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Supreme Discomfort:

Washington Post reporters Kevin Merida and Michael Fletcher have a new book on Justice Clarence Thomas, Supreme Discomfort: The Divided Soul of Clarence Thomas. Based on some early reviews -- Kenji Yoshino in the Washington Post and my colleague Jonathan Entin in the Cleveland Plain Dealer -- it sounds like an interesting take on the most interesting justice (even if it devotes less space to doctrinal analysis than some of us lawprofs might like). The Post has an excerpt here.

Jon Rowe (mail) (www):

Merida and Fletcher also fail to grapple adequately with the justice's jurisprudential methodology. Thomas is the court's most ferocious originalist, believing that the Constitution should be interpreted strictly according to the intent of its framers. But what does it mean for Thomas to interpret the Constitution according to the intent of those who would have considered him to be chattel?


I know that Op-ed/Book Review space is short in the NYT. If the passage reads to tell us that the book should ahve detailed Thomas' answers to this dillema, I agree with it. If Yoshino is trying to take a jab at Thomas' originalism, he should know that Thomas has indeed grappled with this question and resolves the dillema by adopting an originalist approach that entirely distinguishes him from Scalia, Bork and the other hard core originalists. I wonder is anyone doesn't know what I'm talking about.
4.22.2007 12:05pm
David Stras:
I am obviously quite biased, having clerked for Justice Thomas several Terms ago. But Prof. Yoshino, with all due respect, lost me in the first sentence of his Washington Post review when he said that Thomas is the most reclusive Justice. I know that Thomas has not visited Yale, but he does visit law schools more frequently than virtually any other Justice, and makes frequent public appearances, including one as the grand marshal of the Daytona 500 several years back. In stating that Justice Thomas is the most reclusive Justice, especially as compared to Justice Souter who never makes public appearances, Prof. Yoshino is just plain wrong.
4.22.2007 12:58pm
Eli Rabett (www):
It has always interested me that in contrast to Thurgood Marshall, Thomas never quite figured out that most of the folk who wrote his sacred text knew in their bones that Clarence was inferior by birth in every way possible.
4.22.2007 1:23pm
Jon Rowe (mail) (www):
If anyone is interested, I just posted on the matter of Thomas' originalism and how, taken to its logical conclusions, likely would yield results with which social conservatives would disagree. So the hardest "originalist" on the Court may not be the most conservative after all.
4.22.2007 2:03pm
Jonathan H. Adler (mail) (www):
Justice Thomas has engaged the Founders' views of race, slavery, and related matters. See, for instance, this speech from several years back.

JHA
4.22.2007 2:11pm
OrinKerr:
David,

I was also puzzled by that sentence. What a strange thing to say.
4.22.2007 2:13pm
Wild Pegasus (mail) (www):
By "reclusive" he probably means "doesn't drill petitioners with questions".

- Josh
4.22.2007 4:19pm
OrinKerr:
Wild Pegasus,

So you mean that Thomas is reclusive in the same way that Justice Brennan was reclusive? If I recall hearing correctly, he rarely if ever spoke at argument.
4.22.2007 4:59pm
John Herbison (mail):
I remain puzzled that anyone can still characterize any of the five wardheelers who anointed George W. Bush in 2000 as an "originalist".
4.22.2007 5:26pm
loki13 (mail):
I believe that J. Thomas is consistent.

Consistenly wrong.

That said, I think he is a man of uncommon legal intellect, and I agree with him that S. Ct. oral arguments are just dog and pony shows. If it's not in the brief, it's not your argument.

Cases are decided by the Justices' jurisprudence, after reviewing the well-researched briefs. Not, contrary to popular opinion, based on how well counsel holds up to Scalia's wisecracks.

(Very different from the English appeals process, which puts more of a premium on oral arguments. Not better, just different.)
4.22.2007 5:29pm
anonVCfan:
"But what does it mean for Thomas to interpret the Constitution according to the intent of those who would have considered him to be chattel?"

This is a great quote for the masses, but a really stupid thing to say to real lawyers. Setting aside the fact that the Constitution was amended to change this "intent," and the fact that Thomas is a semantic originalist and not an intent originalist, does Yoshino really mean to say that black people can't be originalists?
4.22.2007 5:46pm
loki13 (mail):
Actually, non-white, non-male, non-property owners shouldn't be originalists.

And/or members of the Air Force. *grin*
4.22.2007 6:22pm
Jon Rowe (mail) (www):
Loki.

You forgot to mention non-Protestants.
4.22.2007 6:30pm
Jon Rowe (mail) (www):

Setting aside the fact that the Constitution was amended to change this "intent," and the fact that Thomas is a semantic originalist and not an intent originalist, does Yoshino really mean to say that black people can't be originalists?


My post deals with this matter. No, Justice Thomas wouldn't find your answer satisfactory. The original Constitution/Founding of 1787, according to him, must be defended as anti-slavery.
4.22.2007 6:33pm
e:
In response to the founders' racist beliefs.

At a university visit last month Justice Thomas pointed favorably to Harlan's Plessy dissent. All judges have prejudices, but they can follow that example to not read their prejudices into the Constitution.
4.22.2007 7:48pm
Eli Rabett (www):
As I started to say and others have filled in, originalism without consideration of the writers is a cop out. To go back to the Declaration of Independence, incorporating natural law into the US Constitution to wash it of the taint of slavery is not to be taken seriously. Does anyone seriously believe that the drafter and the southern (and a lot of the northern) colony signers thought Blacks were humans?

Sorry, it's a package deal, which is a very good reason to laugh at originalism if three or four of the delusionists were not sitting on the Supreme Court and how many more on Courts of Appeal.
4.22.2007 8:07pm
Adler Colleague:
"But what does it mean for Thomas to interpret the Constitution according to the intent of those who would have considered him to be chattel?"

Making this statement reveals a fundamental lack of knowledge of U.S. History in general and the debate among the founders in particular. Slavery and freedmen rights was a bitter debate that raged in the Constitutional Convention and, because the Republic had other serious problems (such as whether there would even be a United States), resulted in the compromise seen in Article 1, among other provisions. It has remained a fundamental problem, but I believe Justice Thomas views the massive progress over two centuries as a product of the genius of those founders.
4.22.2007 8:09pm
Erasmus (mail):
Adler Colleague, how does making that factually true statement "reveal[] a fundamental lack of knowledge of U.S. History"? Fine -- the issue was debated and people took different sides. But it's clear that "Black people are on equal par with white people" did not carry the day when the Constitution was passed.
4.22.2007 8:34pm
Consistent:
My conlaw professor railed against Thomas daily. Occasionally this would be concrete, but mostly it just involve a snarky comment based on Thomas being stupid or being an uncle tom.

And yet, I have his opinions to be quite consistent and hardly opportunistic. Recent discussion as regards his recent remark that the partial birth abortion law might not state commerce clause scrutiny bears this point out. I do believe that had such a line of attach been briefed, he would have voted to nullify. I think he has developed one of the most coherent visions on the constitution while on the court.

What's really shocking to me is that number and vehemence of the people who claim that what I see in his opinions is solely the product of very smart, dogmatic Federalist society clerks. This from people who have never meet the man...
4.22.2007 8:41pm
Ramza:

What's really shocking to me is that number and vehemence of the people who claim that what I see in his opinions is solely the product of very smart, dogmatic Federalist society clerks. This from people who have never meet the man...

Such people are silly, Thomas opinions have been extremely consistent in prose, style of analysis, logic applied, and personal beliefs, let alone similar results in the cases. Thomas has been on the bench for almost 16 years. If he had 3 clerks a year, that means he would 45 different clerks during his tenure on the court. Yet Thomas opinions haven't varied, no his opinions are the arguably the most consistent or near the most consistent of anybody that currently sits on the Court.
4.22.2007 9:38pm
David M. Nieporent (www):
"But what does it mean for Thomas to interpret the Constitution according to the intent of those who would have considered him to be chattel?"

This is a great quote for the masses, but a really stupid thing to say to real lawyers. Setting aside the fact that the Constitution was amended to change this "intent," and the fact that Thomas is a semantic originalist and not an intent originalist, does Yoshino really mean to say that black people can't be originalists?
It's stupid on so many levels, actually. For it to be true, it requires that one endorse Roger Taney's view of the Constitution -- that blacks can never be citizens. For if one believes that blacks could be, then there's no particular basis for claiming that the founders would have considered Thomas to be chattel, merely because he's black. (Of course, they likely would all have considered Thomas inferior, but not automatically "chattel.")
4.22.2007 10:00pm
Jon Rowe (mail) (www):

To go back to the Declaration of Independence, incorporating natural law into the US Constitution to wash it of the taint of slavery is not to be taken seriously. Does anyone seriously believe that the drafter [my emphasis] and the southern (and a lot of the northern) colony signers thought Blacks were humans?


Thomas Jefferson:


For if a slave can have a country in this world, it must be any other in preference to that in which he is born to live and labor for another: in which he must lock up the faculties of his nature, contribute as far as depends on his individual endeavors to the evanishment of the human race or entail his own miserable condition on the endless generations proceeding from him.

With the morals of the people, their industry is also destroyed. For in a warm climate, no man will labor for himself who can make another labor for him. This is so true that, of the proprietors of slaves, a very small proportion are ever seen to labor. And can the liberties of a nation be thought secure, when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice can not sleep forever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation is among possible events: that it may become probable by supernatural interference!

The Almighty has no attributes which can take side with us in such a contest. But it is impossible to be temperate and to pursue this subject through the various considerations of policy, of morals, of history natural and civil. We must be contented to hope they will force their way into every one's mind. I think a change already perceptible, since the origin of the present revolution. The spirit of the master is abating, that of the slave rising from the dust, his condition mollifying, the way, I hope, preparing, under the auspices of heaven, for a total emancipation; and that this is disposed, in the order of events, to be with the consent of the masters, rather than by their extirpation.
4.22.2007 10:56pm
Perseus (mail):
Of course, they likely would all have considered Thomas inferior, but not automatically "chattel."


Letter from Alexander Hamilton to John Jay, 14 March 1779:

...I frequently hear it objected to the scheme of embodying negroes that they are too stupid to make soldiers. This is so far from appearing to me a valid objection that I think their want of cultivation (for their natural faculties are probably as good as ours) joined to that habit of subordination which they acquire from a life of servitude, will make them sooner bec[o]me soldiers than our White inhabitants...

...The contempt we have been taught to entertain for the blacks, makes us fancy many things that are founded neither in reason nor experience; and an unwillingness to part with property of so valuable a kind will furnish a thousand arguments to show the impracticability or pernicious tendency of a scheme which requires such a sacrifice...

4.22.2007 11:36pm
Jerry F:
Great quote, Perseus. Somebody should send this to Yoshino.
4.23.2007 12:57am
eric (mail):

Sorry, it's a package deal, which is a very good reason to laugh at originalism if three or four of the delusionists were not sitting on the Supreme Court and how many more on Courts of Appeal.


Originalism may have its shortcomings, but calling those who adhere to it "delusionists" says more about the author than the "delusionists."
4.23.2007 2:02am
Al Maviva (mail) (www):
John, talking about legislative (and Framers') intent is all well and good, but what if representative Smith 'intended' to vote for a measure, simply to get Representative Jones to vote for Smith's pet cause? Do you think Orrin Hatch and Ted Kennnedy vote for the same bill, with the same intent? I'm sure it happens sometimes, but putting a premium on 'intent' rather than on the more or less common meaning of the black letters invites Balkanization of the laws, with each little principality declaring it's own set of laws based on whatever wispy intent can be divined from legislative history, notes, and contemporaneous accounts. (As distinct from Balkinization, which appears to be decidedly textual in nature, though subjective interpretive choices there are generally made in a left-erly direction).
4.23.2007 10:31am
anonVCfan:
Mr. Maviva, this is why Scalia and Thomas prefer to stick to the text and leave out things like legislative history and "purpose," and what I meant in my earlier comment about Thomas being a "semantic" originalist rather than an "intent" originalist. What is important is what the drafters of a statute meant by the words they used, not what they hoped would happen afterward.

This is one of the reasons why I thought Yoshino's question was a stupid one, and why I don't think it matters one way or another that not all of the Founders bought into racism.
4.23.2007 10:58am
keypusher (mail):
As I started to say and others have filled in, originalism without consideration of the writers is a cop out. To go back to the Declaration of Independence, incorporating natural law into the US Constitution to wash it of the taint of slavery is not to be taken seriously. Does anyone seriously believe that the drafter and the southern (and a lot of the northern) colony signers thought Blacks were humans?

Yes, of course they thought blacks were human. Is this a joke I am not getting?

Sorry, it's a package deal, which is a very good reason to laugh at originalism if three or four of the delusionists were not sitting on the Supreme Court and how many more on Courts of Appeal.

What does this mean? Is it necessary to be racist in order to be an originalist? Or is a black judge precluded from interpreting the 8th Amendment, say, or the Commerce Clause according to its original meeting, because to do so would be to buy into 18th century racial beliefs?
4.23.2007 7:56pm
David M. Nieporent (www):
Does anyone seriously believe that the drafter and the southern (and a lot of the northern) colony signers thought Blacks were humans?
Of course they did. Absolutely. Inferior, certainly. (Despite Perseus's great quote above, I have no doubt that most felt that way.) But human, yes. You'll note that nobody proposed that states be able to count parakeets or carriages or trees as part of the population for the purpose of apportionment. Why do you think they thought slaves ought to be included? Because they were human. With few if any rights, perhaps, but human.

For that matter, look at the language of the 3/5ths clause itself. "...three fifths of all other Persons." Yes, it was a euphemism for "slave" -- but they used "person," not "animals" or "property" or "chattel."

And again, you're making the mistake of confusing "slave" and "black." By the time of the Constitution, all slaves were black, but not all blacks were slaves. Again, contra Taney's Dred Scott opinion, (free) blacks were citizens.
4.23.2007 9:18pm
Eli Rabett (www):
C'mon, 3/5 is not wholly human, moreover the reason for the south insisting on the 3/5 was not to grant any rights to the slaves, indeed the constitution, via the fugitive slave provisions, REMOVED rights, but to increase southern representation in Congress.

If you want to defend the words of the Constitution without considering the people who wrote it you are assuming some sort of divine guidance inspiring the writers, e.g. you are elevating it to the level of a divinely inspired holy book, for believers that would be a heresy.

If you want to go the Declaration is part of the Constitution route, you are left on the cleft stick of the Declaration excluding Blacks from humanity because it granted all men were created equal with the rights of life and liberty, or it being null and void as a constitutional document, since clearly it did not result in the freeing of slaves.

I said:Does anyone seriously believe that the drafter and the southern (and a lot of the northern) colony signers thought Blacks were humans?

and someone replied:Yes, of course they thought blacks were human. Is this a joke I am not getting?

Substitute Jew for Black and Nazi for southern, then insert same into some of the other threads around here. You could also try Slav.

I know these are hard truths to swallow.
4.24.2007 7:28pm
Aleks:

Re: C'mon, 3/5 is not wholly human, moreover the reason for the south insisting on the 3/5 was not to grant any rights to the slaves

Um, the South wanted to count its slaves a whole persons since that would have increased its representation in Congress and the electoral college. It was the North that didn't want to count them at all, just as Native Americans were not counted.

Re; Re: C'mon, 3/5 is not wholly human, moreover the reason for the south insisting on the 3/5 was not to grant any rights to the slaves

Um, the South wanted to count its slaves a whole persons since that would have increased its representation in Congress and the electoral college. It was the North that didn't want to count them at all, just as Native Americans were not counted.

Human, yes, at least in a purely biological sense. I don't think anyone was arguing that Blacks were a separate species, given the blatantly obvious fact that they could mate with their masters.
4.26.2007 2:31pm