"Explaining" justices

Mon Jun 4 10:05:47 PDT 2007

The Fourteenth Amendment, unlike the Thirteenth Amendment and the Civil Rights Act of 1866, was written in race-neutral terms.  As Earl Maltz and others have demonstrated, this was a quite conscious decision made during the drafting process.  Thus, I see no contradiction between Justice Thomas's position on affirmative action and the text or original meaning of the Fourteenth Amendment.  It is a perfectly plausible reading of history to conclude, as many scholars on the left have done, that whatever constitutional power Congress has to authorize race-conscious action resides in the Thirteenth and not the Fourteenth Amendment.

FWIW, I do not intend to "praise" Justice Thomas.  I have many qualms about his jurisprudence.  But I find him to be a remarkably principled and candid justice who has deserves better than he has received at the hands of the academy.  I also believe that the charge that he is hostile to the interests of minorites is particularly unfair.  I find him to be extraordinarily sympathetic to the interests of the the African-American lower class -- a group that, for the most part, is particularly poorly understood by those in the legal academy. 

Larry Rosenthal
Chapman University School of Law

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From: Mitch Berman [mailto:MBerman at law.utexas.edu]
Sent: Mon 6/4/2007 9:22 AM
To: Rosenthal, Lawrence; Sanford Levinson; DavidEBernstein at aol.com; curtism at bellsouth.net; s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
Subject: RE: "Explaining" justices

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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