Thurgood Marshall spent much of his career dissenting. Tasked with helping the Supreme Court bridge the gap between Jim Crow and whatever came next, the first black justice and the man whom President Lyndon B. Johnson once called “an advocate whose lifelong concern has been the pursuit of justice for his fellow man” was often forced to write that road map to justice in opposition to his colleagues.
The dissent became Marshall’s canvas, and none was more essential than his partial dissent in the famous 1978 University of California v. Bakke ruling, which upheld affirmative action and the use of race in college decisions, but struck down more radical measures such as quotas. “The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups,” Marshall wrote. “These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.” Marshall envisioned a Court whose mandate necessitated that it reach through time, destroying the foundation of white supremacy on which the Court itself had been built.
Marshall never truly got the Court he wanted. But his vision did help pull the body into its modern role as an institutional check on white power. Last month, however, the Supreme Court finally closed the book on that vision. Just five years after landmark Shelby County v. Holder decision, it’s become clear that the decision has handed the country an era of renewed white racial hegemony. And we’ve only just begun.
Shelby County has been discussed constantly in The Atlantic, and in my work especially. That’s for good reason. In that 2013 decision, the Supreme Court invalidated a decades-old “coverage formula” naming …read more
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