IV. Marshall's Relevance Today

Marshall's jurisprudence speaks directly to our present problems. The most serious threat to the viability of American democracy is the substantial economic and political inequality that has developed over the last several decades. The problem is twofold: runaway incomes at the top of the earnings scale and widespread income stagnation. Between 1973 and 2007, the top 20% of families increased their share of total income from 41.1% to 47.3%, while the bottom 80% lost share. And the problem is getting worse. In 2010, 93% of the additional income created during the year went to the top 1%, and “37 percent of these additional earnings went to just the top 0.01 percent, a teaspoon-size collection of about 15,000 households with average incomes of $23.8 million.” Moreover, increased inequality has been accompanied by declining social mobility. Americans born to humble origins no longer rise to a higher level more easily than people living elsewhere. Further, our government once enacted policies such as Social Security that broadened prosperity, but, with the notable exception of the Affordable Care Act, rarely does so any more. Political power has followed money to the top, and our present policies, particularly tax policies, exacerbate inequality.

While the judiciary may not have as great an obligation to respond to the problem of inequality as the other branches of government, it nevertheless has an important role to play. This is so because hyper-inequality raises significant legal issues. In addition to requiring equal protection of the law, the Constitution guarantees “a Republican Form of Government” (i.e., a government that, in Lincoln's words, is “of the people, by the people, and for the people,” not a wealthy few). Arguably, if more Justices shared Marshall's inequality concerns, the problems we face today would be less acute. In any case, Marshall's broad view of equal citizenship and his more generous approach to equal protection analysis, including his willingness to scrutinize some legislative classifications based on wealth, would surely be responsive to our present predicament.

In addition, many of Marshall's opinions speak directly to aspects of today's inequality problem. Take, for example, campaign finance and the Supreme Court's decision in Citizens United v. Federal Election Commission that corporations have a First Amendment right to make political expenditures. The Court's campaign finance jurisprudence contributes substantially to inequality by increasing the political power of the wealthy and depressing voter turnout by low-income citizens. It increases the power of the wealthy by promoting a system in which candidates are dependent on the support of the wealthy and near wealthy. As a result, candidates never mention low-income people, who presently number some forty-six million, and oppose redistributionist policies that might benefit them. Instead, they refer almost robotically to the middle class. The effect of this is to discourage the poor from voting. When people are given no reason to vote, they tend not to do so. Citizens United made this problem worse, but it is merely the latest in a series of campaign finance decisions that tragically reject Marshall's view that the First Amendment includes an equality component. Had the Court paid attention to Marshall's campaign finance jurisprudence, one of the principal sources of our present inequality, the excessive importance of money in politics, would be far less potent.

Although, as discussed, Marshall believed deeply in the First Amendment, he also was greatly concerned about the potentially corrosive effect on our democracy of the infusion of large amounts of money into the political system. Thus, he thought that government could reasonably regulate political spending for the purpose of ensuring fairness and integrity in the electoral process. When in the seminal campaign finance case, Buckley v. Valeo, the Court held that government could limit the amount that a supporter could contribute to a candidate's political committee, Marshall was willing to go further and limit the amount that a candidate could contribute. And, in FEC v. National Conservative Political Action Committee, Marshall rejected the majority's position that the government could regulate contributions to candidates but not expenditures on behalf of candidates. Ever the realist, Marshall concluded that the distinction between contributions and expenditures was formalistic and that the political process could be corroded as easily through expenditures as through contributions. Recent election cycles--in which expenditures by outside interests, whose identities and funding sources are usually hidden from the public, often dwarf those of candidate committees--have, of course, proven that Marshall was right.

The Citizens United majority overruled Marshall's opinion in Austin v. Michigan State Chamber of Commerce, in which he wrote that the state had a strong interest in prohibiting “the corrosive and distorting effects of the immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.” Marshall's Austin opinion and his campaign finance jurisprudence generally reflect his deep commitment to the equal citizenship principle. As such, they provide a compelling alternative to the approach of the Roberts Court, in which hostility to legislative and judicial efforts to reduce inequality is almost palpable. For example, during the oral argument in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, which involved a campaign finance reform measure adopted by the people of Arizona pursuant to a referendum, the conservative Justices repeatedly declared that the law was unconstitutional because it was intended to make the resources available to candidates more equal. Chief Justice Roberts said that the infirmity in the law was that its purpose was to “‘level the playing field’ when it comes to running for office.” It seems that, to some Justices, “equality is just in itself a forbidden goal.”

Another Marshall dissent that, had it commanded a majority, would have resulted in greater political participation by the poor and thus somewhat ameliorated the inequality we face today, came in a case addressing felon disenfranchisement, Richardson v. Ramirez. Most states prohibit felons who are in prison from voting, and many states apply the bar to felons who are on parole or probation. Fourteen states go so far as to disenfranchise felons for life. The dramatic expansion of the criminal justice system in recent decades has led to five million Americans being ineligible to vote because of a felony conviction. Fourteen percent of African American men are ineligible to vote, and in seven states, one black man in four is permanently barred from voting.

Notwithstanding that the goal of the Reconstruction Amendments was to eliminate caste, the Richardson majority found that felon disenfranchisement does not violate the Equal Protection Clause. In his dissent, Marshall pointed to the majority's failure to identify any public interest served by barring felons from voting. He noted that the plaintiffs had “fully paid their debt to society,” that citizens with criminal records are “as much affected by the actions of government as any other citizens,” that disenfranchising felons hinders “the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens,” and that all Americans benefit by ex-offenders becoming equal citizens. Whatever the reasons for the unforgiving disdain for people who have paid their debt to society, it is difficult to see how Marshall's view that their disenfranchisement deprives them of equal protection of the law is mistaken.

Of course, our inequality problem has a racial dimension to which many of Marshall's opinions speak. The unemployment rate is 7.4% among whites but 13.6% among blacks. The median wealth of a white household is twenty times that of a black household, the largest difference since 1984. One in four black households has no assets other than a car, worth about three thousand dollars, and there are more African American adults under correctional control today than were enslaved in 1850, a decade before the Civil War began. As Marshall understood the equal citizenship principle, the state could not use race to subordinate or demean. He saw nothing wrong in using race for a benign purpose such as to assist a minority group in its effort to eliminate the vestiges of caste.

Today, however, attempts by government to assist minorities run up against the Roberts Court's perversion of the equal citizenship principle, which largely prohibits remedial efforts based on race. Beginning in the 1970s, the political Right concocted a version of colorblindness according to which the explicit use of race is immoral and unjust. Thus, according to Justice Thomas, affirmative action, designed to overcome a legacy of racial oppression, is “just as noxious” as segregated schools and criminal bans on interracial marriage. Reactionary colorblindness also severely limits what counts as racism. In the absence of evidence of a racially derogatory statement, which a plaintiff seeking to establish discrimination will usually be unable to find, it is virtually impossible to show that race affected government action. Consider McCleskey v. Kemp, in which McCleskey, a black man charged with killing a white police officer, established that in Georgia, blacks who murdered whites were sentenced to death at twenty-two times the rate of blacks who killed blacks. With Marshall dissenting, the Court held that these statistics proved nothing. By 2007, when the Court held in Parents Involved in Community Schools v. Seattle School District No. 1 that school districts could not engage in voluntary school integration, it had come full circle, wielding the power it once used to strike down laws requiring segregation to strike down laws promoting integration. In Parents Involved, Chief Justice Roberts misread Brown as a case requiring strict scrutiny for all racial classifications, even those designed to promote integration. In fact, Brown did not involve strict scrutiny; it held that racial segregation stigmatized minority school children.

Thus, Marshall's jurisprudence is extraordinarily relevant to the problem of inequality that plagues us today in many forms. However relevant it may be, it unfortunately is quite unfashionable. As the Kagan hearing indicated, Republicans have little regard for Marshall's approach to judging. Since 1980, Republican presidents have filled the federal courts with judges who couldn't be less like Marshall. And until the emergence of Occupy Wall Street, Democrats expressed little interest in the equality issue, which preoccupied Marshall, much less in appointing judges who think like Marshall. In fact, Barack Obama went so far as to say that while the approach of Marshall and other Warren Court Justices was justified during the Jim Crow era, he “would be troubled if you had that same kind of activism in circumstances today.” It is hard to know whether Obama actually believes that Marshall's approach to judging is no longer applicable or whether his comment was only designed to show that he is a moderate. In either case, the remark was misguided. As discussed, of the problems we face today, the increasing economic and political inequality is probably the most serious, and a judiciary committed to the equal citizenship principle would be an enormous benefit.

Possibly, Obama shares the view of some Democrats, including his mentor and former Marshall clerk, Cass Sunstein, that progressives should redirect their constitutional energy from the courts into democratic arenas. However, Sunstein and others overemphasize the legislative branch and underemphasize the judiciary. Legislatures reflect existing arrangements of economic and political power and, when it comes to equal citizenship, often falter. It was judges who successfully addressed previously intractable equal citizenship issues such as racial segregation, gerrymandered legislatures, and the rights of criminal defendants. What's more, recent research suggests that the public does not react differently to important decisions made by courts than to those made by legislatures, and that progressives have been excessively fearful about using courts to advance their goals. In fact, Democrats might want to consider a bolder approach to judicial appointments. A federal judiciary consisting only of conservatives and moderates and bereft of judges who think like Marshall will not attempt to halt or reverse many years of conservative decisions and will constrain rather than expand our notions of constitutional justice.

Marshall, of course, was not without flaws. He sometimes found himself on the margins of the Court's work, although this was largely because he was in the minority. He was proud and had strong opinions. He understood that he would be unable to change the outcome of many cases and, as a result, sometimes made little effort to do so. Instead, he tried to reach the public through his dissents, many of which are visionary and compelling. Kagan was correct when she referred to his jurisprudence as a thing of glory. For those who are interested, Marshall's work offers a guide as to how, through sound interpretation of the Constitution, courts can contribute to the creation of a fairer and more equal society.

. Lynn Adelman is a United States District Court Judge in the Eastern District of Wisconsin.