"Explaining" justices

Mon Jun 4 09:47:13 PDT 2007

I have written widely about Professor Berman's methodological question 
regarding Justice Thomas and affirmative action.  I respectfully refer 
him to the conclusion of my book First Principles:  The Jurisprudence 
of Clarence Thomas (NYU Press, 1999; 2002).  Shorter pieces are also 
available at my faculty webpage, linked to the bottom of this email.

Bottom line:  Justice Thomas is a "liberal originalist" on race 
questions.  In other words, he employs a Lockean liberal reading of the 
Declaration of Independence to conclude that the equal protection 
clause requires colorblind constitutionalism.  He is a "conservative 
originalist" on other questions of constitutional law.

Scott

Mitch Berman wrote:

>Though I do not really expect to change anybody's mind on this issue, 
it requires greater self-restraint than I possess to allow Professor 
Rosenthal's praise for Justice Thomas's affirmative actions opinions to 
pass without comment.  Surely Professor Rosenthal is correct that those 
opinions are clear enough.  But they are not, in my opinion, "candid."  
Indeed, "grotesque" strikes me as closer to the mark.
>
>To start, as innumerable others have charged time and again, Thomas's 
insistence that the Constitution simply forbids all racial 
classifications (or plainly subjects them all to strict scrutiny) is 
inconsistent with his embrace of originalism.  To be clear, I do not 
deny that there are reasonable arguments of policy and principle 
against race-based affirmative action programs.  I'm even prepared to 
grant that there exist plausible arguments that race-based affirmative 
action is unconstitutional.  But you can't get there from Thomas's 
starting position (nor, of course, from Justice Scalia's).  Moreover, 
neither Thomas nor Scalia has even bothered to offer a serious account 
of how their positions on affirmative action can be squared with their 
interpretive methodologies.  (At least I'm not aware of any such 
explanations; if I'm mistaken, I'd be grateful for the correction.)  
For my money, this is intellectual dishonesty, pure and simple. 
>
>Second, and notwithstanding my granting that the moral case for 
affirmative action is not unproblematic, Thomas's claim of a "moral 
equivalence" between affirmative action and Jim Crow defies belief.  I 
am aware of no plausible moral theory according to which this would be 
true.
>
>So those who think Thomas's positions cry out for explanation need not 
be guilty of crass or naïve essentialism.  The question they ask is not 
"how could a black man possibly reach results different from those 
favored by a majority of members of his race?"  The question (or one 
big question) is what drives Thomas so forcefully toward those results 
as to blind him to the  intellectual and moral indefensibility of his 
claims?  (Again, I am speaking of the particular claims he advances en 
route to the conclusion that affirmative action is unconstitutional, 
not of that bare conclusion itself.)
>
>Mitch Berman
>The University of Texas
>
>
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal, 
Lawrence
>Sent: Sunday, June 03, 2007 3:08 PM
>To: Sanford Levinson; DavidEBernstein at aol.com; curtism at bellsouth.net; 
s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
>Subject: RE: "Explaining" justices
>
>I find it puzzling that most liberal academics (and journalists) see 
Justice Thomas as a racial enigma.  I do not think that any member of 
the Court has gone to greater lengths to make apparent the roots of his 
views on race and the law than Justice Thomas.  
> 
>On the question whether he lacks sympathy for minorities and is guilty 
of some form of self hatred, see his dissenting opinion in City of 
Chicago v. Morales, 527 U.S. 41 (1999).  I am hardly a disinterested 
observer, having argued the case for Chicago, but to my eye, Justice 
Thomas's dissent evinces enormous sympathy for the residents of high 
crime minority neighborhoods of Chicago who are must live amid gang 
violence.  It seems clear to me that the minority residents of Chicago 
who advocated for the gang loitering ordinance (whose testimony he 
stressed although it went ignored by every other member of the Court) 
reminded Justice Thomas of the people who raised him in Georgia.  
Apparently Justice Thomas is expected to sympathize with the gang 
members who terrorize these communities, and embrace legal doctrines 
that make it harder to put them in jail, and make jail nicer for them 
while they are there.  Instead, Justice Thomas's sympathy lies with the 
hard working law abiding !
> residents of the communities who bear the brunt of epidemic gang 
crime.  Is that really an enigma?
> 
>As for affirmative action, Justice Thomas's views could not be more 
clear.  His opinions in Missouri v. Johnson and Grutter v. Bollinger 
are among the most candid and personal of any in the history of the 
Court.  Indeed, I find it enigmatic that in the legal academy, Derrick 
Bell is usually treated as some kind of saint while Justice Thomas is 
cast as the villian.  In Grutter, Justice Thomas argued that 
affirmative action had been embraced by the University of Michigan only 
because it was thought to serve the interests of white elites, and he 
is accused of self hatred.  Yet Professor Bell has argued for years 
that affirmative action is likely to do no more than serve the 
interests of white elites without alterning the fundamental power 
structure of the country, and no one accuses him of self hatred.  
Perhaps Justice Thomas can be accused of some measure of hypocrisy for 
accepting a nomination that was doubtless influenced in part by 
considerations of race.  (Although Preside!
> nt George H.W. Bush vigorously denied that selecting Judge Thomas on 
the basis of race, and it is a bit odd to fault Justice Thomas for not 
indignantly calling President Bush as a liar and declining the 
nomination on that basis.  Is that really what he was expected to do?)  
In any event, if pressed on the point, I think it fairly clear that 
Justice Thomas would say that he was not going to turn down a 
nomination that would enable him to do a great deal to advance the 
causes about which he cares because of his doubts about the motives of 
the President that nominated him.  Who among us can truthfully say that 
they would turn down a Supreme Court nomination based on suspicions 
about the motives that may underlie the nomination?  No enigma there.
> 
>Larry Rosenthal
>Chapman University School of Law
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
>Sent: Sun 6/3/2007 10:16 AM
>To: DavidEBernstein at aol.com; curtism at bellsouth.net; s-gerber at onu.edu; 
CONLAWPROF at lists.ucla.edu
>Subject: RE: "Explaining" justices
>
>
>David writes, "We don't need to "explain" Justice Thomas any more than 
we need to "explain" Justice Scalia, Chief Justice Roberts, or Justice 
Alito.  Where are all the psycho-biographies explaining how a nice son 
of Italian immigrants could someone become a crazed right-winger?"
> 
>Does David mean, therefore, that we don't need "to explain" anyone in 
the world, because it is always enough to say that X sincerely believed 
in A, B, and C (which is often true, of course), or that we should be 
equal opportunity "explainers" who realize that it is of interest to 
ask why could at the same time believe in ghosts and the theory of 
gravity, why, a al Thomas Kuhn, some scientists were able to make the 
jump to new understrandings of the world while others remained devoted 
to phlogiston, Newtonian physics, etc?  I take it that Mark Tushnet's 
two volume biography of Thurgood Marshall, along with much useful 
information, offers some "explanations" for why Marshall behaved as he 
did, though Juan Williams helpful biography probably offers more 
"explanations."  And would anyone dare write biographies of Harry 
Blackmun and Warren Burger without consulting Linda Greenhouse's book 
detailing the relationship between the two men?  And so on.  (My own 
view, obviously, is tha!
> t we're all subject to psychological explanation, though that none of 
us should be reduced to such explanations.)
> 
>I can easily agree with David that there has been a lot of simplistic 
reductionism vis-a-vis Thomas, someone I've always belileved, even as I 
opposed his confirmation even before Anita Hill, was a more interesting 
person that his critics portrayed or, most regrettably, that he himself 
portrayed in his disastrous testimony, prior to Anita Hill and 
presumably with the advice of his principal DOJ handler, Michael 
Luttig, in which he renounced practically everything he had said in 
speeches (because, after all, he was only mouthing the words written by 
speech writers).  But I also think it merits some psychological 
analysis to explain not only why he so vigorously opposes affirmative 
action (even though his race is the only plausible explanation for why 
someone so conservative as he he was nominated and confirmed, given the 
political balance in the Senate at the time), but why he in fact turns 
away from the systematic cruelty that is endemic to the American state 
prison system.   
> 
>sandy
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of 
DavidEBernstein at aol.com
>Sent: Sun 6/3/2007 9:29 AM
>To: curtism at bellsouth.net; s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
>Subject: Re: NYTimes.com: The Next Big Thing in Law? The Harsh 
JurisprudenceofJustice...
>
>
>The review states: "They offer a wealth of insight, but they have no 
answer to the central enigma he poses: why the justice who has faced 
the greatest hardships regularly rules for the powerful over the weak, 
and has a legal philosophy notable for its indifference to suffering."
> 
>It has irritated me for many years that Justice Thomas is supposedly an 
"enigma" because he is a black man with a conservative outlook on life 
and judicial philosophy.  Ever since he was appointed to the USSC, 
there have been so many articles trying to "explain" Justice Thomas.  
How about this one: he is a thoughtful person who read a lot out of 
intellectual curiosity, and eventually became persuaded that certain 
ideas were right, and others were wrong--just like all of the white 
Justices!  Imagine that!  It's well-known that Thomas has been subject 
to a host of intellectual influences, ranging from Richard Wright to 
Thomas Sowell to his grandfather to Ayn Rand to Ken Masugi and so on.  
We don't need to "explain" Justice Thomas any more than we need to 
"explain" Justice Scalia, Chief Justice Roberts, or Justice Alito.  
Where are all the psycho-biographies explaining how a nice son of 
Italian immigrants could someone become a crazed right-winger?  
> 
>I vote for started to treat Thomas like an individual human being who 
has a well thought-out understanding of the world (which, like may such 
understanding, no doubt has its contradictions), even if one strongly 
disagrees with it, rather than as a representative of his race gone 
astray.
> 
>
>	 
>
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----------------------------------------------------------------------
Scott Gerber
Ohio Northern University Law College
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
http://upress.kent.edu/books/Gerber_S.htm