A Man forrnHis Timernby William J. Watkins, Jr.rnMaking Constitutional Law:rnThurgood Marshall and thernSupreme Court, 1961-1991rnhy Mark V. TushnetrnNew York: Oxford Vniversity Press;rn256 pp., $29.95rnCharles Hamilton ilouston, dean ofrnthe Howard Law School, taught hisrnstudents to view law as an instrument ofrnsocial engineering, and Thurgood Marshall,rnone of Houston’s top students inrnthe eady 1950’s, never forgot this basicrnlesson. As a leading advocate in the nation,rnMarshall served as a catalyst for socialrnchange as he led the NAACP LegalrnDefense Fund in the landmark case ofrnBrown v. Board of Education.rnMark Tushnet charts Marshall’s careerrnpost-NAACP. Though he recounts thernlife of Marshall the judge rather thanrnMarshall the advocate, the reader quick-rn1′ learns that the two are separated onl-rnby a black robe. Marshall never wore thernso-called judicial mask, permitting himrnto decide a case based on law rather thanrnpersonal beliefs. To the very end. Mar-rn— LIBERAL ARTS —rnIMMIGRANTS ONrnTHE DOLErnAccording to data cited in tlie FAIRrnImmigration Report, 25 percent ofrnimmigrants who receive monthlyrnSupplemental Security Income (SSI)rnpayments belong to families whosernincomes exceed S64,000 a year. Takingrnadvantage of^ a loophole in SSIrnregulations, wealthy immigrantsrnbring their elderK parents or grandparentsrnto states like California andrnthen sign them up for SSI, whichrnbenefits those who cannot qualify forrnSocial Security. The Public PolicyrnInstitute of California, which publishedrnthe data, also found that “immigrantsrngetting welfare had higherrnincomes than American natives andrnothers receiving assistance.”rnshall remained Dean Houston’s socialrnengineer. Tushnet, who served as Marshall’srnlaw clerk, is to be commended forrnthe honesty in his account of his formerrnboss’s time on the Supreme Court. Exceptrnfor a minor lapse when discussingrnaffirmative action, the author never pretendsrnMarshall was anything but a socialrnengineer who invented the necessary lawrnwhen he perceived a societal problem.rnThis short book covers much ground andrnunintentionalh’ highlights what is wrongrnwith modern American jurisprudence.rnTushnet begins his book w ith Marshall’srnappointment to Court of Appealsrnfor the Second Circuit, the most prestigiousrnappellate court in the nation atrnthe time. President Kennedy originallyrnwanted to appoint Marshall to a districtrncourt, but Marshall held out for a largerrnfeather in his cap. He could not havernbeen more unsuited for the Second Circuit,rnsince 90 percent of the court’s businessrnconcerned corporate law—an arearnin which Marshall had no experience.rnTushnet describes Marshall’s performancernas “unspectacular.”rnLack of experience hindered Marshallrnin his next position as well. In 1965, afterrnfour years on the Court of Appeals,rnThurgood Marshall was appointed SolicitorrnCeneral of the United States. Tushnetrnrecounts one case involving businessrnlaw in which Marshall responded tornquestions from Justice Abe Fortas byrnreading answers that a staff attorne’ sittingrnnext to him had just written out.rnwhen Fortas demanded that Marshallrnexplain an answer, the Solicitor Ceneralrnreplied, “I am handing them up to yournjust as fast as I get them.” Such a stellarrnperformance apparently convinced LBJrnthat Marshall was well suited for thernSupreme Court. Marshall’s appointmentrnto the Court was confirmed by thernSenate in August 1967.rnTushnet describes the Supreme Courtrnin 1967 as the right place for ThurgoodrnMarshall and at the right time—a timernwhen the justices saw themselves as arnbranch of “a coordinated national governmentrndedicated to reducing economicrndisparities.” These liberal justices “nornlonger felt attracted to the general theor-rnof judicial restraint. As they sawrnthings, a big Court was a natural part ofrna big government.” As for Marshall’srnpersonal philosophy of the law, it seemsrnmuch akin to his storytelling. “As a storyteller,”rnwrites Tushnet, “Marshall wasrnnot above modif’ing his account of realrnevents a bit to give his stories a betterrnpunch line.” So too with the Constitution.rnMarshall fervently believed that arnjudge who identified a pressing socialrnproblem could invent the necessary constitutionalrnlaw to go along.rnSuch a philosophy is evident in Marshall’srndissenting opinion in Dandridge v.rnWilliams, where he argued that Marylandrndenied a welfare recipient the equalrnprotection of the laws bv imposing anrnupper limit on welfare payments, thus allowingrnthe recipient $250 when hern”needed” $296. The majority refused tornsecond-guess state officials charged withrnallocating limited funds, and Marshallrncriticized “the Court’s emasculation ofrnthe Equal Protection Clause as a constitutionalrnprinciple.” During his years onrnthe High Court, Marshall adroitly used arnsliding scale of equal protection analysisrnto uphold laws he fancied by applying tornthem a low level of scrutiny, and in turnrnstriking down laws he objected to by usingrna higher standard. By his reliance onrnthe sliding scale, he found it easier to discussrnpublic policy in the manner of a super-rnlegislator rather than that of a judgerninterpreting the law. Unfortunately,rnMarshall’s equal protection methodologyrnis alive and well in the Supreme Courtrntoday.rnAfter examining Marshall’s equal protectionrntheory, Tushnet inadvertently exposesrnthe Justice’s hypocrisy regarding affirmativernaction, saying Marshall “simplyrnasked the court to respect legislativernchoices.” Marshall, so he claims, onlyrnlooked to see if the corporate body wasrnwithin its powers when it enacted thernprogram. In this way Marshall comesrnacross as some sort of states’ rights championrnwho cried foul when an overreachingrninajority of the Court struck downrnaffirmative action programs. What bothrnMarshall and Tushnet seem to havernmissed is that with Brown, which Marshallrnargued in front of the Court, therndays of judges deferring to legislativernchoices and ignoring their own viewsrncame to a close. Constitutional law hadrnbeen moving steadily in that direction,rnand Thurgood Marshall—with the helprnof Earl Warren—formally ushered in arnnew era of activism and consolidation.rnFittingK’, some affirmative action programsrnlater died by the judicial swordrnThurgood Marshall was so instrumentalrnin fashioning.rnWilliam /. Watkins, Jr., is a student atrnthe University of South Carolina Schoolrnof Law.rn44/CHRONICLESrnrnrn