GOPers Who Slammed Marshall's Activism Can't Name A Case Typifying It

tpmdc.talkingpointsmemo.com/2010/06/thurgood-who-republicans-hard-pressed-to-disagree-with-marshall.php

Republicans raised eyebrows yesterday when they criticized the first African-American Supreme Court justice, Thurgood Marshall, as a way to attack nominee Elena Kagan, his former clerk. One would think that, to avoid any appearance of racial dog-whistling, the senators attacking Marshall’s record would be able to name the decisions or opinions with which they so vociferously disagreed.

After the hearing broke last night, TPMDC asked three of the top Republicans on the Judiciary Committee which of Marshall’s opinions best exemplified his activism. And while two of the three were careful to praise Marshall the man, none of them could name a single case.

“You could name them,” said Sen. Orrin Hatch (R-UT). Pressed, though, he could not. “I’m not going to go into that right now, I’d be happy to do that later,” Hatch demurred.

What do the decisions of a man who last made one at least 19 years ago have to do with the confirmation of Kagan?. So she was his clerk. She’s not the one who made the decisions. :rolleyes:
Talk about straining at a gnat!
And these men were very poorly prepared. One should not ask questions like that unless one has the answer at the ready.

It was the best argument they had to support their contention that Kagan would be an activist judge, despite their inability to define what judicial activism means (since the definition would almost certainly include conservative activism) and the obvious and embarassing fact that Kagan has never been a judge. Political grandstanding doesn’t require facts and logic.

I’d say Roe v was a pretty large piece of activisim. It brought “penumbra” into the legal lexicon, and made something out of the 14th that never was, and conveniently placed a sliding scale of value on human rights.

That wasn’t hard, was it?

That being said, the OP isn’t “news”.

Except that it doesn’t say anything about Marshall’s “activism.” He voted with the 7-2 majority, and wrote no separate concurrence. The majority opinion was written by Blackmun.

It has always been my understanding that “judicial activism” is a term applied to actions of courts that are not found in the original laws they are “interpreting”; done for the purpose of promoting their own personal philosophies.

It is my impression that Marshall was that sort, at least when it came to abortion.

But, as has been pointed out, Marshall isn’t up for confirmation, Kagan is. Also, as some have pointed out, Kagan is going to be confirmed no matter what, because Democrats control the Senate. It does not seem inappropriate to me for senators who do not share Marshall’s pro-abortion philosophy, to inquire concerning Kagan’s…not because they stand any chance of defeating her confirmation, but simply to inform the public what she (and therefore Obama) actually is. Most people on CAF, I think, know how pro-abortion this administration is, and that Obama will never appoint a prolife justice to the Supreme Court because of it. Still, not everyone in the country knows it, and there’s nothing wrong with Repub senators pointing it out.

The following I purloined from the first article that popped up when I goodled “Thurgood Marshall” & “abortion” together. It seems to me Marshall was, when it came to abortion, simply promoting his own philosophy and was, therefore, engaging in pro-abortion “judicial activism”.

"AUL cites Marshall’s four dissenting opinions in cases following Roe v. Wade as indicative of the kind of justice Kagan would be if the Senate confirms her to replace retiring pro-abortion Justice John Paul Stevens.

In the 1977 companion cases of Beal v. Doe and Maher v. Roe, the Supreme Court held that state funding restrictions on the use of Medicaid funds for non-therapeutic abortions was constitutional.

“Justice Marshall, on the other hand, felt the denial of funds for abortions amounted to a violation of Equal Protection under the Fourteenth Amendment,” AUL noted. “Justice Marshall not only believed that legalized abortion was constitutionally required, but also that the Fourteenth Amendment mandated that states pay for abortions.”

Next, in the 1980 case of Harris v. McRae, a case argued by Americans United for Life before the United States Supreme Court and in which the Court upheld the constitutionality of the Hyde Amendment, Marshall also argued that the amendment to prevent HHS from funding abortions with tax dollars was unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.

Marshall stated that “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”

AUL also points out a 1981 case, H.L. v. Matheson where Marshall dissented in a parental notification case that was decided on another issue.

“With respect to minors, the court and Marshall acknowledged that the state could restrict abortion, but Marshall thought parental notification laws did not pass even ‘rational basis’ scrutiny,” AUL said.

Marshall claimed the state did not have a “legitimate interest” in protecting the rights of parents to know when their minor daughter is considering an abortion.

And in the 1990 case of Hodgson v. Minnesota, Marshall dissented in a parental notification case in which the Supreme Court approved a “judicial bypass option” as well as a 48-hour delay requirement for a minor to get an abortion.

“Marshall argued, contrary to the Court, that no part of the Minnesota parental notification requirement was ‘even reasonably related to a legitimate state interest,’” AUL explained. “Even Justice John Paul Stevens acknowledged that notification of only one parent and a 48-hour waiting period were reasonable restrictions on abortion.”

AUL says it is a concern that Justice Marshall, of whom Kagan thinks so highly and for whom she clerked “believed that abortion is an unrestricted fundamental right, and did not uphold reasonable state restrictions.”

“In addition, Marshall was in favor of using the Equal Protection clause to force taxpayers into paying for abortions because abortion offered “an escape” from poverty and racial injustice,” AUL said.

Its not that they can’t think of any of them, the problem is that Marshall’s so-called activism was aimed almost exclusively at two things – racial equality and the protection of individual rights. Those things have become pretty popular over the last 30 years and these politicians don’t want to admit that they opposed them back in the day.

[quote="Ridgerunner, post:6, topic:203935"]
It has always been my understanding that "judicial activism" is a term applied to actions of courts that are not found in the original laws they are "interpreting"; done for the purpose of promoting their own personal philosophies.

[/quote]

Judicial activism, like beauty, is in the eye of the beholder. For example, the Roberts court had no problem finding that corporate "persons" have a First Amendment right to free speech. The doctrine that corporations are "persons" can be found nowhere in the Constitution. Conservative judicial activism by your definition? I'd say so.

I wasn’t aware we were talking about Roberts. Thought we were talking about Marshall. It does appear Marshall was a “judicial activist” when it came to expanding abortion “rights” and demanding that taxpayers pay for them.

Now, back to Roberts, since you brought him up. I could be wrong, and perhaps one of the liberal lawyers that are always on here can speak to it, unless you are one too.

My understanding is that corporations are very old and were recognized as “persons” under the English Common Law. My further understanding is that the U.S. adopted English Common Law to the extent it was not contradicted by the Constitution. As far as I know, the Constitution does not prevent corporations from being considered “persons” under the law, and that corporations have long been considered “persons” under the laws of the U.S.

But regardless, if you think the case was poorly decided, perhaps you could give a citation to it here so people can read it for themselves, rather than just asserting what you think about it.

[quote="TMC, post:7, topic:203935"]
Its not that they can't think of any of them, the problem is that Marshall's so-called activism was aimed almost exclusively at two things -- racial equality and the protection of individual rights. Those things have become pretty popular over the last 30 years and these politicians don't want to admit that they opposed them back in the day.

[/quote]

"protection of individual rights". That obviously inludes pushing abortion and public funding of abortion.

If "these politicians" opposed racial equality, perhaps you could give credible sources for your assertion if you want us to believe it.

Under tax law, corporations are treated as separate entities. They have a SS # (EIN) and they pay taxes. Corporations do file a different form than humans, though.

[quote="TMC, post:7, topic:203935"]
Its not that they can't think of any of them, the problem is that Marshall's so-called activism was aimed almost exclusively at two things -- racial equality and the protection of individual rights. Those things have become pretty popular over the last 30 years and these politicians don't want to admit that they opposed them back in the day.

[/quote]

I think this is the real case.

ChadS

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