Thurgood Marshall Saw This Shit Coming

By 1991, nearly a quarter century after he became the first Black Supreme Court justice, the venerable Thurgood Marshall saw the coming right-wing takeover of the courts for what it was: A legal coup powered by an entirely bad-faith interpretation of the U.S. Constitution that would – one day – allow the American right to roll back the civil rights gains of the 20th century, if not the 20th century itself.

Marshall was largely alone in calling out what he correctly saw as a coordinated, well-funded effort to stack the federal courts with judges trained in the ultimate bad-faith tradition: Constitutional originalism.

Thurgood Marshall was the one true prophet of these bad faith times and all their myriad horrors.

As he stepped down from the Supreme Court in 1991 due to ongoing health issues, Marshall's warnings for what was to come were largely ignored by mainstream media outlets, liberals, and certainly congressional Democrats, who bumbled along for an entire generation while their Republican counterparts slowly built an unstoppable legal Goliath that today can ensure any and all progressive efforts are thwarted. The American right, since Marshall's retirement, has created a legal advantage that serves both as a backstop against liberal legislation and as a weapon for frontal assaults on basic human rights won by Marshall and his cohorts in the latter half of the 20th century.

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More clearly than anyone, Thurgood Marshall – a civil rights champion who crawled through the shit of segregation and fought for the downtrodden and dispossessed – saw this coming. Marshall, who died two years after stepping down from the Court, would not be the least bit surprised by the right wing's hijacking of the Court and the resulting horrors: The end of legal abortion, the destruction of voting rights for people of color, the legalization of all-out plutocratic political corruption, the devastating rollback of governmental efforts to stop industry from poisoning the planet and killing us all, the gleeful wishes to further erode rights not specifically mentioned in the fucking Constitution.

Marshall in his final opinion on the Supreme Court pulled the alarm on the right wing's vicious intentions in ignoring all Court precedent and serving as politicians making law from the bench. The Republican-held Court – which was about to replace Marshall with the most fanatical, dangerous jurist in history, Clarence Thomas – struck down two precedents protecting affirmative action programs. To Marshall – who in 1930 was denied entry to the University of Maryland law school because he was Black – this was intolerable. He had (successfully) fought for decades as an attorney to undo the evils of segregation policies implemented by violent, wretched white supremacists determined to legalize hate. By the early 1990s, the memory of Jim Crow apparently faded in the public imagination, he watched as Republican Supreme Court appointees unraveled his work under the disingenuous guise of operating as the founders intended. Since Marshall left the Court, Republican appointees have overturned more than 30 decisions once considered untouchable legal precedent.

This is a coup. There is no other word for it.

You can almost feel Marshall's outrage, his fury, and ultimately his helplessness about what was to come on a radicalized Supreme Court bent on returning the nation to a less equal, less democratic, more Darwinian state. He knew the undeniable power of bad faith.

Marshall's final words as a Supreme Court justice will ring in your ears if you give a single shit about right and wrong, about the powerful against the powerless.

Power, not reason, is the new currency of this Court’s decision making. ... In dispatching [these two recent cases] to their graves, today’s majority ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store. . . . [T]he majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. . . . [T]he continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court. [T]his impoverished conception of stare decisis cannot possibly be reconciled with the values that inform the proper judicial function. . . . [S]tare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of “the judiciary as a source of impersonal and reasoned judgments. . . .” [T]he “strong presumption of validity” to which “recently decided cases” are entitled “is an essential thread in the mantle of protection that the law affords the individual. . . . It is the unpopular or beleaguered individual—not the man in power—who has the greatest stake in the integrity of the law.”

It was 14 years after Marshall died that the Supreme Court, taken over by the right wing after the Court's Republican appointees staged a coup in the 2000 presidential election, delivered the final blows to affirmative action, or what was once called race-conscious programs.

Writing for the right-wing majority in a 2007 case considering race-conscious programs in Seattle and Louisville, Samuel Alito dropped a bad-faith bomb that would reverberate for years. Alito wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Public programs designed to give people of color a fair crack at education and business success and general access to what some may call the American Dream was, in fact, racist, Alito wrote. Alito and his conservative Court counterparts might as well have worn "It's OK To Be White" t-shirts while hearing the affirmative action case. The intellectual rigor of Alito's argument and those vapid, racist shirts are not dissimilar. One just sounds slightly dumber (the shirt, I think).

Justice Stephen Breyer, one of the liberal justices who simply could not comprehend the level of bad faith deployed by the Court's right wing, pointed out the obvious in the dissent against the 2007 ruling against affirmative action programs. Operating in unsullied good faith, Breyer sounds almost childlike in his pushback against Alito.

"[These programs do not use race] to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. [They do not] stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together."

I want to pat Breyer on the head. He sounds adorable, and completely unable to counter the villainous bad-faith politics of his far-right colleagues.

Justice Anthony Kennedy, a Republican appointee who sided with Alito's bad-faith bullshit, tried to soften the decision by reminding school districts and universities that there are other ways to helping historically oppressed groups access a good education. It didn't matter though. The damage had been done. Kennedy had signed off on Alito's destruction of Thurgood Marshall's legacy. In a nation founded on the principles of discrimination, exploitation, and elite domination, Marshall fought to right the horrific wrongs of systemic forces holding back huge swaths of the population.

Alito saw Marshall's efforts as racism. Or, to be more precise, Alito and the Court's conservative justices had to pretend race-conscious programs were racist in order to achieve their goals. Bad faith makes everything so easy.

Originalism: The Fountain From Which All Bad Faith Flows

Originalism, for the uninitiated, is the absolute bullshit theory that the Constitution should be read as a document frozen in time, not as a living legal guide can can (and should) be interpreted to account for factors like, say, human progress. No one, even originalists, really believes this is a valid theory. Originalism's lack of seriousness is as jarring as it is comical. There are no true originalists, only true-believing political actors donning long black robes who understand the only way to turn back the clock and create an idyllic fascist society is to pretend the American founders wanted their ramblings to be interpreted as literally as possible.

It works because the founders spelled out the rights they wanted in their new nation. The rights enumerated in the Constitution are for rich male slavers – no one else. These men were vial beyond comprehension, dressing up subjugation and domination as intellectualism. In this way, the U.S. Constitution is the ultimate expression of bad faith. It did not mean what it claimed to mean. Two hundred and fifty years later, the nation's worst people are holding up the bad-faith document as justification for crushing individual rights into dust. It makes sense – the worst kind of sense, but sense nonetheless.

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Originalism ran into a slight PR problem when conservative Supreme Court justices ruled in the infamous 1857 Dred Scott decision that even free Black people could not be American citizens because – get this – that was the original intent of the founders. And it was! That's correct!

The stink of Dred Scott wafted into the 20th century and, for instance, helped sink the Supreme Court nomination of Robert Bork, an admitted constitutional originalist considered radical in the 1980s; he would be a centrist justice on today's Court. Originalism then festered underground, mostly in right-wing legal think tanks and law schools for the next couple decades, forging the bench of activist conservative judges that rule the Court (and many circuit courts) today. Shoutout to the right for playing the long game with constitutional originalism. It didn't matter to conservatives that the American public was and is repulsed by such a legal theory. These folks kept on keeping on – under the radar, out of view – until they got back power and rammed through John Roberts and Samuel Alito and all of Donald Trump's big, beautiful, contemptible Supreme Court justices, all of whom are unfit for the Court.

The bad-faith legal interpretations have only gained momentum since the a hardened right wing took over the Court in the early 2000s. Last month, Clarence Thomas – whose life goal seems to be triggering the libs – wrote the majority opinion in the landmark gun rights case, New York State Rifle & Pistol Asso­ci­ation v. Bruen in which the Court struck down New York’s 1911 law largely prohib­it­ing people from carry­ing a concealed weapon – amid almost weekly mass slaughterings of innocents by well-armed gunmen.

Michael Waldman, president of the Brennan Center for Justice, ripped Thomas' lack of legal seriousness, and his refusal to deal in good faith.

Thomas’s opin­ion mentions “public safety” as a goal precisely once in 63 pages (and only to criti­cize an earlier ruling that used that rationale). Regu­la­tion of fire­arms has ebbed and flowed. During peri­ods of high crime, we tightened gun laws, and with good reason: times change. An honest read­ing of history would acknow­ledge this fact. Thomas makes no effort to under­stand the reason why the law was enacted over a century ago, how it has worked, or the fact that New York and other states with a similar law have lower rates of gun crime than else­where. ... The most danger­ous part of the ruling was the Court’s new doctrine that all gun regu­la­tion now must be assessed only by look­ing at “history and tradi­tion.” This approach will now be parsed and followed by judges all across the coun­try, forced to play as amateur histor­i­ans, look­ing for analo­gies. Where do modern weapons, modern needs, modern “sens­it­ive places” like the subway fit in? We don’t know.

More than a decade of extremist bad-faith Supreme Court politics had seemingly changed the way Justice Breyer viewed the approaches of his disreputable conservative colleagues. In response to Thomas' extraordinarily bad-faith analysis of New York's gun law, Breyer took a mocking tone. In a helpless, toothless Court minority, it's all he could do. “Some of the laws New York has iden­ti­fied are too old. But others are too recent. Still others did not last long enough," Breyer wrote. "Some applied to too few people. Some were enacted for the wrong reas­ons. Some may have been based on a consti­tu­tional rationale that is now impossible to identify. Some arose in histor­ic­ally unique circum­stances. And some are not suffi­ciently analog­ous to the licens­ing regime at issue here.”

Breyer could have saved time and called Thomas' explanation a hot pile of shit. Thomas, Alito, Roberts, Gorsuch, Kavanaugh, and Coney-Barrett have discovered the beauty of bad faith: In a single week, these justices allowed Republican-controlled states to ban the essential health care that is abortion and barred Democratic-held states to regulate the proliferation and usage of guns. With originalism, you can have it all. It's the inherent dishonesty that makes anything possible.

While Thurgood Marshall was the one to grab the bullhorn and yell about the coming bad faith title wave threatening to envelop all of American society, he wasn't the only Supreme Court justice to call out the dangers of constitutional originalism as the right began its project to roll back the gains made by the people it hates the most. The ascension of Robert Bork to Supreme Court nominee had rattled both liberals and centrists who had forged a caretaker government in a post-Watergate era defined by a relatively strong legislative branch and a relatively weak executive. The rise of radical right wingers like Bork – who pledged to throw the country back to its deeply unequal and unjust origins – threatened that project.

“We current Justices read the Constitution in the only way that we can: as 20th century Americans,” Supreme Court Justice William Brennan said in October 1985. “We look to the history of the time of fram­ing and to the intervening history of interpret­a­tion. But the ulti­mate ques­tion must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static mean­ing it might have had in a world that is dead and gone, but in the adapt­­ab­il­ity of its great principles to cope with current prob­lems and current needs. ... Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision or events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be."

The supercharged bad faith of constitutional originalism threatens everything we hold dear. One day, it will come for you. Probably I've written that on this website (I have) but it remains true. In striking down Roe vs. Wade, Clarence Thomas made clear his next targets include same-sex marriage and contraception. Thomas and his cohorts will not stop until they are stopped.

There are no prospects for breaking the far right's hold on the Supreme Court over the next two decades, conservatively. With laser-guided gerrymandering in every red state and a stolen election of two in the coming years, Republicans could maintain a Court majority for the next half century.

This cannot be allowed. The American left's only goal should be expanding the Court. Without that – without draining the Court of its bad faith poisoning every aspect of our nation – nothing else matters.

Follow Denny Carter on Twitter at @CDCarter13.