Hand, John T.

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Pace Law Review Volume 13 Issue 2 Fall 1993 Article 2 September 1993 Thurgood Marshall's Dissents in Defense of the Poor John T. Hand Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation John T. Hand, Thurgood Marshall's Dissents in Defense of the Poor, 13 Pace L. Rev. 305 (1993) Available at: https://digitalcommons.pace.edu/plr/vol13/iss2/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact dheller2@law.pace.edu. Thurgood Marshall's Dissents In Defenseof the PoorJohn T. Hand*In two landmark cases of the late 1960s, the United StatesSupreme Court set an exceptionally positive tone for public as-sistance as a force capable of integrating poor people with othersin our society. In Goldberg v. Kelly,' Mr. Justice Brennan notedthat society had come to realize that "forces not within the con-trol of the poor contribute to their poverty," and that:"[w]elfare, by meeting the basic demands of subsistence, canhelp bring within the reach of the poor the same opportunitiesthat are available to others to participate meaningfully in thelife of the community."2 Similarly, in Shapiro v. Thompson,3Justice Brennan expressed a view of public assistance that con-tradicted negative attitudes about the poor that have their rootsin the Elizabethan Poor Laws.4 He wrote that it is just as ac-ceptable for a poor mother to move from one state to another toseek a better life, including better welfare benefits for herselfand her children, as it is for a person to relocate in order toobtain better educational opportunities.5Underlying Goldberg and Shapiro are the ideas that welfarebenefits are uniquely important entitlements and that peoplecan receive assistance yet retain their dignity and responsibilityto make independent decisions about how they will live. Thesewere themes of the civil rights movement and of several feder-* Director of Litigation, Westchester Putnam Legal Services; Adjunct Professor,Poverty Law, Pace University School of Law; Syracuse University School of Law, J.D.,1967.1. 397 U.S. 254 (1970) (holding that public assistance may not be terminated with-out a prior evidentiary hearing at which the recipient may be represented by counsel).2. Id. at 265.3. 394 U.S. 618 (1969). Durational residence requirements for public assistance con-stitute an invidious penalty on a person's liberty to travel from one state to another,since they preclude poor families from obtaining "the very means to subsist." Id. at 627.4. Id.5. Id. at 632.1PACE LAW REVIEWally sponsored programs of the late 1960s which sought to em-power the poor as well as to feed, clothe and house them. Theyare also themes which lie at the heart of Thurgood Marshall'sdissenting opinions in welfare cases.Over the past two decades, the trend in American welfarepolicy has been to make the poor live on less money by stan-dardizing allowances and failing to increase payments in relationto the cost of subsistence needs. At the same time, governmentshave been imposing systems that- closely monitor the poor andrequire recipients to obey increasingly stringent eligibility rules.Against these trends, there are few voices being heard. The poorare poor in power; they are easy targets for legislative and ad-ministrative action based upon racial and class stereotypes andprejudice.Justice Marshall was concerned not only about unjustifiedreductions in public assistance but also, the ease with which leg-islatures - and the Supreme Court - rationalized the povertyof our nation's response to human need. In a number of cases,Justice Marshall protested the Supreme Court's refusal to cometo the aid of the politically powerless segment of our society.After the Goldberg and Shapiro decisions, it was shockingindeed to welfare advocates when the Supreme Court handeddown Dandridge v. Maryland,6 sustaining that state's policy ofdiscriminating against large families in its public assistance pro-gram.' Dandridge devastated the nascent conception that wel-fare benefits enjoy a constitutional importance greater than thesale of used rags. Justice Marshall believed that the Court's ap-plication of the rational basis test in such circumstances ignoredthe importance of welfare benefits and signalled the "emascula-tion of the Equal Protection Clause as a constitutional principleapplicable to the area of social welfare administration."' Then,in Lyng v. Castillo,9 he rebuked the majority for condoning food6. 397 U.S. 471 (1970). If there is "some 'reasonable basis'" for a legislative classifi-cation affecting welfare recipients, it must be upheld under the Equal Protection Clause.Id. at 485. Thus, the State of Maryland could implement a system of public assistancewhereby allowances increased depending on the number of children in the family up to alimit of $250 a month for five children living with a parent.7. Id. at 486.8. Id. at 508 (Marshall, J., dissenting).9. 477 U.S. 635 (1986).[Vol. 13:3052https://digitalcommons.pace.edu/plr/vol13/iss2/2THURGOOD MARSHALLstamp legislation that intruded into the privacy of the diningroom and told poor people with whom they must eat in order toobtain food stamps.10 Here, as in Dandridge, Justice Marshallwould have held that: "when analyzing classifications affectingthe receipt of governmental benefits, a court must consider 'thecharacter of the classification in question, the relative impor-tance to individuals in the class discriminated against of thegovernmental benefits that they do not receive, and the assertedstate interests in support of the classification.' ""Since family structure and survival are not of the same or-der as a "refusal to let a merchant hawk his wares on a particu-lar street corner,"1 Justice Marshall believed that the federalstatute requiring related household members to file together forfood stamps should be strictly scrutinized and, consequently,held invalid under the Fifth Amendment of the United StatesConstitution.In Bowen v. Gilliard,'3 the government's intrusion on familyliving arrangements was even more direct and substantial thanin Lyng. Since 1984, Congress has required that children whoseabsent fathers support them be included in the public assistancehousehold and that support payments be paid to the state toreimburse it for assistance granted to the whole family.14 Thisdiversion of a child's support income "means that the father isrendered powerless in most cases to respond to the special finan-cial needs of his child." 5 If, for example, the absent parentwishes to provide his child with a special diet or music lessons,such payments would likely be merged into his support obliga-tion and thus paid to the state. Consequently, the impact of thisstatutory requirement on the parent-child relationship is10. Id. at 643-47.11. Id. at 644 (Marshall, J., dissenting) (quoting Dandridge, 397 U.S. at 521 (Mar-shall, J., dissenting)). Justice Marshall previously argued that classifications based onpoverty should be subject to heightened judicial scrutiny because poverty is "a suspectclassification which demands exacting judicial scrutiny." James v. Valtierra, 402 U.S.137, 145 (1971) (Marshall, J., dissenting).12. Lyng, 477 U.S. at 644.13. 483 U.S. 587 (1987).14. The Deficit Reduction Act of 1984, 98 Stat. 494, 1145, 42 U.S.C. § 602(a)(38)(1988).15. Bowen, 483 U.S. at 619-20 (Brennan, J., dissenting).1993]3PACE LAW REVIEWdirect, because a child whose mother needs AFDC"e cannot escapebeing required to choose between living with the mother and be-ing supported by the father. It is substantial because the conse-quence of that choice is damage to a relationship between parentand child .... As the record in these cases testifies, a typical fa-ther will feel strongly that his son should be supported by himand not by public assistance. The typical mother will feel thatloss of the father's support is a price worth paying to keep thechild with her. The child may well be swept up in a custody dis-pute over which living arrangement is in its best interest .... Inshort, the Government has sliced deeply into family life, pittingfather against mother, with the child in the middle.17In Jefferson v. Hackney,"' the State of Texas paid lessmoney to poor families with dependent children than it paid toaged, disabled, and blind people, despite having established anidentical standard of need for each group.1 9 When the Court sus-tained this discrimination, Justice Marshall disagreed, statingthat Congress intended that similarly situated needy personsmust be treated alike.2" He also pointed out that the disfavoredgroup - poor families with minor children - were 87% blackor Mexican-American. 21 The record contained numerous state-ments by state officials indicating that poor families with chil-dren received lower funding than aged and disabled persons be-cause the program for families was not politically popular.22New York State Department of Social Services v. Dub-lino,2 a upheld New York State's imposition of additional workrequirements that were not specified by Congress in the federalwelfare program for families.2" The danger, Justice Marshall be-lieved, was too great that states would bow to local pressure andadd restrictions not intended by Congress. "Myths abound inthis area. It is widely yet erroneously believed, for example, that16. Aid to Families with Dependent Children, the federally sponsored public assis-tance program. 42 U.S.C. § 601 (1988).17. Bowen, 483 U.S. at 624 (Brennan, J., dissenting).18. 406 U.S. 535 (1972).19. Id. at 574 (Marshall, J., dissenting).20. Id. at 575-76.21. Id. at 575.22. Id.23. 413 U.S. 405 (1973).24. Id. at 408.[Vol. 13:3054https://digitalcommons.pace.edu/plr/vol13/iss2/2THURGOOD MARSHALLrecipients of public assistance have little desire to become self-supporting. [citation omitted] Because the recipients of publicassistance generally lack substantial political influence, state leg-islators may find it expedient to accede to pressures generatedby misconceptions."2 5 Seeking to obviate the possibility thatprejudices would lead state legislators to enact repressive lawsapplicable to the federally sponsored welfare program for poorchildren and their parents, Justice Marshall wrote that the fed-eral statutes precluded states from adding conditions of eligibil-ity which Congress has not clearly authorized.26Thus, over Justice Marshall's vigorous dissents, the Su-preme Court has sanctioned discriminatory restrictions on eligi-bility for welfare benefits and governmental intrusiveness intothe lives of the poor. Possibly the most far-reaching intrusion onpersonal privacy to find support in the Court's decisions is thatof Wyman v. James,27 which approved warrantless searches ofwelfare recipients' homes as a condition of eligibility for assis-tance.28 Justice Marshall did not agree that welfare mothersshould be treated like unruly children:In deciding that the homes of AFDC recipients are not enti-tled to protection from warrantless searches by welfarecaseworkers, the Court declines to follow prior case law and em-ploys a rationale that, if applied to the claims of all citizens,would threaten the vitality of the Fourth Amendment. This Courthas occasionally pushed beyond established constitutional con-tours to protect the vulnerable and to further basic human values.I find no little irony in the fact that the burden of today's depar-ture from principled adjudication is placed upon the lowly poor.29The Court's indifference to the inability of the poor to takeadvantage of liberties and privacy accorded to the rest of society25. Id. at 431-32 (Marshall, J., dissenting) (citation omitted).26. However, Congress itself has enacted welfare statutes restricting eligibility basedon stereotypes and political prejudices. Lyng v. International Union, UAW, 485 U.S. 360,385 (1988) (Marshall, J., dissenting). Justice Marshall, citing Congress' attempt to dis-qualify "hippies" from receiving food stamps in Department of Agriculture v. Moreno,413 U.S. 528, 534 (1973), viewed the disqualification of strikers from eligibility for foodstamps as nothing but the same " 'bare congressional desire to harm a politically unpop-ular group.' ". Id.27. 400 U.S. 309 (1971).28. Id. at 326.29. Id. at 347 (Marshall, J., dissenting).199315PACE LAW REVIEWwas again condemned by Justice Marshall in Beal v. Doe.3" Inthat case, the Court ruled that the federal Medical Assistanceprogram31 does not require participating states to include non-therapeutic abortions in their medicaid programs.32 Justice Mar-shall wrote:I am appalled at the ethical bankruptcy of those who preach a'right to life' that means, under present social policies, a bare ex-istence in utter misery for so many poor women and their chil-dren .... If there is any state interest in potential life before thepoint of viability, it certainly does not outweigh the deprivationor serious discouragement of a vital constitutional right of espe-cial importance to poor and minority women.3sOne of the more cynical of the Supreme Court's failures toaccord constitutional protection to the poor is its decision inClark v. Community for Creative Non-Violence.34 Homelesspeople sought to demonstrate their plight graphically by around-the-clock protest, including sleeping, in Lafayette Parkacross the street from the White House.35 The primary purposeof including sleeping in the park was " 'to re-enact the centralreality of homelessness.'"36 "By using sleep as an integral partof their mode of protest, [the homeless] 'can express with theirbodies the poignancy of their plight.' ,37Yet, the Court upheld the United States Park Service's banon sleeping in Lafayette Park as if the protestors were merelytrying to save on a hotel bill. The majority gave short shrift tothe demonstrators' First Amendment rights by applying mini-mal scrutiny to the Park Service's regulations since they fellunder the rubric of time, place and manner regulation ratherthan content regulations. 8 Justice Marshall realized that a con-tent-neutral regulation is fully capable of unnecessarily dimin-30. 432 U.S. 438 (1977).31. 42 U.S.C. §§ 1396-1396s (1988).32. Beal, 452 U.S. at 447.33. Id. at 456-57, 461 (Marshall, J., dissenting).34. 468 U.S. 288 (1984).35. Id. at 289.36. Id. at 303-04 (Marshall, J., dissenting) (quoting Brief for Respondents).37. Id. at 306 (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 586,601 (D.C. Cir. 1983)).38. Id. at 298.[Vol. 13:3056https://digitalcommons.pace.edu/plr/vol13/iss2/2THURGOOD MARSHALLishing First Amendment freedom of expression:A content-neutral regulation that restricts an inexpensive modeof communication will fall most heavily upon relatively poorspeakers and the points of view that such speakers typically es-pouse. [citation omitted] This sort of latent inequality is verymuch in evidence in this case for respondents lack the financialmeans necessary to buy access to more conventional modes ofpersuasion.A disquieting feature about the disposition of this case is thatit lends credence to the charge that judicial administration of theFirst Amendment, in conjunction with a social order marked bylarge disparities in wealth and other sources of power, tends sys-tematically to discriminate against efforts by the relatively disad-vantaged to convey their political ideas. 9Justice Marshall's dissents deplore not only the SupremeCourt's standard for constitutional adjudication in the area ofwelfare legislation but also its frequent reliance upon unjustifiedpremises about how the poor live and act. United States v.Kras'4 raised an important issue concerning the due processrights of the poor to have access to the judicial system, i.e., thevalidity of requiring an indigent person to pay a fee for filing apetition in bankruptcy. Justice Marshall castigated the majoritywhich believed that $1.28 a week is pin money that no one wouldmiss: "[b]ut no one who has had close contact with poor peoplecan fail to understand how close to the margin of survival manyof them are. It is perfectly proper for judges to disagree aboutwhat the Constitution requires. But it is disgraceful for an inter-pretation of the Constitution to be premised upon unfoundedassumptions about how people live." '41Today, the poor face a future that is bleak both as to theirmaterial needs and their constitutional rights. Like the Pever-end Martin Luther King, Jr., Justice Thurgood Marshall had"the audacity to believe that peoples everywhere can have threemeals a day for their bodies, education and culture for theirminds, and dignity, equality, and freedom for their spirits."' 239. Id. at 313-14 n.14.40. 409 U.S. 434 (1973).41. Id. at 460 (Marshall, J., dissenting).42. MARTIN LUTHER KING, JR., THE WORDS OF MARTIN LUTHER KING, JR. 25 (CorettaScott King ed. 1983).1993]7312 PACE LAW REVIEW [Vol. 13:305Sadly, Justice Marshall and most of the other great leaders ofthe civil rights movement are now gone. Though the times maynot seem auspicious for a revival of the spirit of those days, weare very much in need of the passion of that movement.8https://digitalcommons.pace.edu/plr/vol13/iss2/2

Thurgood Marshall\u27s Dissents in Defense of the Poor

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Thurgood Marshall\u27s Dissents in Defense of the Poor

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