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June 18, 2007

Stacking the deck against Justice Thomas

A book-review editor can elicit a positive or negative review of a book (and the subject of the book) simply by choosing a reviewer with known views.

You know all you need to know about the New York Times's feelings toward Justice Clarence Thomas (as if you didn't know it already) when you see that the Times Book Review assigned the review of "Supreme Discomfort, The Divided Soul of Clarence Thomas" to Orlando Patterson. Patterson, a respected black intellectual, is a sociologist, not a lawyer. If the Times had had any interest in examining Justice Thomas's legal views, it would not have offered the review to a non-lawyer.

Why is that relevant? Justice Thomas has been a member of the Supreme Court for 15 years and, contrary to the ever-present sneers about his taking orders from Justice Scalia, he has developed a strong and individual jurisprudence over that time. You'd barely know this from reading Patterson's review.

First, Patterson assumes, without bothering to argue for his position, that affirmative action is good. Thus, he suggests that Justice Thomas is, if not a hypocrite, at least a very bad man for not recognizing that he himself was a beneficiary of affirmative action. As part of a longer bill of particulars,* Patterson writes:

It is incontestable that he has benefited from affirmative action at critical moments in his life, yet he denounces the policy and has persuaded himself that it played little part in his success.
But has Patterson even read Justice Thomas's separate opinion in the Grutter case regarding the University of Michigan Law School's admissions program? For Patterson, the legal arguments seem to be irrelevant; he cannot contemplate the possibility that Justice Thomas might be correct. Had a lawyer reviewed the book, the lawyer would have had to give those arguments the respect they deserve, even if he disagreed with Justice Thomas. Patterson does admit that "recent evaluations of his opinions by scholars like Henry Mark Holzer and Scott Douglas Gerber indicate that [the arguments] should be taken seriously," but even this is a cop out, as Patterson himself recognizes when he adds, "Well, by lawyers anyway." Patterson, as I've suggested, cannot be swayed and does not even try to make a pretense of open-mindedness.

Second, when Patterson does try to weigh in on Justice Thomas's opinions, he gets it wrong. Patterson says, about Justice Thomas's 1992 dissent in Hudson v. McMillian, that "notoriously, he has held that beating a prisoner is not unconstitutional punishment because it would not have appeared cruel and unusual to the framers," but that's demonstrably wrong. What Justice Thomas actually wrote is that cruel and unusual punishment was traditionally understood as limited to sentences and that it was not concerned with prison conditions: "For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration." The same applied, he explained, to early commentators on the Constitution. This is quite different from saying that prison beatings wouldn't have appeared cruel and unusual to the framers, as Patterson claims he said. Justice Thomas also wrote that in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment.'" That is, the fact that it wasn't cruel and unusual punishment under the Eighth Amendment didn't make it lawful.

In short, instead of giving Justice Thomas the respectful treatment that any other justice would get, with an analysis of his jurisprudence, the Times stacks the deck against him. Patterson doesn't bother with Justice Thomas's opinions at all, and barely considers his views, except in caricature.

Mission accomplished.

* You really have to read Patterson's entire bill of particulars to believe it:
Thus, although he seriously believes that his extremely conservative legal opinions are in the best interests of African-Americans, and yearns to be respected by them, he is arguably one of the most viscerally despised people in black America. It is incontestable that he has benefited from affirmative action at critical moments in his life, yet he denounces the policy and has persuaded himself that it played little part in his success. He berates disadvantaged people who view themselves as victims of racism and preaches an austere individualism, yet harbors self-pitying feelings of resentment and anger at his own experiences of racism. His 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 is said to dislike light-skinned blacks, yet he is the legal guardian of a biracial child, the son of one of his numerous poor relatives. He frequently preaches the virtues of honesty and truthfulness, yet there is now little doubt that he lied repeatedly during his confirmation hearings — not only about his pornophilia and bawdy humor but, more important, about his legal views and familiarity with cases like Roe v. Wade.
Most of this is grotesquery. For example, Justice Thomas's respect for state power does not mean he would ignore the Equal Protection Clause of the Fourteenth Amendment and allow an anti-miscegenation law to stand. And there may be "little doubt" at Harvard that he lied at his conformation hearings, but those outside the academic Left have great doubt indeed.