Posted by Eugene Volokh:
Jeffrey Toobin's *The Nine* and Justice Thomas:
http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190395897
I blogged below about [1]some factual errors in The Nine that worried
me. But I was also troubled by a couple of other things; they are
judgment calls, and perhaps you might agree with the author's judgment
more than mine, but I thought I'd mention them.
In particular, let me start with the book's treatment of Justice
Thomas, which at times strikes me as not entirely fair. Let me offer a
few example:
1. On pp. 109-10, the book discusses Justice Thomas's speech in which
he asserts "my right to think for myself, to refuse to have my ideas
assigned to me as though I was an intellectual slave because I'm
black." Justice Thomas, the book argues, "chose to attack straw men.
No one quarreled with Thomas's right to his own views; no one said
black people had to speak with one voice; no one asserted that support
for causes like affirmative action was obligatory for Thomas or anyone
else .... It was the substance of Thomas's views, not his right to
hold them, that his critics attacked."
Is that really right? Unless I'm mistaken, Justice Thomas has quite
often been faulted for his positions not just substantively, but by
being damned as a traitor to his race, Uncle Tom, house Negro, and the
like -- statements that do suggest that he should have had certain
ideas precisely because he's black, and that black leaders did indeed
have to speak with one voice on those issues. As leading liberal black
professor Randall Kennedy put it (describing the phenomenon, not
endorsing it), "[a]mong professional blacks, especially lawyers, he is
widely ostracized and routinely vilified as an 'Uncle Tom.'" Former
Surgeon General Joycelyn Elders publicly called Thomas an "Uncle Tom"
(see Wash. Post, May 2, 1995); the Rev. Joseph Lowery publicly said
(see Atlanta Journal & Constitution, June 4, 1996) that Thomas "has
become to many in the African-American community what Benedict Arnold
was to the United States, a deserter; what Judas was to Jesus, a
traitor, and what Brutus was to Caesar, an assassin." Is Justice
Thomas really attacking straw men when he responds to this the way he
did? Is it really the case that "no one [has] asserted that support
for causes like affirmative action was obligatory for Thomas" and
other blacks like him?
2. Likewise, on p. 112, the author dismisses Julianne Malveaux -- who
said in a cable interview that "I hope his wife feeds him lots of eggs
and butter and he dies early like a lot of black men do" -- as "an
obscure columnist." Her columns have appeared roughly once a month in
USA Today, one of the highest-circulation newspapers in the country.
3. On p. 111, the book describes how Thomas received a $1.5 million
book advance for his memoirs from Rupert Murdoch, and adds in a
parenthetical, "More than three years after the contract was
announced, and $500,000 paid to him, Thomas had still not delivered a
manuscript." If that's just faulting Justice Thomas for being a slow
writer, that's fine, though I expect that three years isn't that long
a time for writing a manuscript. But if the claim is that he's somehow
taking money and delivering only vaporware -- which I think is the
impression the parenthetical leave -- might it have been worth
mentioning that the book is coming out just a few weeks after The
Nine? The author might not have known this when he was writing the
manuscript, but I'd think it could have been checked before The Nine
went to press.
4. On p. 111, the book also reports that
Thomas received even more direct financial benefits from his job
[besides the payment for the book].... Thomas received $42,200 in
gifts over a six-year period. This was more than seven times as
much as any of his colleagues, whose gifts tended to consist of
crystal figurines and plaques. (Most of the justices accepted
all-expenses-paid trips to destinations around the world, where
they lectured at universities and met with judges ....)
So with the parenthetical, what's the point of the material that goes
before? An all-expenses-paid trip is also a gift; if a Justice (say,
Kennedy, O'Connor, or Breyer) got a couple more such trips a year than
Thomas did, it would easily make up for the $7000 per year in gifts
that Thomas got.
Now likely on balance Justice Thomas got much more "tangible, as well
as psychic, rewards" stemming from his service, given the book
proceeds. But why then the focus on the $42,200 in gifts over six
years (nearly half of which, incidentally, involved one gift the value
of which was likely psychic more than tangible -- a $19,000 Bible once
owned by Frederick Douglass)? And if one focuses on the gifts, why not
estimate the value of the trips received by the other Justices?
5. On p. 108, the book acknowledges that, "To say that Thomas opposed
affirmative action is not to say that he fought all efforts to help
poor people, especially blacks," and gives examples of his personal
attempts to help black youngsters. Now this is even more of a judgment
call, but wouldn't this have been a great opportunity to mention
Justice Thomas's specifically judicial attempts to help blacks, by
fighting doctrines that he thought unfairly limited government action
that would be helpful to blacks?
The most obvious example is his concurrence in [2]Zelman v.
Simmons-Harris, which argued that liberal readings of the
Establishment Clause that restricted school choice programs were both
constitutionally unsound and harmful to poor people, especially
blacks. Here's how the concurrence began:
Frederick Douglass once said that "[e]ducation ... 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." Today many of our inner-city
public schools deny emancipation to urban minority students.
Despite this Court's observation nearly 50 years ago in Brown v.
Board of Education, that "it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the
opportunity of an education," urban children have been forced into
a system that continually fails them. These cases present an
example of such failures. Besieged by escalating financial problems
and declining academic achievement, the Cleveland City School
District was in the midst of an academic emergency when Ohio
enacted its scholarship program.
The dissents and respondents wish to invoke the Establishment
Clause of the First Amendment, as incorporated through the
Fourteenth, to constrain a State's neutral efforts to provide
greater educational opportunity for underprivileged minority
students. Today's decision properly upholds the program as
constitutional, and I join it in full.
There were other examples, too: Consider his solo dissents in
[3]Dawson v. Delaware and [4]Virginia v. Black that would have upheld
sentence enhancements for racist prison gang members and punishment
for cross-burners. In both cases, Justice Thomas thought that the
other Justices' interpretation of legal doctrine stymied worthwhile
governmental attempts to protect blacks against white violence and
threatened violence.
Now, Justice Thomas might have been wrong in some or all of these
cases. (I agree with him on Zelman, disagree on Black, and am not sure
about Dawson.)
But they, together with Zelman, strike me as important elements of the
way in which Thomas did indeed defend, rather than fighting
, "efforts to help poor people, especially blacks." They illustrate
that Thomas seemed to take seriously various problems facing American
blacks, even though he had a different sense of how they could best be
solved (and how they could constitutionally be solved). And they show
that Thomas thought about this within his judicial role, not just in
his personal life. It's to the book's credit that it shows his
personal actions along these lines. But when you're writing about a
Justice, why not also show what the Justice has done as a Justice in
this area?
6. On p. 101, the book writes that "Thomas always joined these states'
rights rulings but often wrote concurring opinions urging the Court to
cut back even more on federal authority"; it gives as an example a
federalism opinion, but then goes on to Justice Thomas's concurrence
in the Brady Bill case, [5]Printz v. United States:
Thomas signed on to Scalia's majority opinion, of course, but in a
brief concurrence suggested an even broader point, that all gun
control was unconstitutional. He wrote, "Marshaling an impressive
array of historical evidence, a growing body of scholarly
commentary indicates that the 'right to keep and bear arms' is, as
the Amendment's text suggests, a personal right."
But where, other than in the author's mind, is any suggestion that all
gun control was unconstitutional? Not in Justice Thomas's opinion. Not
in the inherent logic of the "personal right" view: As the author
points out, Justice Thomas takes a broad view of free speech, and
surely he, alongside everyone else, believes that free speech is a
personal right -- but that doesn't mean that all speech controls are
unconstitutional. It may well be that Justice Thomas takes a broad
view of the Second Amendment's guarantees (which is hard to tell),
especially if he thinks the Brady Bill might be unconstitutional. But
I see no suggestion that Justice Thomas's view would lead to the
invalidation of "all gun control."
Again, these are judgment calls; maybe I'm mistaken in faulting them,
or maybe I'm making too much of them. But they, and other examples
like them, helped sour me on the book.
References
1. http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190329191
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=536&invol=639
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=503&invol=159
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=503&invol=159
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=95-1478
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