St. Mary's Law Journal


From 1967, when Thurgood Marshall took his seat as Supreme Court Justice, until 1990, when William Brennan, Jr. vacated his seat, the two Justices formed one of the most consistent liberal voting blocs in the history of the Court. Both Justices were judicial activists who labored in the tradition of Legal Realism. Although both Brennan and Marshall recognized the interpretation and application of the law as purposeful exercises, they differed in their approach to the task. Marshall, for instance, appealed to social consensus stating that his views were supported by society. Furthermore, Marshall strongly believed that the Constitution is a living document which evolves and can bring about future change. Brennan, on the other hand, was a strong believer of natural law. Brennan supported the widely accepted position that a judge cannot solely rely on his or her personal views when making judicial decisions. Marshall, however, showed little sign of utilizing any version of natural law interpretation or reliance on transcendent values. Justice Brennan and Justice Marshall knew well that what is moderate, centrist, or in the best interest of the majority changes, and a society comes to demand different protections from its government and its founding document. Following Brennan and Marshall’s retirement, an increasingly conservative population elected conservative presidents who, in turn, placed more conservative Justices on the Court. By the early 1980s, the more liberal justices found themselves in the minority. Nonetheless, when society once again catches up, the jurisprudence of Brennan and Marshall will be there, waiting.


St. Mary's University School of Law