Saturday, August 27, 2011

Assessing Clarence Thomas: Buffoon?—or Threat to Our Way of Life?

Jeffrey Toobin has a fascinating profile of Clarence Thomas in The New Yorker: Partners. Toobin actually profiles both Thomas and his wife, a conservative political activist with strong Tea Party connections. The interaction between Thomas and his wife’s activities is an interesting tale in itself, but here we will focus only on the description of Thomas, his legal philosophy, and his perceived influence.

Toobin begins by reminding us what we know best about Thomas. Foremost are his bizarre confirmation hearings where he was accused of sexually aggressive behavior by Anita Hill. Toobin claims that all information that has emerged in the intervening years has supported Hill’s accusation. Clarence Thomas was (is?) a sleazy individual. The second most memorable thing about Thomas is that he has now passed five years without asking a question during an oral argument. This is not a record likely to instill confidence in a person’s legal capacities. Toobin also adds this interesting tidbit about Thomas’s comportment during hearings.

“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.”

Thomas has also received negative publicity due to his wife’s political activities. Seventy-four members of Congress have suggested to Thomas that he recuse himself from any considerations of the healthcare law because of her outspoken opposition. He was also caught neglecting to disclose his wife’s income from political sources.

If this is what one knows of Clarence Thomas, it is logical to conclude that he is some sort of bizarre joke played on our legal system. Toobin then proceeds to tells us that nothing could be further from the truth.

Thomas is described as the Justice most dedicated to the concept of originalism (Scalia is described as only fainthearted in his embrace of the concept). To Thomas, originalism has a very specific meaning. He believes that the words in the Constitution must be interpreted in terms of the public understanding of the meaning at the time they were adopted. This may sound reasonable, but, as Toobin points out:

“It is true, too, that the framers often disagreed profoundly with each other, making a single intent behind the Constitution even more difficult to discern, and the twenty-seven amendments (all with their own framers) created another overlay of complication. For all of Thomas’s conviction, originalism is just another kind of interpretation, revealing as much about Thomas as about the Constitution.”

The difficulty of ascertaining any precise meaning to the words contained in the Constitution has led justices over the centuries to lean on judicial precedents as a means of inserting stability and continuity into our legal system. This protects us from having the country thrashed about every time a new justice comes up with a different interpretation. Thomas will have none of that. He believes it is most important to “get it right” no matter what the consequences. And he gets to decide what is “right.”

Thomas’s originalism has led him in strange directions. In interpreting what “cruel and unusual punishment” might be, he wrote an opinion that detailed a number of punishments that were considered “cruel and unusual” in the eighteenth century. He catalogued things like burning at the stake, disemboweling, and quartering. He concluded that these would be what the Framers of the Constitution meant as cruel and unusual.

“The point of this grotesque catalogue was to assert that the Eighth Amendment prohibited methods of execution that were also forms of torture—nothing more. Such a standard meant that Thomas was implicitly writing out of existence decades of precedent on the Eighth Amendment. Over the years, the Court had vetoed the imposition of “hard and painful labor”; rejected disproportionate sentences for minor crimes; abolished the death penalty for rape; and outlawed life sentences for juveniles convicted of crimes other than murder. Under Thomas’s narrow reading of the Eighth Amendment, all these cases would be wrong; under his approach to stare decisis, all would be overturned.”

How far can Thomas go with his interpretation of the constitution? Consider his views on the Commerce Clause. Toobin provides this background.

“Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s signature initiatives as violating the Commerce Clause of the Constitution. If the law did not directly affect commerce “among the several states,” in the words of Article I, the Nine Old Men on the Court said that Congress had no right to pass it.”

Some timely changes of personnel and at least one change of opinion allowed Roosevelt to pass the New Deal legislation. A series of opinions gave Congress wide latitude in interpreting what was included in their mandate. The issue lay dormant for decades until Thomas raised it again.

“In a characteristically lengthy and detailed opinion, Thomas said that the early New Deal Court—the Nine Old Men—was right, and all the Justices over the following six decades were wrong. Thomas wrote, ‘From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.’ By Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional.”

It is quite obvious what Thomas’s vote will be when the healthcare legislation reaches the Supreme Court.

While most would consider Thomas’s views extreme, he has been successful at moving the Court in his direction.

“In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.”

Toobin attributes the current legal dominance of gun rights based on Second Amendment arguments to an opinion by Thomas that raised the issue and set the table for the gun advocates. Thomas was also a driving force behind the Citizens United decision, again overturning decades of precedent regarding political campaigns. Perhaps the most frightening indication of his effectiveness is the manner in which he has convinced others to follow him in overturning established legal positions. The other conservative Justices at least pay lip service to precedent. The procedure seems to involve a gradual erosion of the basis one decision at a time—a process that has been referred to as “death by a thousand cuts.”

Toobin provides a picture of a man driven to strike back at the “elite” who he believes have mistreated him, both because of his race and because of his humble origins. Whatever his motives, he has become someone to be reckoned with—and few people are laughing.

No comments:

Post a Comment

Lets Talk Books And Politics - Blogged