Bench Memos

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Supreme Ignorance


In a recent issue of NR, Ed Whelan reviewed the new biography of Justice Clarence Thomas, Supreme Discomfort, by the Washington Post team of Kevin Merida and Michael Fletcher.  Ed found it a very one-sided book betraying the authors’ biases more than it revealed much of value about the life and character of Justice Thomas.  Still, he said, the “biographical narrative . . . holds interest,” which could not be said of the authors’ treatment of Thomas’s jurisprudence since he joined the Court, which evinced a “crudely political understanding” of the subject.

Merida and Fletcher have found the reviewer worthy of them, I suppose, in Harvard sociologist Orlando Patterson, whose review of Supreme Discomfort in today’s New York Times sings the praises of their “intellectual integrity.”  Displaying a rather tawdry interest in matters of color and sex (he seems unhealthily interested in the fact that Mrs. Thomas is white, for example), Patterson retails a tired litany of criticisms of Thomas as a person, without making it clear in many cases whether they find any support in the book he is purportedly reviewing.  I won’t bother to repeat them here.

But just when any decent person is about to feel his bile rising at such character assassination, one comes to Patterson’s complaint that Merida and Fletcher’s “treatment of Thomas’s legal doctrine . . . is pedestrian.”  Now nausea turns to gales of laughter, for Patterson reveals throughout his review that he himself knows nothing at all about the subject.  No one, for instance, who has ever read any opinion of Thomas’s on the subject of race and the equal protection clause could write, as Patterson does, that “[h]is ardent defense of states’ rights would have required him to uphold Virginia’s anti-miscegenation law” had he been on the Court 40 years ago.  He remarks on Thomas’s “sometimes unfeeling legal opinions” as though “feeling” were a reliable and appropriate guide to judicial decision-making–but the comment also betrays a complete unfamiliarity with Thomas’s writings on the bench, which are often eloquent on the real-world impact of the Court’s decisions.

And in the worst recycling of an old New York Times horror show, Patterson writes that “notoriously, [Thomas] has held that beating a prisoner is not unconstitutional punishment because it would not have appeared cruel and unusual to the framers.”  This is not even close to an accurate characterization of Thomas’s dissent (joined by Scalia) in Hudson v. McMillian (1992).  What he argued was that 1) prior to a sharp break with the historic understanding of the Eighth Amendment in 1976, that understanding was that the “cruel and unusual punishment” forbidden by the amendment had to be an actual sentence that was enacted by legislators and imposed by judges, and had nothing to do with any post-sentencing abuses prisoners suffered at the hands of their jailers; and 2) after the Court made the break and began to entertain complaints about prison conditions and treatment under the Eighth Amendment, it consistently held that the prison authorities must use wanton force in a way that causes significant harm.  As Thomas wrote:

In my view, 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. In concluding to the contrary, the Court today goes far beyond our precedents.

Pace Patterson, Thomas never argued that “beating a prisoner . . . would not have appeared cruel and unusual to the framers.”  What he argued was that it would not in their view have been a punishment cognizable under the Eighth Amendment.  And while he (quite unnecessarily) accepted modern precedents that broke with this correct understanding, he was not ready to make the Eighth Amendment a “National Code of Prison Regulation” for the redress of every concededly minor incident of violence between guards and prisoners across the land.

I suppose the editors of the NYTBR knew they could count on Orlando Patterson to loathe Clarence Thomas, and that’s all they cared about.  But don’t you think they could have at least found a Thomas-hater who has read one or two of his opinions?



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