By Eric Segall
Thurgood Marshall and Ruth Bader Ginsburg would both have been American heroes had neither one spent a single day on the United States Supreme Court. Both were trailblazers who spent their finest years fighting for equality. Excellent litigators who knew that change often comes slowly and reluctantly to our nation’s highest Court, they employed brilliant strategies to convince the justices to require formal legal equality for people of color and women. Their legal careers and achievements are quite similar--including how they reflect on the inanity of life tenure for Supreme Court Justices.
Thurgood Marshall started fighting against racial discrimination soon after graduating from Howard Law School, where he went because the University of Maryland did not admit Blacks in 1933. After declining a fellowship at Harvard, Marshall opened a solo practice and successfully sued the University of Maryland resulting in a judicial order requiring the school to admit Black applicants. He then joined the NAACP and soon thereafter wrote the corporate charter for the NAACP Legal Defense and Education Fund, which he ran until 1961. Along with his mentor Charles Hamilton Houston, Marshall plotted an intricate strategy to chip away at state-required segregation in public schools until he felt the time was right to turn his attention to elementary and secondary schools, resulting in Brown v. Board Education in 1954. Marshall did all this while racial discrimination placed formidable barriers in his way, which he overcame with intelligence, warmth, and dignity.
In 1961, Marshall was appointed to the Second Circuit Court of Appeals. President Lyndon Johnson made him the first Black Solicitor General in 1965 and the first Black Supreme Court Justice in 1967. He served until he retired in June, 1991, and he passed away eighteen months later.
Ruth Bader Ginsburg excelled at Harvard and Columbia Law Schools in the late 1950's. After graduation she clerked for a district court judge and eventually took a teaching job at Rutgers Law School. She began handling gender discrimination complaints, eventually took a job at Columbia, and became its first tenured female professor in 1972, the year she created the ACLU's Women's Rights Project. Throughout the 1970's she brought or helped bring numerous gender discrimination cases, some involving men, and by 1982, the Supreme Court formally adopted a rigorous standard for such cases which few discriminatory laws could satisfy. Ginsburg did all this while gender discrimination placed formidable barriers in her way, which she overcame with intelligence, warmth, and dignity.
In 1980, Professor and Litigator Ginsburg became a judge on the Court of Appeals for the D.C. Circuit, and then in 1993, she became the second female Justices on the United States Supreme Court. Of course, she passed away several weeks ago.
Both Justices Marshall and Ginsburg will be remembered more for their strong dissents than landmark majority opinions, and both of course voted mostly liberal throughout their tenures on the Court. But this piece is not about their time on the Court but the circumstances surrounding their departures.
Justice Marshall resigned in 1991, just over a year before Bill Clinton was elected President in 1992. Had Justice Marshall stayed on the bench until his death on January, 24, 1993, President Clinton would have named his successor, not President Bush, who appointed Clarence Thomas to replace him. When Marshall made his decision, it appeared to most political pundits that George H.W. Bush would be re-elected. It is likely Marshall would have made a different decision had he thought Bush might lose. The sad irony of an extremely conservative Black man who feels formal legal equality alone can sufficiently make up for centuries of legal racial discrimination replacing the man who opened so many doors to Black Americans is almost too much to bear.
The history of our country since 1992 would be very different had Justice Marshall not retired before Clinton became President. Justice Thomas joined the four other conservatives on the bench to make a five-person coalition (through several personnel changes among the conservatives) to decide Citizens United v. FEC, District of Columbia v. Heller, Shelby County v. Holder, of course Bush v. Gore, and numerous other important cases. Those decisions all come out differently if Clinton had three Supreme Court picks instead of two. The point is not whether those cases are right or wrong, good or bad. The point is they are all tremendously important, and decided by the 5-4 votes of unelected, life-tenured judges. One different justice with different values and life experiences, and Presto! our society is a very different place. The main takeaway from the Thomas-for-Marshall swap is that the justices should not be able to make such a difference to our politics and our society based on a one-vote difference between two men who could not possibly see the world more differently based on their values and experiences, not law. That is just no way to run a country.
The person picked by President Trump to replace Justice Ginsburg is of course Judge Amy Coney Barrett, a far right conservative who will almost certainly vote differently than Justice Ginsburg in most hotly contested Supreme Court cases, and she will likely do so for the next forty years, given that she is only 48. Had Justice Ginsburg lived another few months and if Biden wins, the seat occupied by Justice Ginsburg would have been filled with a liberal very different than Judge Barrett.
Assuming Barrett is confirmed and Biden wins, a likely scenario, two extremely conservative justices will have replaced two extremely liberal justices based on the happenstance of an ill-timed retirement by Justice Marshall and the death of Justice Ginsburg. Given how powerful our Supreme Court is, intervening in wide ranging cultural and political debates over abortion, affirmative action, campaign finance reform, gun control, and many other issues that cannot be persuasively answered by reference to legal texts or history, how the Court is staffed is of vital importance to the American people. We need to find a better way.
There are numerous proposals circulating around Congress to end life tenure. The most popular one is to have the justices serve for 18-year staggered terms and then have them take senior status and serve on the lower courts if they so choose. This plan would likely not need a constitutional amendment and should be adopted. Ending life tenure would not cure all of the harms caused by our overreaching Supreme Court but at least it would give all Presidents the same number of permanent appointments and would end the randomness of when SCOTUS justices are appointed.
Had Justice Marshall waited just a little longer to retire, American history since then would be substantially different. Had Justice Ginsburg lived a few more months, it is likely her replacement would have been chosen by Biden, not Trump. But the composition of the Court should not be dictated by these kinds of random events. Congress needs to end life tenure for Supreme Court justices.