Bench Memos

Martha Minow’s Baseless Racebaiting

In an outrageous op-ed in the Boston Globe, Harvard law school dean Martha Minow contends that Senate Republicans tried to “tar” Elena Kagan “by association with [Thurgood Marshall,] the iconic civil rights lawyer who successfully argued Brown v. Board of Education.”  According to Minow, “Invoking Justice Marshall now, some want to appeal to and perhaps feed anxieties of some whites about desegregation—and about black men in power.”  By “some,” she clearly means to include the Republican senators who dared to ask Kagan questions about Marshall. 

What Minow obscures from the reader is that the Republican senators were asking Kagan about her praise for Justice Marshall’s freewheeling vision of the role of the Supreme Court.  Their obvious and legitimate purpose, as Senator Kyl put it expressly, was to explore whether Kagan “agree[s] with Justice Marshall’s view of the role of the court in constitutional interpretation.”  No Republican senator remotely criticized Brown v. Board of Education or Marshall’s extraordinary career as a litigator.  There’s simply no basis for Minow’s vicious insinuation that any senator was trying to “appeal to and perhaps feed anxieties” over race. 

As I detail in the link above, Kagan herself tried—implausibly—to disassociate herself from her past praise of Marshall’s vision of the judicial role.  So perhaps it’s Kagan whom Minow ought to be chastising.  And while she’s at it, Minow can aim her blunderbuss at Marshall’s longtime colleague William Brennan, who (though for different reasons than Senate Republicans) also regarded Marshall’s Supreme Court tenure far less favorably than his career as a litigator.

One of the reasons that Kagan garnered some significant support from conservative academics is that Kagan treated them far more fairly and decently than many in the legal academy do.  Unfortunately, as Minow’s op-ed illustrates, the standards of the legal academy are not a sound benchmark for much of anything.

Most Popular

Law & the Courts

The Second(-Class) Amendment

Editor’s Note: The following is the fourth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry ... Read More
PC Culture

The ‘White Privilege’ Canard

Consider two Americans. One is named Mike. Mike is a straight white Christian male from a decaying industrial city in Ohio or Michigan. He never knew his father. His mother is hooked on painkillers. His home life isn’t great. Mom’s various boyfriends enjoy smacking him in the face. He gets passed around to a ... Read More
World

The Mad, Mad Meditations of Monsieur Macron

Almost everything French president Emmanuel Macron has said recently on the topic of foreign affairs, the United States, and nationalism and patriotism is silly. He implicitly rebukes Donald Trump for praising the idea of nationalism as a creed in which citizens of sovereign nations expect their leaders to put ... Read More
Elections

The White Plantation

There are two ugly and stupid lines of “thought” — it is generosity to call this that — in American politics that are inseverable, each being the inverted form of the other: the proposition that black Americans are held hostage on a Democrat-run “plantation” where they exchange their moral and ... Read More