January 3, 2012

"One of the issues that [Thurgood] Marshall enjoyed arguing with his clerks was the question of what was obscene."

Write Bob Woodward and Scott Armstrong in "The Brethren":
He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.

What about his liberal opinion for the Court in Stanley? his clerks would ask.

He had meant only to protect people’s privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.

But, a clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section. 
“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

32 comments:

traditionalguy said...

I for one admire seeing a Philosopher King who can change his mind and proclaim that he never had any other opinions.

Why not use Mitt Romney to be the whole Supreme Court, and we could save the other 8 salaries.

craig said...

I see he has something in common with Ron Paul.

t-man said...

I don't think he was changing his mind, tradguy, I think he was telling the truth -- that his Opinions -- were really the opinions of his clerks.

Patrick said...

Consistency is (or at least can be) the hobgoblin of small minds. I had a judge tell me that when he ruled for my client, even after being confronted with a memo he wrote taking the opposite position. Not sure what it says about him that he just ripped the offending page out of the Opinion, however.

Bob_R said...

Cleaning out your bookshelves?

traditionalguy said...

T-man...That's brillant. We can save all nine salaries and use a few low wage law clerks like it was done by Justice Marshall.

Amexpat said...

Another good reason for having either a term limit or a mandatory retirement age.

FTR: I've previously posted here as Sheepman

Dose of Sanity said...

The admission about the opinion of his clerks is more than a little disturbing.

Given the fact he was arguing for the sake of enjoyment though, I think he was just being flippant.

Oof, scary thought though.

Levi Starks said...

It sounds to me like an "un-signing" statement.

The Crack Emcee said...

It's not there now, is it?

Ahhh, I love tales of real men.

Hey - remember when being a father boiled down to "Because I said so"?

Good times,...

MayBee said...

I'm imagining that after he tore the page out, he ate it.

Jose_K said...

The admission about the opinion of his clerks is more than a little disturbing... I dont know in the USA but here every opinion is the opinion of a clerck and some of then are not even lawyers. Once a Fidel Castro fan signed a n opinnion that said in the case of Elian there was a conflict between the right of the father against the right to be educated on freedom. The author of the opinion is a Frankfurt School style communist with a pencham for Schmitt and a full supporter of Castro. He signed it and so did the other four left wing justices.None read it.
My wife is a clerk , she is a lawyer . She write the "draft" that then become the decision. Only when the judge has any interest on the case, he reviews it.
There is also a judge that was caught in the same situtation described. He answered: I wrote in the book my opinion. The Court thinks otherwise so I say what the Court says.
Who has never change his mind is a fool

Hagar said...

Confirmation that Thurgood Marshall was a great lawyer, but a poor justice.

timmaguire42 said...

Keep in mind, he is playing devil's advocate here, not arguing his position.

What I find interesting is Woodward and Armstrong's needless and inaccurate (and needless because inaccurate) labeling of this as the "conservative position."

Robert said...

Is a pubic hair on a soft drink can obscene?

It's almost as dated as your post.

The Crack Emcee said...

Maybe I should've said I love tales of real BLACK men?

Nah, it's any real guys who are cool like that,...

Mark O said...

Racists.

madAsHell said...

Is a pubic hair on a soft drink can obscene?

I'm pretty sure the comment was about a bottle.
It's tough to masturbate with a can.

....not that there's anything wrong with that!!!

Amartel said...

This is the act of a Real Man? Symbolically eradicating inconvenient inconsistent prior statements? Bigfooting the law clerk? Taking his ball and going home? How Real Manly. No, not really. This is why we are where we are. Because of all the Real Men and Real Women how choose to indulge in personal fantasy rather than face up to reality, their own as well as that in the wider world. Marshall was a great lawyer, and a shitty associate justice of the USSC. There was a funny bit in The Bretheren about how Marshall was the only justice who regularly showed up for Movie Night. And brought popcorn if I remember right.

DerTakhsit said...

Strikes me that the anecdote, as told --"like to take conservative opinions," "with a grin," tearing the page out and declaring it wasn't so-- shows Marshall taking the piss out of his clerks, not admitting to having been wrong in the past.

Scott M said...

This is the act of a Real Man?

Apparently, honor and duty mean nothing to "real men".

Simon said...

Woodward's no conservative, but only Burger comes out of that book looking worse than Marshall. Actually I've yet to read an "insider" account of anything during Marshall's tenture without feeling a sense that the man had not the slightest business being on the court.

Ann Althouse said...

What got me was tearing a page out of the book.

YoungHegelian said...

I think the opinion that Justice Marshall was thick as a post was common at the time of his tenure.

I remember a very racist National Lampoon story from the late 70's that has Marshall defending MLK that starts with:

"Lessee here, Martin, iz you the rapist or the rapee?"

It went on from there.

All quotations from memory. Exact accuracy not guaranteed.

mariner said...

YoungHegelian,
I think the opinion that Justice Marshall was thick as a post was common at the time of his tenure.

The Supreme Court had a Wise Negro long before it got a Wise Latina.

jeff said...

I suspect that lifetime appointment has generated a number of opinions from the clerks making into decisions as well into the record in descents. The same way I suspect a number of laws passed thru congress are written and understood only by staff. In the congressional example, I doubt if those are limited to the extremely aged members as there are a number of congressmen and senators who have neither the intellect or the inclination to understand what they are writing or voting on.

jeff said...

I'm just surprised a Supreme Court judge was so cavalier in proclaiming it.

The Crack Emcee said...

Amartel,

This is the act of a Real Man? Symbolically eradicating inconvenient inconsistent prior statements? Bigfooting the law clerk? Taking his ball and going home? How Real Manly. No, not really.

I really don't think most people today have anyone to reference what it means to be a "real man" anymore, and so, couldn't recognize the good in them if their lives depended on it - which they do - and that is why we're in such dire straights today. Just the mention that Newt Gingrich and I have an admiration for John Wayne made Ann almost apocalyptic a few days ago, though she'll heap praise on the work of deviants like they're the second coming. (If she wasn't representative of the culture, almost as a whole, it would've been a LOT more surprising than it turned out to be,...though surprising it was.) I mean, who do you people think built the vast majority of this shit, Lady-Fucking-GaGa?

Yes, a man will take his ball and go home, if that's what's called for - why not? To please you? If you're weak and unworthy, a man would say, "Fuck you!" Don't you know that?

I don't see anything in this telling but good natured bullshitting with the law clerks - and I definitely don't trust Woodward to get anything right in the first place:

I watched Marshall for many years, and his clerks revered him, so how "thick as a post" could he have actually been?

I'm not above tearing down icons, black or otherwise, but come on - Woodward's been padding his part with far less integrity than Marshall ever could,...

dhayes said...

Woodward did a lousy job of putting that kind of flippant argument in context. Had Woodward been around when Marshall and his lawyers were preparing for Brown, where Marshall often played devil's advocate, (John W. Davis) challenging and provoking NAACP positions, internet posters would probably conclude that Marshall was a black hating racist after hearing some of those anecdotes.

And the "Marshall was thick as a post" or a poor SC justice bit is hard to conclude, if you read anything other than National Lampoon cartoons or Woodward's book. It's too bad those images linger.

Amartel said...

No, Marshall was not, definitely not, "thick as a post" (a brick?). Never said he was. He was a great lawyer. Said that. That's beside the point.

Self-aggrandizing bullshit is not admirable in anyone. Marshall wrote an opinion that he later found convenient to disavow, and blamed an underling for it, and made a great show of "tearing up" the opinion. Which didn't really solve anything, certainly not for the people that opinion negatively affected in actuality. This is how children behave and, once again, it why this society is where it is; one nationwide failure of maturity.

You don't "earn" the right to be an asshole, not if you're a man, not if you're a woman, and no, not even if you're on the USSC.

Amartel said...

P.S. I love a grand gesture and I love John Wayne. But I respect maturity. This thing Marshall did was self-serving childish gameplaying. With the law. From the highest court in the land.

Fuck that.

Bob Woodward sucks ass but his reporting from sources is not always wrong. Did Marshall contradict this story or glory in it? Neither?

dhayes said...

Amartel, it was a bound opinion. Like tearing a page from People magazine. You're making it sound like he trashed some poor clerk's typewritten pages. Marshall's clerks loved him, probably more than any any justice in the 20th century. If you want to learn more about Marshall's intellect or his personality and sense of humor, read Tushnet, not Woodward for accuracy.

You might conclude, from a blog post, or from Woodword's book, that Thurgood Marshall was an asshole, but the people around him most never thought of him that way. It wasn't until the very end, when his body was failing him, and the Court had become staunchly conservative that Marshall became a bit grouchy.