The African-American Interest in Higher Law in the Supreme Court: Justices Marshall and Thomas

This paper was written for a Festschrift in honor of Henry J. Richardson III. It reviews the constitutional jurisprudence of Justices Thurgood Marshall and Clarence Thomas from the perspective of Professor Richardson’s presentation of an African-American interest in higher law. Both African-American Supreme Court Justices’ constitutional jurisprudence is informed by higher law norms as well as by positive law. The paper contrasts Justice Marshall’s approach, which evaluates legal norms in particular socio-legal contexts, with Justice Thomas’s principled adherence to procedural rules. The paper contends that Professor Richardson’s approach to legal history better accords with Justice Marshall’s methodology, which is the approach most likely to result in the realization of African-American interests in legal recognition and vindication of substantive rights