The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2015, I asked whether we would "one day see a movement to remove the bust of Chief Justice Taney from the Supreme Court?" The following year, I told the New York Times that if Taney's tribute was removed, then Chief Justice Marshall would be next. I blogged that I was "waiting for the movement to dismantle John Marshall's statue for his discussion of Native Americans in Johnson v. M'Intosh." In that case, Marshall referred to Native Americans as "fierce savages."
Over the past few years, as the movement against Taney has grown, I've kept the Marshall statue in mind. Indeed, the Marshall statue played an important role in my SCOTUSBlog post on Vance and the Burr trial.
We know that the great Chief Justice Marshall held hundreds of slaves. So far, Marshall has stayed out of the limelight. No longer.
Gerard Magliocca asks if John Marshall is next:
The Supreme Court will at some point confront this question about John Marshall. When you tour the Court, a statute of the Chief Justice dominates the exhibit hall downstairs. When new Justices are formally given their place on the Court, they sit in John Marshall's chair during the ceremony.
The problem is that John Marshall owned people. In fact, he owned hundreds of enslaved people. Paul Finkelman's recent book on that fact (called Supreme Injustice) is well worth reading (at least for the portion about Marshall). In writing my biography of Bushrod Washington, I was struck by Marshall's terrible record on slavery and on race (including various comments that he made in letters). Much of this record was not known until recently, which partly explains why the Chief Justice has escaped the criticism that the other Founders from Virginia now justly receive.
Does this change my opinion of Marbury or McCulloch? Not at all. But do I think that Marshall should be singled out for special recognition within the Supreme Court building? Not anymore.
Taney's opinion in Dred Scott is universally reviled. But he did emancipate his slaves. Marshall owned slaves, and engaged in awful jurisprudence in Johnson, and in other cases.
Will the Marshall statue stand forever? I bet Chief Justice Roberts would rather resign than see the Marshall statue go. Or maybe if the Marshall statue goes, Roberts can no longer remain the Chief. Hmmmm.
If Marshall is cancelled, who is next? Earlier this spring, I started a spreadsheet that listed all of the justices, and noted possible grounds of cancellation. As a threshold matter, there were personal concerns.
- Did the Justice own slaves, fail to emancipate slaves, engage in business or legal transactions involving slaves?
- Did the Justice engage in other forms of personal bigotry? (Justice McReynold's antisemitism comes to mind).
- Did the Justice personally support eugenics? (Holmes, etc.)
- Did the Justice personally advocate for gender inequality? (Justice Brandeis's famous brief in Muller v. Oregon would fit the bill)
- And so on.
Then, I considered whether the Justice voted the wrong way in cases that involved a host of hot-button issues:
- Slavery (Prigg, Dred Scott, and others).
- Native American rights (Johnson v. McIntosh, and others)
- Jim Crow (Cruikshank, Plessy, and others)
- Racism against other groups (the Insular Cases, the Chinese Exclusion Cases, Justice Harlan's Plessy dissent).
- Bias against women (Bradwell v. Illinois, Muller v. Oregon, Adkins v. Children's Hospital, and others.)
- Eugenics (Buck v. Bell).
- Discrimination against gays and lesbians (Bowers v. Hardwick, Baker v. Nelson, and others).
I abandoned the project because I'm not sure any Justice could survive the cull. On the current Court, the Roberts five are cancelled many times over. Shelby County. Trump v. Hawaii. Espinoza. And so on.
What about the Court's current four progressives? Even the saintly RBG has some difficulties. For example, Justice Ginsburg wrote the majority opinion in United States v. Virginia. Her opinion stated that the Virginia Military Institute could separate students based on their "physiological differences." She wrote, that VMI "would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs." I'm not sure if those statements would be deemed transphobic. Justice Breyer joined that opinion.
What about Justice Kagan? Her moderation in some religious liberty cases, such as Little Sisters of the Poor and Our Lady of Guadalupe, could be grounds for cancellation. I think Justice Sotomayor could possibly make the cut, but she has declined to dissent from some death penalty cases that involved racist prosecutions.
I do not envy a Biden administration that would have to select a new Supreme Court justice. I'm not sure if there is any nominee who could satisfy every single interest.