This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published in The Conversation.

As public attention is focused on the closing of Supreme Court Justice Clarence Thomas, personal and financial relationships with a politically active conservative billionaire, close scrutiny overlooks the pivotal role that Thomas played for almost three decades on the nation’s highest court.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published in The Conversation.

As public attention is focused on the closing of Supreme Court Justice Clarence Thomas, personal and financial relationships with a politically active conservative billionaire, close scrutiny overlooks the pivotal role that Thomas played for almost three decades on the nation’s highest court.

Thomas’ predecessor on the court, Thurgood Marshall, what civil rights lawyer before becoming a judge. In 1991, in his final opinion before retiring after a quarter of a century on the court, Marshall warned that the growing interest of his fellow judges in reviewing and overturning previous decisions would eventually “squander credibility and legitimacy this court as a protector of the powerless.”

Since then, his prediction has been cited in Supreme Court decisions, including a three-judge dissent from June 2022. Dobbs vs. Jackson Women’s Health Organization a ruling declaring that there was no constitutional right to reproductive choice and overturning Roe v. Calf.

While agreeing with the majority decision in this case, Thomas stated his opposition to the Marshall principle, lamenting that the court had not done more to shorten its previous work. “In future caseswe must review all significant due process precedents of this Court,” Thomas wrote, explicitly implying Americans’ rights to sexual privacy and same-sex marriage.

Throughout Thomas’ tenure, he has pushed the Supreme Court to review previous rulings that provided strong rights for the most vulnerable in society, and replace Marshall’s vision with one more amenable to the strong than to the powerless. And in writing my book, which traces the life and work of both judges, I have seen the fruits of those efforts multiply over the past decade.

Shield for the needy

Few phrases could more accurately capture Thurgood Marshall’s vision of the court’s work as “protector of the powerless.” And few Americans have done as much to bring that vision to life.

Marshall’s work to promote black citizenship well knownbut also fought for extended rights to women And local, accused another convicted, adherents of marginal religions another those with unpopular views.

Marshall’s jurisprudence was based on the hope that while the law can be a powerful tool of oppression, it can also be a shield.

As he wrote in his last dissent, in Payne vs. Tennesseesecuring constitutional rights “often requires that this court rein in the forces of democratic politics” to protect the powerless from the tyranny of the majority.

While his disagreement with Payne criticized the court for changing its mind, Marshall was no stranger to calling for a revision of established law. Marshall’s landmark achievement as a lawyer in Brown W. Department of Education had to convince the court to refute the doctrine of separate but equal, which arose after 1896. Plessy W. Ferguson solution.

As a judge, Marshall has passionately and repeatedly proven that The death penalty violated the Eighth AmendmentRussia’s ban on cruel and unusual punishments, which led to a brief period when it was considered unconstitutional.

The difference between Marshall and Thomas is not really about whether the court should reverse past decisions, but simply which ones.

While Marshall wanted the court to become “the champion of the powerless,” Thomas, I believe, advocated not only to diminish that vision, but to promote the interests of the powerful.

Power as a key factor

While last summer’s abortion decision is a clear example, Thomas has led the court’s assault on precedent in other areas.

For example, years before the court invalidated portions of the Voting Rights Act in Shelby County v. HolderThomas had argued that the lack of modern discrimination in voting made the act unnecessary.

Similarly, recent decisions have followed Thomas. lead in weakening the lifeblood of the First Amendment’s Establishment Clause, which reinforces the separation between church and state.

Thomas even called for the court to review its decision in Gideon vs. Wainwrightwhich established the constitutional right to counsel for indigent criminal defendants.

In each case, the powerless will suffer the most.

Those in need of constitutional protection, according to Thomas, are more likely to be property owners, corporations that contribute to the campaign or gun owners.

On affirmative action

Perhaps no topic better reflects the difference between the views of the two men than the affirmative action that the court considers in a couple of cases from Harvard And University of North Carolina be decided within this time frame.

The mistrust of government that fuels many of Thomas’s points of view is never more personal than in cases of race being used in college admissions. He spoke out against affirmative action, stating that it stigmatizes blacks in prominent positions, “stigmaon “whether or not their skin color played a role in their promotion.”

Indeed, Thomas claims that his position requiring color blindness is best path to full black citizenship. He made this statement even in situations where he knew it would result in more limited access to opportunities for black students in the short term.

Marshall has always looked at the problem from a different perspective, arguing that access to opportunities is important not only for affected black students, but for the country as a whole.

“If we ever become a fully integrated society in which the color of a person’s skin does not determine the opportunities available to him or her,” Marshall wrote in 1977, “we must be ready to take steps to open these doors“.

It is access for the powerless, according to Marshall, that should guide the thinking of the court.

But this summer, the court may finally adopt a different vision of affirmative action, revisiting a position that Thomas has championed for decades.

Such a turn would have been another turn to the side, squandering Marshall’s vision of the court.

Daniel Keel is a FedEx Law Professor and author of The Transition: An Interpretation of Justice from Thurgood Marshall to Clarence Thomas in University of Memphis

This article has been reprinted from Talk under a Creative Commons license. Read original article.