Just what the country needs: Another Supreme Court justice committed to hijacking the U.S. Constitution.
Yes, that’s my assessment of U.S. Solicitor General Elena Kagan, President Obama’s nominee to replace departing Justice John Paul Stevens. Kagan clerked for Thurgood Marshall and has praised his tenure on the high court. If Kagan intends to be the kind of justice Marshall was, then she’s the last person the country needs on the court.
I’m not one of those black Americans who has fawning adoration for Marshall merely because he was the nation’s first African American justice. Most black Americans all but genuflect when Marshall’s name is mentioned. I practically cringe.
Marshall is one of those justices whom I’ve accused in previous columns of all but hijacking the Constitution and virtually rewriting it to suit their own worldview. I got an unexpected confirmation of my assessment from an unexpected source and in an unexpected gathering three years ago.
The city was Philadelphia. Charles Ogletree, a professor at Harvard Law School, was moderating a public panel discussion given by the Trotter Group, a collection of mostly liberal black columnists. (Mostly, because I’m the lone conservative and one of only two Republicans in the group.)
During the discussion, Ogletree — no doubt unaware there might be bona fide conservative types within earshot to hear his remarks — admitted that Marshall knew perfectly well that the death penalty was completely constitutional. (The Fifth and 14th Amendments clearly say no person shall be deprived of life or liberty without due process of law, meaning capital punishment is perfectly constitutional if a convicted murderer has had due process of law.)
Marshall’s Supreme Court votes on matters of capital punishment, Ogletree noted, were based on his personal feelings about the death penalty. And that is what made Marshall the very quintessence of an activist judge: One who makes his decisions not on the law as it’s written, but on what he’d like the law to say.
So, in 1972, Marshall voted with the five-member majority in the Furman v. Georgia decision that temporarily struck down capital punishment in all 50 states. Marshall and those other four justices, I suspect, probably felt very proud and noble about their votes, but it’s darned easy to be noble when your own neck isn’t on the line.
Some necks that were very much on the line were victims of Texas murderer Kenneth McDuff, who was on death row in 1972 after being convicted of two particularly gruesome murders. The Furman decision gave him a reprieve.
Later another federal judge ruled that Texas prisons were overcrowded. McDuff was paroled and racked up several more murdered bodies to his credit before he was put to death in the 1990s.
Those bodies just aren’t the responsibility of McDuff alone. Marshall and his other four cronies have to take part of the credit.
Marshall was also part of the seven-member majority that struck down abortion laws in all states with the 1973 Roe v. Wade decision. No other Supreme Court decision has led the nation down the path to perdition more so than Roe. We went from a nation of sexual restraint to a nation of whoopee, from a nation where rights and responsibilities carried equal weight to one where responsibilities got kicked to the curb.
After Roe, America’s moral values got ratcheted downward, and ratcheted downward considerably, courtesy of a high-handed high court whose justices hijacked the Constitution and sought to remold it in their own image.
If Kagan is cut from Marshall’s mold, the nation would be better off if she stays in her current job.
Examiner Columnist Gregory Kane is a Pulitzer-nominated news and opinion journalist who has covered people and politics from Baltimore to the Sudan.
