"You could name them," said Sen. Orrin Hatch (R-UT). Pressed, though, he could not. "I'm not going to go into that right now, I'd be happy to do that later," Hatch demurred.
Sen. Tom Coburn (R-OK) claimed it wasn't about Marshall's jurisprudence at all, but rather about how Kagan, as his clerk, drove his work on the court behind the scenes. "I don't think it's cases, it's that she wasn't looking at a legal outcome, she was looking at a political philosophy: on which cases were accepted, and which weren't and the direction of those cases," Coburn said. "It isn't about Justice Marshall. It's about what she did in prepping him or advising him. It's not about his cases."
Ranking Member Jeff Sessions (R-AL) came closest to citing individual cases, though ultimately fell back on a generalization.
"Perhaps the most activist decision in history, or actually it wasn't a majority decision, was Brennan and Marshall dissenting in every death penalty case because they said the death penalty violated the constitution," Sessions claimed. "The only thing it violated was their idea of what good policy was. And they just dissented on every death penalty case. And said 'based on my view that it's cruel and unusual punishment.'"
By way of comparison, I asked him if yesterday's Supreme Court decision, throwing out a handgun ban in Chicago, amounted to judicial activism.
Sessions insisted it did not. "It violated the Constitution," Sessions said of the Chicago law.
How is that any different than Marshall dissenting in death penalty cases?
"Well, first you look at the Constitution as a whole....The Constitution says you can't inflict cruel and unusual punishment. Well, every state had the death penalty. It wasn't unusual. It has to be both."
Notwithstanding their disagreement with his service on the bench, both Sessions and Hatch prefaced their remarks by lauding Marshall as a civil rights hero,
"Marshall was a fabulous lawyer and a champion of civil rights," Sessions said.
"My feeling about Thurgood Marshall was that he was a great man. He wen through travails and problems that most of us never dream of," Hatch gushed. "He was a gutsy guy that risked his life time after time for his belief in civil rights, and I don't think it's right for anybody to criticize him. Now, was he an activist in his decision making? Yeah."