Legal Commentary

Justice Brennan on Justice Marshall

By Eugene Volokh

Ed Whelan (National Review Online?s Bench Memos) quotes passages from an advance copy of Seth Stern & Stephen Wermiel?s forthcoming Justice Brennan: Liberal Champion (available for preorder on Amazon):

Few understood just how much Marshall?s performance on the Court came to disappoint Brennan. It was a topic Brennan did not like to talk about with anyone. Brennan believed that Marshall had never gotten his due for all he had achieved as the NAACP LDF?s chief lawyer?. [p. 431]

Still, Brennan privately wondered what had come of the skilled lawyer who so dazzled him at oral arguments. ?What the hell happened when he came on the Court, I?m not sure, but he doesn?t seem to have had the same interest,? Brennan said [in a 1988 interview]. ?He has some areas where he does and when he really gets involved with a case ? he does an absolutely superb job. But when he?s not interested, whatever I do, that?s all right with him.? As best as Brennan could tell, Marshall had simply given up, convinced that all he had worked for as a civil rights lawyer was now coming undone.? [p. 431]

Brennan did resent Marshall for not carrying his share of the workload as they fought to preserve the gains of the Warren Court. The death penalty was one of the few areas of the law where Marshall was engaged and displayed some of his old passion. Yet here, too, Marshall disappointed Brennan.? [p. 433]

I don?t have an advance copy, so I can?t speak to whether some important contextual elements are omitted (though I should stress again that both Justice Brennan ? see the excerpt quoted above ? and, to my knowledge, most other observers thought very highly of Marshall?s talents as a lawyer when he worked for the NAACP). Still, this struck me as likely to be interesting enough to our readers that it was worth passing along.

Full post as published by The Volokh Conspiracy on July 15, 2010 (boomark / email).