"Explaining" justices

[DavidEBernstein at aol.com]

Well, let me elaborate slightly.  It's not that psychological  explanations 
are out of bounds.  It's that the ink spilled on psychological  explanations of 
Thomas's views dwarf the ink spilled on explanations that  suggest that maybe 
these are just the conclusions he came to after doing a lot  of thinking and 
reading, which it's no secret that he did.  Admittedly,  this in part can be 
attributed to the Bush Administration's disastrous  "Pinpoint" strategy, but 
I'm not trying to relieve them of culpability, just to  point out that it's both 
insulting and arrogant of Thomas's critics to assume  that if he is black and 
doesn't think like them, it can't be because he just  honestly came to 
different conclusions than they did the same way Scalia or  Roberts might, but 
because he is black there must be some depper  explanation.
 
As for why Thomas "turns his back on the cruelty of the state prison  
system," maybe he just doesn't think the federal government has jurisdiction  over 
it.  If some prisoner from Turkey filed suit in American court  asking Thomas to 
grant him relief, and Thomas for some reason had the power to  grant such 
relief, assumedly Thomas would say "sorry, the Constitution doesn't  grant me 
constitutional authority to remedy wrongs committed by Turkey."   Only if one 
starts from the presumption that the Constitution has anything  meaningful to say 
about state prisons can one accuse Thomas of neglecting  prisoners' rights, 
rather than simply following the Constitution. (I don't have  any strong 
opinions on Thomas's opinions in this realm, but I can easily see why  someone 
committed to federalism, originalism, and a strict intepretation of the  due proess 
clause and the 8th Amendment wouldn't think it's his job to correct  the 
errors of the Kansas state prison system).
 
In a message dated 6/3/2007 4:36:14 PM Eastern Daylight Time,  
SLevinson at law.utexas.edu writes:

I don't know how much  Lawrence Rosenthal and I disagree:
 
1)  I have long recognized that  people of good will, of all races, can 
disagree about affirmative action. That  being said, were I a biographer of Thomas, 
I would spend some pages on the  psychological consequences of the obvious 
fact that his nomination and  confirmation are linked to his race, whatever his 
own desires in the  matter.
 
2) Randall Kennedy has long made th  epoint that one is not necessarily doing 
the African-American community a  favor by being "soft on crime."  I 
certainly have no objection to such  arguments.  But being "hard on criminals" should 
not necessarily  translate into being "soft on brutality" and, for that 
matter, torture.   So what explains that aspect of Thomas's jurisprudence.  One 
might, after  all, believe that he might believe both that wrongdoers should be 
locked up  for a while and that they should actually be treated with some  
decency and even taught some job-related skills so that they can reintegrate  
themselves into the community.
 
3)  My central question remains  whether serious people believe that anyone's 
life and career can be  discussesd without any attention at all to 
psychological factors (such as what  predisposes us to study X rather than Y or to take 
risks, such as exploring  strange and dangerous places, rather than staying 
safely at home participating  on listserves :)   As I recall, many people have 
suggested that part  of what makes Sandra Day O'Connor tick is her being raised 
on an Arizona  ranch, just as she was affected by the rampant discrimination 
she experienced  following her graduation from Stanford.  (And might she not 
be more than  a bit furious at being snookered by her alleged friend William 
Rehnquist to  resign and thus pave the way for the hard-right takeover of the 
Court,  revealed in the appalling decision last week regarding--guess 
what--liability  for gender discrimination.)  
 
In any event, it was this last  question--the validity of psychological 
explanations-- that I primarily  intended to raise, not to rehash questions whether 
 intellectually  serious persons could agree with Thomas on his 
jurisprudential positions--they  can--just as intellectually serious persons can disagree 
with him.  So  are there any psychological factors that might help to explain 
why some agree  and some disagree?  Some of you would no doubt argue that young 
legal  academics, who are surrounded by and large by political liberals, 
might feel  intimidated from breaking with a "conventional wisdom" that is  
anti-Thomas.  Perhaps that's true.  But isn't it a  social-psychological 
explanation?  Might we not be interested in  exploring what it is that has enabled Thomas 
so resolutely to stand apart from  most African-Americans on this issue 
(besides intellectual conviction)?   







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