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Published online by Cambridge University Press: 16 December 2008
The judicial role in the construction of the twentieth-century state was decisively structured by the interaction of developments in jurisprudence and by changes in the organization of the regulation of economic activity. Individual judges brought their backgrounds and political predispositions to the task as well, and we will gain a full understanding of the judicial role in structuring the state only by integrating biography, jurisprudence, and political economy. This article examines the work of Justice Thurgood Marshall in constructing the post-New Deal settlement of the relations among people in their capacity as consumers, people in their capacity as workers, and capital. That settlement was expressed in legal forms that departed from the common law doctrines that had for two centuries provided one of the legitimating ideologies of social relations. With the construction of the administrative state came the need to reconstitute not only the legal structures that supported the agencies of government, but also the ideological structures that explained the legitimacy of these innovations. While legal academics articulated carefully thought out defenses of the administrative state, judges provided the citizenry with less developed but, perhaps, more easily understood ideologies. Justice Marshall's work in areas of labor law and civil procedure provides insight into the dimensions of the legal legitimation of the administrative state, while his unique experience as a lawyer and his place within the Court illuminate the importance of biographical factors in a full explanation of the construction of the legal structures of the administrative state.
1. One aspect of the work of the courts, and particularly of the Supreme Court, that receives little attention here is that the courts are themselves organizations, and the Supreme Court is a collective body in which the interactions among the Justices may affect the way in which cases are decided. Internal Court documents for the period discussed in this article are not available at this time, however.
2. What might seem a disadvantage under other circumstances—the widely known fact that Justice Marshall is not deeply involved in the drafting of the language used in his opinions—turns out to be an advantage to my present effort. The contributions judges make to the legitimation of the social order lie, I believe, primarily in the broad outlines of what they do, and the sense their opinions convey of what ought to be taken seriously. To focus on the specific details of what judges say, then, might mislead about the means by which judicial legitimation of the social order occurs.
3. This account of the legal theory of the common law is drawn from Sunstein, Cass, “Lochner's Legacy,” Columbia Law Review, 87 (06 1987) 873–919CrossRefGoogle Scholar. On the rise of the administrative state see Skowronek, Steven, Building a Mew American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982)CrossRefGoogle Scholar.
4. This account of Legal Realism is drawn from Rumble, Wilfrid, American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca, Cornell University Press 1968)Google Scholar, and Singer, Joseph, “Legal Realism Today,” California Law Review, 76 (03 1988): 465–544CrossRefGoogle Scholar.
5. The classic statement of this position is Ives v. South Buffalo Railway Co., g 201 N.Y. 271 (1911), finding unconstitutional the replacement of the common law regime of compensation for workplace injury under the law of torts by a workers' compensation system. In contrast, the Sherman Antitrust Act of 1890 was uncontroversial in theory because it could easily be understood as a simple adoption into national law of common law prohibitions on restraints of trade. See Addystone Pip & Steel Co. v. United Slate, 175 U.S. 211 (1899).
6. That assault has been developed in recent years by scholars, of whom I am one, who work in critical legal studies. See, e.g., Tushnet, Mark, “Rights: An Essay in Informal Political Theory,” Politics & Society 17 (12 1989)CrossRefGoogle Scholar; 403–51.
7. Marshall was specifically influenced by the Legal Realism of his mentor, Charles Hamilton Houston, but for present purposes it is more important to see Marshall as a participant in the primary movements of legal thought in the twentieth century rather than to attribute his approach to the particulars of his biography. On Houston's influence as a Realist, see Tushnet, Mark, The NAACP's Campaign Against Segregated Education, 1925–1950. (Chapel Hill, University of North Carolina Press 1988), pp. 117–19Google Scholar.
8. For a general discussion of that challenge, see Kluger, Richard, Simple Justic. (New York, Alfred A. Knopf 1976)Google Scholar.
9. New York Time, 14 June 1967, p. 18.
10. Klare, Karl, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,” Minnesota Law Revie 62 (03 1978): 265, 267Google Scholar.
11. Ibid, p. 321.
12. Klare, , “Critical Labor Theory and Labor Relations Law,” in The Politics of Law: A Progressive Critiqu Kairys, David, ed., (New York, Pantheon 1982), pp. 75–76Google Scholar. The most elaborate treatment of this element, focusing on issues regarding the law of arbitration not dealt with here, is Stone, Katherine, “The Post-War Paradigm in American Labor Law,” Yale Law Journa, 90 (06 1981): 1509–80CrossRefGoogle Scholar.
13. I do not consider here two important types of “labor law” cases. Cases involving labor relations in the public sector are presented to the Court in the form of constitutional challenges, usually implicating the First Amendment, and Marshall's analysis of those cases is best considered as an aspect of his constitutional jurisprudence. Second, cases involving racial discrimination in the workplace implicate Marshall's views primarily on race issues rather than on labor issues.
14. NLRB v. Longshoreme, 447 U.S. 490 (1980).
15. The four dissenters, in an opinion by Chief Justice Burger, took the Court as having held that the agreement was in fact one for work preservation, and criticized the majority for rejecting the NLRB's careful consideration of all the details of containerization; to the dissenters, the NLRB had already done what the Court said it should do, and had not applied an erroneous legal test focusing on work done inland by teamsters and consolidators.
16. Some points regarding method should be made here. It might be contended that Marshall's opinions reveal little about his own policy views or place in the spectrum of liberalism, because they were simply expressions of “the law.” Yet, in most of the cases I discuss there was a dissent and often disagreement in the lower courts about what “the law” required. In addition, even if the outcome was essentially determined by “the law,” at certain points Marshall invoked policy grounds to explain why the law should have the shape that it did; other judges might have invoked other policy grounds, or placed different emphases on them, and the way in which Marshall constructed his opinions therefore reveals something about his position.
17. 417 U.S. 249 (1974).
18. John Wiley & Son v. Livingsto, 376 U.S. 543 (1964).
19. NLRB v. Bums International Security Service, 406 U.S. 272 (1972).
20. My choice of labor cases to discuss results from a survey of labor law professors who were asked to identify Marshall's most important labor law cases, and a survey of labor law casebooks to find which of Marshall's opinions survived the selection process. The cases I discuss represent a consensus list. My survey respondents were Karl Klare, Katherine Stone, James Atleson, Clyde Summers, Alan Hyde, and Michael Fischl.
This process may distort somewhat the presentation of Marshall's position overall, in part because it does not take account of his vote in cases in which he did not write opinions, and in part because the process may single out cases that are for various reasons distinctive rather than representative. As to the voting patterns, however, it seems fair to attribute more significance to the opinions Marshall wrote than to the ones he simply joined. And, the distinctiveness of the opinions is offset to some degree by the survey of labor law casebooks, which generally choose opinions because they convey to students a sense of what the basic structure of the law is, and by my reading of other Marshall opinions, not discussed here, to assure myself that my analysis does not distort his overall position.
21. 420 U.S. 50 (1975).
22. One aspect of that policy was expressed in Title VII of the Civil Rights Act of 1964, which contains a provision barring employers and unions from retaliating against employees who complain about racial discrimination. Justice Marshall's opinion for the Court expressed some doubt about whether this provision even applied to “complaints” that took the form of picketing rather than the form of appeals to courts or other antidiscrimination agencies; however it held that, in any event, the provision authorized an action against the employer for retaliation but did not make retaliation an unfair labor practice. 420 U.S., at 71–72.
23. 457 U.S. 102 (1982).
24. Marshall may also have taken the opportunity provided by the unusual voting alignment to assign an interesting and contentious opinion to himself. Ordinarily Marshall has been in the majority in two situations. First, in uncontentious and ordinarily rather technical cases, Marshall has been a member of a majority that has included Chief Justices Burger or Rehnquist. He might then be assigned the opinion, but it would not be an interesting one. Second, in ideologically divisive cases, which tend to be interesting, Marshall has been a member of a majority that usually has included Justice Brennan. As the senior Associate Justice in the majority, Justice Brennan has the authority to assign the opinion, and ordinarily will assign it to a more centrist member of the majority than Marshall, to cement the majority group.
25. See generally Record, Wilson, Race and Radicalism: The NAACP and the Communist Party in Conflic (Ithaca, Cornell University Press 1964)Google Scholar.
26. Gibso v. Florida Legislative Investigating Comm, 372 U.S. 539 (1963), involved the most explicit effort reaching the Supreme Court to link the NAACP to the Communist party. The Court rejected Florida's attempt to force the NAACP to identify some of its members as Communists, but only by a narrow margin. (Indeed, before Justice Felix Frankfurter's replacement by Justice Arthur Goldberg the Court had voted to uphold the state's inquiry. See Schwartz, Bernard, Super Chief: Earl Warren and His Supreme Court: A Judicial Biograph (New York, New York University Press 1983), pp. 452–53.)Google Scholar
27. For an introduction to these concepts, see James, Fleming & Hazard, Geoffrey, Civil Procedur 2d ed., (Boston: Little, Brown & Co., 1977), pp. 622–26Google Scholar.
28. Hess v. Pawlosk, 274 U.S. 352 (1927) (consent in automobile case); Lafayette Insurance Co v. Frenc, 59 U.S. (18 How.) 404 (1856) (consent in corporation case); International Harvester Co v. Kentuck, 234 U.S. 579 (1914) (doing business as presence); International Shoe Co v. Washingto, 326 U.S. 310 (1945).
29. 433 U.S. 186 (1977).
30. Justice Powell concurred, suggesting that pure in rem jurisdiction might still be proper, without applying International Shoe, in cases involving “some forms of property [like land] whose situs is indisputably and permanently located within a State.” Justice Stevens concurred in the result, and Justice Rehnquist did not participate.
31. 444 U.S. 320 (1980).
32. Justice Stevens dissented, finding the analogy to a direct action against the insurer persuasive because the state did not attempt to assert power over Rush in any way, and finding that the concerns for noneconomic factors were “far too remote.”
33. 444 U.S. 286 (1980).
34. Of course, allowing jurisdiction in California would not eliminate the possibility of jurisdiction in New York, so the real issue concerns which state court judges will obtain jurisdiction. Nonetheless, Justice Brennan may have wanted to support efforts by all state court judges to acquire jurisdiction.
35. See Minow, Martha & Kennedy, Randall, “Thurgood Marshall and Procedural Law: Lawyer's Lawyer, Judge's Judge,” Harvard Blackletter Journa, 6 (Spring 1989): 95–101Google Scholar.
36. Ibid, p. 99.
37. The argument that procedural rigor helps better advocates is consistent with a position on who should prevail only if one assumes as well that the better advocates are likely to be on the side of those who ought to prevail. This assumption, while tenable, is not self-evidently true.
