National Review Online joins GOP's attack on Thurgood Marshall

by Adam Shah

Republicans spent a significant portion of the first day of the Elena Kagan hearing attacking Thurgood Marshall, the civil rights icon and the justice for whom Kagan clerked. Not willing to leave it to Republican senators, National Review Online has now joined in the attack.

In a June 29 post on National Review Online's Bench Memos blog, Robert Alt attacked Kagan for calling Justice Marshall's vision of the Court a "thing of glory."

Here's what Alt said in a post titled "What is a Thing of Glory?":

[I]f Kagan has a phrase that has caused her some difficulty, it is her praising as a "thing of glory" Justice Marshall's vision of the Court," which she characterized as demanding a special solicitude for the "despised and disadvantaged." In response to a question from Senator Kyl, Kagan said that what she meant by that phrase was that it was a thing of glory that the Court was open to all parties, particularly those who weren't able to get redress from other branches of government. But that reading is difficult to reconcile with what she actually said in the article, in which she stated: "And however much some recent Justices have sniped at that vision, it remains a thing of glory."

To accept Kagan's statement to Kyl, we would have to believe that justices were sniping about the Court being open to all parties. I don't recall any justice sniping about parties claiming injury getting their day in court. But some justices did recoil from Marshall's activist policies, such as those embodied by his infamous quote that "[y]ou do what you think is right and let the law catch up."

It is Marshall's quote that raises the real question for Kagan -- does she embrace a view of empathy, or solicitude for the despised and disadvantaged, or what have you that says that your policy preferences are more important than the law.

After the jump, you can read what Kagan actually said about Marshall in a law review piece in which she praised Marshall's vision that "demanded that the courts show a special solicitude for the despised and disadvantaged."

From Kagan's 1993 piece for the Texas Law Review:

The case I think Justice Marshall cared about most during the Term I clerked for him was Kadrmas v. Dickinson Public Schools." The question in Kadrmas was whether a school district had violated the Equal Protection Cause by imposing a fee for school bus service and then refusing to waive the fee for an indigent child who lived sixteen miles from the nearest school. I remember, in our initial discussion of the case, opining to Justice Marshall that it would be difficult to find in favor of the child, Sarita Kadrmas, under equal protection law. After all, I said, indigency was not a suspect class; education was not a fundamental right; thus, a rational basis test should apply, and the school district had a rational basis for the contested action. Justice Marshall (I must digress here) didn't always call me "Shorty"; when I said or did something particularly foolish, he called me (as, I hasten to add, he called all his clerks in such situations) "Knucklehead." The day I first spoke to him about Kadrmas was definitely a "Knucklehead" day. (As I recall, my handling of Kadrmas earned me that appellation several more times, as Justice Marshall returned to me successive drafts of the dissenting opinion for failing to express -- or for failing to express in a properly pungent tone -- his understanding of the case.) To Justice Marshall, the notion that government would act so as to deprive poor children of an education -- of "an opportunity to improve their status and better their lives" was anathema. And the notion that the Court would allow such action was even more so; to do this would be to abdicate the judiciary's most important responsibility and its most precious function.

For in Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission. (Indeed, I think if Justice Marshall had had his way, cases like Kadrmas would have been the only cases the Supreme Court heard. He once came back from conference and told us sadly that the other Justices had rejected his proposal for a new Supreme Court rule. "What was the rule, Judge?" we asked. "When one corporate fat cat sues another corporate fat cat," he replied, "this Court shall have no jurisdiction.") The nine Justices sat, to put the matter baldly, to ensure that Sarita Kadrmas could go to school each morning. At any rate, this was why they sat in Justice Marshall's vision of the Court and Constitution. And however much some recent Justices have sniped at that vision, it remains a thing of glory.