Cover of The Transition by Daniel Kiel
The Transition
Interpreting Justice from Thurgood Marshall to Clarence Thomas
Daniel Kiel


April 2023
376 pages.

Hardcover ISBN: 9781503630659
Ebook ISBN: 9781503635661

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Every Supreme Court transition presents an opportunity for a shift in the balance of the third branch of American government, but the replacement of Thurgood Marshall with Clarence Thomas in 1991 proved particularly momentous. Not only did it shift the ideological balance on the Court; it was inextricably entangled with the persistent American dilemma of race. In The Transition, this most significant transition is explored through the lives and writings of the first two African American justices on Court, touching on the lasting consequences for understandings of American citizenship as well as the central currents of Black political thought over the past century.

In their lives, Thurgood Marshall and Clarence Thomas experienced the challenge of living and learning in a world that had enslaved their relatives and that continued to subjugate members of their racial group. On the Court, their judicial writings—often in concurrences or dissents—richly illustrate the ways in which these two individuals embodied these crucial American (and African American) debates—on the balance between state and federal authority, on the government's responsibility to protect its citizens against discrimination, and on the best strategies for pursuing justice. The gap between Justices Marshall and Thomas on these questions cannot be overstated, and it reveals an extraordinary range of thought that has yet to be fully appreciated.

The 1991 transition from Justice Marshall to Justice Thomas has had consequences that are still unfolding at the Court and in society. Arguing that the importance of this transition has been obscured by the relegation of these Justices to the sidelines of Supreme Court history, Daniel Kiel shows that it is their unique perspective as Black justices – the lives they have lived as African Americans and the rooting of their judicial philosophies in the relationship of government to African Americans – that makes this succession echo across generations.

About the author

Daniel Kiel is the FedEx Professor of Law at the University of Memphis Cecil C. Humphreys School of Law.

"[A]n intriguing examination. Kiel reveals some surprising similarities between [Marshall and Thomas], including a shared distrust of institutional authority, while never losing sight of their fundamental differences. The result is an enriching and nuanced study of the debates over how best to promote racial progress in America."

Publishers Weekly

"As the country continues to search for the true meaning of equality, this compelling dual portrait of the first two Black Supreme Court justices shows how what was a noble vision for one became a bitter burden for the other. There is irony and even tragedy in Daniel Kiel's account of the transition not only from one justice to another but to a new and troubled chapter of the American story."

—Linda Greenhouse, author of Justice on the Brink

"Beautifully written, expertly argued, carefully considered, The Transition forces us to evaluate Justices Marshall and Thomas on their own terms and in the process nudges us to acknowledge our biases. The world and its most important issues, race so often foremost among them, are never so simple as headlines or judicial holdings would make them. The Transition helps us see the ways in which both men were trapped by and transcended their experiences."

—Derek Black, author of Schoolhouse Burning

"Daniel Kiel has told a compelling story about how the schooling of these two figures and the schools' cases that they've worked on as justices reflect foundational tensions within the American experiment. Readers will better understand the forces that shaped these two lives and the ways those forces continue to impact the interpretation of the constitution today."

—Kimberly Jenkins Robinson, editor of A Federal Right to Education

"Thurgood Marshall desegregated the U.S. Supreme Court; the successor to his seat—Clarence Thomas—used his position to reject view after view advanced by Marshall. How these two historic figures came to their roles and their views and what their work means for America, law, and justice receive needed illumination in Daniel Kiel's valuable and fascinating account."

—Martha Minow, author of In Brown's Wake: Legacies of America's Educational Landmark

"Kiel draws on the writings and life experiences of the two justices to flesh out the scope of their disparate approaches, and explores the difference that Thomas has made in education cases, the constitutional area in which race is most salient. Kiel paints a clear picture of how the Court handles legal and personal variables in this important field.... Recommended."

—P. Lermack, CHOICE