June 11, 2007 – Page 1732
As Justice Clarence Thomas recounted the case, Jeffrey Landrigan was an uncooperative murder defendant who gave his lawyer no help in finding evidence to spare him the death penalty. Only several years later did he seek a new hearing, claiming ineffective assistance from a court-appointed attorney and offering mitigating evidence that Thomas discounted as both “weak” and “insubstantial.”
Told that way, the Supreme Court’s 5-4 ruling against Landrigan last month seems unexceptionable. But, as Justice John Paul Stevens pointed out for the dissenters, there was more to the story. Landrigan’s trial lawyer did next to nothing to prepare for the sentencing hearing, Stevens wrote for the minority, and never asked for a psychological evaluation that would have disclosed the “serious organic brain disorder” crucial to Landrigan’s appeal. Stevens also noted that, while Landrigan didn’t want family members testifying, he wasn’t out to bar all mitigating evidence. The longest-serving justice’s unusually pointed conclusion: Thomas “thoroughly misrepresents” the facts of the case in his opinion.
Sharp disagreements between justices are to be expected, but Stevens’ suggestion that Thomas was playing loose with the truth fits with the portrait that emerges in “Supreme Discomfort,” the new biography of Thomas by Kevin Merida and Michael Fletcher of The Washington Post. The book’s clear conclusion is that Thomas, who after nearly 16 years on the court remains its most polarizing figure, has a penchant for distortion or denial in dealing with facts inconvenient to his conservative views.
The book debunks “the Pin Point myth” — Thomas’ depiction of his rise from the abject poverty of a tiny Georgia town — by noting that after the age of 6 he was reared by his grandfather, a well-off businessman in Savannah, who paid for Thomas’ way through a Roman Catholic high school. Thomas has signaled that his own childhood experience underlies his unsympathetic view of people on welfare, even to the point of demeaning his own sister in a 1980 interview. The book says his sister wasn’t on welfare at the time.
In the book, schoolmates contradict other aspects of Thomas’ autobiography. A high school classmate said the school wasn’t infused with racism, as Thomas has said it was. At a public forum, another African-American member of Holy Cross College’s class of 1971 challenged Thomas on his insistence that he never benefited from affirmative action in either his education or his political career. “False premises,” Thomas told his interlocutor, the book recounts.
The benefits he received from affirmative action, culminating in his nomination to the Supreme Court after only 15 months on the federal bench, appear too plain to be denied. But Thomas does deny them — and has developed a body of opinions that similarly reject the idea of benefits from racial preferences, while emphasizing the supposed harm affirmative action policies can have on minorities.
Merida and Fletcher cannot resolve the central factual dispute in Thomas’ life: whether he or Anita Hill was lying about the sexual harassment allegations that almost blocked his path to the court. But the authors signal clearly their belief that Thomas was playing with words when he told the Senate Judiciary Committee he had “never debated the contents of” the landmark Roe v. Wade abortion rights decision — which he voted to overturn just eight months later.
Whether or not Thomas misrepresented the facts in Landrigan’s case, his opinion illustrates his unbending refusal to find any facts grievous enough to warrant throwing out a death sentence. Four years ago, for example, Thomas was all alone in saying a black death row inmate shouldn’t get a new sentencing hearing, even though the other eight justices found sufficient evidence of racial bias by Dallas prosecutors during jury selection.
Thomas also can display a loose approach to legal precedent. In an early opinion, he reconstructed the history of habeas corpus to try to limit federal courts’ ability to review state cases. Justice Sandra Day O’Connor responded with an eight-point opinion that Thomas had mischaracterized or misdescribed the court’s past rulings.
His conservative admirers cheer when Thomas issues bold calls like that one for reconsidering established law. He wants to free the states from any Establishment Clause limits on supporting religious institutions, eliminate any Eighth Amendment limits on prison conditions, and return to a pre-New Deal concept of congressional power to regulate interstate commerce. But in those and other areas, his opinions are mainly about doctrine, with scant factual or legal evidence to support a revisiting of the law. As a result, Thomas finds little if any support for his views from his colleagues, even the others in the current conservative majority.
Judicial temperament entails, among other things, the ability to weigh facts with dispassion and legal precedents with respect. Those are the skills Chief Justice John G. Roberts Jr. described at his Senate confirmation hearings as modesty and humility. Thomas evidently sees his role differently. The conservatives who lavish praise on both members of the court apparently see no contradiction in extolling their contrasting, even contradictory, approaches. But others might.
Kenneth Jost is the Supreme Court editor for CQ Press.


