June 6, 2007

Forty years ago, on June 13, 1967, President Lyndon Johnson strode into the Rose Garden for a press conference, accompanied by a tall, distinguished African-American man.

"I shall send to the Senate this afternoon," Johnson said, "the nomination of Mr. Thurgood Marshall to the position of Associate Justice of the Supreme Court . . . He is best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right
man and the right place."

At the time of his appointment, Marshall was best known for his role as an architect of Brown v. Board of Education and the successful effort to overturn legal segregation.

But what both Marshall and Johnson understood was that that struggle was never only about African-Americans, but about the soul and future of our country.

During his quarter-century on the court, Marshall advanced a jurisprudence of freedom, opportunity and justice that improved the lives of all Americans. He understood that our Constitution was intended to unite us through a
common set of rights and responsibilities. His opinions on criminal justice and education -- as well as civil rights -- illustrate his vision of the Constitution as a unifying force.

In Benton v. Maryland, for example, his decision for the court held that the Double Jeopardy Clause of the Constitution -- which outlaws prosecuting the same person twice for the same crime -- applies to the 50 states. "The
double jeopardy prohibition," he said, "represents a fundamental ideal in our
constitutional heritage, and Š it should apply to the states through the 14th Amendment."

Even Marshall's dissents often influenced the development of the law in ways that benefited our country.

In San Antonio Independent School District v. Rodriguez, a majority of the court held that grossly unequal public school conditions arising from an inequitable state finance system did not violate the Constitution. But Marshall dissented: "The right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record."

While the U.S. Supreme Court has held to the idea that education is not a fundamental right under our Constitution, many states have since found such a right under their own constitutions, sending new resources to underfunded urban and rural schools and students around the country.

Marshall's vision and legacy remind us how important a president's choice of Supreme Court Justice can be.

As we approach another presidential election, we must move beyond the often perfunctory questions that candidates generally receive about their plans for the court: Who is your model Supreme Court Justice? What's your
favorite Supreme Court decision?

We must instead ask them about their own constitutional vision and about the vision they'll promote through their judicial nominees. Platitudes about seeking nominees who will interpret laws instead of "legislating from the bench" must give way to real insights about the constitutional values that nominees will bring to that interpretive task.

Presidential candidates often view judicial nominations as a chance to reward political constituencies and interest groups. But we must insist on a higher standard for the most lasting decision that most presidents will make.

In 1991, when Marshall announced his retirement, reporters asked him whether African-Americans were better off then than when he joined the court. Justice Marshall replied: "All Americans are better off since I joined the court. All of them."

He was right.

Marshall's legacy is not only about African-Americans or civil rights, but about all of us.

Alan Jenkins, who served as law clerk to U.S. Supreme Court Justice Harry A. Blackmun from 1990 to 1991, is executive director of The Opportunity Agenda, a communications, research and advocacy organization with the mission of building the national will to expand opportunity in America (www.opportunityagenda.org). He can be reached at pmproj@progressive.org.