Tuesday, November 6, 2001

Associate Justice Clarence Thomas has authored several pioneering and provocative opinions during his 10-year tenure on the U.S. Supreme Court. The fighting issues he has addressed include affirmative action, federalism, church-state relations, congressional commerce clause power, freedom of speech, prisoner rights and the powers of police to search and arrest. Justice Thomas has also written as frequently as his colleagues. Why writer John Greenya selected “Silent Justice” as the alpha and omega of the subject of his proto-biography is thus puzzling.
During oral arguments, it is true, the justice listens rather than interrogates. But oral arguments are but a crumb of a justice’s constitutional labors that ripen into votes and written opinions. And the latter are what count in constitutional law, not forensic dueling with party advocates. Think of the Supreme Court’s giants: Chief Justice John Marshall and Associate Justices Joseph Story, Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo.
Mr. Greenya, however, insinuates that Justice Thomas’ oral argument reticence and declination to answer any question under the sun after extra-judicial speeches deserves fretting and handwringing. He urges Justice Thomas to embrace an “ask all, tell all” policy, so he would “be less of an enigma. And we might all be better for it.”
The author’s exhortation betrays an intellectual thinness and anti-Thomas bias that mars his entire handiwork. Constitutional law would descend into chaos if justices added gloss to their written opinion or votes in speeches or interviews. Would the gloss trump the opinion? And how would lawyers research speeches, question and answer sessions, or newspaper interviews? Further, adversarial presentations are critical to sharp and deep constitutional thinking.
Justice also requires the appearance of justice, as Associate Justice Felix Frankfurter lectured. But that appearance would be shattered if justices routinely opined on political, moral, cultural, or social questions which, in the popular mind, signal a tilt on contemporary constitutional issues. As Alexis de Tocqueville observed more than 150 years ago, virtually every political question in the United States ultimately morphs into a judicial tussle.
Despite the title of his book, Mr. Greenya consigns Justice Thomas’ judicial work to the margins. The bulk is devoted to a pedestrian rehashing of his origins, upbringing, education, pre-judicial career, and tumultuous confirmation hearing featuring Anita Hill’s sexual harassment allegations and exhaustive pursuit of whether the nominee economized on the truth over renting and watching adult videos. Nothing startling from this archeological dig is unearthed, nor is anything that would alter the prevailing understanding of Justice Thomas’ personality or psychological make-up: A winsome and humble fellow coupled with strong convictions.
The author gives prime time far more to the justice’s detractors than to his champions. Even more troublesome, he routinely nods like Pavlov’s dogs to their glib criticisms of his judicial performance. Exemplary is Alan Dershowitz’s verbal assault on Justice Thomas for allegedly abandoning federalism in Bush vs. Gore to parachute Republican candidate George Bush into the White House. But the case for abandonment is dubious. At issue was not deference to the state of Florida in selecting presidential electors, but whether the deference was due to the state legislature that enacted the state election code as opposed to the exotic interpretation of the code by the Florida Supreme Court.
If Justice Thomas’ vote in Bush vs. Gore is suspect as partisan because it is on face value a departure from his federalism philosophy, then Mr. Dershowitz’s extreme criticism “the single most corrupt decision in Supreme Court history” is equally suspicious because it is at war with his customary bow to national over state power. Another glaring bias example is Justice Thomas’ denunciation of racial preferences under a color-blind standard of the Constitution’s equal protection clause. Mr. Greenya assembles the usual circle of liberal Thomas scourges to indicate disapproval.
In Fullilove vs. Klutznick (1980), the most liberal incumbent Supreme Court justice, John Paul Stevens, bitterly dissented from an opinion sustaining racial preferences in federal contracting, likening them to the Third Reich’s anti-Jewish Nuremberg laws: ” … the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals … If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich’s Citizenship Law of November 14, 1935 [defining the degree of Jewishness that vitiates citizenship].” Justice Thomas has never been so harsh.
Knowledge of the justice, and the Supreme Court, would not have suffered if Mr. Greenya had not written.

Bruce Fein is a lawyer and freelance writer specializing in legal issues.

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