Monday, June 18, 2007

Taking Thomas seriously

Someone needs to do a psychological study of the way in which liberals view Clarence Thomas. He stands as such a stark contradiction of so many core assumptions that they have to view him as suffering from emotional scarring or exhibiting some type of maladjusted overcompensation.

The New York Times is all into this. Following Adam Cohen's op-ed of a few weeks ago, yesterday saw Orlando Patterson's review of a recent Thomas biography by Merida and Fletcher. Aptly titled "Thomas Agonistes" because, you know, a conservative black man must be at war with himself and his past, it is the same old, same old. After spending most of the review lingering over what he regards as self-evident contradictions, traumas, and pathologies in Thomas' life (the list is actually a bit underwhelming and no less complex than the messiness that you'd find in the lives of most people), Patterson finally observes that the biography does not really examine Thomas' legal philosophy and work on the Court. He knows just enough not to let this go because, he allows, some legal scholars have concluded that Thomas' thought is actually worth taking seriously.

Not that this interests Patterson very much. He dismisses it as a topic for "lawyers." Earlier in the piece he suggests that Thomas' "ardent defense of states’ rights would have required him to uphold Virginia’s anti-miscegenation law, not to mention segregated education" yet he lives with a white wife in Virginia. He believes that there is some type of fascinating contradiction between his "unfeeling" judicial opinions and the apparent fact that Thomas is, personally, warm and compassionate.

I do not know why Patterson believes Thomas would overrule Brown v. Board of Education. I am not aware of everything that Justice Thomas has written, but I don't recall that he has written that. Perhaps someone can fill me in, but there is a substantial difference between the process of incorporating other rights into the 14th amendment to be applied against the states and applying the terms of the 14th itself which is explicity applicable to the states.

I do know that Thomas was critical of Brown's rationale in a case called Missouri v. Jenkins, but his point there was that the Brown court should not have emphasized the psychological harm stemming from segregation. In his view, de jure segregation was unconstitutional because it violated the plain terms of the 14th amendment. Whether or not it results in psychological harm is legally irrelevant. I think there's a great deal to be said for that view.

Maybe Patterson means that Thomas would not find a constitutional remedy for de facto segregation. But the fact that a judge does not believe that there is a constitutional remedy for every problem or that it is his job to impose a "feeling" kind of result hardly requires us to search for personality flaws or a tortured past.


Anonymous said...
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Jim Bouman said...

"Fess up, Esenberg. Have you read the book? This is the second time you've gone warbling on about Thomas and the Thomas-haters.

Have you read the book?

I haven't...yet. I got my name on the reserve list at the Waukesha Public library and the called me today, telling me that it is in, and I'm first on the list.

I have it now, have just finished the prologue. Looks like a good read. I remember co-author, Kevin Merida, from when he was on the Milwaukee Journal in the 80s. A good and thoughtful writer.

Get the book; stop hooting about second-hand analysis in the NYT.

Read the book. Give your take on it; not some third hand howl about how some reviewer in in East Coast newspaper offends you tender little right wing sensibilities, as he writes about a book you haven't yet read.

Rick Esenberg said...

I am commenting on the reaction of Cohen and Patterson reaction to the book and not the book itself. For all I know the book is a careful treatment of Thomas' work, but Cohen and Patterson decided to go off on these "what could be wrong with a black guy to make him a conservative" meditations.

Incidentally, the post I removed was a come-on for porn.

John McAdams said...

Mostly a great post, but the simple truth is that Brown was a blatant act of judicial legislation.

I know it's not politically correct to say that, but it's true.

Nothing in the 14th Amendment was supposed to require integrated schools.

Brown is off limits because at the time it was mostly racists who opposed it. But that doesn't change the fact that it was judicial legislation.

It seems to be that conservatives shoot themselves in the foot when they complain about judicial legislation, and then pretend that really popular judicial legislation has some basis in the Constitution.

Rick Esenberg said...


I don't agree. I'm with Justice Harlan in Plessy. The 14th prohibits the states from legislating on the basis of race. No segregation by law.

John McAdams said...


But that's a huge stretch of the 14th Amendment. The most straightfoward interpretation of the Equal Protection clause is that government must "protect" what it protects equally for blacks and whites.

I'm not sure you are aware of the fact that the Reconstruction Congress that passed the 14th Amendment also voted to segregate the DC city schools. It's also the case that, during the same time, when Congress was debating the Civil Rights Act is was stated that integrated schools were not a "civil right."

Compare what the courts did in the 50s, 60s and 70s with what Congress did. Before court orders had achieved more than token integration, the 64 Civil Rights Act outlawed school segregation.

What did the courts do? They pushed ahead with forced bussing for racial balance, something Congress never approved.

Accept Brown (and the activism that followed) and you get forced bussing.

If you like Harlan in Plessy, is this because his opinion is good constitutional law, or because it's ethically attractive?

"Ethically attractive" is a trap. It substitutes the judge's ethical sense in place of the Constitution.