The Transition (Marshall to Thomas)

Justice Thomas, in mine and various other people's opinion, has repeatedly violated his duty to serve in "good behavior." He should resign. What should happen, however, is not what always happens. 

Either way, a serious consideration of his life and beliefs is helpful. Even if you really don't like him.  The Enigma of Clarence Thomas tries to do this and overall, I think does a good job.  I linked to my extended book analysis.  It is not meant to be an agreement with all that is stated.

The Transition: Interpreting Justice from Thurgood Marshall to Clarence Thomas by Daniel Kiel (who doesn't reference the book directly, though it's cited in the bibliography) is a recent book that does a more limited job.  It also provides some comparison to his predecessor.  To cut to the chase, it was okay, but I felt it somewhat lacking. It also covered old ground, at least for me personally. Not sure how much it adds, but it is probably useful.

Both authors are white and likely to lean more toward Thurgood Marshall.  Kiel explains how he worked to keep the "Payne" in Payne v. Tennessee, Marshall's final full dissent (he wrote at least one over the summer involving the death penalty as well, the "shadow docket" involved). Kiel's effort happened later but, in the end, Payne was kept life.  Decadades after Payne and Marshall's death a few years later.

[This aside provides a few lessons but will note two.  First, Supreme Court opinions often are not the end of the line for the people involved.  Second, death penalty cases linger on a long time.  Payne himself was born in 1967.  He's not even sixty years old even after all that.  Wikipedia notes he will now be eligible for parole in 2027.  Forty years in prison is enough.]

The book focuses on race and education.  This is fine since the book provides a basic case study.  We can tell the different visions of each without going into each area of their jurisprudence.  Something is lost in the process, I think, since other areas are helpful.  But, it will do.

I'm left with repeatedly feeling that not enough was said.  Given Clarence Thomas' views, his second wife is rather important.  What happened with his first wife?  Why did they divorce?  How did his interracial marriage factor into his views, including his argument that he supporting justice for black people but in an individualized way?  His grandfather was very important to him.  What happened to his son?  

We also get the general misleading idea that conservatives are suspicious of government.  The fact that "conservatives" are involved, not libertarians, is suggested at times.  But, conservatives do not oppose all government power.  For conservative ends, they think the power is appropriate.  This is not hypocritical except to the degree they use libertarian language selectively.  "I thought they were for less government." No. Duh.

The complexity of the situation is useful to remember. Take Plessy v. Ferguson and Harlan's dissent.  Harlan did not oppose all racial classifications.  It's rather important to remember this.  He was not against school segregation (accept forced segregation of a private college).  He went along without comment in Pace v. Alabama, which provided higher punishment for interracial fornication.  This was in his mind different, since it was social discrimination, as compared to public accommodations. 

A few sentences could have addressed this.  The same applies to Metro Broadcasting v. FCC, when the liberals managed in 1990 to get a 5-4 opinion supporting a race conscious federal program.  An important aspect of the majority opinion, not present in Adarand (involving construction), is diversity.  This is rather notable since Justice Powell focused on that though by then he wasn't on the Court (Stevens switched, though he denied it).

The book just cites the cases like there was no difference between them.  We do get some interesting stuff about how Marshall trusted governmental institutions, so much that in Cooper v. Aaron, he seemed as concerned about the integrity of the system than the children.  Again, it might have been helpful to note that they directly weren't helped much there.  

The author cites a black high school student Thomas invited to his chambers in the 1990s.  It might have been useful for us to know what the heck happened to the guy, especially since it fits in the theme of the appropriate strategy to address the needs of black students.  And, oh my god, the guy wrote a book!  How can you not mention it? Head/desk.

We can the usual biographical materials (again maybe provide a bit more) of both.  There is a good debate to have about the limits of both of their paths. Thurgood Marshall had a ridiculously naive idea that winning Brown would lead to desegregation very quickly (unless he blatantly lied to the Supreme Court, which is not what I have heard).  

It is also touched upon (not much though) how he opposed direct action. Again, a questionable path.  Might both of them not be big fans of Black Lives Matter protests?   Anyway, at some point, the book didn't really tell me anything new about his views, and we don't get a full look of them either.  Why just one passing comment about Kagan?  Why no reference to Sotomayor's position on affirmative action (other than one bit about her school experience to compare to Thomas)?  Or reference to Fisher.

Thomas' view, at least as expressed, comes off as dubious too.  The book in my reading suggests his views was largely motivated by his autobiography and personal hobbyhorses.  It does provide some honest attempts to have him tell his side of the story.  A self-help approach is an aspect of the black experience.  But, his version is mixed in with various problems (again, this would have been shown more if we had a more complete view of how he does repeatedly trust government power).

I think this book is a good try in various ways, but I was left wanting.