Late justice’s legacy plays out at Kagan hearings

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Mr. Marshall also rebutted the core Republican charge, saying his father “was never reversed in 90-some opinions” as a judge on the 2nd U.S. Circuit Court of Appeals.

But he and some Democratic lawmakers then made an argument that confirms Republican charges that liberal justices see legal disputes in results-oriented terms.

“If a senator wants to stand up and say they want to oppose desegregating the schools, they have that right,” Mr. Marshall said.

However, Republicans didn’t do that, and Mr. Cornyn, for one, said explicitly he didn’t consider the landmark school desegregation ruling to be an example of judicial activism.

Democrats, seemingly delighted at the Republicans’ choice of targets, were content not to notice what they actually said.

Referring to the school-desegregation case, Sen. Richard J. Durbin, Illinois Democrat, said, “If that is an activist mind at work, we should be grateful as a nation that he argued before this Supreme Court, based on discrimination in this society, and changed America for the better.”

Sen. Benjamin L. Cardin, Maryland Democrat, also quoted Marshall approvingly, referring to a speech the then-justice delivered in 1987:

“I do not believe the meaning of the Constitution was forever fixed at the Philadelphia convention. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, a momentous social transformation to attain the system of constitutional government and its respect for the individual freedoms and human rights we hold as fundamental today.”

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