For over forty years, I have avoided writing academic articles about J. Skelly Wright andThurgood Marshall -the two extraordinary judges for whom I had the privilege of clerking. I have remained silent, even long after their deaths, because of powerful bonds of affection and loyalty. My fear has been that a tension might arise between these bonds and the norm of objectivity in academic scholarship, to which I try to adhere.
So why this essay? I write in the hope that I can say something about Judge Wright's career that is new and not merely hagiographic, but that neither trades on my personal access to him nor is disloyal to his memory. I also rely on the following warning to readers: Judge Wright was my first employer after law school. I cannot possibly be objective about this decent, kind, and heroic man who, more than anyone outside of family, was responsible for the subsequent direction of my life. Consumers of this essay should read it with this caveat in mind.J. Skelly Wright was the most courageous and influential lower court judge of his generation.Wright was quiet, modest, even awkward in his personal interactions, but that demeanor masked a fierce determination to use his power to root out injustice. Throughout his career, he fearlessly defended the rights of the poor and dispossessed. He did so in times and places where standing up for these rights was deeply unpopular and, on occasion, placed him in physical danger. * Carmack Waterhouse Professor of Constitutional Law, Georgetown Universit Law Center.Thanks to Peter Edelman, Anne Fleming, Michael Harper, Allegra McLeod, Girardeau Spann, Geoffrey Stone, Silas Wasserstrom, and Robin West for providing comments on an earlier version of this article. I received superb research help from Richard Kelley.
P a g e | 2Judge Wright put to shame the "scholastic mandarins" 1 who insisted that some sort of immutable principle forced judges to acquiesce in the systematic and persistent denial of basic human rights to millions of ordinary Americans. Of course, he believed in principles, but the principles he believed in were not about "judicial restraint" in the face of injustice. They were not "neutral" as between freedom and oppression. By candidly and self-consciously using the law as a means to achieve social change, he pushed legal liberalism to its limits. LEGAL LIBERALISM (1996). My description of the tradition differs in some details from Kalman's.
P a g e | 3Legal liberals were different. Their view of the world was formed by the brief moment in history when progressives dominated the Court. Inspired by Brown v. Board of Education and emboldened by significant Warren Court decisions protecting the rights of the dispossessed, they had faith that legal materials and analysis could be marshaled to make American society more just and humane.This faith, in turn, produced an outpouring of strikingly original legal doctrine. Legal liberals demonstrated that constitutional and common law principles could be reread so as to escape the encrusted, conservative conv...
