Defending Justice Thomas

Let at least someone in this city rise to the defense of Justice Thomas, who was smeared on Sunday by an "editorial observer" column in the New York Times. The column managed to assail Justice Thomas for being friends with Rush Limbaugh and at the same time to assert that Justice Thomas's "longstanding goal" is "dismantling the integrationist vision of his predecessor Thurgood Marshall." It raises the question of, if Justice Thomas is so adamantly opposed to integration, why would he be mixing with a Caucasian such as Mr. Limbaugh? Though that's the least of the internal contradictions and gratuitous insults in the piece.

The Times writer asserts that the "central enigma" posed by Justice Thomas is "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." Justice Thomas is perfectly capable of speaking for himself, but let us hazard an answer — could it be because the powerful might sometimes have had a better constitutional case? Justice, as symbolized by the blindfolded woman who appears more than once at the Supreme Court building itself, is supposed to be impartial to whether the parties before her are powerful or weak. Justice is supposed to decide the cases based on the law and the legal merits.

So when the Times faults Justice Thomas for failing to push "in a humane direction not only on race, but also in areas like prisoners' and women's rights and fair elections," it betrays its misunderstanding of the role of a judge. The Times wants political activists, but Justice Thomas is a model of judicial restraint. His job isn't to push in one direction or another, but to interpret the law in whatever direction the lawmakers intended to push. The Times misinterprets this as being "harsh," giving as an example, among others, a case in which Justice Thomas held, in a dissent with Justice Scalia, that the beating of a prisoner by a correction office did not constitute the "cruel and unusual punishment" outlawed by the Eighth Amendment.

But Thomas's dissent makes clear he isn't in favor of such abuses. "A use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment,'" Justice Thomas wrote. "Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation."

And the Times totally fails to mention Thomas's dissent in the eminent domain case of Kelo v. City of New London. There Mr. Thomas sided against not only the court's majority but the powerful business interests. He defended the property rights of modest homeowners from the New London city government, which wanted to seize the land of the homeowners and turn it over to big business. Wrote Justice Thomas in a memorably brilliant dissent, "Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful."

In that dissent Justice Thomas quoted previous decisions and works of history and sociology to the effect that, "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them." He wrote, "Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. ... In 1981, urban planners in Detroit, Michigan, uprooted the largely ‘lower-income and elderly' Poletown neighborhood for the benefit of the General Motors Corporation. …Urban renewal projects have long been associated with the displacement of blacks; ‘[i]n cities across the country, urban renewal came to be known as "Negro removal."'" He doesn't sound indifferent to suffering there.

Understanding any of this would require actually reading some of Justice Thomas's legal writings rather than relying upon the biography by a pair of Washington Post reporters that was apparently the inspiration for the New York Times's column. Yet, not too differently than the magazine editors who famously portrayed Justice Thomas in cover art as a lawn jockey, the Times appears incapable of judging him by his actual writings, preferring instead to attack the very idea of a black justice who fails to fall in, lockstep, with way the Times says a black justice should behave, as a left-wing judicial activist. Fortunately for the country, Justice Thomas is capable of thinking for himself.