Today in Supreme Court History: October 2, 1967

10/2/1967: Justice Thurgood Marshall takes the oath.

Justice Thurgood Marshall

Comments

[Dan Schiavetta]

Matter of Disbarment of Maddox, 516 U.S. 802 (decided October 2, 1995): I'm an obscure, unsuccessful lawyer and former crisis center director who has never rubbed shoulders with anyone who touched the Court, with this one (literal) exception. In 1987 Alton Maddox was one of the trio of people (with fellow lawyer C. Vernon Mason, and Al Sharpton) who represented a black teenager named Tawana Brawley, who allegedly was gang raped by police officers in a small town near my crisis center. The three kept bleating in the media about wanting justice but would not allow her to be interviewed by any prosecutor so that evidence could be gathered and charges brought. It was a fraud that caused lasting damage to race relations -- crying about injustice yet not allowing it to be righted, which unfortunately served the proto-"antiracism" crowd just fine. Eventually one could deduce that the three had realized that Tawana had fabricated her story and, having painted themselves into a corner, could not admit it. Instead they kept defaming the officers by name. Sharpton, now a commentator on MSNBC, has never owned up to it, which is why I still can't watch him.

The fallout included Maddox getting disbarred, and I was in the Appellate Division on another case when his state disbarment proceeding was being argued. I did not know it was going to happen. Unusually, the seats began to fill (with black people). I was near the front, and Maddox came in and sat right next to me!! It was weird, just he and I in the middle of a bunch of empty seats. I looked back to the crowd and said to him, "They must think I support you." He said, "Do you?" I thought for a second and said, "I wish you the best." His case got heard, I forget the details, but my case was next. Everyone left as I got up to speak and I made a little joke about nobody wanting to hear me.

I often think of what I could have done. He was probably in a hothouse atmosphere, surrounded by layers of yes-people, with no one around he could really open up to. My crisis center persona had reclaimed me. Maybe I could have said, "I think there's a reason you sat next to me," and given him my business card, and put my home phone number on it, and said, "You can call me any night. I won't tell anyone. Your name is Sam."

[Mr. Bumble]

...and the song remains the same. Sharpton is still a race huckster, now in a suit and tie rather than sweats with a huge gold chain and much slimmed down (his large head gives him the appearance of a bobble head). Maddox has been replaced by Ben Crump and a host of Black prosecutors while BLM fosters racial unrest.

[Rev. Arthur L. Kirkland]

Why does your blog attract so many bigots, Volokh Conspirators? Racists. Misogynists. Immigrant-haters. Gay-bashers. Islamophobes. White nationalists. White supremacists.

Does even one of you have enough courage and decency to try to address this point sometime? One?

[bernard11]

The fact is that Sharpton is a pretty sleazy character, and not just because of Brawley.

[Rev. Arthur L. Kirkland]

I am no Sharpton fan.

Nothing involving Sharpton diminishes the concentration of various flavors of bigots at this blog, or the point that this concentration is no coincidence.

[Dan Schiavetta]

Sharpton was exposed as an FBI informant in the mid-1980’s. Didn’t make any difference to his friends in “the movement”. They probably thought the story was a “plant”, though it’s never been debunked.

I’ll share my other story about Sharpton. He did have the good sense to recognize when someone (in this case, one of my clients) was “out of it”. He was known as “Crazy Mario” (because he looked like the video game character) and would love a few beers and then stumble around town, incoherent. He was accused of murdering, then (after she was dead) raping, a black teenager named Anna Kithcart in an alleyway in Kingston, N.Y. in 1989. Sharpton interviewed him and correctly determined that he was too mentally ill to be useful. It became a joke around us folks in the local mental health network, because we thought that Joe really was capable of such a crime. Necrophilia was not an uncommon disorder, at least with the population we were dealing with. When he got transferred to another (female) caseworker in our unit my friend got a good laugh with this advice: “when you’re in session with him, always stay in motion!”. (When you’re in that field for any length of time, you develop a sick sense of humor. Otherwise how do you stay sane yourself?)

[The Margrave of Azilia]

Marshall at least had extensive experience representing people on the bottom rungs of society’s ladder. On the court, he would sometimes point out some injustice which was hard to reconcile with the Constitution (eg, holding people without bail), but other times he just thought the Constitution was a mere speed bump in the road – most notably, thinking he could use the 8th Amendment to abolish the death penalty when the death penalty was explicitly contemplated in the 5th Amendment.

All that, when there was an equal-protection argument available to challenge the death penalty, if he’d wanted to be more plausible.

And he slighted the most vulnerable of all - children in the womb.

[Alpheus W Drinkwater]

8A requires each generation to contemplate what constitutes cruel and unusual punishment. It does not require us to stick like glue to what opinions were in 1788. Your "originalist" gloss on 8A is not mandated by the text itself.

[Mr. Bumble]

Care to elaborate?

[Alpheus W Drinkwater]

Well, not especially. I'll just say that here is 8A, in its entirety:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text doesn't define what constitutes "excessive," or "cruel," or "unusual." It doesn't state that opinions held in 1787 on those subjects are the only allowable definitions. In fact, I'm sure that opinions about that differed then, just as they do now. Therefore, interpreting the constitution as if those things weren't true (i.e. originalism) is inaccurate, dishonest, and often in bad faith.

[SRG]

Scalia explicitly stated that "cruel and unusual" is what was cruel and unusual at the time of adoption of the BoR.
\

[bernard11]

Scalia was an ass.

[Mr. Bumble]

...an ass you are not fit to wipe.

[LawTalkingGuy]

Well he’s wrong. His position basically renders the amendment worthless.

[Mr. Bumble]

The lack of definition is what causes us so many headaches.

I wonder if there is any early jurisprudence on what constituted cruel and unusual punishment. Also, would the substitution of "or" for "and" make a difference?

[bernard11]

would the substitution of “or” for “and” make a difference?</i

I'd say imprisonment - certainly as practiced in the US - is cruel, so we would have to change our entire penal system.

[Alpheus W Drinkwater]

"The lack of definition is what causes us so many headaches."

I think that is right. But I think that is a feature rather than a bug, because it forces us to consider exactly what the text means by today's standards. And this in turn helps us and future generations buy into the promise to be faithful to the constitution, because it isn't just a list of 18th century values, often outdated and even shocking by the standards of today.

[The Margrave of Azilia]

“Your “originalist” gloss on 8A is not mandated by the text itself.”

I think the technical term is “textualism.”

The Constitution refers to “capital…crime[s]” and forbids deprivation of life without due process of law. A disquisition on 18th century medicine shouldn’t be able to distract us from the words of the Constitution itself.

Sadly, you don’t want to stand up for Marshall when he opposes pretrial detention without bail. What was defective in his reasoning there?

Originalism is not the only approach to interpreting the Constitution, but the key word is "interpret," not "rewrite." Each new generation should certainly change the constitution...by amendment...when they consider it needed.

[Alpheus W Drinkwater]

I don't like the word textualism, because it's been overused to the point of being rendered meaningless. I am aware that the constitution refers to capital crimes, and also there is no doubt that capital punishment was not considered cruel and unusual in the late 18th century. But I agree with you that we shouldn't be distracted from the words of the Constitution itself. And the 8th amendment words do not state that only 1788 opinions of cruelty and unusualness are allowed. Nor does it state that capital punishment isn't cruel and unusual.

The line between "interpret" and "rewrite" is completely subjective. Originalists often pretend this isn't the case, but their arguments aren't very convincing. We are stuck with the vague language of our constitution, and to pretend that vague clauses aren't vague is itself changing the constitution.

[The Margrave of Azilia]

"the 8th amendment words do not state that only 1788 opinions of cruelty and unusualness are allowed"

OK, so, anyway, going back to what I actually said...

If you have a law, you shouldn't be interpreting one part of the law in such a way as to make another part meaningless or useless. The original Constitution's reference to capital crimes would become useless or ridiculous if the original Constitution abolished capital crimes.

If you're going to classify such sensible rules as "originalism," then you give aid and comfort to the originalists.

Of course, in 1868 we had an amendment which updated the Constitution by forbidding states from denying equal protection, and a contemporaneous statute that nonwhite native citizens "shall be subject to like punishment, pains, and penalties [as whites], and to none other" - so we see a vehicle Marshall could use (and tried to use) to get rid of the death penalty, since his experience persuaded him that this law was being ignored where the death penalty was concerned. To which the remedy would be to abolish the death penalty, at least until "we can figure out what's going on."

[Alpheus W Drinkwater]

But it seems to me you are still arguing that we can only use the 1788 view of capital punishment, but now offering the wording of other parts of the constitution as further proof of that view. You are just couching the argument in terms of a "rule" of interpretation that you find "sensible." It's a completely circular argument.

[The Margrave of Azilia]

“it seems to me you are still arguing” [imaginative reconstruction of what you think I think]

I really *wish* I were a hard-core originalist so I could thank you for the assistance you’re giving me.

Originalists argue that nonoriginalist thought will simply make the Constitution into a malleable document which can mean anything. You’re helping their portrayal of their opponents by indicating that the Bill of Rights can simultaneously forbid and allow capital punishment.

Schrödinger’s Bill of Rights?

[Alpheus W Drinkwater]

I was pretty careful to only reply to what you were actually writing, rather than imagine what you thought or what your motives are. I do understand your argument, and I think the problem is I'm not articulating my disagreement very well. Maybe I'll think on it and try again at some point.

Just as an aside, do you happen to know how the Bill of Rights was ratified? Were all ten amendments ratified at once, or were they ratified one at a time, all on the same day? If it was one at a time, an argument could be made that 8A came after the other mentions of capital punishment, and thus supersedes them, at least by minutes. Could be an interesting point, I suppose.

[bernard11]

the 8th amendment words do not state that only 1788 opinions of cruelty and unusualness are allowed.

Absolutely right.

Among other things, the very word "unusual" means that context must be taken into account. Is a snowstorm unusual? In Alabama in June it certainly is, in Minnesota in January not at all.

[Alpheus W Drinkwater]

I'd have to go back and read Marshall's opinion on that subject, but I do think it's reasonable to argue that in most cases, pretrial detention without bail is unconstitutional.

[The Margrave of Azilia]

A clear example of where the 9th Amendment would have come in handy if the justices had remembered it, and were willing to use it.

At the time of the Constitution, many states expressly recognized the right to bail in noncapital cases. So one could very plausibly argue that this was one of the rights "retained by the people."

[Sarcastr0]

He did good things but also had takes one the Constitution you disagree with. What else is there to do but say he hated the Constitution?

[The Margrave of Azilia]

Perhaps you could point me to where I said he hated the Constitution.

From your point of view, of course, he was homophobic, since he thought that claiming a right to same-sex marriage didn’t even raise a substantial constitutional question.

So are you saying he hates the Constitution?

[Alpheus W Drinkwater]

"[imaginative reconstruction of what you think I think]" said the Margrave to me.

[not guilty]

Thurgood Marshall served honorably on SCOTUS for 24 years. He was succeeded by the most prominent beneficiary of affirmative action in American history -- a Republican toady who was never fit to carry Marshall's briefcase.

George H. W. Bush's 1991 pronouncement that Clarence Thomas "is the best qualified at this time" is perhaps the most egregious presidential lie in history -- outranking even "I am not a crook" and "I did not have sexual relations with that woman, Miss Lewinsky."

[Dan Schiavetta]

True. Although the lie about Lewinsky was trivial. The lie about Thomas had long reaching consequences for the Republic.

When Thomas was nominated (and before Anita Hill came forward), I wrote an article for my law school newspaper pointing out, "For the next 40 years, the least qualified, stupidest, most ignorant person on the Court will be a black man. How will that make black men look?" A (black) friend of mine convinced me to take that out, and indeed it would have been too incendiary, but as a prediction it wasn't far off the mark. Even now, Thomas tends to act surprised at Constitutional case law and doesn't bother to educate himself as to why it developed the way it did.

[The Margrave of Azilia]

He doesn't doff his cap to precedents established by white judges? Obviously doesn't know his place.

[Dan Schiavetta]

He's not headed for a great place in the next world.

A privileged man, a federal judge with a lifetime appointment, he sat in his expensive suit and called himself the victim of a "lynching". In the afterworld he will meet victims of actual lynchings, hanged from trees, burned to death, boiled into grease, pulled apart by horses.

[The Margrave of Azilia]

I don’t know where he’s going. If using inflammatory metaphors is enough to send you to hell, Thomas will have a lot of company down below (and why would the *victims* of lynching be in hell?).

The key difference between Marshall and Thomas:

When Marshall was appointed to the Court, his greatest achievements were behind him

When Thomas was appointed to the Court, his greatest achievements were still ahead of him.

[Dan Schiavetta]

"Inflammatory" is not the word. "Wrong headed" and "abhorrent" are better fits.

Thomas, in fact, would turn a blind eye to actual lynching, according to his jurisprudence. He is Exhibit A among those who got to where they were by skin color and slammed the door behind him.

[The Margrave of Azilia]

"Thomas, in fact, would turn a blind eye to actual lynching, according to his jurisprudence."

At first I thought you were referring to the case of "poor Joshua" the abused child, but that was 1989, before Thomas was on the court.

Thus I'm not sure which jurisprudence you're alluding to.

[The Margrave of Azilia]

"George H. W. Bush’s 1991 pronouncement that Clarence Thomas “is the best qualified at this time” is perhaps the most egregious presidential lie in history — outranking even “I am not a crook” and “I did not have sexual relations with that woman, Miss Lewinsky.”"

It's worse than "After the Sudetenland, I have no further territorial demands in Europe."

[SRG]

In “Devil in the Grove”, an excellent book which isn’t yet off the shelves in Florida HSs, Thurgood Marshall says to his team of lawyers who are dispatched to defend black accused in Confederate states like Florida, that if the accused is charged with rape and the jury convicts but does not recommend or determine that they should be executed, the lawyers have done their job of persuading the jury that the defendant was innocent, because if the jury had thought the defendant was guilty, they would have gone for the death penalty.

[Mr. Bumble]

...which resulted in 60 to 65 million abortions since Roe (numbers vary by source) with approximately on third of those being potential future Thurgood Marshalls.

[SRG]

Everyone is a potential future corpse. So the "potential future" argument doesn't cut it.

And every potential future Beethoven may be offset by a potential future Stalin...

[LawTalkingGuy]

If a prison decided its medical staff could only use medical procedures on inmates that were available during the 18th century, I doubt even Scalia or Thomas would say that’s not cruel and unusual.

No one in 1791 would consider leeches, blood-letting, and using mercury cruel or unusual since it was the practice at the time. And indeed they would think it was the height of progress that prisoners had access to those treatments. But anyone who suggests that the constitution doesn’t prohibit such a practice today as cruel and unusual isn’t a serious person.

[The Margrave of Azilia]

First, that wasn’t a Church’s Chicken restroom, it was a chicken farm.

Second, that wasn’t my wife, it was Foghorn Leghorn.

“What, I say what, are you doing?”