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.