Thurgood Marshall and the Holy Grail—The Due Process Jurisprudence of a Consummate Jurist

Abstract

Much has been written about Justice Marshall's prowess as a crusader for civil rights, both as a trial lawyer and as a judge. The purpose of this Article is not to revisit that well documented part of his life, but to attempt to analyze the depth of the man's fibre as a jurist. Most of Justice Marshall's opinions dealt with procedural due process, and the word best describing his handling of procedural due process is the essential need for fairness. For Justice Marshall, fairness required a consideration of all interests involved in a situation, regardless of the persons or entities involved. In his own words, "[a]s its very terms make manifest, the Due Process Clause is first and foremost a guarantor of process. It embodies a commitment to procedural regularity independent of result." As his opinions establish, particularly his dissenting opinions, the process passes constitutional muster only if it assuresfairness and is not unnecessarily delayed.