The Racial and Reproductive Justice of Thurgood Marshall

Posted on October 30, 2017 by Matt

Thurgood Marshall, 1967. Photo: National Archives and Records Administration

On January 21, 2017, the day after the inauguration of Donald Trump as America’s 45th president, almost half a million people descended on Washington, D.C., in what the Washington Post called “likely the largest single-day demonstration in recorded U.S. history.” The Women’s March was held to protest the election of a highly unpopular president, who had been exposed in the months leading up to the election as someone who insulted the appearance and intelligence of women, boasted of his aggressive sexual advances toward others, and vowed to nominate a Supreme Court judge who would roll back women’s access to abortion. In D.C., and at solidarity marches around the nation and the world, people arrived for a massive show of support for women’s rights and reproductive justice.

Thurgood Marshall was a “great champion of intersecting struggles against racism and sexism.”

Actor Chadwick Boseman, who was on the set of Marvel Studios’ Black Panther, a movie based on the first black superhero featured in mainstream comics, took a break from filming that morning to tweet, “Shooting Black Panther on a Saturday. But my heart is at the Women’s March.” It was a fitting sentiment for an actor who had also been cast to star in Marshall, the recently released biopic about the late Supreme Court Justice Thurgood Marshall.

While Marshall was known foremost for his role in important civil rights cases like Brown v. Board of Education, as well as for becoming the first black U.S. Supreme Court justice some 50 years ago this month, he was also an influential figure in the history of reproductive justice. While the biopic focuses on his early career, when he handled a 1941 case involving a black defendant facing racially charged allegations and a prejudiced criminal justice system, it was not until more than three decades after that case — and more than five years after his swearing in to the Supreme Court — that Marshall became a fixture in the history of abortion rights in the U.S. Continue reading →

“You Have No Idea How Important This Is”: Anita Hill’s Testimony and the Arizona Attorneys Behind the Scenes

Posted on October 10, 2016 by Matt

When Justice Thurgood Marshall announced his retirement from the U.S. Supreme Court in the summer of 1991, it didn’t bode well for women. Marshall, the first African American appointed to the court, was best known for his expertise and influence on civil rights law, but he had also been a defender of reproductive rights during his tenure in the nation’s highest court. He was among the court majority that legalized abortion in Roe v. Wade, and he again stood up for abortion rights in two later cases, Harris v. McRae and Webster v. Reproductive Health Services.

The impact of Anita Hill’s testimony went beyond the question of Clarence Thomas’ appointment.

Marshall’s decision to leave the Supreme Court was announced during the presidency of George H.W. Bush, who had campaigned on an anti-abortion platform in his 1988 presidential bid. Predictably, Bush used the opportunity to replace Marshall with a more conservative judge. At a press conference on July 1, 1991, President Bush named Clarence Thomas, who was then one of the few African-American judges on the U.S. Court of Appeals, as his nominee.

Thomas had only served 19 months as a federal judge and, at 43, was relatively young for an appointee. Of the justices currently serving, he was the youngest at the time of appointment. Nonetheless, he had a record of statements and judgments that was enough to satisfy the Republican base. Though he had spent eight years as chair of the Equal Employment Opportunity Commission (EEOC), he had been critical of affirmative action and school desegregation initiatives, and he questioned the very idea that the government should take action to address racial inequality. A product of a Catholic upbringing and Catholic schooling, Thomas had called the right of married couples to use contraceptives an “invention.” Groups like the National Abortion Rights Action League (NARAL) immediately spoke out against Thomas’ nomination, expressing concern that his presence on the court could put Roe v. Wade at risk. Continue reading →

Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

Posted on June 24, 2013 by Tori

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.

June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.

On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed? Continue reading →