For the [last several weeks there has been one accusation after another about the questionable behavior and activity associated with Supreme Court Justice, Clarence Thomas. Obviously, he has been the beneficiary of multiple “perks” provided by multi billionaire, Harlan Crow of Dallas. Incidentally, to the best of my knowledge there is no familial relationship between Harlan Crow and me. Traveling on yachts and planes, being wined and dined at private quarters, both in Dallas and in the Adirondack Mountains of New York, provides a picture of opulence and privilege that few have or ever will understand or enjoy. It is also known that Crow purchased the boyhood home of Thomas with the intent to make it into a museum honoring the life and accomplishments of the Justice. Additionally, it has come to light that Crow, along with another benefactor, paid the lucrative tuition for , “Thomas’s grandnephew to attend prestigious boarding schools in Georgia and Virginia. As Richard Durbin (D-Ill) commented “that the tangled web around Clarence Thomas just gets worse by the day”.
Justice Thomas is somewhat of an outlier even in the current Court’s composition. As described in Jeffery Toobin’s book, Nine: Inside the Secret World of the Supreme Court, Thomas rarely asks any question of litigants and has, typically. not been given major decisions to write on behalf of the majority. It is not uncommon for him to include his lone opinion on a case rather than be party to the language of the majority. Thomas describes himself as an Originalist in interpreting the words and meanings of those words imbedded in the country’s constitution. An Originalist is one who maintains that the interpretation must be as the framers of the constitution meant them to be. How one knows, explicitly, what was meant has always been a bit of a mystery to me.
As the actions and behavior of Justice Thomas is considered, there is an apparent disregard for ethical decision-making by him. He seems to believe that he is above the law and is not required to report the gifts and other amenities bestowed on him. The Supreme Court is the only federal body that “polices” itself on matters of “appropriateness”. All federal employees must report any gifts or amenities that exceed a certain amount and do so on an annual basis. Interestingly, Thomas was reporting some of what he was given, but then stopped doing so. He claims that he did not understand that he had to make such a report. This begs the question of his integrity and adherence to ethical behavior.
By contrast to what has been noted about Justice Thomas, let me highlight a Federal District Judge who was the epitome of integrity, honesty, and ethical behavior. Frank M. Johnson, the Federal District Judge for the Middle District of Alabama, is the person that I became acquainted with shortly after joining the faculty at the University of Alabama. A colleague of mine, Charlie Prigmore, and I were talking one day about the impact that Judge Johnson had on social policy, not just in Alabama, but nationally. We decided to work on a book to highlight all that he had done. We spent the next two-three years interviewing individuals who knew the Judge and read countless news articles that were kept in the Judge’s office in Montgomery. I spent more than one evening in the homes of those who grew up with the Judge in Winston County Alabama. Winston County was known as the “Free State of Winston” and when Alabama ceded from the union Winston County sought to cede from Alabama. During the Civil War there were more union soldiers from Winston County than those who fought for the confederacy. Additionally, Winston County was an integral part of the underground railroad for those seeking to escape slavery. Judge Johnson’s father was the Probate Judge of the county and was also the lone Republican representative in the state legislature.
I recall discussions with the Judge about his decisions and he often stated that he was simply interpreting the constitution. He would say that he did not want to run the prisons, or the mental health facilities or the state troopers, but he had to make decisions about all these areas. One of the most seminal cases during his time on the bench was the Wyatt v. Stickney case that dealt with the mental health facilities in the state. Without going into detail, the most significant aspect of the case was the decision of the Judge, that those who are involuntarily committed to the Department of Mental Health, had a “right to treatment”. He arrived at this decision based on the wording of the 14th Amendment which provides for Equal Protection Under the Laws. There was much more to that decision, but that was a landmark contribution to mental health practice throughout the county. Similarly, he found that prisoners in Alabama were subject to “Cruel and Unusual Punishments” which violated the provisions of the 8th Amendment. The number of cases that he ruled on or was a member of a three Judge panel are too numerous to go into at this time. I mention this about “The Judge” because it points out a sharp contrast between the two judges being discussed. There was never any question about his integrity nor his adherence to ethical behavior. Incidentally, Judge Johnson paid the price over and over for his decisions. His home was bombed as was the home of his mother. A cross was burned in the front yard of his mother’s home and if he came into church and sat in a pew where others were sitting, they would get up and move. We did have a third person join our project, Wayne Greenhaw, and had a contract with Prentice-Hall publishers. The title of the book was The New G-Man. President Carter had appointed him to be the Director of the FBI, but a heart condition derailed the appointment as well as the book.
It is not a mystery that Judges do have a great deal of influence in our society. This is especially true regarding the Supreme Court. Back in the 1970s Bob Woodward and Scott Armstrong compiled a comprehensive expose of the workings of the Supreme Court back at that point in time. The book that they wrote, The Brethren: Inside the Supreme Court, described in detail how decisions were made and how various Justices were influenced by their own beliefs and legal philosophy. Decisions were written on napkins in restaurants, deals were made to gain support for a decision with the promise of payback of a pet decision of the other person. The belief that the Supreme Court was the last bastion of objectivity and fairness was shattered.
A person sitting as a judge at any level is supposed to be impartial and open to discussion of various points in a specific act of litigation. Yet, judges are the product of their own background and how that background has shaped their beliefs, values, biases, etc. To argue otherwise is laughable and absurd. In an article in The New York Times, it was noted that Chief Justice Roberts has argued publicly that the Supreme Court is not a part of the country’s polarized political environment. In the same article Justice Amy Coney Barrett was quoted as stating that neither she nor her colleagues were a bunch of political hacks. Further, the article also included a statement by Justice Thomas that the justices do not decide cases based on personal preference. All these words of denial may sound appropriate, but they are simply not true. Let me make a point from my experience. My first professional employment following graduate school was as a Juvenile Probation Officer in Indianapolis. The court I worked in had one elected judge and seven referees who acted as judges. As a Probation Officer I would shop around for a hearing officer who would support my position and I knew the predilections of each individual. Popeye is quoted as saying, “I yam what I yam and that’s what I yam”. We are all who we are by virtue of a myriad of life experiences.
Currently, the Supreme Court is taking a very active role in society, but it has done so in the past as well. Back in the Warren court, the liberal side had the votes and now the conservatives do. It is my belief that as Justice Sandra Day O’Conner stated, the constitution is a living document and must be viewed in the context of where society is at a point in time. Indeed, this position is supported by Frank C. Huntington in his book, Making it Up as They Go Along: Stories the Supreme Court Tells About the Constitution. We’ll see where all this leads us.