Thurgood Marshall And Judicial Conservatism In Foreign Affairs
By Nikhil Shah
17 August, 2005
Countercurrents.orgWith all the recent talk about Supreme Court nominations and the controversy over the extreme conservatism of nominee John Roberts, it is worth analyzing what the other side of the Supreme Court has to offer advocates of international law and human rights. Thurgood Marshall, Supreme Court Justice from 1967 to 1991, whose name has become synonymous with civil rights and civil liberties and who is glorified by American progressives, had very conservative and hawkish views in the area of foreign affairs. Marshall supported U.S. imperial foreign policy in Vietnam and other third world countries and refused to join other progressive Justices like William Douglas in holding the U.S. accountable for its military actions according to the principles of international law. While Marshall does deserve credit for his landmark opinions and dissents on critical issues dealing with civil liberties, his contrary view on foreign affairs cannot be ignored when analyzing his legacy.
During his early legal career, Marshall held favorable views about the anti-colonial struggles of Asia and Africa.[1] Even when such struggles took on more aggressive forms such as the Mau Mau of Kenya, Marshall was sympathetic to them.[2] Marshall’s support however was based on the fact that the U.S. was not directly involved in any of these struggles. During this time, Marshall remained very critical of any criticism of the U.S. by these independent countries, and saw them as a sinister plot by the Soviet Union to mislead them.[3]
Marshall was very supportive of early U.S. involvement in military conflicts such as in North Korea and saw communist groups everywhere as seeking to divide the U.S. from “the rest of the world” through propaganda.[4] Marshall did not object to the dominant foreign ideology that was advocated by the executive branch as he saw the U.S. as a benevolent nation who was trying to pursue the ideology of peace and justice in the world. Thus, Marshall disliked any individuals “who attacked our country” according to his former law clerk, Paul Gewitz.[5]
In this context, it is not surprising that Marshall was very supportive of the Vietnam War as a Solicitor General and as a Supreme Court Justice.[6] After his appointment as a Supreme Court Justice, he refused to give Justice William Douglas (the most anti-war Justice) the fourth vote needed to bring the question of the war’s constitutionality before the court.[7] Because of Marshall’s refusal, a majority of six Justice’s determined that the court would not decide a case presenting fundamental questions about the Vietnam War.[8] From 1966 to 1973, the Supreme Court denied twenty-six different cases from different court of appeals dealing with the Vietnam War.[9] Unlike the federal court decisions that held issues pertaining to the Vietnam War to be non-justiciable political issues, Marshall and the rest of the Justices denying the cert
maintained silence on the issue.[10]The political question doctrine states that the courts cannot review a political act which is within the executive’s and legislative’s constitutional powers.[11] There was some indication that Justices Brennan and Black at the time did regard the issue of the Vietnam War as a political question as they believed that Congress’s continued funding of the war amounted to tacit approval of the war’s conduct.[12] But during the denial of cert for the cases, they remained silent as opposed to articulating a formal approach to the ‘political question doctrine.’[13]
Marshall and the rest of the court opposing review of the Vietnam War chose this course of action as it would further sustain the government’s prosecution of the war and avoid even the slight possibility of a situation where the judicial branch would be put in a position where they would have to give a remedial mandate to the Executive and Legislative branches and subject them to their authority.[14] Such a situation would also put the court in an awkward position of having to decide what type of remedy would have been appropriate and whether the court’s prestige would be diminished if the executive or legislative branches refused to follow the courts judgment.[15] The judicial branch has always mixed in “an uncertain blend of patriotism with judicial humility” on foreign policy issues as this is thought to have furthered the ‘national security’ interests of the U.S. through the executive speaking with ‘one voice’ without any contradictions.[16]
Marshall did break the silence and wrote an opinion in Holtzman v. Schlesinger as he wanted to stop the Supreme Court from hearing the issue of the U.S. bombing of Cambodia. On July 1, 1973, Congress cut off direct and indirect funding for the war in Southeast Asia “on or after August 15, 1973.”[17] New York Congresswoman Elizabeth Holtzman along with several air force officers filed a suit in the district court of New York attempting to get an injunction to halt U.S. air operations in Cambodia ahead of the August 15 deadline as they saw it as illegal.[18] Although the district court in Schlesinger enjoined the Cambodian bombing, the court postponed the injunction to permit the Government to seek a stay from the Second Circuit, which stayed the injunction pending consideration of the Government's appeal on the merits.[19]
When the Second Circuit stayed the bombing injunction, the plaintiffs appealed to Justice Marshall, as Circuit Justice, to vacate the stay and thus stop the bombing pending appeal, but Justice Marshall refused to vacate the stay.[20] After Justice Marshall refused relief, the plaintiffs applied to Justice Douglas, as Circuit Justice, in Yakima, Washington, for the same relief Justice Marshall had denied.[21] Noting unusual circumstances (which to him justified a departure from the practice that a second Circuit Justice refers an application for relief once denied by another Circuit Justice to the full Court), Justice Douglas vacated the Second Circuit's stay of the bombing injunction.[22] Marshall then got infuriated and consulted the other members of the court and stayed the bombing injunction “pending further order by this court.”[23]
Marshall stated that he thought that vacating a stay should only be done so in exceptional circumstances and that the facts of the case did not quite fit that profile.[24] Marshall seemed supportive of the idea of deferring to ‘the foreign policy goals’ of the U.S. which could otherwise hamper its vital security interests.[25] He was unwilling to challenge the assertion of the legality of the bombings and whether they would truly promote national security interests. Rather, Marshall just stated that the whole issue of the Cambodia bombings were “sensitive” and inappropriate for Supreme Court Justices.[26] Marshall felt that the justices lacked expertise in the area and a judgment could lead the court to be “on treacherous ground.”[27] Marshall views on the war had somewhat softened at the time and he stated that if it was up to him, he would have held the bombing of Cambodia to be unconstitutional as he disliked seeing any U.S. soldier killed in a conflict but that as a Circuit Justice he had to defer to the collective view of the Supreme Court on the issue.[28]
Chief Justice Douglas, however, dissented and issued a passionate opinion where he criticized Marshall’s approach to the issue. He stated that the Supreme Court had summarily granted stays before when there was any doubt as to whether due process had been followed in the procedures.[29] He went on to say that due process had not been followed for the bombing of Cambodia as Congress had not declared war.[30] Douglas then went on to exploit Marshall’s methodology in other cases where he analyzed the effects of different Supreme Court decisions on ordinary citizens.[31] Douglas did so by discussing the consequences of Marshall’s refusal to vacate the stay such as the killing of unknown innocent civilians in Cambodia whose only desire is for “socialized medicine to alleviate the suffering of their family and neighbors.”[32] Douglas saw these human consequences of the Cambodia bombing as satisfying the exceptional circumstances needed to vacate the stay.[33]
Although Marshall was somewhat skeptical of the Cambodia bombing, he confined his criticisms to American troops dying in the conflict and did not take up the matter of Cambodian citizens in his opinion.[34] Also unlike Marshall, Douglas challenged U.S. motives behind the war and was skeptical of it promoting national security interests as Cambodia was “not an imminent and immediate threat to our shores.”[35] Marshall chose to defer to the authority of the executive branch on the issue and did not challenge the supposed government interests that resulted from the bombing. He was more interested in looking at the issue through the perspective of the “division of power” rather than policy consequences.[36] Marshall’s actions in this area caused the U.S. bombing of Cambodia to proceed unopposed and led to over 600,000 Cambodian casualties and more than a million internally displaced refugees.[37]
After the termination of the Vietnam War, Marshall did finally acknowledge the Southeast Asian victims of the U.S. led war stating that “we can rejoice that bombs no longer fall on innocent people in Indochina.”[38] Despite this strong departure, Marshall continued to maintain silence on issues dealing with armed conflict. In Crocket v. Reagan, the Supreme Court declined review of a court of appeals suit by members of the House of Representatives challenging American military support to the brutal right-wing military dictatorship in El Salvador. [39] The Supreme Court declined review of the case as they said that it presented only nonjusticiable political questions.[40] The cert was denied despite allegations that presidential actions violated both the War Powers Resolution and the constitutional prerogative of Congress to declare war.[41]
Marshall did not feel strongly about the issue to file a dissenting opinion as Douglas had done previously for cases dealing with the Vietnam War where the cert was also denied.[42] Marshall chose this course of action despite the fact that most other fellow progressive members of the legal community saw the case as a vehicle for organizing a major effort against U.S. intervention in El Salvador and for human rights in Central America generally.[43] This probably stemmed from Marshall’s view that matters dealing with the use of force should not be subjected to legal restraint as it might disrupt the division of powers.[44]
While one cannot truly explain Marshall’s conflicting views on foreign policy issues and domestic liberty, we can speculate on theories based on individual rights v. foreign policy issues and politically motivated decisions.
A. Individual rights v. Foreign Policy issues
Marshall’s opinions in the area of individual’s rights were very passionate. It was Marshall’s belief that government and society must permit each individual to achieve the limits of his or her intellectual and creative ability; to eliminate artificial barriers of bias, prejudice, arbitrary authority or paternalism and to the proposition that the ordinary person, whatever his or her color or sex, needs the protection of law.[45] He did not hesitate to dissent from the majority of the court and write a lengthy opinion regarding why the course of action taken by the Supreme Court was wrong and the policy effect it would have on ordinary people from prisoners to racial minorities.[46] Marshall recognized that the law was an instrument of social and political improvement and went out of his way to advocate social change through his conception of equal protection.[47]
These concerns for individual rights even extended to cases involving a U.S. citizen’s right to travel to a foreign country. The majority opinion of the Supreme Court in Secretary of State Haig v. Agee and Reagan v. Wald decided that freedom of travel abroad is protected less than freedom of domestic travel and gave greater weight to the national interest in limiting foreign travel abroad.[48] The majority of the Supreme Court were unwilling to challenge the authority of the executive branches supposed national security interests in these cases and just accepted their reasoning without much debate.[49] In its balancing test, the Court provided no standard for measuring either individual right or public interest and its methodology seemed impressionistic.[50]
Marshall however dissented in both cases and reaffirmed the individuals right to travel over government interests. In Haig, he joined Justice Brennan’s dissent where they both stated that the constitution protects both “popular and unpopular” travelers referring to the defendant in the case who was a former CIA employee turned radical critic of the agency.[51] They stated that the courts decision had deviated from precedent about passport regulation and it gave the executive unjust authority in the area.[52] They concluded that Agee’s right to speech was outweighed by the “government’s interests in national security.”[53] In Wald, Marshall joined Justice Blackmun, Brennan and Powell in dissenting from the majority opinion.[54] The justices again challenged the presidential declaration of the state of emergency against Cuba and questioned whether Congress gave the president the authority to institute travel restrictions.[55]
Thus, Marshall along with the other justices was willing to directly take issue with presidential power and national security to protect individuals right to free speech and freedom of travel.[56] These cases along with other ones dealing with individual rights could lead one to speculate that Marshall felt more strongly about cases dealing with individual rights (even when they touched on foreign policy) rather than cases dealing with foreign policy generally and hence had a different methodology when dealing with the two.[57] His passion for individual rights allowed him to forsake his judicial conservatism in the area of foreign policy when the issue arose.[58]
This framework contains flaws as it does not explain why Marshall did not follow the methodology of Justice Douglas who shared Marshall’s concerns on individual rights yet took issue with many foreign policy areas that Marshall was silent on.[59] Douglas was both remembered as a staunch defender of civil liberties and individual freedom and a forceful advocate for world peace, world law, and cooperation between nations.[60] Unlike Marshall, Douglas had drawn a connection between domestic liberty and foreign policy and was willing to dissent and be uncooperative at the bench to support the principles of international law.[61] Although an anti-communist like Marshall, Douglas had gone out of his way to oppose the Vietnam War and international aggression generally despite it leading to his alienation politically and judicially.[62]
The framework also does not adequately explain why Marshall was willing to challenge the executive and call for judicial review in cases like First National City Bank v Banco Nacional De Cuba involving a nationalization of a bank in Cuba but be more silent on issues dealing with armed conflict.[63] Marshall’s engaged in ‘judicial law making’ through cases dealing with the Act of State doctrine such as First National Bank and yet he seemed to refrain from the practice in other areas dealing with foreign affairs.[64]
Marshall could have also seen past the pseudo legal doctrine of political question and decided the cases dealing with armed conflict on its merits.[65] The political question doctrine has no constitutional basis and many scholars such as distinguished International Law scholar Louis Henkin has called for its abandonment.[66] Henkin himself has stated, “I see no basis for a court not deciding a case when the court has jurisdiction, when a plaintiff who satisfies the requirements of case or controversy, standing, ripeness, concreteness, etc., challenges the constitutionality of an act of Congress or challenges an executive act as not within the President’s authority under the Constitutions or laws.”[67]
B. Politically Motivated Decisions
Marshall’s refusal to allow the Supreme Court to hear cases dealing with the legality of the Vietnam War could have risen from his general support for the war and the Johnson administration.[68] Johnson had nominated Marshall through great difficulty and at great political costs.[69] On account of this, Marshall probably felt obligated to not criticize the Johnson administration on the issue of the war, especially as the issue had left his administration politically vulnerable.[70] Marshall was fundamentally a liberal Democrat who admired Presidents Kennedy and Johnson and their commitment to civil rights and probably wanted to refrain from criticizing the war which had become synonymous with their administrations.[71] Even though Marshall disliked the Nixon administration, there was speculation that Marshall was pressured by the administration officials to refrain from criticizing the illegal bombing campaigns in South East Asia.[72]Another potential political reason for Marshall’s conservatism in areas of foreign affairs could have been to distinguish him from other civil rights leaders at the time. Marshall probably felt vulnerable as the only African American on the Supreme Court and wanted to assure the political branches of the government that he was not radical but ‘safe’ and conservative on some issues.[73] Marshall came from a middle class background whose ultimate goal was integration into American society on equal terms.[74] Thus, Marshall could relate to the middle class’s fear and frustration with these ‘militants’ who wished to radically transform U.S. society.[75]
Marshall strongly disliked civil rights leaders like W.E.B Du Bois, Malcolm X and Stokely Carmichael who had become radical critics of U.S. foreign policy and thought that these individuals had altered the political climate for the worse.[76] Stokely Carmichael had met the leaders of the North Vietnamese National Assembly in Hanoi and told them that blacks and the Vietnamese people shared a common enemy in U.S. imperialism.[77]
Malcolm X had also denounced the Vietnam War, called the U.S. imperialistic and maintained contacts with radical governments in Cuba, China, and Africa whom he considered natural allies of African-Americas.[78] Malcolm had repeatedly made radical foreign policy statements such as stating that the U.S. government exercises “brutal oppression against dark-skinned people in South and North Vietnam, or in the Congo, or in Cuba, or in any place on this earth where they are trying to exploit and oppress.”[79] Malcolm further went on to state that the U.S. was a society that “doesn’t hesitate to inflict the most brutal form of punishment and oppression upon dark skinned people all over the world.”[80] W.E.B Du Bois had similarly concluded at the end of his life that the only salvation for African Americans was to align themselves with socialist countries like the Soviet Union and China and not those who “exploit the Middle East, the West Indies, and South America” such as the U.S.[81]
Marshall saw these viewpoints as posing a challenge to the established social order, which resulted in the retrenchment of the white majority of the country and in turn brought the Republican administrations to power.[82] It is for these reasons why Marshall even despised criticisms of the Vietnam War by mainstream civil rights leaders like Dr. King.[83] Marshall’s judicial conservatism in foreign affairs was thus one of the ways where he could distinguish himself from other civil rights leaders who had upset middle class America.
This mode of analysis, however has several gaps as well. Political reasons do not explain why Marshall would choose to defend anti-establishment individuals and their right to travel in the Haig and Wald cases.[84] Nor does this analysis explain why Marshall empathized with the victims of the bombing campaigns in Indo-China while continuing to maintain his conservatism in the areas of armed conflict.[85] Marshall’s relationship with President Carter was strained politically and yet that did not prevent Marshall from joining the court in deferring to the president’s authority in Goldwater v. Carter involving the termination of a treaty between the U.S. and China.[86]
Also, political reasons do not explain why Marshall’s contemporary, Justice Douglas chose to criticize the Vietnam War and American foreign policy despite being anti-communist and close to President Johnson.[87] Douglas was considered a confidant of John Kennedy and Lyndon Johnson and had been considered as a Secretary of State in a hypothetical cabinet before the 1960 election.[88] This however, did not stop Douglas from severely criticizing the Vietnam War and U.S. foreign policy generally despite the severe strain it put on his friendship with President Johnson.[89] Lyndon Johnson became extremely angered by Douglas’s vocal opposition to the Vietnam war and his participation in a series of peace conferences pertaining to the war.[90] Douglas however, continued to voice his opposition to the Vietnam War in stronger terms and speak out against U.S. imperialism generally.[91] Douglass even went as far as to publish a book titled “International Dissent” that chronicled his views on U.S. foreign policy and international justice.[92] In his book, he explicitly stated that the U.S. had “racist overtones” in its foreign policy and they were “far distant in viewpoint and attitudes from the developing nations, including our neighbors south of the Rio Grande-we seem to think that they too are inferior.”[93]
Again Marshall could have followed Douglas’s example and been more vocal about U.S. foreign policy and international law but chose not to. Marshall could have utilized more subdued terminology to criticize Johnson’s actions in Vietnam without having any serious negative effect on their friendship such as Chief Douglas had done in the early 1960’s.[94] But Marshall chose to support U.S. foreign policy despite later acknowledging its shortcomings.[95] It is therefore apparent that political concerns alone did not define Marshall’s methodology in the area.
Marshall’s judicial conservatism in foreign affairs dispels the myth that a Supreme Court Justice who has very liberal views on civil rights and individual liberties would also consequently share a vision of international justice. Marshall’s views on foreign affairs show that a Supreme Court Justice who is willing to take a radical departure from traditional jurisprudence in areas of civil rights and civil liberties can still remain quite hawkish or indifferent in matters of foreign affairs and international law. Marshall’s foreign policy methodology also gives us a glimpse into the nature of the U.S. Supreme Court and how they react to U.S. aggression against another country.
[1] Thurgood Marshall The United States as the Moral Leader of the World in Supreme Justice: Speeches and Writings 149-50 (J. Clay Smith Jr. ed. 2003); Davis 356[2] Juan Williams Thurgood Marshall: American Revolutionary 285-86 (New York: Random House, 1998); See Davis supra note 4 at 43.
[3] See Marshall supra note 1 at 150.
[4] Thurgood Marshall: His Sppeches, Writings, Arguments, Opinions, and Reminiscences 136 (Mark V. Tushnet ed., Chicago: Lawrence Hills Books, 2001).
[5] Michael D. Davis & Hunter Clark Thurgood Marshall : Warrior at the Bar, Rebel on the Bench 286 (New York: Birch Lane Press Book, 1992).
[6] Id. at 310.
[7] Id.
[8] Rodric Schoen, A Strange Silence: Vietnam and the Supreme Court Washburn Law Journal 275, 304 (Spring 1994).
[9] Id.
[10] Id. at 281-97 and 309-10.
[11] Louis Henkin Foreign Affairs and the U.S. Constitution 146 (Oxford: Clarendon Press, 1996).
[12] See Davis supra note 5 at 310.
[13]Supra note 6 at 307-08.
[14] Id.at 311.
[15] Id. at 314.
[16] Louis Henkin Constitutionalism Democracy and Foreign Affairs 71 (New York: Columbia University Press, 1990).
[17] See Davis supra note 5 at 326-27.
[18] Id. at 327.
[19] Holtzman v. Schlesinger, 484 F.2d 1307, 1308 (2d Cir. 1973).
[20] Holtzman v. Schlesinger, 414 U.S. 1304 (Marshall Circuit Justice, 1973).
[21] Id. at 1316.
[22] Id.
[23] Id. at 1321-22.
[24] Id. at 1308.
[25] Id. at 1309.
[26] Id. at 1309-10.
[27] Id.
[28] Id. at 1313.
[29] Id. at 1317-19.
[30] Id.
[31] Id. at 1317.
[32] Id.
[33] Id.
[34] Id. at 1315.
[35] Id. at 1320.
[36] Id. at 1314.
[37] Noam Chomsky, World Orders Old and New 95 (New York: Columbia University Press, 1996).
[38] Thurgood Marshall, World Peace Through Law: An Urgent Task, in Supreme Justice: Speeches and Writings 236 (J. Clay Smith Jr. ed. 2003).
[39] 720 F.2d 1355 (D.C. Cir.1983), cert. Denied, 467 U.S. 1251 (1984).
[40] Id.
[41] Id.
[42] Jules Lobel, Justice Douglas the Internationalist: The Connection between Domestic Liberty and Foreign Policy in The Legacy of William O. Douglas 279, 290 (Stephen L. Wasby ed., Pittsburgh: University of Pittsburgh Press, 1990).
[43] Jules Lobel, Loosers, Fools, Profits: Justice As Struggle, 80 Cornell L. Rev. 1331, 1395 (1995).
[44] See note 14 and accompanying text.
[45] Martha Minow, A Tribute to Justice Thurgood Marshall, 105 Harv. L. Rew. 66, 67 (1991).
[46] Id. at 67.
[47] Id. at 69.
[48] Haig v. Agee, 453 U.S. 280, 306 (1981); Regan v. Wald, 468 U.S. 222 (1984).
[49] Agee, 453 U.S at 307-10; Wald 468 U.S. at 240-43.
[50] Id.
[51] Agee at 319.
[52] Id.
[53] Id. at 320.
[54] Wald 468 U.S. at 244 (Blackmun dissenting).
[55] Id. at 259-62.
[56] See supra notes 50-54.
[57] See supra note 44; Peter Irons A People’s History of the Supreme Court 415 (New York: Penguin Books, 1999). Marshall wrote few opinions in other areas of the law such as antitrust and tax law.
[58] Id.
[59]See supra note 42.
[60] Id.
[61] Id.
[62] Id. at 283, 288.
[63] 406 U.S. 759,776 (1972) (Brennan, Stewart, Marshall and Blackmun, dissenting).
[64] Thurgood Marshall: His Sppeches, Writings, Arguments, Opinions, and Reminiscences 136 (Mark V. Tushnet ed., Chicago: Lawrence Hills Books, 2001); See supra note 11.
[65] See supra note 16 at 81, 87.
[66] Id.
[67] Id. at 87.
[68] Michael Belcap, Constitutional Law as Creative Problem Solving: Could the Warren Court have ended the Vietnam War, 36 Cal. W. L. Rev. 99, 106-07.
[69] Id.
[70] Id.
[71] Nicholas Katzenbach, “Marshall was fundamentally a conservative, a democrat intolerant of arbitrary acts of government,” Los Angeles Times, Jun 28, 1991. pg. 7.
[72]William Douglas The Court Years 1939-1975: The Autobiography of William O. Douglas 279 (New York: Random House, 1980).
[73] Id. at 252.
[74] See Davis supra note 5 at 286.
[75] Id.
[76] Id.
[77] Id. at 276.
[78] George Breitman, The Last Year of Malcolm X: The Evolution of a Revolutionary 43 (New York: Pathfinder Press, 1967). William Sales, Jr. Malcolm X and the Organization of Afro-American Unity 102-104 (Boston: South End Press, 1994).
[79] Malcolm X Educate our people in the science of politics in Malcolm X: February 1965, The Final Speeches 85 (Steve Clark ed. 1992).
[80] Id.
[81] W.E.B Du Bois The Autobiography of W.E.B. Du Bois: A Soliloquy on Viewing My Life from the Last Decade of Its First Century 404-08 (New York: International Publishers, 1997).
[82] See supra note 5 at 286.
[83] See supra note 2 at 341.
[84] See supra notes 50-54.
[85] See supra note 39
[86] See supra note 2 at 362-63; Goldwater v. Carter, 481 F. Supp. 949, 950 (1979).
[87] See supra note 41 at 283, 288.
[88] Id. at 288.
[89] Id.
[90] Id.
[91] Id.
[92] William Douglas, International Dissent: Six Steps toward World Peace, (New York: Vintage Books, 1971).
[93] Id. at 4.
[94] See supra note 41 at 288.
[95] See supra note 9 at 362-63.
