The Oldest, Weakest Editorial Arguments
Fifteen years ago, a New York Times editorial on brand-new Justice Clarence Thomas infamously labelled him “The Youngest, Cruelest Justice,” on the basis of an opinion about the meaning of the Eighth Amendment of which the Times disapproved but which it didn’t attempt to rebut except on emotional grounds. Today the Times’ Adam Cohen concocts a perfect bouillabaise of unreasoning hostility to Justice Thomas, and laments that he will be “a lot less marginal” on a Supreme Court where “moderate conservative” Sandra Day O’Connor has been replaced by the “more extreme” Samuel Alito.
Here are the assertions and assumptions in Cohen’s article to which he evidently believes all right-thinking people will assent, but for which he supplies no evidence or reasons:
- That Justice Thomas “regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering.”
- That a calculation of who is weak and who is powerful, and an empathetic attention to suffering, are essential elements of any legitimate “legal philosophy.”
- That Thomas’s “longstanding goal” is “dismantling the integrationist vision of his predecessor Thurgood Marshall.”
- That a proper jurisprudence should impose an “integrationist vision” on the Constitution regardless of what it actually says.
- That such a vision is represented by “the University of Michigan’s affirmative action program” upheld a few years ago over Thomas’s dissent.
- That once upon a time Thomas “identified strongly with his fellow blacks,” but since his Supreme Court confirmation has “redirected his anger . . . at liberals and civil rights organizations,” who of course are the true representatives of the interests of all black citizens.
- That Justice Thomas should consider himself holding a kind of “black seat” on the Court, his power to be employed on behalf of those he “represents.” (The same sort of reasoning is roundly rejected when it comes to any notion of “representing” Catholics–an impulse the Times falsely claims to see operating among some of the justices.)
- That anger, like compassion for the suffering, is a legitimate impulse in constitutional jurisprudence, so long as it is pointed in the proper direction.
- That when Thurgood Marshall was on the Court, the law was “moving forward” on fronts like “prisoners’ and women’s rights and fair elections,” and that thanks to Justice O’Connor it at least “did not move backward that much, either.”
- That “forward” and “backward” are legitimate expressions for the approval and disapproval, respectively, of Supreme Court decisions.
- That “forward” and “backward” have an exact correspondence with the planks of the Democratic Party platform.
- That Justice Thomas “can be counted on to reflexively oppose discrimination claims of minorities and women.”
- That his views are always reflexive and never reflective.
- That that would be okay if he reflexively embraced “discrimination claims of minorities and women.”
- That the only reasons worth speculating about, as an explanation of Thomas’s habitual silence during oral arguments, are “the least flattering: he is afraid that if he speaks he will reveal his ignorance about the case; he is so ideologically driven that he invariably comes with his mind made up; or he has contempt for the process.”
- That no notice need be paid to what Thomas has actually said on this subject when asked.
And finally, the Times itself seems to assume:
- That it is acceptable for a member of its editorial staff to submit for publication such a stew of dubious assumptions, utter inattention to legal reasoning, and condescending psychobabble when discussing the career of a Supreme Court justice. Or this one, anyway. It’s only Clarence Thomas, after all. And we know all about his kind.