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80 Geo. L.J. 2109 (1991-1992)
Thurgood Marshall and the Brethren

handle is hein.journals/glj80 and id is 2133 raw text is: Thurgood Marshall and the Brethren MARK TUSHNET* The April 21, 1989 cover of the conservative journal National Review cap- tured a common view of Thurgood Marshall as a Supreme Court Justice: it showed him asleep on the bench.' This view, that Marshall was a lazy Jus- tice uninterested in the Court's work, is rarely committed to print. In the journalistic book The Brethren, authors Bob Woodward and Scott Arm- strong report an incident that presents this view. According to Woodward and Armstrong, Justice Lewis Powell expressed incredulity that, in a brief conversation, Marshall had seemed to indicate that he did not know the de- tails in one part of Marshall's important dissenting opinion in San Antonio Independent School District v. Rodriguez.2 They also report the joke told around the Supreme Court building that the only time Justice Marshall saw Justice Potter Stewart was in the hallways as Stewart arrived late and Mar- shall left early.3 This view of Marshall is wrong and perhaps racist. It is wrong because it fails to take account of important features of the Court's work during Mar- shall's tenure. As Justice Powell put it, the Court during that time operated as a cluster of independent law offices.4 The degree to which individual Jus- tices took part in the details of their chambers' work varied from one cham- bers to another and from the early part of each Justice's tenure to the later part. Marshall's way of organizing his chambers was well within the range characteristic of the modern Court. Further, because of changes in the Court's composition, Marshall relatively quickly found himself placed on the margins of the Court's work by many of his colleagues. Unable to exert much influence beyond casting his vote, Marshall reacted as many proud people would: instead of futilely trying to influence his colleagues inside the * Professor of Law, Georgetown University Law Center; Law Clerk to Justice Thurgood Mar- shall, 1972 Term. An early version of this article was presented at a faculty workshop at the Uni- versity of Miami Law School, where I received quite helpful comments. 1. NAT'L REV., April 21, 1989, cover. 2. BOB WOODWARD & Scorr ARMSTRONG, THE BRETHREN 258-59 (1979). Woodward and Armstrong say that Powell asked Marshall about one of the major issues in the case. I am not the source of this anecdote, but I believe that Powell asked Marshall about his criticism of the way in which Powell attempted to dispose of cases invoking strict scrutiny of legislative decisions un- equally distributing the right to vote. For the discussions in that case see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 34 n.74 (1973) (majority opinion), and id. at 101 n.60 (Marshall, J., dissenting). The Brethren has been controversial, but on most particulars and in its general depic- tion of the Supreme Court under Chief Justice Burger, its accuracy has not been impugned. 3. WOODWARD & ARMSTRONG, supra note 2, at 270. 4. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 122 (1986) (quoting Powell, J.). 2109

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