By Stephanie J. Jones
Wednesday, June 30, 2010; A17
As Sens. Jeff Sessions, Jon Kyl and John Cornyn disparaged the late Supreme Court Justice Thurgood Marshall on the opening day of Elena Kagan's confirmation hearings, dismissing him as an "activist judge" in what appeared to be a raw attempt to score political points, I wondered: "Have you no sense of decency, at long last?"
Let me put it plainly, senators: Far from being the out-of-the-mainstream caricature you seek to create, Thurgood Marshall deserves your unyielding gratitude and respect. Among other things, he saved this nation from a second civil war.
It was Marshall who, with Howard Law School Dean Charles Hamilton Houston, his mentor, conceived and then painstakingly effectuated the jurisprudence that led to the striking down of the odious "separate but equal" doctrine that threatened to destroy this country. While many decry "activist judges" (by which they seem to mean judges who uphold civil rights for minorities and women), those judges who undermine civil rights often demonstrate the most extreme forms of activism. Judges such as those who declared in Plessy v. Ferguson that racial segregation was constitutionally sound turned the Constitution on its head and made a mockery of equal protection. Those activist judges subjected an entire segment of Americans to more than half a century of state-imposed degradation, subjugation and humiliation.
A nation thus divided cannot stand. And simmering below the surface was anger, frustration and growing hopelessness. We know what happens to a dream deferred. It explodes.
But Thurgood Marshall did not let that happen. As general counsel for the NAACP, he thoughtfully laid the groundwork for change. He and a cadre of brilliant lawyers, black and white, spent nearly two decades paving the way for the Supreme Court's unanimous ruling in 1954 that "separate but equal" was antithetical to our constitutional principles. Far from activists, they were protectors of the Constitution. Unlike many of his detractors, past and present, Marshall showed the utmost reverence for the Constitution, digging it out of the trash heap on which Plessy and its progeny had tossed it and helping the nation begin to heal.
Were it not for Marshall and the Brown v. Board of Education decision, the Montgomery bus boycott that introduced the world to Dr. Martin Luther King probably would have been an exercise in futility. Without Marshall, the civil rights movement of the 1960s -- which relied heavily on the protections provided in a series of critical federal rulings based on the precedents he created -- could have gone another way.
Marshall stood up for the rights of millions of ordinary Americans who, were it not for him, would have continued to be second-class citizens, unable to vote, attend state universities or share public accommodations by virtue of the color of their skin. This would have been a very different nation -- had it even survived.
And he carried forth this work on the Supreme Court. "Whether in the majority or in dissent, Justice Marshall's faith in the Constitution encompassed more than the racial issues of his civil rights days. Indeed, he saw the protection provided by the Constitution as extending beyond color and racial constraints to preventing official governmental abuse of any disadvantaged person," members of the Supreme Court bar noted in an unanimous resolution honoring the late justice in 1993. "Marshall staunchly believed that equal protection meant equal -- regardless of color. In Peters v. Kiff Justice Marshall delivered the opinion of the Court upholding a white defendant's claim that the Constitution was violated by the exclusion of blacks from the petit and grand juries. 'The existence of a constitutional violation does not depend on the circumstances of the person making the claim.' "
Marshall was a great jurist who used his skills to move this country closer to being a more perfect union. As a lawyer and a justice, he protected us from activist judges and the cramped thinking of politicians who tried to keep our country in the muck. And he never forgot how the high court's rulings affect the least of us.
Justice Sandra Day O'Connor wrote: "His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice."
But perhaps the most eloquent tribute to Marshall was expressed in two words. During some of the darkest times in our nation's history, when rights were denied, lives were threatened and African Americans knew they could not turn to their government for help, calls would go out to the NAACP. When the answer came, the words whispered in homes, churches and communities were enough to calm fears, lift despair, assuage anger and give enough hope to hold on a bit longer: "Thurgood's coming."
Thurgood came. And he came through. He taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism. That's patriotism.
And for that, Thurgood Marshall deserves respect and thanks, not sneers.
The writer, a public affairs and government relations strategist, was executive director of the National Urban League Policy Institute from 2005 to 2010 and was chief Senate Judiciary Committee counsel to John Edwards from 2002 to 2005.