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. Thompson, John 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.