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Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what Justice Marshall would think of the Supreme Court’s jurisprudence during the seventeen years since his retirement. In the author's opinion, he would be “appalled, but not surprised,” particularly by those decisions involving affirmative action, an area about which he was especially passionate. Justice Marshall would be “appalled, but not surprised” because he foresaw the future direction of the Court and did not like it. In his last dissent, issued only hours before his surprising announcement that he would retire immediately, Justice Marshall blasted the Court as it overruled two recent precedents:

Power, not reason, is the new currency of this Court’s decision making. Four Terms ago, a five-Justice majority of this Court held that “victim impact” evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. . . . By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. . . . Nevertheless, having expressly invited respondents to renew the attack, today’s majority overrules [both prior cases] and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting [those cases] underwent any change in the last four years. Only the personnel of this Court did. . . .
. . . 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.”
. . . [T]he majority’s debilitated conception of stare decisis would destroy the Court’s very capacity to resolve authoritatively the abiding conflicts between those with power and those without. If this Court shows so little respect for its own precedents, it can hardly expect them to be treated more respectfully by the state actors whom these decisions are supposed to bind.

Marshall’s words were prophetic. Since his retirement, the Court has overturned more than twenty-six cases. And this number does not include those cases where the Court, rather than overturning a precedent outright, distinguished it with such unpersuasive rationales that even those who agreed with the majority on the results were outraged.

Publication Citation

52 How. L.J. 617-636 (2009)