I blogged below about some factual errors in The Nine that worried me. But I was also troubled by a couple of other things; they are judgment calls, and perhaps you might agree with the author’s judgment more than mine, but I thought I’d mention them.
In particular, let me start with the book’s treatment of Justice Thomas, which at times strikes me as not entirely fair. Let me offer a few example:
1. On pp. 109-10, the book discusses Justice Thomas’s speech in which he asserts “my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black.” Justice Thomas, the book argues, “chose to attack straw men. No one quarreled with Thomas’s right to his own views; no one said black people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else …. It was the substance of Thomas’s views, not his right to hold them, that his critics attacked.”
Is that really right? Unless I’m mistaken, Justice Thomas has quite often been faulted for his positions not just substantively, but by being damned as a traitor to his race, Uncle Tom, house Negro, and the like — statements that do suggest that he should have had certain ideas precisely because he’s black, and that black leaders did indeed have to speak with one voice on those issues. As leading liberal black professor Randall Kennedy put it (describing the phenomenon, not endorsing it), “[a]mong professional blacks, especially lawyers, he is widely ostracized and routinely vilified as an ‘Uncle Tom.’” Former Surgeon General Joycelyn Elders publicly called Thomas an “Uncle Tom” (see Wash. Post, May 2, 1995); the Rev. Joseph Lowery publicly said (see Atlanta Journal & Constitution, June 4, 1996) that Thomas “has become to many in the African-American community what Benedict Arnold was to the United States, a deserter; what Judas was to Jesus, a traitor, and what Brutus was to Caesar, an assassin.” Is Justice Thomas really attacking straw men when he responds to this the way he did? Is it really the case that “no one [has] asserted that support for causes like affirmative action was obligatory for Thomas” and other blacks like him?
2. Likewise, on p. 112, the author dismisses Julianne Malveaux — who said in a cable interview that “I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do” — as “an obscure columnist.” Her columns have appeared roughly once a month in USA Today, one of the highest-circulation newspapers in the country.
3. On p. 111, the book describes how Thomas received a $1.5 million book advance for his memoirs from Rupert Murdoch, and adds in a parenthetical, “More than three years after the contract was announced, and $500,000 paid to him, Thomas had still not delivered a manuscript.” If that’s just faulting Justice Thomas for being a slow writer, that’s fine, though I expect that three years isn’t that long a time for writing a manuscript. But if the claim is that he’s somehow taking money and delivering only vaporware — which I think is the impression the parenthetical leave — might it have been worth mentioning that the book is coming out just a few weeks after The Nine? The author might not have known this when he was writing the manuscript, but I’d think it could have been checked before The Nine went to press.
4. On p. 111, the book also reports that
Thomas received even more direct financial benefits from his job [besides the payment for the book]…. Thomas received $42,200 in gifts over a six-year period. This was more than seven times as much as any of his colleagues, whose gifts tended to consist of crystal figurines and plaques. (Most of the justices accepted all-expenses-paid trips to destinations around the world, where they lectured at universities and met with judges ….)
So with the parenthetical, what’s the point of the material that goes before? An all-expenses-paid trip is also a gift; if a Justice (say, Kennedy, O’Connor, or Breyer) got a couple more such trips a year than Thomas did, it would easily make up for the $7000 per year in gifts that Thomas got.
Now likely on balance Justice Thomas got much more “tangible, as well as psychic, rewards” stemming from his service, given the book proceeds. But why then the focus on the $42,200 in gifts over six years (nearly half of which, incidentally, involved one gift the value of which was likely psychic more than tangible — a $19,000 Bible once owned by Frederick Douglass)? And if one focuses on the gifts, why not estimate the value of the trips received by the other Justices?
5. On p. 108, the book acknowledges that, “To say that Thomas opposed affirmative action is not to say that he fought all efforts to help poor people, especially blacks,” and gives examples of his personal attempts to help black youngsters. Now this is even more of a judgment call, but wouldn’t this have been a great opportunity to mention Justice Thomas’s specifically judicial attempts to help blacks, by fighting doctrines that he thought unfairly limited government action that would be helpful to blacks?
The most obvious example is his concurrence in Zelman v. Simmons-Harris, which argued that liberal readings of the Establishment Clause that restricted school choice programs were both constitutionally unsound and harmful to poor people, especially blacks. Here’s how the concurrence began:
Frederick Douglass once said that “[e]ducation … means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago in Brown v. Board of Education, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program.
The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State’s neutral efforts to provide greater educational opportunity for underprivileged minority students. Today’s decision properly upholds the program as constitutional, and I join it in full.
There were other examples, too: Consider his solo dissents in Dawson v. Delaware and Virginia v. Black that would have upheld sentence enhancements for racist prison gang members and punishment for cross-burners. In both cases, Justice Thomas thought that the other Justices’ interpretation of legal doctrine stymied worthwhile governmental attempts to protect blacks against white violence and threatened violence.
Now, Justice Thomas might have been wrong in some or all of these cases. (I agree with him on Zelman, disagree on Black, and am not sure about Dawson.)
But they, together with Zelman, strike me as important elements of the way in which Thomas did indeed defend, rather than fighting, “efforts to help poor people, especially blacks.” They illustrate that Thomas seemed to take seriously various problems facing American blacks, even though he had a different sense of how they could best be solved (and how they could constitutionally be solved). And they show that Thomas thought about this within his judicial role, not just in his personal life. It’s to the book’s credit that it shows his personal actions along these lines. But when you’re writing about a Justice, why not also show what the Justice has done as a Justice in this area?
6. On p. 101, the book writes that “Thomas always joined these states’ rights rulings but often wrote concurring opinions urging the Court to cut back even more on federal authority”; it gives as an example a federalism opinion, but then goes on to Justice Thomas’s concurrence in the Brady Bill case, Printz v. United States:
Thomas signed on to Scalia’s majority opinion, of course, but in a brief concurrence suggested an even broader point, that all gun control was unconstitutional. He wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.”
But where, other than in the author’s mind, is any suggestion that all gun control was unconstitutional? Not in Justice Thomas’s opinion. Not in the inherent logic of the “personal right” view: As the author points out, Justice Thomas takes a broad view of free speech, and surely he, alongside everyone else, believes that free speech is a personal right — but that doesn’t mean that all speech controls are unconstitutional. It may well be that Justice Thomas takes a broad view of the Second Amendment’s guarantees (which is hard to tell), especially if he thinks the Brady Bill might be unconstitutional. But I see no suggestion that Justice Thomas’s view would lead to the invalidation of “all gun control.”
Again, these are judgment calls; maybe I’m mistaken in faulting them, or maybe I’m making too much of them. But they, and other examples like them, helped sour me on the book.