MAKING CONSTITUTIONAL LAW docx

[...]... approach to legal decision making Marshall was a lawyer and judge in the tradition of what legal historian Robert Gordon calls republican lawyering Republican lawyers, according to Gordon, "illustrate by their example the calling of the independent citizen, the uncorrupted just man of learning combined with practical wisdom." Yale Law School Dean Anthony Kronman describes the lawyer-statesman as a person... blank MAKING CONSTITUTIONAL LAW This page intentionally left blank Prologue "Things That We Knew but Would Rather Forget" In a tribute to Thurgood Marshall on his retirement from the Supreme Court in 1991, Chief Justice William Rehnquist expressed a common judgment about Marshall's career: "Almost everyone who sits on the Supreme Court is remembered for some contribution to American constitutional law. .. Marshall's cases involved civil rights or broad questions of constitutional law; the rest involved business matters Marshall took on the business cases in part because he thought it was his responsibility as the solicitor general and in part because he had been stung by statements in a New York Times article asserting 22 MAKING CONSTITUTIONAL LAW that he had not performed well as a judge in business cases... to Blackmun 8 M A K I N G CONSTITUTIONAL LAW tion and upbringing of decent, law- abiding youngsters, to agree that the 'nuclear' family is the basic building block of our society." The nuclear family, Marshall wrote, was "a middle class norm that government has no business foisting on those to whom economic or psychological necessity dictates otherwise."18 According to one law clerk, Marshall asked... his law clerks about the opinions before he had the clerks draft them and guided them in resolving the issues.18 As a judge, Marshall understood that the Warren Court was transforming the constitutional law surrounding the criminal process Sympathetic to that effort, Marshall sought to push it forward where he could, though he by no means automatically agreed with defendants' claims that their constitutional. .. dimension of constitutional law and argued that cases squarely contrary to Hetenyi's position had been "tarnished by the gradual but certain evolution of our constitutional understanding of justice and fairness." The courts, Marshall wrote, must be "faithful to the evolution of our societal values" and should reject opinions rendered "during th[e] lull in the Supreme Court's concern for constitutionally... comedian Lenny Bruce faced prosecutions all 18 M A K I N G C O N S T I T U T I O N A L LAW over the country for his act's allegedly obscene content.29 In New York, Bruce tried to get a federal court to keep the state from enforcing its criminal obscenity law against him Acting as his own lawyer in a situation that even the best lawyer would have found difficult, Bruce fumbled the procedures, and the federal... then, was delegated to the assistants and to the staff 37 20 M A K I N G C O N S T I T U T I O N A L LAW When disputes arose between Marshall's staff and lawyers elsewhere in the Justice Department, Marshall called the lawyers into his office and listened to them present their positions Then, often making some sort of joking comment, he announced which one he agreed with Marshall's judgments about... history had [he] never ascended the bench at all," properly acknowledges Marshall's work as a lawyer for the NAACP Yet it may erroneously suggest that Marshall's contributions to constitutional law through his work as a justice were unimportant 4 On the Court, Marshall was a Great Society liberal Speaking with his law clerks, he referred to Lyndon Johnson as "my President," while Richard Nixon was "your... as I get them." In still another case, the lawyers on the other side concluded from Marshall's "uninspired" oral argument that he was "either fundamentally unfamiliar with labor law or a poor oral advocate."45 These criticisms of Marshall's performance must be placed in a broader context The business law issues, though important to the development of national law, did not deeply engage the Warren Court's .