' Doubting Thomas - Paul Greenberg


Doubting Thomas

Paul Greenberg

By Paul Greenberg

Published August 6, 2015

"I disagree profoundly with Justice Thomas's views on many questions, but if you believe that Supreme Court decision-making should be a contest of ideas rather than power, so that the measure of a justice's greatness is his contribution to new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest justice."

--Tom Goldstein, who teaches at Harvard Law School and publishes SCOTUSblog.

"Thomas was a young man when he was appointed to the Court -- he was 43. He arrived utterly fatigued from the months of personal invective and attacks on his character, but he quickly got his second wind, filing powerful and principled dissents within months of his confirmation. He established his pace early on, and through the years he has steadily and confidently lengthened his stride."

--Ralph Rossom, professor of political philosophy at Claremont McKenna College.

It was big news when the Supreme Court of the United States recognized the constitutional right of same-sex couples to marry. In its 5-to-4 decision in Obergefell v. Hodges, the high court kept returning to the same theme: The right to marry is essential to human dignity, and therefore must be established in law. The author of the 5-to-4 decision, Justice Anthony M. Kennedy, referred to a right to dignity no fewer than five times in his opinion, and the lawyers arguing this case before him repeatedly invoked it.

According to the solicitor general of the United States: "The opportunity to marry is integral to human dignity. Excluding gay and lesbian couples from marriage demeans the dignity of these couples."

Only one justice, the Hon. Clarence Thomas, delved deeply into the history and philosophy behind the concept that government can confer dignity on same-sex couples -- or on anybody else for that matter. Instead, he pointed to a different Source as the origin of our dignity as human beings. And concluded:

"Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that 'all men are created equal' and 'endowed by their Creator with certain unalienable Rights,' they referred to a vision of mankind in which all humans are created in the image of God and therefore (are) of inherent worth. That vision is the foundation upon which this Nation was built.

"The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away."

Mr. Justice Thomas did not draw solely on philosophy or logic or the history of ideas to reach his conclusion in Obergefell. The only black justice on the court, he had to have been influenced by his personal history as a black man growing up in the Jim Crow era, specifically in segregated Georgia. It was a time and place when racial segregation was not challenged but supported by all the machinery and machinations of state government. How could he or anyone else who'd been exposed to that experience believe his rights and dignity derive from government?

Nor has any other justice of this court been exposed to quite the mixture of contempt and condescension that Mr. Justice Thomas has learned to live with since even before his confirmation. It's hard to believe that simple racial prejudice doesn't explain some of the invective he's been subjected to over the years. As when one celebrity critic -- actor and activist George Takei of the "liberal" left -- referred to him as a "clown in blackface."

Clarence Thomas remains unbowed, just as he emerged from the elevated lynching that was his confirmation hearing. Instead of kowtowing to his inquisitors on that congressional committee, he defied them -- and came out swinging when he was finally allowed to tell his side of the story. And earned the admiration of fair-minded Americans who had the patience to hear him out.

Justice Thomas knows the history of the civil-rights movement, which may have reached its height during his youthful years but goes all the way back to Booker T. Washington and Martin Luther King and, before them, to the eloquent black abolitionist of the previous century, Frederick Douglass.

Brother Thomas would quote Douglass at the conclusion of his dissent in Obergefell: "They cannot degrade Frederick Douglass," the great orator and fugitive slave said of his oppressors. "The soul that is within me no man can degrade. I am not the one that is being degraded on account of this treatment, but those who are inflicting it upon me."

Amen, hallelujah, and Praise the Lord who did not wait for government to give us dignity. Or we might be waiting still.

Here is what one of Justice Thomas' admirers -- Dan McLaughlin in The Weekly Standard -- had to say about him, unfashionable as it may be in sophisticated circles to give this Doubting Thomas his due:

"Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly. Two strategies are available to a citizen confronted by such a government. One is to keep for himself as large a space as possible free of the government, in which to exercise true liberty. The other is to insist on the punctilious observance of the letter of the law. The whims of administrative agencies and the discretion of judges to fashion new rights and rules according to their own policy preferences threaten both of these strategies....

"It is perhaps a supreme irony, but a fitting one, that the man most concerned with keeping alight the flame of these old concepts of liberty and dignity is the justice of the Supreme Court who grew up under a government that wished to accord him neither liberty nor dignity."

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Paul Greenberg is the Pulitzer-winning editorial page editor of the Arkansas Democrat-Gazette.