Thomas's 'Theories' Poses Risks for Justice

      Supreme Court Justice Clarence Thomas recalls today that he viewed court-ordered busing in school desegregation cases in the 1970s as flawed and wrong-headed and still does. Interviewed for a hagiographic documentary Created Equal, Thomas told filmmaker Michael Park that as a student in the Boston area, he saw no purpose in busing black kids from Roxbury to white schools in other neighborhoods that were in his view no better than the schools in the black neighborhoods.

      The flaw, Thomas explained, lay in the “theory” that pro-busing advocates and judges had adopted with no appreciation of its actual consequences for the people involved. “Theory … add people,” Thomas explained in the film, with evident contempt.

      As Supreme Court justice over the past 30 years, however, Thomas has fallen victim to the same error: he has been single-mindedly committed to theories, original meaning and color-blind Constitution, with no regard for the ill effects his theories would have on real people, in real cases. Thomas’s admirers, out in force over the past few weeks, view his single-mindedness as judicial integrity rather than for it is: jurisprudential arrogance and indifference to justice.

      In an online webinar sponsored by the conservative Committee for Justice, for example, Ralph Rossum, a professor at Claremont McKenna College in California and author of a Thomas biography, cited favorably Thomas’s dissent in his first term on the Court in an otherwise unremarkable prison conditions case. The 7-2 decision in Hudson v. McMillian (1992) followed and somewhat expanded prior decisions allowing prison inmates to sue prison guards and officials excessive physical force under the Eighth Amendment’s Cruel and Unusual Punishments Clause for excessive physical force.

      Thomas called for discarding the precedents on the ground that the Eighth Amendment applied only to court-ordered punishments, not to prison discipline or other conditions.  Thomas’s argument persuaded Justice Antonin Scalia to join the dissent. If his view had prevailed —  no justice has picked it up since — real-life prisoners (‘people”) would have less protection today against excessive force.

      It bears noting that only a few months earlier, Thomas had assured the Senate Judiciary Committee that he had no plans to vote to overturn precedents if confirmed to the Supreme Court.  “I have no agenda to change existing case law,” he told the senators. Whatever lies he may have uttered in denying Anita Hill’s accusations of sexual harassment, Thomas’s professed devotion to stare decisis was at best dissembling, if not outright dishonesty. Quite likely, he would not have been confirmed had he truthfully acknowledged his limited respect for legal precedent.

      Indeed, Thomas’s dissent in the prison conditions case was not the only or the most consequential of his votes to overturn precedent during his first year on the Court. He joined in dissent at the end of the term with three other justices – White, Rehnquist, and Scalia – by voting in Casey v. Planned Parenthood (1992)  to overturn the landmark reproductive rights decision, Roe v. Wade. Had Thomas’s view prevailed, real-life women (“people”) would have had their liberty curtailed and would today have less individual freedom.

      Moving forward, the liberal Court watcher Jason Ryulander counted in 2011 more than 30 cases in which Thomas had called in concurring or dissenting opinions for overturning well-settled precedents. His admirers especially praise his stout insistence on a “color-blind Constitution” that, in Thomas’s estimation, prohibits any preferential consideration of race in admissions at selective colleges and universities.

      Thomas’s view is completely ahistorical. The congressional framers of the Fourteenth Amendment and its Equal Protection Clause created, in the interest of racial justice under law, the ‘Freedmen’s Bureau,’ with the specific mission of helping emancipated African American slaves to find productive lives and assume roles as free and equal citizens. Thomas remains a dissenter in calling to overturn the affirmative action decisions; if his views were to prevail, black and brown students (“people”) would have fewer opportunities than they enjoy today to gain admission at elite colleges and universities.

      His supporters note, however, that Thomas has been able to help move the Court on some occasions. In one notable instance, Thomas argued in a separate opinion in a Voting Rights Act case in 2009 to scrap the preclearance requirement imposed on states and localities with a history of racial discrimination. Four years later, Thomas was part of the five-vote majority led by Chief Justice Roberts  in Shelby County v. Holder (2013) that in fact nullified the preclearance requirement. The result was to free states such as Texas, among others, to enact new election laws and procedures that limited access to voting  for many voters (‘people”), with disproportionate impact on the poor and on minority voters.

      Thomas has also called for reconsidering decisions that prohibit race-based peremptory challenges by lawyers in civil or criminal cases. Thomas took that position most recently in dissenting from the 7-2 decision in Flowers v. Mississippi (2019) to grant a black defendant a new trial because of the white prosecutor’s use of peremptory challenges to exclude blacks from the eventual jury. Had Thomas’s view prevailed, Flowers — a real-life defendant, wrongly convicted — would still be in prison today, rather than out on bail awaiting the state’s decision whether to retry the case without racial discrimination.

      Park’s film, funded by far-right foundations, gave Thomas’s admirers the occasion to spin the story that the supposedly underappreciated justice had suddenly emerged as “a symbol of Trump era conservatism” and “a model for a new generation of lawyers.” Reporters who fell for the spin included Nicholas Casey, the New York Times reporter on the conservative beat, who suggested in a fawning, full-page article that Thomas may be on the way to becoming “a pop-culture icon” akin to his Supreme Court colleague, the “Notorious R.B.G.” Lady Justice weeps at the prospect.