergate conspirators. Two of them were Attorneys Generals. In 1986 as the Supreme Court’s Chief Justice, Rehnquist had the opportunity to bend the US toward a more conservative worldview.
I had an opportunity to argue before Justice Rehnquist in United States vs. Dominguez-Benitez on April 21, 2004. Although prevailing in the Ninth Circuit Court of Appeals to have Mr. Benitez’s guilty plea invalidated and his signed plea agreement tossed out, the Supreme Court unanimously ruled against us. The late, Justice Antonin Scalia wrote a separate concurring opinion with an often cited quote; “Such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful to the consistency and rationality of judicial decisionmaking. That is especially so when they are applied to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.”
The week following my oral argument were the last hearings for Justice Rehnquist. At the end of the 2004 term, he retired after serving for 35-years. By the time I appeared before the court, Thurgood Marshall had long since passed away. His time as an associate Supreme Court Justice was when the American paradigm shifted from identifying with an individual’s due process and human rights to seeing property rights as more crucial to determining fairness and who justice served. During Rehnquist ‘s conservative reign, first as an associate and then it’s Chief Justice, we saw our 4th Amendment rights against unreasonable search and seizures get eroded, and a distain for those in poor and minority communities.
While doing research for this blog post, I came across a Pace University law review article titled, ‘Thurgood Marshall's Dissents in Defense of the Poor’ by John T. Hand who was Director of Litigation, at Westchester Putnam Legal Services and Adjunct Professor, Poverty Law, at Pace University School of Law. Here is a relevant quote from Hand’s 1993 piece about prior ideals: “[T]hat welfare benefits are uniquely important entitlements and that people can receive assistance yet retain their dignity and responsibility to make independent decisions about how they will live. These were themes of the civil rights movement and of several federally sponsored programs of the late 1960s which sought to empower the poor as well as to feed, clothe and house them. They are also themes which lie at the heart of Thurgood Marshall's dissenting opinions in welfare cases. Over the past two decades, the trend in American welfare policy has been to make the poor live on less money by standardizing allowances and failing to increase payments in relation to the cost of subsistence needs. At the same time, governments have been imposing systems that-closely monitor the poor and require recipients to obey increasingly stringent eligibility rules. Against these trends, there are few voices being heard. The poor are poor in power; they are easy targets for legislative and administrative action based upon racial and class stereotypes and prejudice.”(Id. at pgs. 305-306)