This Op-Ed was originally published in the Washington Examiner on June 7, 2007.
WASHINGTON – A review by Adam Cohen of a new book, Supreme Discomfort: The Divided Soul of Clarence Thomas, appeared earlier this week in The New York Times.
The review demonstrates that neither Cohen, nor the authors of the book, nor the editors of The Times have a clue about what it means to have a constitution and how such a document operates.
The review began with Cohen getting his knickers in a twist over the fact that Justice Thomas does not ask questions during oral argument. It suggests that he might be ignorant of the case, might have his mind made up or might have contempt for the process, according to Cohen.
Anyone who is experienced in practice before the court knows this dirty little secret – oral argument is just for show; cases are almost always decided on the written pleadings. The only debate that matters is the one behind closed doors on Friday morning when the justices “conference” and decide all cases argued that week. Present are just the justices, no clerks or other staff.
Regarding the two Washington Post reporters who put together this book, Cohen writes, “They offer a wealth of insight, but they have no answer to the central enigma [Thomas] poses: Why the justice who has faced the greatest hardships regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering.”
Think about that statement. There have been a few societies in which judges were expected to decide cases on the basis of the social position of the parties rather than follow the law.
One of the earliest was during the French Revolution. Those on the wrong side of the law then were fed to the guillotine. A more modern example is the former USSR, in which certain classes of people were “parasites,” and were left to starve, or in better times, shipped off to Siberia.
The point this review utterly misses is that the Constitution is, as it says in its text, “the supreme Law.” And as Alexander Hamilton, John Jay and James Madison wrote in The Federalist, the Constitution must be the supreme law, or it could be nullified by state or federal laws, or have different meanings in different parts of the nation.
The review refers to Thomas’ views as “far right,” but for some odd reason does not refer to the views of Justice John Paul Stevens as “far left.” Both labels, however, are misleading when applied to justices on the court.
Instead, the proper question is which justices obey their oaths of office. All justices swear to obey and enforce the Constitution. That means following the Constitution wherever it leads. That is quite the opposite of saying, “Who do I want to win this case, and how must I rewrite the law or bend the Constitution to get that result?”
The review ends with this statement, “America will be a much less just place if Justice Thomas’s life experiences and moral truth start to shape the court’s agenda – and the nation’s.”
No one who understands the role of law in the U.S. would write such a statement, nor would any competent editor allow it to be printed unchallenged. America is a “just place” only when everyone obeys the law. And the Constitution contains no exception that places justices above the law.
Cohen, the book’s authors and The Times editors might prefer that justices be above the law, and be able to revise the Constitution as they wish (as long as their kind of justices are in control).
But that’s not what the Constitution says. Amendment belongs only to the people, as specified in Article V. I guess the editors at The Times didn’t read that part of the Constitution, either.
John Armor practiced in the U.S. Supreme Court for 33 years and currently serves as counsel to the American Civil Rights Union.