A Rodent in Robes

originally published May 7, 2008

Because of the credible (but ultimately unresolved) sexual harassment charges leveled against him by Anita Hill and others at his confirmation hearings, as well as his creepy-crawly anti-individual rights voting record on the Supreme Court, nearly every time U. S. Supreme Court Justice Clarence Thomas visits a university campus there are protests by faculty and students, and now Michael Adams’ decision to invite Thomas to be the commencement speaker at the upcoming UGA graduation ceremony has created a furor. For years, UGA administrators appear to have tolerated sexual harassment on campus, and in recent months there have been startling revelations of proven sexual harassment committed by several professors. Professors and students critical of the invitation therefore maintain that inviting Thomas is a classic example of bad timing.

A person elevated to the Court should be above suspicion, but Justice Thomas joined the Court under a dark cloud that has never been lifted. It may well be that he is a sexual harasser, and, since he denied the charges under oath, he may also be a perjurer. (At his confirmation hearings Thomas was unquestionably deceptive and evasive concerning his judicial philosophy, masquerading as a moderate and pretending to be a man of compassion who respects human rights, when in fact, he is an ice-cold extremist with a radical anti-rights agenda.) Such a man should never have been permitted to sit on our highest court; and those who protest that he is a poster child for sexual harassment are fully justified in contending that he is unworthy of the honor of being a commencement speaker at the present time. Eager for power, Thomas consciously elected to join the Court even though he had not been cleared of charges of serious misbehavior, thereby dooming himself to the type of recurring antagonisms now directed at him here and on other college campuses. This opposition to Thomas was entirely predictable and constitutes his just desserts for his poor choice-making.

But putting to one side the umbrella of suspicion over Thomas at the time he was confirmed, picking Thomas as graduation speaker remains a grotesque blunder. Thomas may be, as Michael Adams says, a friend of UGA, but he is no friend of liberty. He is the most reactionary judge to sit on the Supreme Court since James McReynolds stepped down in 1941. Why honor such a judge, who deserves chastisement, not lauding?

Clarence Thomas’ appalling judicial career has been devoted to denigrating and downsizing the rights of Americans. Weirdly, tragically, his court opinions repeatedly, systematically and methodically shred the Bill of Rights and other freedom documents, even as a rodent gnaws at waste paper.

Thomas is implacably hostile to civil rights and liberties claims (unless the claim is presented by a real property owner, by a white male complaining of racial discrimination, or by a presidential candidate named George Bush), and almost always resolves disputes between the government and the individual in favor of government. He almost always spurns the claims of citizens claiming their rights have been violated by police or prosecutors, and usually supports outcomes that favor an assertion of governmental power. He is hostile to civil rights laws while aggressively supporting death penalty laws. He is astute in finding technical or procedural defects in the legal claims of persons asking the judiciary to protect their rights, but indifferent to lawless acts of government. The principal victims of his coldness toward human rights are those who are politically weak or powerless: prisoners, indigents, minors, noncitizens, the mentally deficient, and racial and ethnic minorities, especially black males. No recent Supreme Court Justice comes even close to Thomas in having such an atrocious history of ruling against claims made by black men. In snubbing those who seek the shelter of constitutional protections, Thomas frequently writes opinions that are scornful in tone or even mocking.

In articles published in Flagpole on Apr. 30, 2003; May 28, 2003; and Oct. 18, 2006, I examined at length Justice Thomas’ bizarre judicial opinions, many of them sick, sick, sick. Since then, Thomas continues to author opinions that are striking in their unfriendliness to individual rights. Examples:

• In Hein v. Freedom from Religion Foundation, 127 S.Ct. 2553 (2007), he opined that taxpayers could never challenge government expenditures in support of religion which violate the Bill of Rights, and advocated overruling the leading case allowing such challenges.

• In Wilkie v. Robbins, 127 S.Ct. 2588 (2007), he derided the leading case permitting citizens to sue for damages federal agents who violate their Fourth Amendment rights and urged it “should be limited to [its] precise circumstances.”

• In Morse v. Frederick, 127 S.Ct. 2618 (2007), he stated that “the Constitution does not afford students a right to free speech in public schools [!].” He also urged overruling the leading case holding that public school students do have free speech rights.

• In Snyder v. Louisiana, 128 S.Ct. 1203 (2008), he dissented from the Court’s decision to reverse a black man’s death sentence where there had been racial discrimination by the prosecutor in jury selection.

• In Baze v. Rees, 128 S.Ct. 1520 (2008), he and Justice Scalia alone rejected the view of the rest of the Court that a method of execution is unconstitutional if it poses a substantial risk of unnecessary pain, arguing instead that the method is unconstitutional only if it is deliberately designed to inflict unnecessary pain (even though it does inflict such pain).

Clarence Thomas may be a Supreme Court Justice, but he is an evil judge, one of the worst of modern times. His judicial career is disgraceful. His consistent support for attenuating our liberties is shocking. He has no empathy for the downtrodden or oppressed. He needs to be watched, not honored. It would be a horrible mistake for the UGA to become hipjoined with him. His infamy would stain the university.

When Michael Adams invited Clarence Thomas he manifested lamentable judgment. He also revealed defects in his olfactory organs. Evidently he cannot smell a rat.

Donald E. Wilkes, Jr.

Donald E. Wilkes, Jr. teaches in the UGA School of Law.