Prof. Rebecca Brown's clerkship with Justice Thurgood Marshall set the stage for a career of constitutional scholarship.
-By Gilien Silsby
When Rebecca Brown walked through the Supreme Court’s marble columns on her first day as Justice Thurgood Marshall’s law clerk, she passed under the motto carved above the door: “Equal Justice Under Law.”
Brown remembers noticing the words inscribed on the neoclassical building, and feeling incredibly lucky to share in such an important mission. She had little idea, however, how much her one-year clerkship with Justice Marshall would shape her understanding of the iconic statement in the years to come.
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| Prof. Rebecca Brown clerked for Supreme Court Justice Thurgood Marshall from 1985-86. She says her scholarship and world view reflect his influence. |
Three decades later, Brown is a nationally recognized constitutional law theorist and holds The Rader Family Trustee Chair in Law at the USC Gould School of Law. She says her work with Marshall has touched nearly every aspect of her life — from her scholarship to how she sees the world.
Her most recent work — set to be published next year in the Southern California Law Review — explores how the basic constitutional objectives that Marshall recognized are being undervalued by the Supreme Court’s current approach to free speech.
“Free speech, like all rights, derives from a basic commitment to equality, and so it is a mistake to interpret the right to free speech in a way that frustrates legitimate legislative efforts to protect or enhance equality by limiting, for example, money in politics or other harms that may involve some forms of expression,” says Brown.
“The current Supreme Court has forgotten the indispensable link between equality and free speech. Its recent decisions reflect a Court that has lost its theoretical grounding, clinging to a simplistic conviction that any restriction on expression is invalid — even when it addresses real societal harms and does not censor messages or ideas,” Brown says.
“The arguments I make in my article, in favor of a more nuanced approach to free speech, reflect the influence that Justice Marshall had on my heart and my mind.”
Brown clerked for Marshall from 1985 to 1986 after graduating magna cum laude from Georgetown University Law School. Marshall, appointed by President Lyndon B. Johnson, was the first African-American Supreme Court Justice, and served from 1967 to 1991. Marshall was very much engaged with his clerks, sharing his unique wisdom and experiences with a wit and earthy style that left a lasting mark on them.
“Justice Marshall talked to his clerks every day about his experiences in the segregated South, as a young boy growing up in Baltimore, and later as a lawyer for the NAACP driving around in a station wagon filled with food on his way to represent African-American defendants charged with crimes,” Brown says.
His stories were gripping, including tales of how he escaped violence more than once by the quickness of his wits, says Brown, adding, “They brought to life a part of the American experience that we had not fully appreciated. The stories inevitably involved horrific injustices, often told in a way, though, that could still make us laugh — and that always caused us to think.”
A gifted storyteller, Marshall managed to infuse his entertaining tales with keen insight into the law and a deep understanding of what it means for a Constitution to protect equality in a true sense — by according dignity to all persons.
“He believed that government must articulate reasons for the way in which it exercises power,” Brown says. “In that insistence on reasons lies the constitutional mechanism for protecting people from arbitrary and biased actions by their government.”
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| Prof. Brown, a nationally renowned scholar, teaches constitutional law at USC Gould. She was recently named The Rader Family Trustee Chair in Law. (Photo: Mikel Healey) |
Brown frequently sees reminders of the depth and importance of that insight throughout constitutional law. In the dramatic developments regarding marriage equality over the past few years, for example, Brown believes that the reason state prohibitions ultimately failed is that the states simply could not live up to this obligation to supply reasons commensurate with the burdens that they were imposing.
“This is a perfect reflection of Justice Marshall’s understanding of the Constitution, and illustrates the way that a robust notion of equality gives rise to protection of liberty,” Brown says.
Equality comes first, and liberties like freedom of speech, privacy and religion, all flow from that principle and should be interpreted to further it, she says. “This is an idea for which some of the most respected legal philosophers of our time have been celebrated. But rarely is Justice Marshall credited with articulating, over his career, a consistent, deeply correct and highly principled jurisprudence portraying equality as the engine that drives democracy.”
Marshall’s legacy lives on in his clerks. Justice Elena Kagan, who clerked for Marshall two years after Brown, followed in his footsteps directly, and spoke of his influence on her at her confirmation hearings. Brown feels equally inspired. “I have tried to develop what I learned from Justice Marshall in my scholarship and to carry it forward in my teaching, so that the Constitution will come alive for my students as he made it come alive for me.”
This story originally appeared in the Fall/Winter 2015 issue of USC Law Magazine.
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