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Seriously? Attacks on Justice Thurgood Marshall?

by Fatima Goss Graves, Vice President for Education and Employment,
National Women's Law Center

If you’ve been watching the past two days of the confirmation hearings for Elena Kagan, there is no way that you’ve missed the persistent attacks against Justice Thurgood Marshall. Specifically, Elena Kagan has been criticized for “associating herself” with Justice Marshall, who has been called a “judicial activist” and “the epitome of a results oriented judge.” Some committee members even expressed concerns that Elena Kagan, who clerked for Justice Marshall, would dare identify Justice Marshall as one of her heroes.

That’s right, the hearings have somehow become a forum for maligning Justice Marshall. The same Justice Marshall who founded the NAACP Legal Defense Fund and led the LDF team in securing the seminal decision in Brown v. Board of Education. The same Justice Marshall who served as the first African American Solicitor General. And the same Justice Marshall who served as the first African American Supreme Court Justice, enriching the Court and the nation with his service on the Supreme Court for decades.

Some of Justice Marshall’s critics were later asked by reporters to identify the specific opinions that caused them such heartburn – no list was provided. In any event, we think that a better exercise is to note some of Justice Marshall’s opinions that were of such importance to the Country – and I’ll list some that are especially critical for women. And although I’ll name just a few here, there is no doubt that Justice Marshall left his mark on women’s legal rights. Justice Marshall joined the Court in 1969, and was there to vote in support of Roe v. Wade, and continued to reaffirm that critical holding in future decisions. 

He was also a part of the majority in Reed v. Reed that for the first time struck down a law that discriminated based on sex as a violation of the Constitution — and he continued to lay the groundwork for the application of heightened scrutiny under the Constitution to gender-based classifications. In Kirchberg v. Feenstra, for example, he wrote the opinion striking down a statute that gave a husband, as “head and master” of property jointly owned with his wife, the unilateral right to dispose of such property. His legacy extends beyond the development of these core constitutional principles.

In California Fed. Sav. & Loan Ass’n v. Guerra, for example, Justice Marshall preserved the ability of state and local governments to provide for leave and reinstatement rights for pregnant employees, writing that that the California statute was not inconsistent with (and therefore not preempted by) Title VII, the federal law that prohibits discrimination in employment based on sex. 

So, I guess the good news about the attacks on Justice Marshall is that it has allowed many of us to focus on his tremendous legacy and revisit the critical place he held on the Court for so many years. Something I am glad to do.

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