Tearing down the house that Thurgood built

Supreme Court Justice Amy Coney Barrett’s recent media appearances have proven illuminating, perhaps not in the way she means them to. Barrett’s conversations with the usual outlets served the general purpose of a book tour; in promoting her memoir “Listening to the Law: Reflections on the Court and Constitution,” which was released this week, she repeated her intent to explain the workings of the American judicial system to the public.

Since half of Americans hold an unfavorable view of the Supreme Court, the lowest rating for the judicial branch in three decades, Pew Research says, that’s going to be a tough sell.

Her conversation with Norah O’Donnell on the most recent edition of “CBS News Sunday Morning” doesn’t change that. Barrett has signed on to majority decisions realizing long-held right-wing goals such as overturning Roe v. Wade, sweeping away the regulatory protections previously ensured by Chevron v. Natural Resources Defense Council, and ending affirmative action. She’s part of a conservative-dominated court that has issued decisions greenlighting Donald Trump’s authoritarian takeover.

Nevertheless, she told O’Donnell, “The court is not one of the political branches.”

O’Donnell’s is the first TV interview Barrett has given since her rushed appointment following the death of Ruth Bader Ginsburg in 2020. “CBS News Sunday Morning” broadcast a shorter version of their conversation; an extended 55-minute version is available on YouTube.

This was one of several stops on the associate justice’s tour of major media outlets. Last week, she was the featured guest for an event hosted by The Free Press, whose founder, Bari Weiss, opened the conversation by complimenting Barrett’s pedicure.

In the court of pop culture influence, Barrett isn’t close to matching the cult of personality surrounding her predecessor, Ruth Bader Ginsburg. But if you’re worried by the many alarms warning that our democracy is circling the drain, she’s here to soothe your nerves.

“I think the Constitution is alive and well. I think the country remains committed to the rule of law. I think we have functioning courts,” she told Weiss’ audience.

Watching “Becoming Thurgood: America’s Social Architect” may not support that perspective. This evenly paced hour covers Thurgood Marshall’s extensive work as a civil attorney and the head of the NAACP’s Legal Defense and Educational Fund, or LDF. In 1967, Marshall became the Supreme Court’s first Black justice. However, what he accomplished before rising to that position made him more famous.

Winning his argument in 1954’s Brown v. Board of Education led to the Court deeming segregation in public education to be unconstitutional, dismantling the separate but equal doctrine and marking the end of the Jim Crow era.

Marshall built his legacy on a commitment to making the 14th Amendment’s guaranteed equality real. Civil rights lawyer Sherrilyn Ifill, who served as the LDF’s president and director-counsel from 2013 to 2022, provides a brief education as to why the 14th Amendment is the centerpiece of the Reconstruction Amendments, with the 13th Amendment abolishing slavery and the 15th Amendment determining that the right to vote can’t be denied based on race.

“The 14th Amendment was designed to wrap Black people in citizenship and having the same rights that white people do,” Georgetown University law professor Sheryll Cashin explains. Its protections have since become the foundation for securing rights that a plurality of Americans took for granted until now, including gay marriage and birthright citizenship.

Monitoring Supreme Court decisions isn’t part of the average American’s daily information consumption, even now. Neither is watching interviews and documentaries about its justices, regardless of how anodyne their subjects may appear.

This doesn’t apply to Marshall, captured via the perspectives of legal scholars, authors and family members, but also his own. Filmmaker Alexis Aggrey employs Marshall’s voice to guide the film, taken from a Feb. 15, 1977, recording by Ed Edwin meant to serve as an oral history.

Marshall’s straightforward, reasoned tone pairs well with archival snippets and photos of what life in his era looked like before Thurgood came to town, as the folks he defended would say. The experts recall with amazement and appreciation the level of curiosity and celebrity he commanded in courtrooms across the Jim Crow South, charming even the bigoted lawyers and judges whose unjust rulings he challenged.

Marshall’s determination was unrelenting, and his methods were effective. Out of the 32 cases he argued before the highest court in the land, Marshall prevailed 29 times.

Before Brown v. The Board of Education, Marshall took on Smith v. Allwright, which argued that Texas Democrats’ policy prohibiting Black people from voting in primary elections allowed white supremacist candidates to effectively make one party dominant in the state. The Supreme Court eventually held that the policy violated the 14th and 15th Amendments.

Marshall, in the recording, recalls the chief district judge in the case siding against him, then encouraging him to file his appeal to the Supreme Court when he saw him a few months later. “He said, ‘Why don’t you hurry up? You know you’re gonna win,’” Marshall recalled with a laugh. “And we brought it up here, and we did. We won it.”

Worthwhile documentaries crystallize a point in time in a way that contextualizes current circumstances. The details of Smith v. Allwright echo in the GOP’s efforts to make voting more difficult in red states, and the Republican-held Texas legislature’s most recent gerrymander to give their party between three to five more seats in the House of Representatives.

But I’m also drawn to what a couple of the documentary’s experts described as the means by which Marshall and the LDF changed laws and laid the groundwork for the Civil Rights Movement. He knew that local and state governments did not favor protecting the rights of their Black citizens, but had faith that the higher courts offered a more level playing field.

Cashin surmises that the reason he was most proud of his victory in Smith v. Allwright is that it confirmed his understanding “that Black freedom really depended on a functioning democracy in which Blacks had a voice.”

Is that still true in a nation where the Supreme Court just gave ICE the go-ahead to racially profile all Latinos in Los Angeles, and the president deploys the military to terrorize Democrat-led cities with large Black populations?

Or, bringing us back to Barrett, who penned the majority’s opinion in Trump v. Casa (better known as the birthright citizenship case), if injunctions from lower-court judges no longer apply nationally?

As Barrett told many of her interviewers, the conservative majority’s decision doesn’t do away with this Constitutionally guaranteed right. It merely removes the ability of lower court judges to prevent that right from being violated in other places around the country.

“In other words,” explains The Nation’s justice correspondent Elie Mystal, “if Trump violates my constitutional rights in New York, I can sue and potentially win. But if Trump violates your constitutional rights in exactly the same way in New Jersey, you have to sue for yourself . . . Every person has to individually ask for their constitutional rights. It’s everyone for themselves, according to the Supreme Court. Everybody needs to lawyer up.”

Barrett makes this sound much more reasonable in her explanation to O’Donnell. “One important theme throughout history . . . is that federal courts have to be attentive to the limits of their power,” she said.

It may be helpful to know that Barrett, who calls herself a constitutional originalist, co-authored a 2016 paper questioning the legitimacy of the 14th Amendment. For the sake of argument, understand.

Addressing Hillary Clinton’s prediction that the court will “do to gay marriage what they did to abortion,” and send it back to the states, Barrett said, “I think what you have to ask yourself is, what rights really go without saying that are so firmly rooted in the minds of the American people that everyone would agree?”

She goes on to add, “[V]irtually every decision is left to the democratic process, because you don’t want the Supreme Court picking and choosing which rights it thinks should be fundamental and which rights it thinks should be removed from the democratic process.”

Except for that pesky detail of history proving that many states, if left to their own devices, will happily codify structural inequities that foment chaos. The New York Times illustrated the fallout of Dobbs in a Tuesday newsletter describing the “wildly divergent” state-level abortion laws pitting states against each other. “Does Colorado have to honor the laws of Utah?” asks reporter Pam Belluck. “The Constitution says, generally, yes. But abortion has begun to test that principle.”

We’re also governed by an administration that has, on multiple occasions, defied judges’ orders meant to curtail its overreach and lawlessness, as in the case of Kilmar Abrego Garcia’s illegal deportation.

As for Barrett’s interpretation of whether same sex marriage is safe, O’Donnell points out that gay marriage wasn’t left up to the democratic process. Barrett splits hairs by saying that Obergefell v. Hodges held that marriage was constitutionally protected.

Actually, here’s what former Justice Anthony Kennedy wrote for the majority in 2015:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights . . . Thus, when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision making. . . This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.

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In June, Kennedy said in an online forum that acrimonious discourse and threats to judges have placed democracy at risk. But there’s plenty of evidence that the current Supreme Court is doing its part. Legal scholars argue we’re in the throes of a constitutional crisis. But when O’Donnell asked Barrett to define what would constitute a constitutional crisis, she replied, “Let’s see. I don’t know that I could give a definition of constitutional crisis because I don’t know that we’ve really faced one in this country.”

“What I would say is that from the beginning, Americans have faced a series of constitutional challenges. That’s not new,” Barrett continued. “That started almost from the beginning. We have faced times of intense political disagreement. I mean, we had the Civil War, you know. We had the Reconstruction Amendments, which tried to restore rights unsuccessfully at first because of popular resistance to, you know, African-Americans and those who were former slaves.”

Sure. And we had a Supreme Court that ruled in 1896’s Plessy v. Ferguson that separate but equal was constitutional, ushering in seven decades of Jim Crow discrimination and violence. It would take 11 years after Marshall succeeded with Brown v. The Board of Education for Congress to pass the Voting Rights Act in 1965. That has been substantially weakened in recent years by partisan efforts substantially aided by none other than Marshall’s successor, Clarence Thomas.

One of the experts in “Becoming Thurgood” observed that Marshall’s impact means “the difference between remaining where we were and being where we are — the progress that we’ve made, I think.” An honorable, accurate summation of a legacy engrossingly laid out in this economically presented hour.

But the film also left me pessimistic about where we’re headed. Marshall was a once-in-a-century jurist whose hard-earned, wide-reaching work is steadily being dismantled by a court stacked with judges farther to the right of Barrett. Presenting her as the face of reasonability makes sense. “We’re a passive institution in that regard,” she tells O’Donnell, explaining that the court doesn’t pick cases. “And the cases that people litigate . . . they only bother to litigate the things that they’re really, truly disagreeing about that they feel passionately about. And then those are the cases that we see.”

You might never guess someone so blandly reassuring is participating in such monumental damage.

“Becoming Thurgood: America’s Social Architect” is available to stream on PBS.org and the PBS app.