Friday, October 29, 2021

Justice Thomas' Contradictions: Of Decency, Empathy, and the Judicial Role

 By Eric Segall

Last week on my podcast Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for one of the parties to deal with losing the case. Such sensitivity also provides a role modeling exercise for people reading the decisions. 

Empathy when judging does not mean deciding a case in a way inconsistent with the law but rather a way for judges to show that the litigants have at least been heard. There is also a wide-ranging literature on the role of emotion and empathy in legal reasoning but this blog post is not about that.

There can be no doubt that Justice Clarence Thomas, since his confirmation at least, has displayed decency and empathy towards others in his personal dealings. He famously devotes considerable time to students and faculty when he visits law schools, and more than most of the other Justices, he hires law clerks outside the several elite schools that provide most Supreme Court clerks. Recently, a visually disabled clerk for Thomas wrote with great passion about how kind he was when her grandmother died and how he told her family comes first, work second. Virtually everyone I have ever asked gushes about their interactions with Justice Thomas and how personable and present he is when visiting with other people. As one writer observed:

The first thing to know about Clarence Thomas is that everybody at the Supreme Court loves him...Thomas cultivates a jovial presence in the building’s austere marble hallways. Unlike most of his colleagues, he learns everyone’s name, from the janitors to each justice’s law clerks. He makes fast friends at work, at ball games, and at car races, and invites people to his chambers, where the conversations last for hours. Thomas’s booming laugh fills the corridors. He passes silly notes on the bench. As the legal analyst Jeffrey Toobin wrote in 2007, with his 'effusive good nature,' Thomas is 'universally adored.'

Yet, the same person who wrote the above also said that Thomas's "buoyancy marks a man whose career as a judge is a study in brutalism." There can also be no doubt that Justice Thomas does not display empathy and decency when deciding cases and writing judicial opinions. In fact, it is likely he feels that empathy and decency have no place in his courtroom.

Justice Thomas has said that the role of a judge is to shed personal beliefs when doing the job and when cases are difficult, "you do your job and then cry alone." He has repeatedly maintained that constitutional interpretation should only be about text and history and that considering other factors will result in justices imposing their personal values on everyone else. To the best of my knowledge, he has never suggested that empathy and basic human decency should be an important part of a judge's tool kit.

Therefore, it is no surprise that he has shown little or no empathy or an attempt to understand the plight of others unlike himself when deciding cases and explaining his votes. For example, Professor Eric Mueller wrote an article aptly titled, "Where, but for the Grace of God, Goes He? The Search for Empathy in the Criminal Jurisprudence of Clarence Thomas." That search revealed very little except for a vote by Justice Thomas in favor of a white collar criminal defendant in a serious break from Thomas's usual anti-criminal defendant stance when it comes to the poor and the deprived. 

One commentator has noted that Thomas "champions a criminal-justice system suffused with racism, and has rejected claims of cruel and unusual punishment made by prisoners." In case after case after case, Justice Thomas has shown appalling indifference to the plight of criminal defendants and the conditions of their confinement. His questioning of the landmark decision Gideon v. Wainwright, which held that indigent criminal defendants have the right to government-paid counsel, is just one of many examples of his lack of empathy for those who can't afford to navigate our racist justice system.

As of 2019, Justice Thomas had called for reconsideration or overruling of approximately 250 Supreme Court decisions. Almost one-third of those involved the rights of criminal defendants. Turns out humility on the bench, as opposed to his private life, is also not one of Justice Thomas's long suits.

It is not just in his votes that Thomas displays an inability or lack of desire to sympathize with those whom he rules against. In Connick v. ThompsonJohn Thompson was convicted for robbery and murder after prosecutors in New Orleans withheld evidence that would have cast serious doubt on his guilt. He spent almost 18 years in prison (14 on death row) and was nearly executed. He was exonerated after a prosecutor confessed to hiding important exculpatory evidence in violation of Supreme Court doctrine. 

Thompson then filed a civil suit for his unlawful conviction and time spent in prison. In a five-four opinion written by Justice Thomas, the Court rejected his claims. Although the Justices were likely wrong on the merits, as Justice Ginsburg's impassioned dissent shows, the point for our purposes is the mechanical, tone-deaf flavor of Thomas's opinion. There is not a syllable about the injustice of the case or a word of regret about the wrongful incarceration of a man for 18 years. Even were Thomas right about the law, would it have been too much for him to throw the victim of one of the worst District Attorney's offices (New Orleans) in the country a little empathy? If Thomas met with the man personally would he have said, "tough luck man?" How can a man so decent in his personal dealings with others be so ice cold as a judge?

Many scholars have written about the contradictions between Justice Thomas's alleged originalism and his belief in a color-blind Constitution that prohibits all affirmative action at every level of government -- local, state, and federal. Justice Thomas has never voted to uphold an affirmative action program. In many of his opinions, he has claimed that racial preferences stigmatize those they intend to benefit and also cause backlash against them. He has even said that the motivations of 21st-century school administrators to create more diverse academic environments are indistinguishable from the desires of slave holders and segregationists. 

Nowhere in any of these opinions does Justice Thomas consider the plight of those victimized by our past and present institutional racism. His basic message is get tough and get over it. The only empathy or sympathy he displays on these racial issues is for those imaginary people of color at elite schools who Thomas alleges are the "victims" of the system of racial preferences. Well, it is dubious at best that these folks granted the privilege of attending elite universities consider themselves victims, and the statistical data behind such a global perspective simply does not justify Thomas's non-legal conclusion that they would be better off at non-elite schools.

But here is the real rub. There is definitely at least one famous person with a large bully pulpit who considers himself a "victim" of racial preferences, though he didn't always feel that way. Here is Clarence Thomas in his own words in 1983: "But for them (affirmative-action laws), God only knows where I would be today. These laws and their proper application are all that stand between the first 17 years of my life and the second 17 years." 

His appreciation of those laws, however, to say the least, receded over the years. Here he is in 2007, sixteen years after he was appointed to the Court, about his time at Yale Law School in 1973: "At least southerners were up front about their bigotry: You knew exactly where they were coming from....Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place." Thomas has also said that his Yale law degree was worth about "15 cents."

The irony of all this, of course, is that without his Yale law degree (or one from a handful of other schools), Justice Thomas would be in no position to attack affirmative action from such a lofty place as the United States Supreme Court. And this is exactly where empathy and decency come into play. Justice Thomas could make all the legal arguments he wants to against the use of racial preferences in education but still show some sensitivity that: 1) these are hard issues; 2) many people of color benefit greatly from attending elite schools which they might not do without affirmative action; and 3) many folks disagree with him about the ability of minority students to achieve at those places (including this author). 

The sad truth is that, off the bench, Justice Thomas certainly appears to understand and empathize with those different from himself, recognize that many of our country's problems are hard, and that reasonable people can disagree about how to approach them. But on the bench, he is a cold-hearted Justice who sees complex issues in black and white terms and who appears not to be able to get out of his own uniquely personal line of sight--one that does not currently include the issues facing the poor and the deprived. That inconsistency will, over time, be Thomas's sad and unfortunate legacy, no matter how nice he is interpersonally.


Joe said...

I appreciate this discussion, including the citation of the National Review piece that I referenced to the author elsewhere.

Without suggesting I share all of the author's opinions [after all, he thinks baseball is very very boring], I too am a strong critic of Justice Thomas. But, sometimes, people have an overly simplistic accounting of him. They in part refuse to accept his good points. I saw this, e.g., when I once praised his ability to ask questions during oral arguments. There is in fact an old law article that makes a good case there.

I recently re-read Corey Robin's book on Justice Thomas. I thought it a pretty good read. Nonetheless, he perhaps left a bit out. (I find it curious, for example, that given the book's themes regarding his view of race and the importance of a strong black father, that his two wives and son are barely referenced. OTOH, his grandfather and mother/sister are discussed in this context.)

A full accounting, including critical ones, is complex. The book notes, for instance, that both Thomas and Sotomayor reach out to high school students, providing a mentoring type relationship of some sort. Thomas' diversity in clerks is also worthwhile. He sneers at Yale, but to be fair, he also as I understand it has a more diverse class of clerks from other institutions than some others.

After all, even Alito comes off good in a recent obituary of the unofficial Supreme Court barber! (See Tony Mauro's recent article)

Unknown said...

“Empathy is the exclusive domain of those who share my policy preferences.”

Michael A Livingston said...

I think the problem here is a particular definition of “empathy” that emphasizes economic disadvantage. But couldn’t one argue that Justice Thomas has more empathy with (say) unborn children than does the court’s liberal minority? Or with people who attend religious services? And so forth. Leaving aside the question of whether empathy is a judge’s proper role—there has been an interesting intellectual attack on the whole concept of empathy lately—I think the issue is far from clear.

Asher Steinberg said...

Yeah, like Michael, I see a lot of empathy in Thomas's opinions for certain groups, probably more so than in other conservative justices' opinions. These would include: (a) murder victims and their families (see, e.g., the dissent in Brumfield v. Cain); (b) victims of defamation (see the opinion in McKee v. Cosby); (c) victims of false and stigmatic credit reporting (see the rightly celebrated dissent in TransUnion last term, which, far from being all about originalism, asks readers to "tap into common sense to know that receiving a letter identifying you as a potential drug trafficker or terrorist is harmful" and then goes on to ask how one might feel if a credit agency said you were a racist); (d) gun owners; (e) victims of terrorizing racist speech (see Virginia v. Black). Perhaps you think he empathizes with the wrong groups, or only empathizes with people who are vaguely like him (for example you might conjecture that Thomas empathizes with defamation victims because he believes he is one), though it's difficult, in my view at least, to fault someone for empathizing with victims of horrific crimes. But I do think many of his opinions are pretty transparently empathetic.

Joe said...
This comment has been removed by the author.
Joe said...

I think it's quite possible to point to examples where he showed empathy.

Is the argument that he never shows empathy?

The argument at one point is: "no surprise that he has shown little or no empathy or an attempt to understand the plight of others unlike himself."

He is a conservative. Saying he empathizes with one side of the abortion conflict or something doesn't refute that. So, it's more that there are examples where he empathizes those only "vaguely" like him.

I take the piece as talking in general terms, so the fact it isn't completely shown only takes one so far.

Eric Segall said...

My main point is that I have zero doubt Thomas would say empathy has no place in judging, I think most of his opinions read that way (not all) but most, yet he has great empathy in his personal life. Thus, the Justice of contradictions.

Unknown said...

Did you ever consider that Justice Thomas has more empathy for victims of crime than any other Justice?

Of course you didn’t. You don’t actually believe that anyone who has a different conception of law or policy is capable of feeling empathy.

egarber said...

To test this, does Thomas express empathy for such victims in his rulings? I don’t know the answer. Just asking.

Joe said...

"Did you ever consider that Justice Thomas has more empathy for victims of crime than any other Justice?"

I will take this on face value.

I have thought about the issue.

Thomas in his opinions -- even if he would tell you that "it's law all the way down" (to quote Kagan) or whatever -- has shown some empathy to crime victims. And, sure, I think he does.

(See, e.g., Chicago v. Morales, dissenting opinion: "The human costs exacted by criminal street gangs are inestimable. In many of our Nation’s cities, gangs have “[v]irtually overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents.”)

But, victims of crime come in a range of forms. Guns in this country, for instance, results in a lot of victims of crime. Is Thomas' view of the 2A really the best approach there? Does a broad rejection of regulation truly show empathy to victims of gun crimes? Or does some middle path there provide more respect to their needs?

The same applies let's say with his support of school voucher programs as a means to address the needs of disadvantaged communities. That's fine. Sure. But, does the other side who are wary of vouchers, especially if they are seen as a violation of the separation of church and state -- and Thomas very well would agree that "empathy" should not override constitutional demands -- NOT have empathy for such groups? They show it in different ways. I don't see one side having MORE empathy there necessarily.

How does one quantify such a thing? Maybe, the most fair thing to do is the note that different justices show different kinds of empathy. This goes to what I quoted -- Prof. Segall's argument that Thomas is unable to have empathy for a point of view different from his own. ES' reply focuses on what to me is a claim of lack of honesty, but I think his wider comments cover more ground.

This might be a showing of empathy for Segall's own positions, trying to stand in his shoes, and see things thru his eyes. Or, we can just assume bad faith and lack of empathy. For a guy who goes out of his way to engage with people he strongly disagrees with. That just might be wrong. Just saying.

Unknown said...

“But, victims of crime come in a range of forms. Guns in this country, for instance, results in a lot of victims of crime. Is Thomas' view of the 2A really the best approach there? Does a broad rejection of regulation truly show empathy to victims of gun crimes?”

This is more of the same. “Empathy is the exclusive domain of those who share my policy preferences.”

You’re essentially defining “empathy” to mean “socially progressive and economically neoliberal.”

Yeah, fair enough, Thomas isn’t that.

Joe said...

“Empathy is the exclusive domain of those who share my policy preferences.”

I said Justice Thomas has shown empathy. He does not share my policy preferences.

You’re essentially defining “empathy” to mean “socially progressive and economically neoliberal.”

I'm not. I'm leaving it open -- posing questions -- that empathy for victims come in different forms. Empathy is "the ability to understand and share the feelings of another." There are different ways to have empathy for victims.

Saying Thomas has the most empathy is questionable. I left things open. I said:

They show it in different ways. I don't see one side having MORE empathy there necessarily.

Somehow my recognition that EACH SIDE has empathy shows the opposite -- that I think only one side has it. That is not a fair reading of what I said.