Thurgood Marshall did his best to outlast the Republican Presidents he frequently calls "those bastards." But his 83rd birthday was approaching, his health was so poor that he said he was "coming apart," and there was not much hope that a liberal Democrat would recapture the White House and name his successor. Last week Marshall, the only African American ever to serve as a Justice of the U.S. Supreme Court, gave up the seat he had held since 1967.
Despite his physical frailty and growing philosophical isolation from his fellow Justices, Marshall's was no meek or defeated departure. His last words from the bench were a stinging rebuke to the court's conservative majority. In a 6-to-3 decision, the Justices ruled that prosecutors in death-penalty cases could introduce evidence about the character of the victim and the suffering caused by the crime -- thereby reversing a precedent that was only four years old. In his majority decision, Chief Justice William Rehnquist argued that while adhering to precedent "is usually the wise policy," it was not an inexorable command, especially when decisions were "unworkable or badly reasoned."
This brought thunder from Marshall. "Power, not reason, is the new currency of this court's decision making," Marshall wrote. In the cases overturned, "neither the law nor the facts . . . underwent any change in the last four years. Only the personnel of this court did." The implications of discarding established legal principles to pursue a political agenda, he charged, were staggering. High on his list of "endangered precedents" are cases involving the right to abortion, affirmative action, limitations on the death penalty, and separation of church and state. The new approach, he added, "will squander the authority and legitimacy of this court as a protector of the powerless."
There was some irony in this clash of judicial views. Rehnquist was appointed to the court by Richard Nixon and promoted to Chief Justice by Ronald Reagan, both harsh critics of activist judges. As a civil rights attorney, Marshall won landmark rulings that overturned long-standing precedents upholding legal segregation. Now Rehnquist and his like-minded colleagues seemed bent on pursuing an aggressive conservative agenda, while Marshall was fighting to uphold the decisions of the past.
The rulings of the Rehnquist court have sent liberal activists scrambling to Congress and the states to defend rights that are increasingly under attack. In May, in Rust v. Sullivan, the court ruled that the government could cut off federal funds from health clinics that provided abortion counseling; last week Congress struck back with a bill to restore the funding. The civil rights bill is Congress's response to last year's court rulings that made it harder for employees to prove that they had suffered discrimination on the job. "We are no longer seeking out the Supreme Court to review decisions," says Nadine Strossen, president of the A.C.L.U. (American Civil Liberties Union). "Now we're constantly asking Congress to take corrective action to restore the individual liberties that the Supreme Court has taken away."