Review of Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 Elizabeth Garrett On a cold day in January 1992, nearly 2,000 people lined the streets ofCapitol Hill, waiting to enterthe imposing Great Hall ofthe Supreme Court building. As they filed past the coffin and official portrait of Justice Thurgood Marshall, some were silent, but many parents whispered to their children, telling them about Thurgood Marshall, sharing how his work had changed America and their lives, and describ ing opportunities open to them that he helped to establish and institutionalize. Many leftflow ers or other items before the portrait; one re membrance particularly captured the somewhat contradictory feelings of loss and hope that could be seen on the faces during the twelvehour vigil. One mourner left behind a copy of the petitioners’ briefin Brown v. Board ofEdu cation with the following inscription at the top: “We will always remember.” Two recent books by Mark V. Tushnet, the Carmack Waterhouse Professor of Constitu tional Law at Georgetown University Law School, ensure that we will continue to learn from Marshall’s work, both as an advocate and ajurist. In the first, and more substantial, book, Making Civil Rights Law, ProfessorTushnet, a law clerk of Justice Marshall during the Su preme Court’s 1972Term, focuses on Marshall’s years as the lead civil rights lawyer for the Na tional Association for the Advancement of Colored People (NAACP). The second vol ume, Making ConstitutionalLaw, describes the development of several constitutional issues during the nearly twenty-four years Thurgood Marshall served as the first African-American Associate Justice on the Supreme Court of the United States. Neither of these books is a bi ography of Justice Marshall; rather, they both TUSHNETONTHURGOODMARSHALL 141 At a 1945 conference convened by Thurgood Marshall, the NAACP devised a strategy for attacking racially restrictive covenants and housing segregation ordinances. They also hoped to educate the public about the problem and force legislative change. deal with the public policies, litigation strate gies, and legal principles that Marshall shaped as attorney and judge. As Tushnet writes in the preface to his first volume, “Thurgood Marshall’s work as a civil rights lawyer pro vides the main line of my discussion, but I also deal with litigation that did not involve Marshall directly. Marshall’s career, though, shows what the work of civil rights litigation was, and the length and depth of his involvement in civil rights litigation provides an opportunity to ex plore the ambiguities that characterized the ef fort to transform civil rights through litigation.”1 In short, Marshall is the unifying theme of the books, but his life and character are not their sole, or even primary, focus. Making Civil Rights Law describes and analyzes modern public interest litigation (or litigation aimed at reforming major social and political institutions) as the practice was devel oped by Marshall and others at the NAACP who “constructed the job of [the] civil rights lawyer.”2 Unlike other books on civil rights litigation, notably Richard Kluger’s excellent Simple Justice,3 Tushnet does not deal only with the education cases, but he tries instead to give an in-depth picture of the varied caseload of the NAACP and the relationships among the many issues Marshall and the group tackled. Although a study of the education cases—beginning with those attacking inequi table teacher salaries, continuing through those seeking to eliminate segregation in higher edu cation, and culminating with Brown and its im mediate aftermath—involves more than halfof the first volume, Tushnet also discusses the NAACP’s involvement in defending blacks in criminal cases, attacking restrictive covenants and other discriminatory housing policies, and dismantling white political primaries and other 142 JOURNAL 1997,VOL. D schemes used to deprive African-Americans of their right to vote. His objective is to give readers an understanding of the breadth of the civil rights agenda and ofthe difficulties inher ent in such wide-ranging litigation, a goal that he ably meets. His topical organization contributes to this achievement, but it can obscure the fact that cases in all these...
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