The wrong kind of judicial hero

During the Elena Kagan hearings, Thurgood Marshall, for whom Kagan clerked, was a hot topic. Kagan has called Marshall one of her judicial heroes. Repubican Senators reasonably took this to mean that she would be a liberal activist in the Thurgood Marshall tradiition. After all, Kagan has specifically praised Marshall for showing “special solicitude” for the “disadvantaged,” claiming that the Supreme Court exists primarily for that mission.
Kagan wisely (but implausibly) backed away from Marshall’s judicial vision, even though she has called it “a thing of glory.” Nonetheless, as Ed Whelan notes, the Republicans took a pounding from Democrats on the Committee for disrespecting Marshall.
Marshall is a true American hero for what he did before becoming a Supreme Court Justice. However, it’s not a huge secret that he didn’t distinguish himself on the Court. In their book The Brethren, Bob Woodward and Scott Armstrong reported that Marshall was more or less addicted to television, especially soap operas, and that this habit interfered with his work. Marshall reportedly was angry about this disclosure, but, at least in this account, didn’t deny it. His wife claimed that although the Justice always had the television on, it was just background noise. Yet Marshall once told Justice Brennan that much could be learned about life from soap operas.
According to Whelan, a forthcoming biography of Justice Brennan will reveal that Brennan was deeply disappointed in Marshall’s performance as a Justice. Brennan found him disengaged and unwilling to carry his share of the workload in the fight to “preserve the gains” of the Warren Court. A lawyer I knew who clerked for Marshall once implied the same thing to me.
Presumably, then, Kagan’s admiration for Marshall as a Justice is not based on his output. It must be based, as her own words demonstrate, on his essentially lawless vision, under which the Supreme Court’s mission is to provide certain categories of people with special solicitude.

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