A tribute to Burke Marshall.

• Author: Barak, Aharon
• Position: Yale Law School professor - Testimonial

I close my eyes, and I see Burke Marshall, sitting near me--at his office, in the classroom, at his home. We had long conversations--on peace in the Middle East, on recent Supreme Court cases. But his main interest was the civil rights movement. He was a shy person. He never volunteered to talk about himself, but when I asked him, he would tell me his story. And you could sense where his heart was, where his thoughts were, and what his dreams were.

We taught a seminar together--and with our dear friend Joe Goldstein. Joe and Burke were very close friends, and had been since their days in the U.S. Army in World War II in Japan. Joe originally invited my involvement with their seminar--with the approval of Guido Calabresi and the Law School, of course.

Our seminar was entitled "The Limits of the Law." In fact, it was about the limits of judging and courts. Burke had no great confidence in courts. He liked some judges very much, but he was quite pessimistic about the ability of courts to solve human problems. I disagreed.

We had long fights about basic doctrines--"separation of powers" was one of them. For me, separation of powers did not mean that the executive branch or the legislative branch could get away with violations of the Constitution or statutes. For Burke, separation of powers meant what it said. I do remember our great debates about judicial review of impeachment procedures. (This was fifteen years ago, years prior to the most recent impeachment proceedings.) My view was that the impeachment procedures were justiciable. I argued in favor of judicial review because due process bound the Senate. For Burke, the Senate was basically outside the...