Staring at the Ceiling

In our forefather’s elaborate system of checks and balances, they carefully circumscribed power by creating three branches of government, each with abilities to reign in the other branches to the extent they step outside set limits (Executive, Legislative & Judicial). For the Supreme Court, the power requires a Presidential nomination and the “advice and consent” of the Senate (majority vote). The Constitution has been interpreted as creating a lifetime appointment (the Constitution provides that justices to the Court “shall hold their offices during good behavior”), and justices can only be removed by impeachment, an action that begins in the House of Representatives and is tried before the Senate. Only one justice in our entire history, Samuel Chase (one of the original signers of our Declaration of Independence) in 1805, was ever impeached by the House (but he was acquitted by the Senate) for allowing his powerful political “state’s rights” leanings to impact his decisions.

Clarence Thomas, a George H.W. Bush appointee in 1991 and the only currently-serving African American, is one of those nine Supreme Court justices who govern the most powerful court on earth. The general perception at the time of his appointment was this his credentials were thin (though a graduate of the Yale Law School, considered the best in the nation particularly on Constitutional matters, he had served on the federal appellate bench only 16 months before receiving the elder’s Bush’s nod for the high court) and that his ethics were at best clouded. Wikipedia explains: “Thomas's confirmation hearings were bitter and intensely fought, centering on an accusation that he had made unwelcome sexual comments to attorney Anita Hill, a subordinate at the Department of Education and subsequently at the EEOC [during Thomas’ tenure with those institutions]. The U.S. Senate ultimately confirmed Thomas by a vote of 52–48.”

Tracking his voting history, he is conservative and tending to be a fairly strict interpreter of the Constitution, although often finding himself in support of arguments to expand the powers of the President. Thomas remains controversial and is still not considered to have been an appropriate appointee to the highest court in the land by many Constitutional scholars. Other than his occasions reading the final opinion from a prepared text, Justice Thomas has not spoken during the public hearings held by the Court… in the last five years. Instead, during attorneys’ oral arguments before the bench, Thomas can be found “leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.” New York Times, February 12^th. His level of silence is unprecedented in this history of the court.

To defend Thomas, there are many who believe that the justices have long-since made up their minds about a case based on the legal briefs filed by the litigants and that oral argument is nothing more than window-dressing based on tradition, simply a matter of courtesy (as Thomas calls it). When he speaks publicly, it is seldom to the elite universities (perhaps a good thing), but his talks tend to veer away from the legal system and are just as like to involve a discussion of one of his favorite films (like Saving Private Ryan). He has published his memoirs (My Grandfather’s Son) and does take his written opinions seriously.

“Justice Thomas’s last question from the bench, on Feb. 22, 2006, came in a death penalty case. He was not particularly loquacious before then, but he did speak a total of 11 times earlier in that term and the previous one… [but his most famous statements, in case that ultimately ruled that burning a cross was not protected free speech, came in 2002 where] his impassioned reflections changed the tone of the discussion and may well have altered the outcome of the case. He recalled ‘almost 100 years of lynching’ in the South by the Ku Klux Klan and other groups… ‘This was a reign of terror, and the cross was a symbol of that reign of terror,’ he said. ‘It was intended to cause fear and to terrorize a population.’” NY Times. At 62 and in good health, Thomas is still young enough to contemplate many remaining years in office. Is Associate Justice Clarence Thomas a good judge with a different sense of style or simply a man biding his time in the highest court of the land?

I’m Peter Dekom, and we seldom pay much attention to the machinations of the Supreme Court even though these appointees have the longest and powerful tenures in the federal government.