The most eloquent, most consistent conservative leader in the country finally gets a chance next week to speak not just for himself, but about himself. All Americans with open minds are likely to find themselves enthralled.
The leader in question is Supreme Court Justice Clarence Thomas. The occasion is the publication, in conjunction with the opening of the 2007-2008 high court term, of Thomas’ autobiography: My Grandfather’s Son: A Memoir. Unlike in the cases of so many public figures, Thomas wrote it himself, with no ghostwriter; advance reports say it will be remarkably candid, including frank discussion of Thomas’ infamous hearings before a circus-like Senate Judiciary Committee while being blind-sided by charges of sexual harassment.
As conservatives have learned to their delight since then, and as liberals have learned to their chagrin, Thomas has adhered steadfastly to an intellectually consistent approach — supremely so — to jurisprudence. Long gone, at least for all who have paid the slightest bit of attention to a spate of books on the Supreme Court in recent years, is the notion that Thomas is a results-oriented clone of fellow Justice Antonin Scalia.
Instead, as ABC’s Jan Crawford Greenburg reports this year in her excellent book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, that notion of Thomas as Scalia’s understudy is “grossly inaccurate.” Scalia has found himself changing his mind to follow Thomas’ lead at least as often as Thomas has changed his own to follow Scalia.
Meanwhile, Thomas’s writing (in his court decisions) has been a model of clarity, consistency, and (often) concision. Far less flamboyant than Scalia’s writing, it nonetheless packs eloquence in its directness and its internal logic. This holds true whether Thomas is explaining the letter of the law or whether he is explaining, by way of essential background (but not in place of originalist textual reading), the spirit or meaning that undergirds the law in question.
Consider the entirety of Thomas’s dissent from the majority ruling in the Lawrence v. Texas case that threw out a law that made private homosexual conduct illegal:
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.
Perfect. Nothing more need be said. As in Justice Potter Stewart’s 1965 dissent, Thomas’s brief opinion is a superb explication of the central imperative of conservative jurisprudence: Cases must be decided not on the basis of the jurist’s own opinion as to a law’s wisdom or desirability, but only according to the plain meanings of the Constitution or statutes at issue. Even a law that is “uncommonly silly” and that “does not appear to be a worthy way to expend valuable law enforcement resources” must not be thrown out if the Constitution does not forbid such a law.
Likewise, his concurrence in a dispute about race-based school assignments insists upon fidelity to the Constitution’s actual text — plus, it provides a context that does not replace the legal reasoning but does help explain the moral underpinnings of it.
For the former, consider this:
My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Brown v. Board of Education, O. T. 1953, Nos. 1, 2, and 4 p. 65 (“That the Constitution is color blind is our dedicated belief”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone.”)
And, later, in as pithy and on-target a summation as humanly possible: “What was wrong in 1954 cannot be right today.”
But, as if anybody needed to be reminded that Thomas is not immune to moral reason as well, he also skewers that notion effectively, both from the perspective of the white students affected and, especially, from the black ones — showing, in the latter instance, that he is not abandoning the interests of his fellow black citizens.
He writes: “Every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.”
Moreover: “[T]here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.”
And, in a brilliant shot across the liberal bow: “Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.”
These are the words of a fearless man with a combination of intellect and integrity second to none. If his memoir is half as well produced, it will be a joy to read for any American who cares to think for himself rather than to accept platitudes and conventional wisdom as gospel.
And speaking of conventional wisdom (CW), let it be noted that somehow old CW never got it right way back when Anita Hill was leveling her noxious charges at Thomas. The accusation was not just a he-said, she-said exercise. There were facts laid on the table, and the facts as presented did not support her story. Not to rehash the whole case, but Ms. Hill’s timeline did not and could not hold up to scrutiny. For one thing, her lone supposedly contemporaneous “witness” (and a hearsay witness at that) originally testified that Hill complained to her of being sexually harassed in the spring of 1981. But Hill did not even begin to work for Thomas until well into the fall of that same year.
It was not coincidental that, while the hearings were still fresh (before CW had a chance to revise the real history of the case), polls showed that nearly twice as many Americans believed Thomas as believed Hill.
But all that is ancient history. What remains is 16 years of tremendous high court jurisprudence, carried out by a man described almost universally as warm and kind, with a deep and huge belly laugh and a talent for lasting friendships.
Clarence Thomas is an American hero. We are blessed by his continued service on the court.
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