Justice Clarence Thomas and the Wounds That Don't Heal

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The Supreme Court judge has offended the sensibilities of civil rights leaders for decades

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Reuters/Larry Downing


One day many decades from now, long after we're all gone, some bright legal historian will write the definitive biography of United States Supreme Court Justice Clarence Thomas. It will undoubtedly include at least a chapter or two on the justice's eternally roiling relationship with his fellow black professionals, especially black judges and lawyers. And it will probably cite an ongoing kerfuffle in Georgia as an example of what the justice faced, and why, even 20 years after contentiously ascending to the High Court.

As well told by veteran Supreme Court correspondent Tony Mauro, officials in Augusta, Georgia, are under fire from some local judges and lawyers for inviting Justice Thomas to speak at the dedication of a new courthouse to be named in honor of the memory of John Ruffin Jr. Ruffin was a civil rights attorney who later -- in 1994! -- became the first black member of the Georgia Court of Appeals. He died last year. The new courthouse is scheduled to open May 18th. And Justice Thomas is on his way. (As Mauro pointed out, here's good local coverage from the Augusta Chronicle).

Of the criticism the justice's visit has engendered locally, Mauro wrote:

"It's not [Thomas'] fault, but his judicial philosophy is the antonym of what Judge Ruffin's was and what it is in the vast majority of the minority community," Richmond County State Court Judge David Watkins was quoted as saying in The Augusta Chronicle. The paper also quoted a close friend of Ruffin as saying, "I know of no way we could dishonor John Ruffin more than to have Clarence Thomas speak for this occasion."

Some of those folks evidently also are angry because they were not consulted before Thomas was given the invitation. But the officials who made that decision, last fall, say they figured it was a no-brainer. Justice Thomas is from Georgia and also the circuit justice for the 11th Circuit, which covers Georgia. And because courthouse ceremonies often involve herds of dutiful lawyers and solemn judges, local officials probably figured, too, that the justice would get a more polite reception than he did twice before when he appeared at the University of Georgia.

The wounds Clarence Thomas opened up 20 years ago when he got the job have never healed. His personality and his jurisprudence do not allow for it.

But it turns out that even the specter of Thomas raises the same hackles with some judges and lawyers as he does with some students and professors. It would be easy to attribute such disdain to the old arguments -- he benefited from affirmative action and then turned his back on it, etc.-- but I think that would be a mistake. Or at least a working theory that needs some serious updating. There are many other, more contemporary reasons-- some of law, some of politics -- why black jurists (and many white ones) would reasonably and justifiably list Justice Thomas far down their list of most admirable justices.

Let's start with the most recent trouble spot -- the justice's wife, Virginia Thomas, and her ongoing Tea Party advocacy. Never mind the issue of the justice's perceived conflict of interest to hear the looming court battle over the Patient Protection and Affordable Care Act. Within the past month, the Tea Party has been linked to an email which depicted President Obama and his family as primates. But if Virginia Thomas has used her bully pulpit to publicly decry such conduct I was unable to find it via Google. Do you think that such an episode might impact the way some people view Justice Thomas today?

Let's now look at a recent legal reason. Just six weeks ago, in Connick v. Thompson, Justice Thomas turned his back upon a man, John Thompson, who had spent 14 year on death row after being wrongfully convicted -- railroaded when officials failed and refused to disclose material evidence that ultimately exonerated him. When Thompson was finally released from prison, he sued the district attorney and won his case. Justice Thomas, writing his first majority opinion of the year for a 5-4 court, overturned that jury verdict. It was a bitterly-divided case -- the dissent was scathing -- and it produced a terribly unjust result.   

The fact that Thompson is black and was railroaded is meaningful to different people in different ways, of course. To me, it's a blunt reminder of America's continuing willingness to tolerate pervasive racial disparity in its criminal justice system. It is a disgrace. For example, since the current death-penalty regime was reinstituted by the Supreme Court in 1976, the percentage of blacks executed under it is 34.78 of the total amount, reports the Death Penalty Information Center. The current population of American blacks, reports the 2010 Census, is nearly one-third of that -- 12.6 percent.

There are many ways to explain those figures, some more legitimate than others. So let's go directly to the source: the Supreme Court itself. Go back and read McCleskey v. Kemp, a 1987 Supreme Court capital case out of Justice Thomas's home state. He wasn't on the court back then, but the court ruled against a black defendant whose lawyers argued that the state's capital punishment scheme was inherently unfair because prosecutors sought the death penalty far more often when black people were accused of killing white people as opposed to the other way around. For the majority, Justice Lewis Powell wrote: "At most, the [study showing such statistics] indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system."

Four years later, Justice Thomas joined this group. And where has he been since in the eternal fight to at least try to provide equal justice for all? No one can complain about him being neutral. He's been on the ramparts, all right. But fighting for the other side. As evidenced tellingly by his Thompson ruling, in which he made up a new rule to protect prosecutor at the expense of a victim, he has been outright hostile, and persistently so, toward criminal defendants, including black ones, during his tenure on the bench. That started early on in his court tenure in 1992 in his concurring opinion in Georgia v. McCollum -- a case about racial disparity in jury selection -- and it continues to this day.

So it's no surprise at all that Justice Thomas strikes a particular nerve with people who pay attention to these areas of law and justice. It's no surprise they resent him despite his high office. The wounds he opened up with them 20 years ago when he got the job have never healed. His personality and his jurisprudence do not allow for it. Worse, each new court term seems to generate from him opinions and choices that open new wounds. Justice Thomas isn't just against affirmative action in the workplace where a person's job is on the line. He is also clearly against empowering the rule of law to equalize the disparities in the criminal justice system -- where a minority defendant's life and liberty are typically on the line.

And that, I suspect, is why Judge Ruffin's friends and colleagues believe he will be spinning in his grave next week when Justice Thomas comes to crown the courthouse.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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