Tuesday, August 25, 2009

Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Clarence Thomas was born on June 23, 1948 in Pin Point, Georgia. His family was poor--dirt poor, as he himself describes them. As the descendants of American slaves living in the Deep South, Thomas and his family experienced many of the humiliations so common to African-Americans of the time. And some of the same family tragedies. His father left the family when Clarence was only two years old. After a fire destroyed their meager home, the family split up.

While Clarence's sister Emma stayed behind with relatives in Pin Point, he and his brother Myers moved to Savannah with their mother. His mother worked as a maid, housekeeper, inn worker, and other types of domestic employment. Though she tried mightily to remain independent, it became increasingly difficult as the boys grew up. The extended family always stuck together, and finally his mother decided she just could no longer go it alone. So when Clarence was seven years old, his mother and the two boys moved in with their grandfather, Myers Anderson, after whom Clarence's brother was named.

Anderson was a largely uneducated man with a big heart and an agile brain. He had built not just one, but two businesses in Savannah. He owned a fuel-oil business as well as an icehouse and delivery service. Myers started taking Clarence and his brother to a local farm around the time Clarence was ten, where they worked a typical sunrise-to-sunset day when not in school. As an adult, Thomas loved to quote his grandfather saying "never let the sun catch you in bed."

Teenage Thomas was the only black student at his high school in Savannah. Following his grandfather's advice, he pursued self-reliance. He was an honors student throughout his high school years. The family were Roman Catholic, and he continued his learning through Catholic schools of higher education. At one point he considered becoming a priest, and attended two different Catholic seminaries. Now ready for his sophomore college year, Thomas went on to College of the Holy Cross in Worcester, Massachusetts.

At Holy Cross, Thomas encountered the Northern form of racial discrimination. Though never directly denied access to any of the privileges of the white students, he nevertheless saw the subtle (and sometimes not-so-subtle) differences in the way black students were treated, even at a Church-sponsored school. At Holy Cross, Thomas formed one of the very first Black Students Associations. He pointed out years later than he had no intention of it being a separatist group, but formed it solely in reaction to the unequal treatment of black students. He led a student walkout when certain white students received light discipline at the same time that black students were receiving harsh discipline for exactly the same infractions, including expulsion. His group successfully negotiated the return of the expelled black students.

He always felt that the Catholic Church was not doing enough to use its moral and religious power to combat racism. It led to his break with the Church, and he became an Episcopalian for some years. In the 1990's, he returned to the Catholic Church, where he remains a communicant to this day.

After graduating from Holy Cross cum laude with a degree in English literature, Thomas went on to Yale Law School. He graduated near the middle of his class, getting his JD degree in 1974. Thomas was admitted to Yale Law based strictly on his grades and achievements. He had taken advantage of none of the early affirmative action advantages which were available for black students. Yet he was treated by future possible employers as if he wasn't a legitimate Yale Law graduate. Some asked pointed questions about how Thomas had gotten into Yale Law in the first place. This had a very strong influence on Thomas's ongoing disdain for affirmative action programs.

Thomas has one son from his first marriage. He and college sweetheart Kathy Ambush were married in a ceremony at the time that Thomas was Episcopalian. The two separated and were subsequently divorced in 1984. After returning to the Catholic Church, he met Virginia Lamp, a lobbyist and aide to Congressman Dick Armey. He married Lamp in 1987, obtaining an annulment of his first marriage from the Catholic Church. Out of 140 Justices currently serving on the federal bench, there are only thirteen who are Catholic. But Thomas certainly doesn't feel isolated by that. He is just one of the six Catholics currently sitting on the Supreme Court bench.

Thomas's legal and political career started when he was made Assistant Attorney General of Missouri in 1974 under State Attorney General John Danforth. When Danforth was elected to the US Senate in 1976, Thomas went into private practice as an attorney for the Monsanto Company in St. Louis. Danforth had recognized Thomas's negotiating and legal talents, and in 1979 called Thomas into service again, this time as a Senatorial Legislative Assistant. Danforth was later a strong advocate for a Thomas seat on the Supreme Court.

In 1981, he was appointed as Assistant Secretary of Education for the Office of Civil Rights by Ronald Reagan. In 1982, Thomas was appointed Chairman of the US Equal Employment Opportunities Commission. As someone who had experienced the effect of racial discrimination young, and later the questioning of his credentials because of affirmative action, Thomas became a strong enforcer of anti-discrimination statutes while showing benign neglect toward affirmative action.

He also continued his philosophy of personal self-reliance and stopped the EEOC practice of filing group "class actions" for discrimination, choosing instead to pursue cases of individual and provable discrimination. He discontinued the policy of treating every allegation of discrimination as being true unless proven false, and shifted the burden of proof to those making the claim. He got national press in 1984 by telling black leaders like Jesse Jackson that they were "watching the destruction of our race as they bitch, bitch, bitch about President Reagan instead of working with the Reagan administration to alleviate teenage pregnancy, crime, unemployment and illiteracy."

In June of 1989, President George H. W. Bush nominated Clarence Thomas to the US District of Columbia Circuit Court of Appeals. Initially, Thomas was not receptive to the idea, and it took some serious jaw-boning to bring him around. Thomas later said that during the interviews with Democratic Senators and their staffs, he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights." Hard to believe, but the actual hearings went very smoothly, and during the time he served on the Court of Appeals bench, he became a close friend of fellow Appeals Court Justice Ruth Bader Ginsburg.

When Supreme Court Justice William Brennan stepped down in 1990, President Bush first thought that he would appoint Thomas to that seat. But fearing a charge of tokenism and growing obstreperousness among the left wing of the Democratic Party, he appointed judicial question mark David Souter instead. As Souter immediately turned out to be a judicial activist and liberal opinion writer, Bush and his Chief of Staff John Sununu determined that their next appointment would be a staunch conservative, and they would not back down. Sununu predicted a "knock-down, drag-out, bloody-knuckles, grass-roots fight" over such a nomination.

Upon the announcement of the retirement of Justice Thurgood Marshall in July of 1991, Bush and Sununu both decided immediately that Thomas would be the nominee. Whether the fact that Marshall was the first and only black Justice on the Court was a factor in the choice is unknown, but it added another factor to the fight that Sununu had predicted, and put the left into full spin cycle figuring out how to attack a black Court nominee. It started with legal writer Jeffrey Toobin saying that Bush made the decision solely on race, and saw Thomas as "pretty much the only qualified black candidate who would be a reliable conservative vote." And that was mild compared to what followed.

The liberal American Bar Association Panel on Supreme Court Nominations declared Thomas "qualified," less than Bush would have wished, but much stronger than the attack dogs would have preferred. Until the earlier Bork debacle, a "qualified" rating from the ABA was more than enough to allow a nominee to slide through the Senate. But the Senate Judiciary Committee was by now far more politicized than even the liberal ABA.

Along with the liberals on the Senate Committee, Thomas was opposed by the NAACP, the Urban League and the National Organization for Women. None were able to attack Thomas on his competence and judicial record, which before Bork were the only criteria by which a Supreme Court nominee was to be vetted. But the NAACP and Urban League didn't like Thomas's views on affirmative action, and NOW was horrified at the thought of a Justice who might vote to overturn Roe v. Wade. Out went the judicial questions, and in came the political questions. What ensued was the worst political circus around a Supreme Court nominee since the first "Borking."

The President of NOW literally said in a public statement that they were going to "Bork" Thomas. The "Uncle Tom" allegations began shortly thereafter. Ted Kennedy came up just short of calling Thomas a secret member of the Ku Klux Klan. But Bush stood by his man. And then came the final attack. "A little bit nutty, a little bit slutty" Anita Hill showed up to accuse Thomas of sexual harassment. Thomas lost his temper over this only once, when he called the hearings "a judicial lynching." The story of the hearings is a book by itself, so I will leave it at this. With Thomas's judicial qualifications nearly ignored, and his political beliefs clearly at the forefront, the Senate confirmed his appointment by 52 to 48, the narrowest margin in over a century. Eleven Democrats found their honesty and integrity for a few brief moments, and joined the 41 Republicans voting in favor.

Thomas was viewed from the beginning of his first Supreme Court term as being a member of the conservative minority on the Court. This altered the makeup of the Court in that he replaced a reliably activist and liberal Justice. The Souter nomination had merely replaced a very vocal liberal with a stealth liberal. As an "originalist" he is considered by liberals and judicial activists to be ultraconservative, and the most "right wing" Justice of them all. Many have made the mistake of thinking that because he is rather quiet during argument and reluctant to take center stage that he is merely a weak Justice who follows in the wake of conservatives like his early companion Antonin Scalia.

At least one liberal Supreme Court watcher has gotten it right. Legal reporter Jan Crawford Greenburg says that "pundits' portrayal of Thomas as Antonin Scalia's understudy was grossly inaccurate, it was more often Scalia changing his mind to agree with Thomas rather than the other way around." Unwilling to let such a legal compliment go unmodified, she also adds that she sees Thomas as divisive, since "the forcefulness of Thomas's views pushed Justices Souter, Sandra Day OConnor and Anthony Kennedy away." Yet she remains highly critical of court watchers who consider Thomas to have meager legal talents. For those who might wonder why Chief Justice Rehnquist rarely called on Thomas to write majority opinions, Greenburg says it was Rehnquist's fear of Thomas's clear and cogent arguments and refusal to water down his ideas to gain a majority concurrence. It had nothing to do with any inability of Thomas to write brilliant opinions.

The similarity of voting between the conservative Justices is not as simple as most people would believe. "Originalist" is a broad term which does indeed distinguish them from the "Living Constitution" Justices. But there are subtle differences which could become more apparent if the "originalists" ever become a clear majority on the Court (which isn't going to happen while Barack Obama is President). Justices Scalia and Chief Justice Roberts espouse "original intent," while Justice Alito leans toward "original words plus original intent." While Thomas agrees with both of those views as they have evolved, he goes one step farther. If the original intent is not apparent and the original words do not address a modern issue, Thomas is very clear on where to look next, and it's not "evolving law," the "living Constitution," foreign law or group therapy.

Rather than write a concurring opinion which lays out his judicial philosophy and might harm the the possibility of bringing along the fifth "swing vote," Thomas has thus far largely simply joined in the originalist opinions. But were there to be a fifth solid vote on the originalist side, Thomas would be very likely to concur rather than simply join, and set forth his underlying judicial philosophy. He got it from the Founding Fathers. It's called "Natural Law." Thomas believes that if the words and intent of the Constitution do not resolve the issue, then go to the Declaration of Independence. And if that doesn't address the issue adequately, then go to the Federalist Papers, and the writings of the early Revolutionaries, and even to Judeo-Christian legal tradition. The other originalists stop at "words and intent."

In a much earlier post in which we discussed the Dred Scott decision, I pointed out that had Roberts, Alito, Scalia and Thomas been sitting on the Supreme Court at the time of the decision, only Thomas could have remained true to his judicial philosophy by holding that runaway slaves must be treated as full human beings with the rights of all humans as defined in the Declaration of Independence. The three others would most likely have to go with the majority opinion which held that runaway slaves could be treated in non-slave states as property with no independent human rights because of the "counting" provision contained in the pre-Civil War Constitution.

The likelihood of such a landmark decision ever having to be made again based solely on that difference is terribly slim, but worth thinking about if it should ultimately become the majority legal concept among originalist Justices. This is largely because it would also be a guide to the lower appellate courts making decisions on cases of first impression when the original words and original intent are not sufficient to form a dispositive opinion.

Thomas's stand on stare decisis is clearer in his written works than in the opportunities he has had to exercise it on the Court. In majority opinions, he has the most consistent record of any Justice in upholding prior decisions. Yet when he writes a minority opinion or dissent he is the Justice most consistent in arguing for the overturning of precedent. Thomas has made it clear that he believes that precedent is not legitimate if it is based on false reading (not a "different" reading) of the words of the Constitution. His exact words are "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, we should not hesitate to resolve the tension in favor of the Constitution's original meaning." Thus, he has consistently been in the minority on abortion cases, nearly always injecting his view that Roe v. Wade should be overturned.

Thomas is a free speech purist, and behind David Souter, the Justice most likely to support the exercise of free speech regardless of how offensive he personally finds the speech in question. He has been very consistent on the issue of federalism, voting nearly every time to support the reinstatement of purely state issues to the states and taking them out of the federal jurisdiction. He believes the Interstate Commerce Clause provides a particular jurisdiction to the federal government, but does not believe that this specficity of the Clause should be expanded to include entirely tangential matters. For that reason, he has nearly always voted to restrict the federal government from interfering in state-to-state compacts and activities which have minimal impact on national commerce.

Thomas supports the Eighth Amendment in its traditional upholding of the death penalty, and opposes federal court intervention in matters of sentencing and arrest determination based on federal standards being applied to state procedures. As for Equal Protection, he sees it in simple terms combined with a traditional view of procedural due process. He sees "substantive due process" as a creation out of whole cloth by the activist Warren Court which turned traditional procedural due process into a legal and philosophical spitting contest about what comprises equal protection. And he's not afraid to apply that judicial philosophy directly to affirmative action. In Adarand Constructors, Inc. v. Pena he wrote that "there is a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal. It can only recognize, respect, and protect us as equal before the law. That affirmative action programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."

On the Church and State issue, Thomas applies his rarely enunciated natural law theory to interpret the meaning of the Establishment Clause. He sees the free exercise provision as an individual right, best protected by the States, and therefore opposed interference in state determinations utilizing the Fourteenth Amendment "incorporation" argument. His stand is that when the Founders wrote the Establishment Clause, they paid due deference to "Nature and Nature's God" from the Declaration by simply stopping the federal government from forcing religion on anyone by creation of a national official religion. He sees the Establishment Clause as fundamental along with the Free Exercise Clause, and therefore any incorporation of the Establisment Clause must necessarily include incorporation of the Free Exercise Clause. That means that prohibiting religious observances or displays on property located within any State jurisdiction via the federal courts is interference with the individual's right to express religious views on state property. And whether that comprises state promotion of religion, he says, is a determination to be made by the State, not the federal courts.

He is clear on abortion. He personally opposes it. But that is not his judicial opinion. His judicial opinion hinges on his belief that some precedent is based on purposeful misreading of the Constitution and should be overturned. He believes Roe v. Wade to be one of those precedents. He has expressed his judicial opinion that abortion is one of those matters never even considered by the Founders except as to the sanctity of human life, and therefore the appropriate jurisdiction for determination of abortion laws is the states, not the federal government. He was able to extend his view to the federal jurisdiction in supporting the federal statute banning partial-birth abortions on the grounds that it asserted authority over a practice clearly proscribed over the entire course of American legal jurisprudence, and that it was not an inordinate overstepping of the federal government since no argument either for or against the statute involved the issue of interstate commerce. Since the Constitution never addressed abortion as an issue of its own, any state or federal statute which addressed the live-birth issue as homicide rather than abortion was valid on its face and could be stricken only if the statute violated some other constitutional stricture.

Thomas has consistently supported the executive branch in its exercise of independent executive power, particularly where it involves the executive's sole power to conduct war as Commander-in-Chief. He therefore wrote a dissenting opinion in Hamdan v. Rumsfeld in which the majority held that the ability of the executive to try terrorists captured on foreign soil in military tribunals was a sole prerogative of the Congress, and required Congressional authorization for such trials. As for Fourth Amendment protections, he has usually found in favor of the exercise of the power of the police, and has acidly referred to the volumes of restrictions on reasonable search and seizure as unreasonable.

Thomas has been criticized by overly talkative legal scholars of being lax in his use of the right to ask questions of the attorneys at oral argument. Thomas has given the serious answer that he believes that most issues talked about at oral argument are just recitations of the legal briefs, and that asking questions should be limited to oral arguments which diverge in some way from the written briefs. That is a rare occurrence. Humorously, he has said that if he waits long enough, someone on the Court is going to ask the question he was thinking of anyway. He has also said rather humanly that presenting a case before the Supreme Court is tough enough without Justices asking "gotcha" questions designed solely to show off their own wisdom while humiliating the attorney presenting the argument. "Im not here to give the attorneys a hard time."

Fortunately for all of us, Justice Thomas has given his liberal counterparts on the Court an extremely hard time. And he has made his conservative brethren adhere to their principles. When they have not, he has not been reticent about a school master's use of a sharp tongue for correction.

16 comments:

Writer X said...

Justice Thomas is perhaps the justice who I admire the most. His story is riveting. I remember watching the Anita Hill hearings. They were a disgrace. LawHawk, you probably already know this, but Janet Napolitano (then a lawyer with Lewis & Roca in downtown Phoenix) was one of the attorneys representing Hill and attempting to demonize Thomas. I remember those hearings went on for days. Another moment in time when liberals revealed their true intentions.

StanH said...

The Clarence Thomas story is a truly American tale. Rags to riches, insurmountable odds, and possesses a drive that is repeated every day in this great country. Thank God, we have a Clarence Thomas on the Supreme Court to preserve The Constitution, great story indeed.

LawHawkSF said...

WriterX: "Disgraceful" is the word that best fits the behavior of all of the people involved in assassinating Thomas's personal character. Napolitano was indeed one of the Inquisitors. And ever the hypocrites,many of those same people cried "racism" when Sotomayor was questioned on her actual words and written treatises.

StanH: I couldn't agree more. Justice Thomas, better than any of the other Justices, comprehends what the Founders were trying to accomplish in creating a government of laws, not of men.

AndrewPrice said...

Lawhawk, Thomas is my favorite justice. I used to like Scalia the best, but he can often get lost in philosophy. I think Thomas is much better grounded. If the Court was made up of 5-9 Thomases, this country would be so much better off.

And it really, really makes me angry when liberals say that he's stupid. He is one of the smartest people on the court, and about 100 IQ points higher than the newest one.

LawHawkSF said...

Andrew: I'm pleased to hear that. I knew you and I agreed on who the best Justices are, but I didn't realize we shared our top admiration for Justice Thomas. The thing I'm really looking forward to is the first head-to-head confrontation between Thomas and Sotomayor. I can only imagine what he's going to tell her when she starts her routine about coming up from poverty and becoming a "wise Latina."

MegaTroll said...

Lawhawk, Great article. I was furious during the Anita Hill hearings. I still hold that against the Senators who tried to slam him.

AndrewPrice said...

Lawhawk, Clearly, great minds think alike.

DCAlleyKat said...

Lawhawk, Thomas is my favorite justice. I used to like Scalia the best, but he can often get lost in philosophy. I think Thomas is much better grounded. If the Court was made up of 5-9 Thomases, this country would be so much better off.

Andrew, I so totally agree with you. Funny on the Scalia thing - it's as if you read my mind, Thomas is much better grounded.

CalFederalist said...

LawhawkSF and Andrew Price--As you can guess from my ID, I'm a strong believer in true federalism. Thomas has been the staunchest defender of constitutional federalism since the day he was seated on the Supreme Court bench. And he gets it right at every level. He's in favor of the states exercising their sovereign powers without interference from the central government, and at the federal level, he truly understands the separation of powers. In the Hamdan case he nailed Congress for interfering with the clear executive prerogative. Unfortunately, he was in the minority.

AndrewPrice said...

DCAlleyKat, I was reading your mind! :-)

CalFed, Glad to hear it! Like I said, if we had 5-9 Thomas's on the court, we would be in great shape.

LawHawkSF said...

MegaTroll: What a sad, sorry display that whole Anita Hill character assassination was. She looked like she was going to collapse or go into helpless tears at any moment. I'm no psychologist, but that woman looked like an hysterical neurotic who was in need of medication, therapy, or both. She chose to go into a profession that requires her to swim with sharks, and she is clearly a minnow.

LawHawkSF said...

DCAlleyKat: I agree with you and Andrew. I have great admiration for Scalia, but he suffers from the same syndrome as Stevens. Brilliant mind that doesn't know how to turn that brilliance into clear messages that lesser legal minds can fully comprehend. Too professorial, not pointed enough. Thomas leaves no questions in anybody's minds, even those who disagree with him.

Tennessee Jed said...

I thoroughly enjoyed this article, Hawk. I must confess, Thomas is one of the justices I knew the least about. Certainly, the liberal of the main stream media showed up in laying the hint of his judicial skill being suspect. While I don't hold you to writing a separate article, it would be interesting sometime to go into more detail on the hearing.

The $64,000 question to me is this: Did Anita Hill come in specifically to perjure herself to take down Thomas or did she possibly delude herself to believe that the events in question "kinda sorta happened."

DCAlleyKat said...

DCAlleyKat: I agree with you and Andrew. I have great admiration for Scalia, but he suffers from the same syndrome as Stevens. Brilliant mind that doesn't know how to turn that brilliance into clear messages that lesser legal minds can fully comprehend. Too professorial, not pointed enough.

LOL...what I call a "legal teleprompter"...it's all there, and it's brilliant, but it lacks the ability to express.

LawHawkSF said...

Tennessee: I always had the feeling that Anita Hill was just a poor, neurotic patsy who had deluded herself into thinking that Thomas was sending her signals that just weren't there. It's a fairly common neurosis. And when nothing develops sexually or romantically, the neurosis turns ugly (think: Potiphar's wife from the story of Joseph). There were plenty of anti-Thomas zealots ready to exploit her delusions.

LawHawkSF said...

DCAlleyKat: I guess you could say "a mind is a terrible thing to over-use." Scalia is known as a very motivational law instructor. But getting law students to develop nimble minds and work out every side of a legal issue is not the same talent as taking a position, making it clear, and convincing others to follow you. I saw it in action hundreds of times over the years in my trial work. Harvard, Yale, Princeton law grads, totally enamored with the brilliance of their legal analysis. Unfortunately for them (and fortunately for me), I understood what they were saying, but the juries didn't. At times it was hard to tell whether they were arguing for the defense or the prosecution, and I think they often confused themselves.

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