Thoughts on the Supreme Court and Why It May Never Be the Same.
For all but two years of my life three giants sat on the Supreme Court: Earl Warren, Thurgood Marshall and Ruth Bader Ginsburg.
With the passing on Friday of Justice Ginsburg, a golden era has passed in our jurisprudence. That era began in 1953 and was announced in 1954 in the first Brown decision, invalidating de jure segregation in American life.
Yes, Brown I held that in the field of public education separate but equal is inherently unequal, but so doing it tolled the death knell for two centuries of racial apartheid sanctioned by law. It undid the travesty of Plessy v. Ferguson and began America on the uneven path towards equality.
That decision as much as any in Supreme Court history was a product of fate. The death of Chief Justice Fred Vinson allowed a new Republican president to remove a political rival from future contention by putting him on the Supreme Court.
When Dwight Eisenhower nominated Californian Earl Warren to become Chief Justice of the United States he likely had no idea that the new Chief would change the course of American law in a way perhaps to never be undone.
When Warren arrived on the Court, Brown v. Board of Education had been argued once in the preceding term of the Court. The story is that Thurgood Marshall, the lead attorney for the plaintiff, Oliver Brown, left discouraged. Yet, before the Vinson Court could rule, Fred Vinson suddenly died. Now, Earl Warren wanted time hear the argument for himself.
By May 17, 1954, Chief Justice Warren had persuaded all of his colleagues to join in his landmark decision to declare public school segregation based on race as unconstitutional. But for Warren this was only the beginning of a veritable revolution of the Court’s impact on American life and in a sense on the world’s.
Warren and his colleagues brought life to the Reconstruction Amendments that had lain dormant after the Compromise of 1876 and the Court’s unwillingness to end Jim Crow and fierce devotion to corporate “liberty.” The only due process the early 20th century Court recognized was that of business to be free from regulation.
And by 1967, Thurgood Marshall, the advocate who had painstakingly built the bricks of precedent for the decision in Brown, would himself join the Court.
Brown, combined with Baker v. Carr and the revolution in criminal justice and privacy would change America more than perhaps any legislative acts or presidential proclamations. And all the while an attorney named Ruth Bader Ginsburg was modeling the strategy of Thurgood Marshall by building the foundation for a new constitutional analysis of sex and gender discrimination.
Through cases like Frontiero v. Richardson and Reed v. Reed, attorney Ginsburg forced the Supreme Court (by then led by Warren Burger) to view classifications based on gender with greater scrutiny than mere “rationality,” for indeed she knew they were indeed based on the same motivations that racial classifications were freighted with — ancient and irrational prejudices.
By 1993, two years after Justice Marshall left the Court, Ruth Bader Ginsburg would be nominated and confirmed by an overwhelming vote of the United States Senate.
For 27 years she has been the conscience of the Court, the voice of dissent, and the pathfinder for justice. She has been the hope that America might continue to shine a light on a path that Earl Warren and Thurgood Marshall trod before her.
That path has not reached its final goal. But the question now is will anyone pick up the lantern.