Monday, December 16, 2002

Dahlia Lithwick and Mark Kleiman have both noted approvingly the effect of Clarence Thomas' presence on the Supreme Court's hearing of the recent "cross burning" First Amendment case, Virginia v. Black. Thomas, a black justice of little jurisprudential distinction who was almost certainly nominated at least in part because of his race, and who rarely speaks during oral arguments, chose the occasion of this particular case to interject some passionate remarks about the meaning of the burning cross as a symbol of the Ku Klux Klan's long history of absolute, violently-wielded power over much of the American South. Lithwick concludes from the episode that "justice can only be done when judges representing the most diverse experiences and backgrounds sit on the nation's courts." Kleiman observes that "Thomas's intervention showed that race remains relevant to the exercise of the office of judging in the United States," and implies (though he demurs from asserting it as his opinion) that the de facto racial preference that brought Thomas to the Supreme Court might be seen to have benefited the court in this instance.

Now, as a non-conservative who originally opposed Thomas' nomination on the grounds that he was a mediocre judge nominated for purely political reasons (only to change my position when opposition to his appointment in the wake of the Anita Hill brouhaha suddenly became the more overtly political stance), I find it ironic that folks like Lithwick and Kleiman, who most likely gnash their teeth in frustrated outrage at 98 percent of Justice Thomas' opinions, would concentrate on this one case as evidence that selecting Thomas for the court might have had an overall positive effect. But even in this instance, it's worth examining the content and consequences of Thomas' comments.

He did not, after all, say anything that enlightened the Court as to a matter of law or logic. In fact, he did not say anything that was unknown to the other members of the court, or that might not have been said just as well by any one of them. Nevertheless, Lithwick remarks that "with his personal narrative, Justice Thomas changed the terms of the legal debate," and Kleiman mentions that "[t]he same speech from Scalia or Rehnquist would have been much more surprising, and probably less persuasive". In other words, its strong impact on the justices derived completely from the fact of Thomas' race.

I will be more blunt than either Lithwick or Kleiman: Thomas was using--just as he did during the Anita Hill hearings--indignant language about America's sorry historical record of mistreating blacks as a blunt rhetorical instrument with which to overcome more reasoned arguments. And unlike the Hill hearings, which had unfortunately already been politicized through and through, oral arguments in the "cross burning" case had been quite typically dry and dispassionate until Thomas' outburst. If his words managed to change any minds, it was certainly not on the strength of their legal significance.

Now, many Americans (apparently including Lithwick, and perhaps Kleiman as well) actually think it quite proper that such blatantly emotional approaches be incorporated into the Court's reasoning--that is, that the Court is entitled to factor political, social and cultural sentiments into its decisions. But if so, then the Court is just another political body--the Senate with fewer members and no elections; and whether it happens to be one-ninth black is only one of a very, very long list of discomfiting questions that deserve to be asked about its political representativeness. (As Lithwick herself concedes, "how much identity politics can you fit on the head of nine pins?")

Conversely, if there is any meaning or legitimacy to the Supreme Court's being an appointed legal body, rather than an elected, political one, then Thomas' little speech was completely inappropriate for it. Had it been delivered to the Virginia State Legislature debating the ban on cross-burning that was at issue in the case, it would have been entirely fitting; in the courtroom, it was yet another demonstration that Clarence Thomas was a poor choice for his seat on the court.

(As an aside, I actually share Thomas' views, Constitutional and political, on the cross-burning issue, although I'm much more careful to separate the two. I believe that the First Amendment exists to protect the democratic process, and thus properly applies only to the lifeblood of democracy: written or spoken speech. Symbolic gestures of any kind--from flag-burning to cross-burning--are unnecessary to the orderly conduct of the democratic process, and are therefore open to regulation without fear of collapse into tyranny. The expansion of the "free speech" clause to cover them--and much more--is, in my view, part and parcel of the Constitution's embarrassing and unwise elevation from pragmatic guardian of democracy into elaborately interpreted quasi-religious tract. Noxious speech may require tolerance in the name of an open political process; but noxious symbols and gestures are as likely to undermine that process as to enhance it.

In the case of cross-burning, I also happen to agree with Thomas and the Virginia legislators--as a political matter--that cross-burning is a despicable enough action to deserve a ban. I personally feel much less strongly about flag-burning, being Canadian and all; but I consider the claim that these two literally incendiary gestures are Constitutionally different to be utterly incompatible with any notion of Constitutionality that rises above individual political and cultural sentiment--of the kind to which Justice Thomas was so nakedly appealing.)

1 comment:

Anonymous said...

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