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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

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.
(1986) (quoting Powell, J.).


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