THE TRIUMPH OF THE RIGHT : With Marshall’s exit, the liberal legacy is imperiled. : A Voice for the People Tires of Being Ignored

An era in constitutional law and politics has ended. Last week, Justice Thurgood Marshall retired at the end of a term in which the Supreme Court shifted dramatically rightward--on free-speech issues, privacy, abortion and criminal justice. The combined forces of the younger, staunchly conservative appointees of Republican Presidents Ronald Reagan and George Bush may well have proved too much for the 82-year-old justice who has long had health problems.

More than ill health must have figured into Marshall’s decision, though. His closest ally, and the court’s most influential liberal, Justice William J. Brennan Jr., retired less than a year ago. With Brennan’s departure, the push of political changes and history proved insurmountable. Marshall, of course, had watched the tide turn with each of the past nine successive appointees of Republican presidents from Richard M. Nixon to Bush. But he may have lost hope in the face of the gravitational pull of the most conservative court in more than 40 years.

Marshall was never a strong consensus-builder or leader on the court--as Brennan was. But he remained a fighter, doggedly adhering to stands that made him one of the country’s great civil-rights attorneys and leaders. He was the court’s last uncompromising liberal. Still, this embattled and, at times, acerbic justice was losing ground in a war already over.

With the Rehnquist Court pressing ahead, Marshall was relegated to the margins, forced into dissenting alone, or with Justices John Paul Stevens and Harry A. Blackmun. Indeed, one measure of the end of liberalism on the court is that Marshall, Blackmun and Stevens were lumped together as the “liberals.” Yet, neither of the two other justices comes close to Marshall’s liberal credentials and neither brought to the bench the kind of experiences he had fighting in the trenches for equality.

On the last day of the term, Marshall stared down from the bench at Brennan, who was sitting in the court. Appearing tired and disheartened, he must have realized he could not carry on against the conservative juggernaut in full swing. His conservative colleagues were virtually ignoring his heated defense of liberal positions.

That had less to do with Marshall--though, to be sure, he was never as persuasive as Brennan. Rather, the court’s working majority no longer felt compelled to take liberal arguments seriously. More often than not, they were preoccupied with fighting among themselves over how far they should shift to the right. Justice Antonin Scalia, for one, was usually so busy attacking moderate conservatives, like Justice Sandra Day O’Connor, that he had little time for Marshall’s protestations.

The first black to sit on the high bench, and the last appointee of a Democratic President, Marshall was nominated by Lyndon B. Johnson in 1967. His appointment was politically symbolic of the times. Johnson and a Democratic Congress had pushed through the first major civil-rights legislation in more than a century. They reached out to strike down barriers and expand opportunities for blacks, women and other minorities. Marshall was a larger-than-life-metaphor for that controversial period in American politics. And he will remain so. Regardless of who Bush names, Marshall’s successor will surely not share his passionate drive for civil rights and liberties.

During his 24 years on the court, Marshall sat through a 180-degree turn in sensibility. He came aboard at the height of the liberal-egalitarian revolution forged in constitutional law by the Warren Court (1953-1969). Between 1961 and 1969, more than 76% of the Warren Court’s rulings each term went in a liberal direction--protecting individuals and minorities against the government. Then, during the Burger Court years (1969-1986), the percentage dropped below 50% each term, with one exception. Even more disturbing than that reversal of fortune for this aging defender of civil rights was the counterrevolution the Rehnquist Court now rushes to put in place.

Charting new directions, the Rehnquist Court is overturning even those infrequent Burger Court decisions that protected individual rights. Last term, virtually every ruling on the rights of individuals under the Fourth and Fifth Amendments went the government’s way. Repeatedly, Marshall warned that the country’s “war on drugs” must not come at the cost of sacrificing basic liberties. But a critical mass on the bench was no longer sympathetic. Instead, “dragnet-style sweeps” and random, warrantless searches and seizures by law-enforcement officials were upheld.

Marshall also leaves a court poised to overturn landmark decisions on abortion, affirmative action and religious freedom. In granting cases for next term, the Rehnquist Court prepared the way, as well, to further cut back on previous rulings safeguarding free speech and promoting equal opportunities for racial minorities.

No single issue touched Marshall’s life more than racial discrimination. In the 1940s and ‘50s, he led the National Assn. for the Advancement of Colored People Legal Defense and Education Fund. He spear-headed the NAACP’s drive to end racial discrimination in education, public accommodations and in the political process. He argued--and won before the Supreme Court--the watershed school desegregation case, Brown vs. Board of Education of Topeka, Kansas, in 1954, along with 28 other cases extending protection to individuals and minorities.

Yet Marshall was powerless last term when countering the court’s ruling that federal judges should end their supervision of previously segregated public schools--despite the failure of desegregation efforts to achieve integrated schools. Marshall protested in vain that “vestiges of past discrimination” remain in many parts of the country, where students continue to attend predominately all-black or all-white schools. Without success, he implored the court to take seriously the burden of Brown and the deeply rooted vestiges of racial prejudice in the country.

For a victim of racial discrimination while growing up in Maryland and a life-long champion--on and off the court--of the civil-rights cause, Marshall may have seen no point of continuing, given the odds against him. His decision must have been especially difficult, because the court will take up several school desegregation cases next year--including an offspring of the original 1954 ruling in Brown. No doubt he foresees the end to the Brown era. Disillusioned with the prospects of countering that result, Marshall paid the price of giving Bush the chance to add further to conservative forces on the bench.

Without Marshall, the last strong voice for the poor, privacy and opponents of the death penality will no longer be heard within the court. That could not come at a worse time. The Supreme Court is moving in unprecedented ways to close off access for indigents to the federal courts. Last term, when several indigents were denied the right to file petitions requesting waivers of the court’s $300 filing fee, Marshall was relegated to lamenting the court’s disregard of “the symbolic interest in preserving equal access to the court for both the rich and the poor.”

Marshall insisted at his Friday press conference that age and ill health forced him to step down. But the last voice of liberalism on the Supreme Court was increasingly isolated and alone in defending the court’s role as a “guardian of civil liberties and civil rights.” Therefore, he had obviously reconsidered his previous statement: “I have a lifetime appointment and I intend to serve it.” This old warrior ultimately concluded that, with no hope of ever making a difference on the Supreme Court again, the struggle for civil rights must be fought elsewhere--in Congress and state legislatures.