The Real Clarence Thomas
By JOHN YOOOctober 9, 2007; Page A17
Supreme Court Justice Clarence Thomas again finds himself in the crosshairs of liberals. After 16 years of diligently avoiding the press, he has written a memoir, "My Grandfather's Son," that describes his life story -- from birth into poverty and an upbringing by a grandfather descended from slaves to the tough confirmation battle that brought him to the Supreme Court.
The book honestly and openly denies his former employee Anita Hill's accusations of sexual harassment, which almost derailed his appointment to the nation's highest bench. Liberals now are girding to insinuate that Justice Thomas is so angry about the personal attacks on him during his confirmation hearings that he must be unfit to sit on the bench.
But if Justices Steph
en Breyer or Ruth Bader Ginsburg are the apple of liberal groups' eye, does that mean that they are unfit because they must be biased? Liberal attacks on Justice Thomas echo segregation-era hate speech that would be called racist if leveled at any other black.For years, critics whispered that Justice Thomas was a mere clone of Justice Antonin Scalia, and that he could not think for himself. When speculation ran high that Justice Thomas might rise to chief justice, Sen. Harry Reid called him "an embarrassment" whose "opinions are poorly written." Mr. Reid apparently had not read a Thomas opinion, and his own Senate Web site ended up providing a nice contrast on grammar and writing style with Justice Thomas's fine work. Now, they say, Justice Thomas is so bitter over his ugly treatment at the hands of liberals, he must be unable to impartially judge cases argued by groups like the ACLU, Sen. Joseph Biden or the Yale Law School.
Critics ignore the unique, powerful intellect that Justice Thomas brings to the Court. He is the justice most committed to the principle that the Constitution today means what the Framers thought it meant.
At times, this can cause him to lean liberal. He agrees, for example, that the use of thermal imaging technology by police in the street to scan for marijuana in homes violates the Constitution's ban on unreasonable searches. He opposes the Court's effort to place caps on punitive damages. He has voted to strike down literally thousands of harsher criminal sentences because they were based on facts found by judges rather than juries, as required by the Bill of Rights. He supports the right of anonymous political speech, and wants advertising and other commercial speech to receive the same rights as political speech.
So was it Justice Thomas's anger, or lack of intellect, that made him rule in favor of the rights of criminals, the press, and the plaintiffs bar -- one of the Democratic Party's largest financial supporters?
No one, of course, would deny that Justice Thomas has strong conservative views on constitutional law. He would reject much of affirmative action, end constitutional protection for abortion, recognize broad executive powers in wartime and allow religious groups more participation in public life. What he brings to the Court as no other justice does is a characteristically American skepticism of social engineering plans promoted by elites -- whether in the media, academia or well-heeled lobbies in Washington -- and a respect for individual self-reliance and individual choice. He writes not to be praised by professors or pundits, but for the American people.
As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.
In his dissent from the Court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."
In a 1995 race case, Justice Thomas explained without cavil why he thought the government's use of race was wrong. Racial quotas and preferences run directly against the promise of the Declaration of Independence that all men are created equal. Affirmative action is "racial paternalism" whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination."
Justice Thomas speaks from personal knowledge when he says that: "So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence." He argued that "these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."
By foreswearing the role of coalition builder or swing voter -- a position happily occupied by Justice Anthony Kennedy -- Justice Thomas has used his opinions to highlight how the latest social theories sometimes hurt those they are said to help. Because he both respects grass-roots democracy and knows more about poverty than most people do, he dissented vigorously to the Court's 1999 decision to strike down a local law prohibiting loitering in an effort to reduce inner-city gang activity. "Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes."
Justice Thomas is an admirer of the work of Friedrich Hayek and Milton Friedman, both classical liberals. His firsthand experience of poverty, bad schools and crime has led him to favor bottom-up, decentralized solutions for such problems.
He rejects, for example, the massive, judicially-run desegregation decrees that have produced school busing and judicially-imposed tax hikes. A student of a segregated school himself, Justice Thomas declares that "it never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior."
To Justice Thomas, the national government's command-and-control policies have failed to make the poorest any better off. Rather, they have simply suppressed innovation in solving the nation's problems. He believes that the Constitution allows not just states and cities, but religious groups, to experiment to provide better education. In a 2002 concurrence supporting the use of school vouchers, Justice Thomas again quoted Frederick Douglass: Education "means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Justice Thomas followed with the sad truth: "Today many of our inner-city public schools deny emancipation to urban minority students."
"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers," Justice Thomas wrote, "poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society."
These are not the words of an angry justice, or a political justice, but of a human justice. Justice Thomas's personal story shows him to be all too aware of the imperfections in our society and mindful of the limits of the government's ability to solve them. That kind of understanding and humility, and personal courage in the face of incessant unjustified attack, is what most Americans would want on their Supreme Court.
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas.
