During the Kagan hearing, Republicans on the Senate Judiciary Committee took a pounding from the usual suspects for daring to suggest that Thurgood Marshall wasn’t a model justice. Never mind that Kagan herself tried to run away from Marshall’s judicial vision.
Well, it turns out that someone else who didn’t think much of Marshall’s performance on the Court (though for different reasons than those of Republican senators) was Justice William J. Brennan Jr., Marshall’s longtime liberal colleague. According to a very interesting forthcoming biography of Brennan—Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel—which draws on more than sixty recorded interviews that Brennan had with one of the authors over a period of five years (and which I have read in advance copy):
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 (emphasis added)]
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 (emphasis added)]
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]