By 1991, nearly a quarter century after he became the first Black Supreme Court justice, the venerable Thurgood Marshall saw the coming right-wing takeover of the courts for what it was: a legal coup powered by a bad-faith interpretation of the U.S. Constitution that would one day allow the American right to roll back the civil rights gains of the 20th century. Marshall in the early '90s was largely alone in calling out what he correctly saw as a coordinated, well-funded effort to stack the federal courts with judges trained in the ultimate bad-faith tradition: Constitutional originalism.
Marshall's warnings for what was to come were largely ignored by mainstream media outlets, liberals, and certainly congressional Democrats, who bumbled along for an entire generation while their Republican counterparts slowly built an unstoppable legal Goliath that today can ensure any and all progressive efforts are thwarted, and that all Republican criminals avoid legal consequences of any kind. The American right, since Marshall's retirement, has created a legal advantage that serves both as a backstop against liberal legislation and as a weapon for frontal assaults on basic human rights won by Marshall and his cohorts in the latter half of the 20th century.
Since Marshall left the Court, Republican appointees have overturned numerous decisions once considered untouchable legal precedent. This includes Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, a case that severely weakened abortion rights protections; Citizens United v. FEC in 2010, a catastrophic decision that opened the floodgates for oligarchal domination of American politics; 2018’s blow to labor rights in the Janus decision; and, of course, 2022’s decision in Dobbs vs. Jackson, repealing the longstanding precedent of Roe vs. Wade and allowing Republican-held state legislatures to outlaw all abortion access.
This is a coup. There is no other word for it.
More clearly than anyone, Marshall—a civil rights champion who endured the government-enforced degradation of segregation and fought for the downtrodden and dispossessed—saw all this coming. In his final Supreme Court opinion, he pulled the alarm on the right wing's intention to ignore Court precedent and instead make law from the bench. The Republican-held Court—which was about to see Marshall replaced by our era's most fanatical, dangerous jurist, Clarence Thomas—had just struck down two precedents protecting affirmative action programs.
For Marshall—who in 1930 was denied entry to the University of Maryland law school because he was Black—this was intolerable. He had successfully fought for decades as an attorney to undo the evils of segregationist policies implemented by violent, wretched white supremacists determined to legalize hate as official government policy.