Clarence Thomas and his Supreme Court

From the moment [Clarence] Thomas arrived on the Court, he has been a committed originalist; he believes the Constitution should be interpreted as the words were understood by the men who wrote it. “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document [that is, precedent accumulated over the centuries by other justices], we should not hesitate to resolve the tension in favor of the Constitution’s original meaning” …  — from Jeffrey Toobin’s “Partners,” in The New Yorker, August 29, 2011

As a woman who in the fall of 1991 sent individual telegrams to every sitting senator pleading that Clarence Thomas be denied confirmation, I feel invested, so to speak, in Thomas’s strange tenure on the Supreme Court.

I’ve always been genuinely hopeful that people, especially federal judges who receive life-time tenure, will expand and deepen their positions and judicial thinking. Believe it or not, I had such hope for Thomas although his Court confirmation hearings and his and others treatment of Anita Hill and other women should have eliminated him from any court consideration.

So how has my hope worked out?

In “Partners,” Jeffrey Toobin manages to dishearten as well as irritate me, as usual. Ever since his coverage of the O.J. Simpson trial (in brief, I went ballistic), I have not been a fan. I think he lacks the depth I expect from the New Yorker. But hey, he’s their “legal expert,” so I do read him.

Here’s how he begins “Partners.” Read it and scream:

It has been, in certain respects, a difficult year for Clarence Thomas. In January, he was compelled to amend several years of the financial-disclosure forms that Supreme Court Justices must file each year … The following month, seventy-four members of Congress called on Thomas to recuse himself from any legal challenges to President Obama’s health-care reform, because his wife has been an outspoken opponent of the law…

These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court.

Toobin works really hard to give some sort of High Court credibility to Thomas. Does Toobin realize that when he repeatedly uses words like “intellectual” and “scholarly” to describe Thomas, and wrests quotes from genuine scholars (who should know better than to hand-feed Toobin cute buzz phrases), he is offering up his own legal journalist’s, um, gravitas as Thomasian gloss?

But Toobin also quotes Thomas directly, and lays out a potent and disturbing mini-biography of both Thomas and his wife, Virginia.

“The real problem of our Court is that it’s all Ivy League … Correct me if I’m wrong, but I think there are other law schools out there … “

“My wife is my best friend. I can rant with her. She doesn’t read opinions or anything. We believe that this is a good country and that people should have a chance. That’s why you see so many of my law clerks who don’t go to Ivy League schools…”

Apparently, none of his clerks came from what he sneers at as “the Ivies.” And unlike the other Justices, who do talk to each other, Thomas holds substantive discussions about Court cases “almost exclusively with his law clerks, whom he chooses for their ideological compatibility.”

And their mediocrity: one law school from which he selects clerks is Creighton [?] where, curiously, Thomas’s wife Ginni got her law degree.

“If it’s wrong, the ultimate precedent is the Constitution. And it’s not what we say it is, it’s what it actually says, and I think we have to be humble enough to say we were wrong.” …  In other words, Thomas is humble before his own reading of the constitutional text — and dismissive of the attempts of others, including other Justices, to interpret it.

“When interpreting a constitutional provision … the goal is to discern the most likely public understanding of that provision at the time it was adopted”…

[Re a case concerning capital punishment] His views on the Eighth Amendment’s ban on cruel and unusual punishment remain so eccentric, even bizarre, that they have found little favor even on this more conservative Court …

[On one such question, Thomas concurred], in an opinion that reads like a treatment for a slasher movie … the relevant constitutional provision must be “understood in light of the historical practices that led the Framers to include it in the Bill of Rights.” To that end, Thomas surveyed eighteenth-century execution methods that were, apparently, cruel and unusual even in those days … “‘gibbeting,’ or hanging the condemned in an iron cage so that his body would decompose in public view, and ‘public dissection.’..But none of these was the worst fate a criminal could meet…. ’embowelling alive, beheading, and quartering.'”

This and much, much more in the same bloody vein, was written by a Supreme Court Justice!

Thomas is famously silent when sitting on the bench. Toobin performs a real service for those of us who have never seen the whole Court in session, by describing what Thomas looks like on the bench:

What makes Thomas’s silence even more peculiar is his behavior in the courtroom, especially in recent years. The Justices all sit in high-backed leather swivel chairs, and Thomas has set his so that he can recline so far that he appears almost to be lying down. He stares at the ceiling. He rubs his face. He does not appear to be listening. He closes his eyes and sometimes appears to be asleep. The over-all effect is rude, if not contemptuous.

Surely, these descriptions and quotes contradict over and over any notion of Thomas as a deep, rational thinker. For one thing, it becomes obvious that, by clinging to the original Constitution (less than 5000 words), Thomas has deliberately shrunk his own brain to fit into an 18th century pamphlet.

His pretense at a thorough understanding of American history at the time the Constitution was written neatly eliminates for him any necessity to delve into a more profound view of our history before rendering his cramped decisions.

Clarence Thomas’s entire existence — his well-documented icky sexual approach to courtship, his fascination with torture, his “knowledge” of American history— seems to be frozen at a 7th grader level. A 7th grade boy level, to boot.

Any serious future analysis of Clarence Thomas should be neither political nor legal, but psychiatric.

He should never have been confirmed; he must now be impeached. To whom should I send the e-mail?


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