Posted by: Randy Allgaier | October 3, 2007

Clarence Thomas- Questionable Justice


A friend with whom I disagree with about most things political, recently asked me what I thought about the recent “60 Minutes” interview with Supreme Court Justice Clarence Thomas. In response I expressed my dislike of Justice Thomas unequivocally. My impression of Mr. Thomas is that he is not a brilliant legal mind and I don’t think an uninspired mind deserves to be on the Court. He also seems to an angry and bitter man filled with self loathing and a vindictive nature.  My friend seems to admire this man.  When I disagree with a friend about an issue that I think is so obvious, it compels me to look at the issue a little more in depth. 

The mere fact that the man is hawking a book that is being released on the first day of the 2007-08 term of the Court is very disconcerting.  Justices rarely write books about themselves when they are on the bench. The members of the highest court have deliberately shied away from this sort of project because they run the risk of divulging their politics and thus taint their judicial objectivity. But not Justice Clarence- a $1 million advance was more compelling than appropriate restraint.

But the real outrage here is that his book is so clearly partisan. His hatred for liberal groups and liberal causes is very disconcerting to hear from a sitting Justice. I would have the same problem if a Justice clearly despised conservative groups too. How can there be any judicial objectivity? How could any group arguing a cause that Mr. Thomas disagrees with personally get a hearing based purely on law?  Justices have always avoided divulging their personal views about issues that may appear before them at some point. Justice Thomas obviously didn’t see the wisdom inherent in this practice.

This level of unadulterated partisanship is reprehensible from a sitting Justice.  But the Justice’s book offers a self serving view- so let’s look at his record as a Justice and with less bias.

For the vast majority of cases defining modern major American legal issues, you can find decisions authored by every justice to sit on the Supreme Court in the past 20 years, with many justices having written important opinions across multiple areas of law. Every justice, that is, except for Clarence Thomas, whose legal interpretations are so different from those of his peers that he often writes his own opinions even when he votes with the Court’s majority. “In just the past term, Clarence Thomas has written concurrences saying that students have, essentially, no free-speech rights when they are under school supervision and that there is no constitutional right to abortion,” his biographer, Michael Fletcher writes “I think even many of the court’s conservatives want to have more nuance than that.”

Fletcher, together with fellow Washington Post writer Kevin Merida, just penned the most revealing biography of Thomas to date: “Supreme Discomfort: The Divided Soul of Clarence Thomas” . Their book makes clear that Thomas’s lack of major legal scholarship and his frequent lone dissents are indicative of a greater sense of alienation in his life than simply the isolation of one justice aligning against a majority of the other eight.

To Fletcher and Merida, the more interesting sense of separation is how Thomas’s judicial philosophy has led to a sense of racial isolation—and vice versa. That isolation stems not from Thomas’s place as the sole African American on the Supreme Court (and only the second in history, after he replaced Thurgood Marshall), but from his status as a hardened pariah to his own race through his vehement opposition to issues important to many African Americans, especially affirmative action.

While many jurists see the law as filled with gray, Thomas once described it as yielding “right and wrong answers.” And, clearly, he thinks he is right. Some of Justice Thomas’s former clerks say that he sees himself as a purist when it comes to the law and that he believes he has courage of conviction. So he views standing alone as a sign of being principled. One of Thomas’s favorite justices is Justice Harlan, the former slaveholder who was the one justice to vote against the court’s ruling in Plessy v. Ferguson, which upheld the concept of “separate but equal” for more than half a century. Harlan stood alone in 1896 and he was not fully vindicated until the 1954 Brown v Board of Education decision. Thomas sees his example as a courageous one.

Thomas once said he would never accept a race-based job, and yet he spent an entire federal career in such positions, including a stint as the longest-serving chairman of the Equal Employment Opportunity Commission in the agency’s history.” Thomas is the second African American in Court history, having filled the seat vacated by the first. It seems that those points are irreconcilable, which we feel lies near the center of the justice’s divided soul. For public consumption, Thomas disavows the role race has played in his career. His friends once said that while many people would speculate that Thomas made it to Yale Law School because he is black, Thomas would say he made it despite the fact that he is black. And while there may be something to that, there is also something to the notion that race played a role in Thomas getting many jobs, including his appointment to the high court.

According to his biographers Thomas’s sense of turmoil, his resentments—his sense of being a victim of liberal and black elites—is greater than we imagined. Also, his sense of racial solidarity is greater than we knew. In his book and in recent interviews Mr. Thomas has validated his biographer’s assessment.

Robert Reich a rather brilliant lawyer and the nation’s 22nd Secretary of Labor and a professor at the University of California at Berkeley was clear about the Justice’s recent comments and his dull judical mind on his blog:

“Thomas, in a new autobiography, labels Anita Hill his “most traitorous adversary,” once again denying the sexual harassment claims she made against him at his Supreme Court confirmation hearing, and calling her a mediocre but ambitious lawyer. If Thomas wants to dredge up his past in an autobiography for which he reportedly got a million-dollar advance, he’s fair game for those of us who want to dredge up his background, too. At Yale Law School, which I attended with Thomas in the early 1970s, he was notable only for his silence, within the classrooms and without. He wore a skullcap and a scowl. After graduating, he led an undistinguished legal career. Under Reagan, he ran the Equal Employment Opportunity Commission without interest or vigor, and was tapped by George H.W. Bush  for the Supreme Court only because he was a black conservative. Since then, Thomas has spoken rarely from the bench, asked few questions of lawyers appearing before the Court, and has issued opinions often lacking clarity or coherence. By contrast, Anita Hill has had a distinguished career as a lawyer and legal scholar, teaching and publishing on issues ranging from legal contracts to discrimination. She was my colleague on the faculty of Brandeis, and I know few people with more integrity. There’s not the slightest doubt in my mind that she told the precise truth at Thomas’s confirmation hearing, about the lurid sexual comments and advances he made to her. In my view, he was unqualified then to be a Supreme Court justice, and America is much the worse for the ease by which the Senate was intimidated into confirming him by his claim of being subjected to a ‘high-tech lynching’.”

So these are some of the reasons I think that Clarence Thomas is a questionable Justice. No Justice should be so obviously partisan and every Justice should have an inquiring mind- not one that decided a case long before it even appeared before the Court.


Responses

  1. “was tapped by Reagan for the Supreme Court only because he was a black conservative.”

    Not to nitpick, but Clarence Thomas was nominated in 1991 … which would be by George Bush, not Ronald Reagan.

    I generally agree with you on the questions regarding Thomas as having decided most opinions already, though I’m not sure that he’s unique in that. He may be a bit more blatant about it, but I’m not sure that there’s a substantive difference.

  2. I think you will find that I didn’t say that Thomas was tapped by Reagan- it was a cut and paste quote from Robert Reich’s blog. It seemed odd to me, since Mr. Reich is brilliant and isn’t apt to make such a foolish mistake, so I went to his blog today and the quote does say “tapped by George H.W. Bush”. I don’t know what happened, but it was clearly an editing problem – something I must have done. But rest assured, I know that Justice Thomas was appointed by Bush 41 and so does Secretary Reich. I have corrected the error. It must be some WordPress ghost!


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