Skip to content

Mark Tushnet, The Meritocratic Egalitarianism of Thurgood Marshall, 52 How. L.J. 691 (2009).

Abstract: This Essay, forthcoming in the Howard Law Journal, describes Thurgood Marshall's meritocratic egalitarianism. Marshall was sensitive to the wide range of talents people actually had and was skeptical about claims that talents in any field were distributed in a steep pyramid, with many less talented at the base and only a few highly talented at the top. For him, there was a meritocratic pyramid, but it was flat rather than steep. All but the very best at most things were only slightly better and only somewhat less numerous than those who had ordinary ability in the field. Marshall was also extremely sensitive to the range of bad reasons people gave for perpetuating hierarchies ordered by ascriptive characteristics - race most obviously, but also gender, class, and disability. A real meritocracy required the elimination of all those bad reasons so that careers, broadly defined, really would be open to talent. Governments could not use ascriptive characteristics to perpetuate hierarchies that interfered with the prospect of a person pursuing a career suitable to his or her talents. And, conversely, policies aimed at eliminating the use of ascriptive characteristics to perpetuate such hierarchies - what has come to be known as affirmative action - were entirely proper. Taken as a whole, Marshall's meritocratic egalitarianism was strongly critical both of the distribution of social benefits and harms in the United States, which did not conform to meritocratic principles, and of the widespread ideas about meritocracy, which placed too much weight on differences that a real meritocrat would regard as minor. The Essay examines several of Justice Marshall's separate opinions - dissents and concurrences - to tease out of them indications of Marshall's meritocratic egalitarianism.