Toward a Modality of Jurisprudence

The beginning of this month marked the 45th anniversary of Thurgood Marshall’s term as Associate Justice in the United States Supreme Court. Known for his championing of individual rights while on the bench and for, previously, successfully arguing against school segregation for the NAACP in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), Marshall was a trailblazer who spoke up for those who did not have a voice. His status as the first African American Supreme Court Justice represents the forging of a path for which there was no antecedent. Pushing off to smite the sounding furrows, into the tumult of a civilization brimming with intolerance is not unlike casting headlong into a polluted river.

In my posts this month I have tried to showcase guideposts in approaching jurisprudence. I submit that the perpetuation of injustice represents a failure of the imagination, the inability to conceive of a better option, a different path, a truer argument or equitable solution. The history of the law is the story of our strivings to envision and enact a more fair and just world. Pruning our minds toward this task takes practice and attention. We benefit from the example of individuals like Justice Thurgood Marshall.

Professor Ranney commented recently in his course on Wisconsin Legal History that the practice of law is often a solitary endeavor that can consist of many hours spent poring over books, or computer screens, alone and handling abstract concepts with pedantic diligence in a solitary fashion. By way of introduction to the development of the legal profession in Wisconsin, Ranney said that we might be able to take some solace in knowing that many others have partaken in this honorable task as well. I take this to mean that none of us are alone in our work because we follow in the footsteps of many others who came before us. We are taking up the work — picking up where others have left off — of approximating justice, a dream that began long ago and that will continue long after we are gone.

This I hope my mind to serve. Justice is extant; equality advances incrementally through the work of people. To do this well we must insist on mentors, whether they are living or dead, real (pictured above) or symbolic.

Obviously there have also, necessarily, been lawyers on the wrong side of every issue that has defined our nation, some of whom have been quite talented. These models can also be instructive as reference points. It is our choice whose path we follow and whose we view as cautionary. These models guide us in our moments of trial, challenge, triumph, and disappointment, the times when we must dust ourselves off and turn again to the rain and the wind.

I leave you with a poem by Antonio Machado from 1912, translated by Willis Barnstone:

Walker, your footsteps

are the road, and nothing more.

Walker, there is no road,

the road is made by walking.

Walking you make the road,

and turning to look behind

you see the path you never

again will step upon.

Walker, there is no road,

only foam trails on the sea.


Joseph Riepenhoff

Joe Riepenhoff graduated from Marquette University Law School in 2014. While at Marquette, he was a student advisory board member for the Marquette Volunteer Legal Clinic, an intern for the Waukesha County Circuit Court criminal division judges, and research assistant for Prof. Daniel Blinka. Since graduating he has worked as a staff attorney for the Wisconsin State Public Defender Office, a conflicts analysts at Foley and Lardner, and is now a staff attorney at the Legal Aid Society of Milwaukee.

This Post Has 2 Comments

  1. Nick Zales

    Thurgood Marshall was truly a giant on the U.S. Supreme Court bench. He may be the last truly great populist justice. Perhaps William Brennan was close or his equal. What an amazing pair of justices they were. That they served at the same time was great for the law and our country. Will anyone step forward and fill their shoes? Time will tell.

  2. Tim Patterson

    Thanks for the great posts this month. Well done.

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