Twenty years ago this month, Justice Clarence Thomas appeared for the first time on the bench for oral arguments at the Supreme Court. Out of the cases heard in the Court's November 1991 sitting came some myths and truths about Justice Thomas that have carried through to today.
The most persistent myth about Justice Thomas -- that he is Justice Antonin Scalia's puppet -- has its origins in the prison beating case of Hudson v. McMillian. In that case, heard in November and decided several months later, the Court held by a 7-2 margin that prison guards' use of excessive force in beating a prisoner could constitute cruel and unusual punishment under the Eighth Amendment, even if no serious injury resulted.
Thomas, in dissent, debuted his narrow interpretation of the Eighth Amendment, calling the majority's decision "yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society." At oral argument, it was Scalia who aggressively championed this minimalist position, while Thomas stayed silent. So when Thomas' dissent, joined by Scalia, rested entirely on the latter justice's arch-conservative originalist analysis and featured lines like "the Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation," the popular perception of Thomas as Scalia's empty vessel came to life.
To be sure, that conventional wisdom has been buttressed by the fact that Thomas and Scalia agree much more often than not in ideologically-charged cases. But in cases heard during Thomas' first November concerning hot-button criminal law and race issues, he confounded critics of his McMillian dissent by proving himself to be an independent jurist capable of splitting from Scalia to reach conservative as well as liberal results.
In one case, United States v. Fordice, argued the same day as McMillian, the Court considered whether Mississippi had done enough to meet the state's constitutional duty to dismantle its prior system of segregated universities. This would be the first time, but not the last, that the specter of the segregated south roused Thomas to speak at oral argument. Listening to the argument of Mississippi's lawyer, William Goodman, that the state's adoption of race-neutral admissions policies alone satisfied the equal protection clause of the 14th Amendment, Thomas asked whether there is any difference between a school that is underfunded due to prior segregation policies and an underfunded school that has never been discriminated against:
Thomas' question revealed his view that despite his well-known opposition to affirmative action in the form of race-based college admissions, Mississippi's race-neutral admissions policy served as a fig leaf to cover segregation's vestigial deformities.
And here, as in the cross-burning case heard just over a decade later, Thomas' life experience in the segregated south brought some real-world pragmatism into his otherwise formalistic jurisprudence. When the decision in Fordice came down in late June 1992, Thomas joined the eight-justice majority holding that Mississippi had more work to do to eradicate all traces of state-created inequality in its public universities. Scalia was the lone dissenter, writing that "only one aspect of a historically segregated university system need be eliminated: discriminatory admissions standards."
But Thomas' vote in Fordice came with another nod to reality. In a concurring opinion, Thomas conveyed his understanding that because the majority decision "does not compel the elimination of all observed racial imbalance, it portends neither the destruction of historically black colleges nor the severing of those institutions from their distinctive histories and traditions." For Thomas, such institutions, though borne out of necessity during segregation, became and remained a great source of pride and upward mobility for African Americans beyond the demise of segregation. "It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges," concluded Thomas.
Thomas again displayed his sensitivity to race and racism as the sole dissenter in Dawson v. Delaware, a case argued the day before McMillian and Fordice. At oral argument, Thomas stayed silent as justice after justice seemed to agree that the death row defendant's due process rights were violated when prosecutors told the jury at the penalty phase that he belonged to the Aryan Brotherhood to rebut evidence of his good character. When the justices put their agreement in writing that one's membership in a white supremacist prison gang was irrelevant character evidence in sentencing a white-on-white convicted murderer, Thomas dissented. "Denying that Dawson's gang membership told the jury anything about his activities, tendencies, and traits -- his 'character' -- ignores reality," Thomas wrote.
Thomas and Scalia found themselves on opposite sides yet again in another criminal case heard in November 1991. Thomas neither asked a question nor wrote any opinion in Jacobson v. United States. Still, he and fellow George H.W. Bush appointee Justice David Souter ultimately split from the Court's conservative wing to create a 5-4 majority, reversing a man's conviction for purchasing child pornography because they found the conviction may have arisen out of government entrapment.
With commentators feverishly predicting the justices' votes in the health care cases to be heard and decided in 2012, readers will be reminded that a party-line vote is hardly guaranteed, as the last time the Court considered the constitutional limits on Congress' power to regulate interstate commerce, Scalia reluctantly concurred with the liberals and Thomas issued a dissenting opinion so conservative that the other two dissenters refused to join it. Yet it is worth remembering that such divisions are not of recent vintage or in response to outside critics claiming he is Scalia's clone. Love him or loathe him, Thomas has been his own man from the very beginning.
The next installment of Clarence Thomas' Questions will look at what truths emerged from his first fortnight of oral arguments that counsel today's courtwatchers to show up to the Court's most mundane cases.
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