Clarence Thomas writes in his autobiography My Grandfathers Son about his views of his legal alma mater, Yale, and the Juris Doctorate they bestowed upon him;
I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.
Clarence Thomas came to this conclusion not, apparently, because of anything having to do with his experience of Yale, but because other people questioned the value of his degree. He writes that many law firms to which he applied assumed he was accepted at Yale as a result of ‘affirmative action’ and questioned his intelligence as a result assuming, therefore, the degree wasn’t of much value. As a result of this questioning of value Clarence Thomas decided that, yes indeed, his degree had no value.
Yes. Read that again. Because others questioned the value of his degree…
… his conclusion was to agree with them…
This is a mind in complete thrall to other people’s thinking. It is a grotesque inversion of individuality and thought… a sort of fallacy of regard. This is an extreme example of something I’ve been thinking on, and worrying about, a lot lately. I don’t particularly care about the individual Clarence Thomas, this isn’t about him, but about the state of politics and, perhaps even closer to home, the state of political discourse which I think his anecdote exemplifies.
The death of Antonin Scalia may mark the last of an earnest jurisprudence and his absence will highlight the clear Clintonian methodology of elision and triangulation that dominates politics. Whatever else you think of Scalia (and my own thoughts weren’t ever all that charitable) he was forthright, straightforward and outspoken. He was not what you might consider a strategist. As much as I disagreed with his philosophy and statements I never once doubted that he believed them and was espousing them from a core part of his being. That, I can respect. That, at least, I can trust. He would never have approached his Harvard Law degree based upon what others thought of it, as Thomas did his Yale J.D. I don’t particularly think either was much good, but that’s the difference, maybe,between Ahab and Bartleby (to mash-up Melville).
But Scalia might have been, it is possible, the last of that kind. Kennedy, Thomas, Ginsberg, Breyer, Roberts, Alito, Sotomayor and Kagan (the lot of whom, it is worth noting, are the remainder of the Supreme Court) were all chosen based mostly upon the amount of offense they would or would not give. That is to say, they were chosen on the basis of what other people were, or were not, purported to think and not for what they thought. This is distinctly at odds with both Scalias confirmation and his tenure and I think it shows. When Roberts was confirmed I actually compared him to Woody Allens character ‘Zelig’, a man who adopts the physical and cultural characteristics of those around him. I joked, at the time, that if we could maneuver to have him always seated next to Ruth Bader Ginsberg we might make something of him. I’m not certain I was far off the mark. Certainly, greater than 10 years on, the remaining members of the Roberts court sway Roberts more than Roberts has swayed the court.
The most striking, un-remarked upon, aspect of this sort of dynamic is the way Kennedy is touted as the ‘swing justice’ as though that’s a good thing, when it’s –again– the notion of what other people think that defines the length and direction of the ‘swing.’ Such ready malleability isn’t, I think, a sign of a strong intellect.
Over the days since Scalia’s death, and with the increased attention to the Justices, I’ve wondered if Scalia’s rigid originalism wasn’t –in a perverse way — some form of armor against exactly this sort of borrowed thinking and/or directed exegesis: perverse because it is exactly that sort of refusal to think for oneself; but armored because it borrows both the intellectual rigor of the founders and the communal ratification of the constitution to avoid letting present-day others co-opt the language as they attempt to co-opt you. I think it may have been an attempt to ‘stand tall’ with what he may have perceived a legitimate regard amidst this form of bogus regard. I don’t particularly think it a good attempt or even consistent… but perhaps Scalia was on to something, not about originalism, but about how thinking operates in a culture with such a deep and wide anti-intellectual streak.
China has their own anti-intellectual streak. In 2010 the Nobel Peace Prize was awarded to Chinese writer Liu Xiaobo who was, and still is, imprisoned by the Chinese State for ‘inciting subversion.’ Nearly the entirety of his writings might be boiled down to the simple phrase, “think for yourself;” and he was imprisoned, and remains in prison, because that’s exactly what he told people to do.
Fascinating that an unwillingness, or inability, to think for oneself might be at the very heights of both the Chinese political system and the American political system… Perhaps we’re not so different after all?
I actually prefer SCOTUS Justices to consider each case on it’s own facts and merits rather than start with an ideology and back up from there.
… but not particularly a fit response to what I wrote. A justice who does so ‘consider each case on its own facts and merits’ (and, one hopes, the law) will not be so predictably at the whims of this or that prevailing wind. Stephen Breyer is probably the closest thing we have to just such a justice and he’s not ever been considered ‘swing’. I think Souter fit that mold also.
But the idea of a ‘swing justice’ — and the notion that one justice particularly and predictably fills that role — is predicated not upon the intellectual abilities of that single justice and/or his/her reading of the law, but upon the affinity that particular justice might have, for a variety of reasons, for other peoples thinking. Where he/she stands in comparison to others is the length and the breadth of the ‘swing’ not the judges particular legal acumen…
To me, the problem with trying to continually reimagine the text of the law is that you wind up contorting the text in such a way that it becomes like situational ethics – which often degrades into no ethics at all.
But like you, I am concerned with a school of thought that values current expediency over intelligent reason for while it might benefit you today today, it can easily be used against you tomorrow.,
I fear you missed the point, even as you demonstrate it…
While It is true that the actual word ‘privacy’ appears no where in the actual text of the actual constitution. The actual words “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ” might actually serve as an actual, and effective, definition of the word ‘privacy’. That’s not ‘situational ethics’, that’s just ‘clarity’.
The world, you see, continually re-imagines itself…. sometimes becoming more chaotic… at other times winding up more succinct. We’re just along for the ride.
I am no more concerned with ‘current expediency’ than I am with the politics on Neptune and I believe current intelligent reasoning as capable as that of the founders… if rare. I think Scalia valued originalism because he made much of the founders intellectualism and acumen and because more than just the founders ratified both the actual constitution and the subsequent amendments… but also, maybe, because he didn’t have the regard for his fellow intellectuals ability to think for themselves, and maybe even himself, that I might do. Or, put another way, might not Scalia have said, “we’re maybe not capable of amending the document, so let’s not even try.” That’s a perspective, maybe, what comes with proximity to Clarence Thomas.