Wednesday, February 27th, 2013
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White Conservatives On Supreme Court Wondering Whether We Need Laws That Allow Black People To Vote For Democrats

You know who makes Clarence Thomas sleepy? That Barack Obama, that's who!It's tough to keep black people in the South from voting when there are intrusive federal laws trying to let black people vote. Have we learned nothing from the blockbuster motion picture Lincoln? Yes, we have learned nothing, and also the Democrats appear to be on some kind of permanent demographic winning streak, say the old white conservatives on the Supreme Court. So it's probably time to put aside these outdated old laws. Why, racism ended a long, long time ago. Especially in the Deep South.

In today's loaded questioning, the four white conservative justices expressed sincere skepticism about the federal law protecting the rights of black voters in the South, and made it pretty clear that they intend to support a racist Alabama county's case for killing a central provision of the 1965 Voting Rights Act.

Clarence Thomas was utterly silent during today's questioning, as he is only allowed to speak once every seven years and the last time was only a month ago, an occasion he used to mumble an incompetent joke that was supposed to insult graduates of Yale, his alma mater. (The other justices talked over him, so there's not even a clear transcript of what he was attempting there, humor-wise.)

Clarence Thomas, what a singular individual! It must be a strange feeling to be the only black American (mutely) in favor of ending the Voting Rights Act, and to be sitting up there with your four white bosses who do the talking and tell you how to vote.

25 Comments / Post A Comment

thematt (#222,196)

So! In addition to being a big Ken Layne fan, I'm a liberal lawyer and I want the Voting Rights Act upheld and I disagree with Clarence Thomas on almost everything and I don't want to defend his politics or his legal reasoning or his personality or anything else.

But! He is really not a puppet of Scalia et al. He actually has a different constitutional philosophy from the rest of the conservatives; he votes differently from them sometimes and often writes separately because he comes from different principles. Your tastes may vary but I find him far more intellectually consistent and just plain smart than, for instance, Scalia, whose reputation for brilliance rests mainly on his being a blowhard. You can judge for yourself by reading his many opinions; I suspect you have not.

As for his not talking: Everyone knows that oral argument is always a waste of time, and Thomas is just *right* that the justices who do ask questions are grandstanding, and not actually trying to get information, persuade, or be persuaded.

I'll also hazard a guess that you have not read many opinions by, for instance, Sam Alito, nor do you have a great sense of how often he talks during oral arguments or how often he votes independently from, e.g., Scalia. (Because: Sam Alito is white, so no one is invested in thinking he's dumb!)

This brings me to my point, which is that describing Thomas as "sitting up there with your four white bosses who do the talking and tell you how to vote" is not subversively anti-racist or cleverly reverse-racist or whatever you think it is. It's just dumb, and racist, and also dumb. You're better than that.

Scum (#1,847)

@thematt On what evidence do you declare that Ken Layne is better than what he has written here? The man has never been anything other tribalist hack who has made a career translating think progress blog posts in to witless snark. He doesn't give a shit about the law and he doesn't give a shit about whether his writing on it is interesting, fair, or accurate.

Lucky Jim (#207,189)

Matt is right on Thomas's independence. The general cluelessness (the proud obliviousness) of this post makes you look like both an asshat and an idiot. So, you know, kudos on the Exacta. And, for the record, self-regarding ideology isn't a surrogate for intelligence or skepticism. Maybe you should leave the heavy lifting to others.

Earnest Prole (#241,281)

What tired old racial stereotypes — blah blah blah Thomas is stoopid blah blah blah. If I wanted a stock piece on how Thomas is only three-fifths of a Supreme Court Justice, I’d go to salon.com.

stuffisthings (#1,352)

Yeah jesus Ken, don't you know that Thomas arrives at his vile, Dickensian decisions through a completely different process of legal wankery and self-justification from the white conservatives on the court? So when the 2nd African American Supreme Court Justice votes to strike down a key provision of Voting Rights Act, he's doing it on his own terms. I think that's very important for the soon to be disenfranchised Alabama voters to know, don't you?

stuffisthings (#1,352)

@stuffisthings I'm sure Thurgood Marshall is smiling down from heaven right now thinking "Well, the man sure does have his own unique constitutional philosophy, I'll give him that."

Werner Hedgehog (#11,170)

@stuffisthings Thomas will give you a shit sandwich, too, but on rye instead of whole wheat!

deepomega (#1,720)

@stuffisthings This is an outcome-based understanding of the Supreme Court. You literally do not care what arguments are made, only what the outcomes are. That's fine, but that is exactly the sort of nonsense that Alito et al do, and the sort of of nonsense that Thomas doesn't do.

deepomega (#1,720)

@stuffisthings Put another way, disagreeing with the political ramifications of a supreme court decision has nothing to do with whether or not that decision should be made.

ARS (#241,981)

@stuffisthings it may not matter in the end to voters, but it certainly reflects on you as to which of the theories you subscribe to:

1) Thomas is an archconservative shitlord with appalling political views and he should be vilified for them.
2) Thomas is a meek puppet, sitting mutely during oral arguments because he is in so far over his head he doesn't know what's going on, and behind closed doors he waits for Boss Scalia's word to tell him which way to vote, yes suh, right away suh.

(btw it's the former, and if one was not sure, then maybe one should never write anything about the Supreme Court again)

Sean Lai (#14,158)

@deepomega @deepomega Eh – it is important for judges and lawyers to take legal argumentation seriously because stringing together words in a plausibly consistent way is the source of their (our) power, but everyone knows that politics and other human factors play an outsized role in judicial decision-making. It's pretty well-studied (an example, which provides lots of citations to other similar articles in the field: http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1068&cs).

It is needlessly naive for someone whose life is not bound up directly in the administration of law to pretend that law and politics are separate.

With that said, it is true that calling Thomas a puppet of Scalia is both factually wrong and kinda racist.

stuffisthings (#1,352)

@Andrew Stine@twitter I believe Scalia and Thomas both carry water for the conservative movement and will contort their legal arguments in whatever way necessary to achieve those political ends. I also believe Thomas has a weird internalized-racism thing about affirmative action, that he made his career providing intellectual cover for racist beliefs and policies, and that there is, in fact, something uniquely and especially reprehensible about a black man from the Deep South voting to dismantle the Voting Rights Act.

I don't think Scalia, like, literally does his homework for him, but he votes in favor of a political movement that benefits all the young Scalias out there while harming the young Thomases. What does that make me??

rcr (#236,580)

@Sean Lai Would you mind re-posting that link and/or listing the author and title of that article so I can google it? (I'd be interested to read it but that link's not working for me. It might be the question-mark?)

Sean Lai (#14,158)

@rcr It's Brian Lammon, "What we talk about when we talk about ideology," 83 St. John's Law Review 1 (Winter 2009). I posted that one both because I was able to find it online quickly and because it pushes back a little on the hard legal realism – it says, sure, the human factor matters a lot in judicial decision-making, but does that mean it's politics all the way down? And the author kind of problematizes this in a smart way. I actually disagree with the author's thesis that the human factor is more idiosyncratic (Judge X didn't eat lunch today and he's grumpy) than political (Judge X is a conservative and hates flag-burning), but I thought he gave a pretty fair presentation of the subject generally.

There's also a ton of citations to other empirical studies showing "bias" in judicial decision-making so you can use this article as a jumping off point if you're interested in the subject.

rcr (#236,580)

@Sean Lai Much obliged (caveats and all)!

barnhouse (#1,326)

We can be pretty sure how Thomas will rule, given his record. He might as well be taking orders from the Tea Party. This is what Ken Layne's remarks suggested to me. (Thomas's book indicates very clearly that his thinking about racial matters is clearly super twisted, as well.)

I am quite willing to imagine that you ever-so-wise legal scholars understand these deep matters better than us poor hacks do. But surely Layne's objections to the party-line-hewing of Thomas are on very solid ground. Yes, they came with a little hyperbole, as any halfway perspicacious reader of Layne would expect. That doesn't make him a racist.

Sean Lai (#14,158)

@barnhouse This is way off topic now and I hesitate even to bring it up for fear of fanning the flames, but I think it's rarely useful to talk about who is and isn't "a racist" as opposed to whether some statement is racist or plays into a larger racist narrative. Jay Smooth lays it out well, I think: https://www.youtube.com/watch?v=b0Ti-gkJiXc

So just to be clear, I think Ken Layne is probably an awesome dude and not secretly a Klansman or something, and at the same time I believe that it's kinda racist to say that Thomas has four white bosses who tell him how to vote rather than stating that he's a shitheel and an oppressor on his own terms.

barnhouse (#1,326)

@Sean Lai Eh, I don't mind a little flame-fanning, and it's not off-topic at all. It is the topic.

It's clear, though, that we see the final paragraph of Layne's piece very differently. I see him remarking in his habitual voice on the patent absurdity of this spectacle of Clarence Thomas's position on the Voting Rights Act; you are "taking it seriously." Which, I'm not persuaded by your view, but fair enough.

I agree with you entirely that "it's rarely useful to talk about who is and isn't 'a racist'", and will go you one better: it's rarely useful to sling accusations of racist speech around. Because I am looking at this from what you might call a more literary pov, I don't read it as "kinda racist" for Layne to say that Thomas has "four white bosses who do the talking." I read it as the enraged howl of an American citizen who has to endure the insane bullshit we are going through. It's excessive, and it's angry, and it's also what it looks like to a furious American citizen who is very likely going to have to live through the (continuing!) evisceration of the values we grew up honoring.

thematt (#222,196)

@barnhouse Imagine if when Obama was a senator, Rush Limbaugh or whoever had said "well we know Obama will vote for [liberal thing], because his white bosses will tell him what to do." Wouldn't you be troubled? Wouldn't you ask, "well, why is he singling out Obama as the one who will follow orders rather than having his own agency?" Wouldn't you ask "why does he think that the other senators, who have the same rank as him, are Obama's *bosses*?" Wouldn't you wonder why he's putting so much emphasis on those "bosses" being *white*?

Wouldn't the only possible conclusion be "because he is being racist"? Wouldn't you be unimpressed by defenses like "literary pov" and "enraged howl" and "it's excessive, and it's angry"?

Why isn't that the conclusion here?

deepomega (#1,720)

@thematt Because Ken Layne is, a priori, a good guy. Team Red/Team Blue!

barnhouse (#1,326)

@thematt Here's why. Obama's career is in no way so easily pigeonholed as that of Clarence Thomas, who has failed to deviate from ideological lines–conservative lines, and indeed racist lines, as Layne rightly contends, throughout his Supreme Court career. However clever his reasoning!! Anyone may tell in advance how he will rule. It's the predictability of Thomas's positions that is at issue here.

Believe it or not, if Obama's votes had all (ALL) been as resolutely anti-black as Thomas's have been, then yes: I would sympathize completely with Limbaugh's fantasy remarks that you suggested up there, as a legitimate expression of scorn. Indeed I do agree with Limbaugh, now and then. Even a stopped clock, etc.

PoignancySelz (#238,693)

Phew, thank Zeus that Ken didn't call Thomas a male chauvinist pig.

Lucky Jim (#207,189)

I can't stand Thomas. I disagree w/ his approach, I disagree with his politics, and I don't particularly care for his personality. By natural extension, I disagree with his outcomes – but he's among the less "political" conservative judges on the bench, in terms of bending his legal theories to meet ideological ends. It just so happens that his legal theories are so retrograde as to almost (but only almost) guarantee a backward outcome. Unlike, say, Scalia, who a close reading over the years reveals to be virtually without principle, hiding behind the veneer of an "objective" textualism while glibly following his shit-head political instincts. They may come out on the same side. But that's irrelevant. Frankly, of the ten SCOTUS clerks or so that I know, Thomas's have been among the brightest and most rigorous. Sadly applied to said retrograde outcomes, however.

hidflect (#199,944)

Regardless of his acumen, Uncle Tom can be counted on to make the right decision for his Masters, whatever convoluted logic he has to spew to get there.

Scum (#1,847)

Ken Layne, you dog. Such arrogance from a man whose whole work in life has been to fashion himself in to one of a million free roaming rhetorical anuses from which the many tentacle like colons of the leftist hivemind connect in order to shit out their propaganda.

How does it feel to live in the shadow of Ana Marie Cox? Cramped and miserable? How cramped and miserable? tell me you lowly little blogger, tell me what it's like to be less talented than a human anal sex joke. Make it 1500 words and i'll give you a donation to your paypal account. You do solicit donations over paypal for those who are appreciative of your work don't you? Of course you do, blogger.

Clarence Thomas is the only genuine legal mind on that despicable body that out of habit we still refer to as a Supreme Court. If you really want to see a hack in action you should read Sotomayor's cringe worthy performance at oral questioning where she once again demonstrated why even many liberals were embarrassed when she was nominated. This woman does not understand the most basic of legal concepts, she doesnt simply ignore them when it suits her like the others, she genuinely doesn't understand them, and yet she is a supreme court justice. Her claim that the federal government is allowed to arbitrarily circumscribe sovereign powers of certain states because states are 'different', and that the legal principle involved was the same as that which allowed the federal government to grant states financial relief, was astonishing in the sheer scale of its stupidity. If I had been making the case before the court and was asked such a 'question' I would have laughed in her face.

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