My Grandfather’s Son

"I am always astounded by how much mail I get from people who think that Thomas is a “moron” or a “Scalia clone”. He famously hasn’t asked a question at oral argument in over five years. People write that’s because he’s an “idiot”. When I get those letters, my response is – read his autobiography. Thomas is an extremely polarising figure. Conservatives revere him. He is distinctly to the right of Scalia on many issues. He is an original thinker. He has a constitutional architecture that is fully worked out in his mind, whether you like it or not. He is simply not incompetent or unworthy of serious scholarship. There are so many biographies I’ve left out of this list, including several amazing books about Clarence Thomas that are very worth reading. But I love this because it comes from him, mid-career. Most justices don’t say anything. But here’s Thomas, on the bench, writing this blistering autobiography in which he gives his frank thoughts about his critics, about liberals, about the people who shamed him during his confirmation hearing. The other justices who write books on the bench either write wonky books, in the manner of Stephen Breyer, or historical books like Chief Justice [William] Rehnquist used to do. But Thomas – he’s just tellin’ it all. It’s a departure from other judicial autobiographies but gives such powerful insight into how he thinks about the world, the court and us. Americans need to read this book. They need to understand who he really is before they judge him. We need to make space for judicial spouses. Let’s go back to the Brennan biography. Marjorie Brennan slowly drank herself to death, in part because she didn’t like what was said about her husband but couldn’t speak publicly. She had to be a silent helpmate. There is a long tradition of expecting judicial spouses to be silent, pretty and supportive. Whether Ginny Thomas’s all-out political activism is an over-correction, I don’t know. But we need to let high-powered spouses of high-powered people have their own lives. There are legitimate financial issues raised about Clarence and Ginny Thomas. For instance, their failure to disclose her income from working for certain partisan political groups. But it would be unfair to put wives back in a box where they are not allowed to work or voice opinions. It’s true that what Ginny Thomas does, Clarence Thomas doubles down on. He overtly allies himself with her. In a speech at the University of Virginia this spring, he basically said they’re a team, working for the same thing, the Tea Party constitution. The real issue is that when Justice Thomas, and to a lesser degree some of the other justices, engage in overtly partisan conduct, they smoke out the lie that is at the core of the bargain we have with the court. We give these people lifetime tenure and are only able to impeach them for unspeakable acts. In return, we like to believe that when they put on that black robe they become neutral, or at the very least open-minded. Not that they don’t have lives or opinions, but that they look at each case simply for its merit and not filtered through their own ideologies. What is most problematic about Justice Thomas, for many people, is that he seems unwilling to go along with that illusion. The Stern and Wermiel biography points out that Justice Brennan stopped giving speeches when he became too much of a lightening rod, even though he loved to do it and needed the money. He realised it was in the best interest of the institution for him to look more judicious. On this court there are justices who don’t even pull back when they are accused of partisanship. They say: If they accuse me of partisanship then they’re partisan, so screw them. That defiant approach taken by some justices when they are called out for crossing boundaries is new. And technology is new, so justices get caught doing and saying things they didn’t before. It’s more likely than not that the court will take up the case by the spring and decide it by June. Some justices will consider whether they really want to take on the president’s signature legislative act in an election year. Others will say in response to that question: Bring it on. I don’t think this will be a five-four decision to strike it down. If you look at Justice Scalia’s comments about the necessary proper clause and the commerce clause, it’s hard to see this coming down to a Bush v Gore five-four smackdown. But above and beyond the legal questions, this court – and particularly Chief Justice John Roberts – realises what the risk is if this gets decided on five-four lines. Chief Justice Roberts is savvy about the need for the court to remain above partisan politics. Justice Breyer has always made the point that the reason why people didn’t riot in the streets after Bush v Gore is because over centuries, the court built up credibility with the American people. That’s because there is usually a majority on the court that is careful about not grossly violating that trust. Whether the court decides not to take the case, or finds a lawyerly reason on which to decide it, I’m not sure the court will deliver a body-blow to Obama before the November election. There are several small “c” conservatives on this court who won’t want to insert the institution into that kind of a roiling public fight. Until this summer, every judge who voted on the constitutionality of healthcare reform voted for the party that appointed them. Republicans voted to strike it down, Democrats upheld it. The American public began to see the constitutional question as a smoke screen, and began to think judges voted to support or oppose Obama. That changed when, at the Courts of Appeal level, we saw a conservative jurist – a former Scalia clerk – vote to uphold and a Democratic appointee vote to strike it down. That restored the idea that what justices do is at least somewhat different from what politicians do. —————————————-"