marty.lederman at comcast.net
Sun Jun 3 16:04:25 PDT 2007
"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."
Well, of course.
But more to the point . . . only if one starts from the presumption that prisoners's rights should be neglected could one conclude that the Constitution has nothing "meaningful" to say about state prisons.
----- Original Message -----
From: DavidEBernstein at aol.com
To: SLevinson at law.utexas.edu ; rosentha at chapman.edu ; curtism at bellsouth.net ; s-gerber at onu.edu ; CONLAWPROF at lists.ucla.edu
Sent: Sunday, June 03, 2007 4:55 PM
Subject: Re: "Explaining" justices
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)?
See what's free at AOL.com.
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