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THE TRIUMPH OF THE RIGHT : With Marshall's exit, the liberal legacy is imperiled. : A Voice for the People Tires of Being Ignored

June 30, 1991|David M. O'Brien | David M. O'Brien is a professor at the University of Virginia and the author of "Storm Center: The Supreme Court in American Politics" (Norton) and, most recently, of "Constitutional Law and Politics" (Norton)

CHARLOTTESVILLE, VA. — An era in constitutional law and politics has ended. Last week, Justice Thurgood Marshall retired at the end of a term in which the Supreme Court shifted dramatically rightward--on free-speech issues, privacy, abortion and criminal justice. The combined forces of the younger, staunchly conservative appointees of Republican Presidents Ronald Reagan and George Bush may well have proved too much for the 82-year-old justice who has long had health problems.

More than ill health must have figured into Marshall's decision, though. His closest ally, and the court's most influential liberal, Justice William J. Brennan Jr., retired less than a year ago. With Brennan's departure, the push of political changes and history proved insurmountable. Marshall, of course, had watched the tide turn with each of the past nine successive appointees of Republican presidents from Richard M. Nixon to Bush. But he may have lost hope in the face of the gravitational pull of the most conservative court in more than 40 years.

Marshall was never a strong consensus-builder or leader on the court--as Brennan was. But he remained a fighter, doggedly adhering to stands that made him one of the country's great civil-rights attorneys and leaders. He was the court's last uncompromising liberal. Still, this embattled and, at times, acerbic justice was losing ground in a war already over.

With the Rehnquist Court pressing ahead, Marshall was relegated to the margins, forced into dissenting alone, or with Justices John Paul Stevens and Harry A. Blackmun. Indeed, one measure of the end of liberalism on the court is that Marshall, Blackmun and Stevens were lumped together as the "liberals." Yet, neither of the two other justices comes close to Marshall's liberal credentials and neither brought to the bench the kind of experiences he had fighting in the trenches for equality.

On the last day of the term, Marshall stared down from the bench at Brennan, who was sitting in the court. Appearing tired and disheartened, he must have realized he could not carry on against the conservative juggernaut in full swing. His conservative colleagues were virtually ignoring his heated defense of liberal positions.

That had less to do with Marshall--though, to be sure, he was never as persuasive as Brennan. Rather, the court's working majority no longer felt compelled to take liberal arguments seriously. More often than not, they were preoccupied with fighting among themselves over how far they should shift to the right. Justice Antonin Scalia, for one, was usually so busy attacking moderate conservatives, like Justice Sandra Day O'Connor, that he had little time for Marshall's protestations.

The first black to sit on the high bench, and the last appointee of a Democratic President, Marshall was nominated by Lyndon B. Johnson in 1967. His appointment was politically symbolic of the times. Johnson and a Democratic Congress had pushed through the first major civil-rights legislation in more than a century. They reached out to strike down barriers and expand opportunities for blacks, women and other minorities. Marshall was a larger-than-life-metaphor for that controversial period in American politics. And he will remain so. Regardless of who Bush names, Marshall's successor will surely not share his passionate drive for civil rights and liberties.

During his 24 years on the court, Marshall sat through a 180-degree turn in sensibility. He came aboard at the height of the liberal-egalitarian revolution forged in constitutional law by the Warren Court (1953-1969). Between 1961 and 1969, more than 76% of the Warren Court's rulings each term went in a liberal direction--protecting individuals and minorities against the government. Then, during the Burger Court years (1969-1986), the percentage dropped below 50% each term, with one exception. Even more disturbing than that reversal of fortune for this aging defender of civil rights was the counterrevolution the Rehnquist Court now rushes to put in place.

Charting new directions, the Rehnquist Court is overturning even those infrequent Burger Court decisions that protected individual rights. Last term, virtually every ruling on the rights of individuals under the Fourth and Fifth Amendments went the government's way. Repeatedly, Marshall warned that the country's "war on drugs" must not come at the cost of sacrificing basic liberties. But a critical mass on the bench was no longer sympathetic. Instead, "dragnet-style sweeps" and random, warrantless searches and seizures by law-enforcement officials were upheld.

Marshall also leaves a court poised to overturn landmark decisions on abortion, affirmative action and religious freedom. In granting cases for next term, the Rehnquist Court prepared the way, as well, to further cut back on previous rulings safeguarding free speech and promoting equal opportunities for racial minorities.

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