When Marshall Disrobed His Colleagues


Washington.-- Payne v. Tennessee was the straw that broke the old man's back. Thurgood Marshall had taken all he could take. Last Thursday, when the opinion came down, he left.

The occasion marked a sad ending to a career that could have happened only in America. The grandson of slaves, Mr. Marshall grew up in a totally segregated society. He used to tell stories, sometimes poignantly, always instructively, about the humiliations he endured in his younger years.

Mr. Marshall was an advocate, a brilliant trial lawyer, a persuasive solicitor general. He was born to serve before the bench and not behind it. His 24 years on the high court, for the most part, must be accounted a failure. He left few opinions for the court that approached the status of landmarks.

During the term that ended with his resignation, Justice Marshall wrote no majority opinions of wide interest. Bereft of the supportive vote and the close counsel of Justice William Brennan, Mr. Marshall visibly declined. His lumpy body sagged; his questions in oral argument lost the knifelike edge of wit.

The custom on the high court is for dissenting justices to write that they dissent "respectfully." Justice Marshall had little patience with politesse. When he was on the losing side, he expressed his opinion bluntly: "I dissent."

In his last dissent, in Payne v. Tennessee, Mr. Marshall erupted with the brimstone fury of a smoldering volcano. In the process he gave vent to certain truths about the rule of law that rarely come from one so highly placed.

The case involved Pervis Tyrone Payne. He was charged with murdering a 28-year-old woman and her 2-year-old daughter. He was also charged with the attempted murder of her 3-year-old son. A trial jury convicted him on all counts.

During a presentencing hearing, four witnesses testified on Payne's behalf: Payne was mentally handicapped, but he was a "very caring person." He had no history of alcohol or drug abuse; he had never before been arrested; during several months of pretrial custody he had been exceptionally polite.

But this was the point of the case: The presentencing jury heard testimony not only for Payne but also against him. The woman's mother spoke pathetically of the little grandson's loss: "He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie." The jury imposed a sentence of death.

In Booth v. Maryland in 1987, and again in South Carolina v. Gathers in 1989, the court had ruled such emotional testimony inadmissible. Justice Marshall was on the winning side in both cases. Now, in Payne v. Tennessee, he was on the losing side. He exploded:

"Power, not reason, is the new currency of this court's decision making. Four terms ago a five-justice majority of this court held that 'victim impact' evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. By another 5-4 vote, a majority of this court rebuffed an attack upon this ruling just two terms ago.

"Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this court did."

In those two sentences Justice Marshall effectively disrobed his colleagues and stripped away some of the mystique in which the justices historically have wrapped themselves. Justice Marshall was honest. He was always honest. Here he was saying what Charles Evans Hughes said in an unguarded moment 80 years ago: "We live under a written Constitution, but the Constitution is what the justices say it is."

Precisely so. On the admissibility of victim-impact statements, the Constitution meant one thing in 1987. It meant the same thing in 1989. But Justices Lewis Powell and William Brennan retired, and Anthony Kennedy and David Souter came on to succeed them. The Constitution hadn't changed, but the judges had changed.

Is ours a government of laws? Nonsense! In this regard ours is a government of men. This is the way the system was meant to work. Presidents come and go. The justices they nominate stay on for years. John Marshall served 34 years after John Adams went out of office. William O. Douglas served for 30 years after the death of Franklin Roosevelt. Now Ronald Reagan and George Bush cast their conservative shadows into the next century.

Let us thank Thurgood Marshall for his last cannonade. Nothing in his judicial life became him like the leaving it.

James J. Kilpatrick is a syndicated columnist.

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