There is a divide in this country - a social divide that is not a partisan divide. It is your answer to the labor and civil rights movement ballad's rhetorical question "Which side are you on?" For the judges who are my heroes the answer in the 1950's was The Union's - the union that Abraham Lincoln's leadership saved. Among the most devout judicial adherents of the Union were the Republican judges of the U.S. Court of Appeals for the Fifth Circuit - in the states of the defeated Confederacy. After Brown v. Board of Education judges of the party of Lincoln like John Minor Wisdom and his colleagues dismantled the legal structure of segregation - Jim Crow.
Thurgood Marshall led the NAACP Legal Defense and Education Fund, Inc. which devised and implemented the successful strategy. Its beginnings may be traced to Shelley v. Kraemer - the 1948 case argued by Marshall in which the Supreme Court declared unenforceable a deed restriction that barred sale of land to anyone other than a Caucasian. Its greatest victory was, of course, Brown v. Board of Education of Topeka, Kansas (1954).
opening statement at the Kagan Supreme Court confirmation hearings:
"Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges who use their power to redefine the meaning of the words of our Constitution and laws in ways that, not surprisingly, have the result of advancing the judge’s preferred social policies for the country.She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak - who has been described as the most activist judge in the world- her hero.These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire."
Marshall's activism is the pride of the Supreme Court, in my view, and that of all of us who knew the correct answer to the question "which side are you on?"