On October 7, 2022, the latest iteration of the Supreme Court’s class photo was posted on the internet for public consumption. The photo is described as historic for a few reasons, the most important being that it is the first photo to feature the inclusion of a black female Supreme Court Justice, Ketanji Brown Jackson. Mrs. Jackson is the shortest member of the judicial body and the least senior of the nine exalted arbiters of this nation’s laws.
Typically, the newest member of the court is expected to be one of the most reticent justices. Amy Coney Barret, the latest conservative appointed to the court in 2020, has fit the mold of the reticent justice, thereby inciting critical responses from some venerable court watchers. Justice Clarence Thomas, the second African-American male appointed to the highest court, holds the record for silence. He famously allowed ten years to pass before opting to break a self-imposed gag order.
As a casual follower of the court myself, I often wondered why Uncle Clarence choose to remain mute. At first, I thought he was being intentionally churlish, standoffish, and arrogant because he assumed that he knew enough facts about the cases put before his purview. On one particular day, I considered a more distressing possibility: What if Clarence Thomas refrained from asking questions because he did not have a proper grasp of the material. Could one of the most high-profile beneficiaries of affirmative action policy be in over his head? There had to be a viable reason for Thomas’s hesitancy to speak during oral arguments. I was determined to find out why.
In an article written for U.S. News in 2016, Author Jeff Nesbit explored Justice Thomas’s formative years, a period of his life that informed his method of interacting with the world. Clarence Thomas grew up extremely poor in Pin Point, Georgia, where residents spoke Gullah, a type of English common to descendants of southern slaves. As a child, Thomas spoke the language of his ancestors in his home. However, Mr. Thomas was dissuaded from speaking Gullah at school or in front of white people because it was thought of as a substandard version of the English language. Thomas stopped speaking his ancestral language in response to the pervasive threat of bullying by white students.
As a law student, Justice Thomas refrained from speaking at all, as he was fearful of his Afro-English creole dialect inflecting his delivery of the English language. So Justice Thomas decided that he was going to perfect his listening skills as a student. Thomas explained his preference for listening while sitting down for an interview with the New York Times in 2001:
“So I learned that, and I just started developing the habit of listening. And it just got to be, I did not ask questions in college or law school. For all those reasons and a few others, I just think that it is more in my nature to listen rather than to ask a bunch of questions. The only reason I could see for asking the questions is to let people know I have something to ask. That is not a legitimate reason in the Supreme Court of the United States.”
Color me skeptical of Justice Thomas’s explanation.
I watched Clarence Thomas speak before the Senate Judiciary Committee in 1991, when he was an embattled Supreme Court nominee accused of sexually harassing Anita Hill, a former subordinate. He spoke clearly and forcefully on his own behalf, categorically denying all of the charges lobbied against him. I heard no hint of Gullah inflecting his speech then.
I agree with Justice Thomas in one respect, as listening is an important and necessary skill for any presiding Supreme Court Justice to master. Still, he went ten whole years without asking a single question during oral arguments. Thomas considers himself as an unusually profound and free thinker, an inordinately special individual who sees beyond the surface area of any issue having to due with the law. However, I believe that questions are indicative of individual’s effort to look beyond the surface.
Questions are a reflection of a Supreme Court Justice’s mental acuity, a skill that requires effort, impartiality, and a nimbleness of the mind. If you were to ask me, I would say that Thomas’ refusal to ask any questions during oral arguments betrayed a lack of curiosity and a rigid obstinacy. Essentially, Thomas made up his mind about the merits of a case before oral arguments even commenced. A lawyer was wasting his/her time arguing a case before Thomas, the most rigid of the conservative justices.
Ketanji Brown Jackson became the first black woman to preside over oral arguments at the Supreme Court in early October. And unlike Justice Clarence Thomas, she participated forcefully, exhibiting a keen intelligence and a grasp of the issues inherent in each case. Experienced court watchers were blown away by Jackson’s performance, enthusiastically referring to the newest justice as brilliant, brave, and perceptive. Mark Joseph Stern, a court watcher for Slate magazine, compared Jackson’s style of questioning to that of Stephen Breyer, Jackson’s mentor and predecessor who served on the court for twenty-seven years:
“On Day One,” Stern wrote, “Ketanji Brown Jackson excelled at the skill Stephen Breyer never quite mastered.”
Essentially, Stern claimed that one day in to her tenure as a Supreme Court Justice, Jackson proved to be a better justice than Steven Breyer ever hoped to be.
Let us get back to Clarence for a bit.
Ketanji Brown Jackson is the antithesis of Clarence Thomas. Instead of slinking into the shadows and “observing” like Thomas, who is essentially a man crippled by childhood traumas, Jackson has proven that a consequential new justice can indeed listen and participate in oral arguments concurrently. As she has presided over her first few cases, Justice Jackson has contributed more than eleven thousand words to the public record, dwarfing Justice Thomas’s paltry ninety-six spoken words.
One of the first cases brought before Justice Jackson and other members of the court was Merrill v. Milligan. During oral arguments in this case, Edmund G. LaCour Jr., the conservative solicitor general for the historically racist state of Alabama, claimed that the U.S. Constitution’s fourteenth amendment gave Alabama politicians the right to gerrymander districts in a way that disenfranchised a significant percentage of black voters. LaCour, a graduate of Yale Law School, insisted that the framers of the constitution ignored race when creating this specific amendment. Justice Clarence Thomas and the other conservative justices who routinely ignore history and judicial precedent seemed to agree with LaCour. Justice Jackson was not going to allow LaCour’s fallacious argument go unchallenged:
“I don’t think we can assume that just because race is taken in account that that necessarily creates an equal protection problem.”
No response from the Solicitor General.
Justice Jackson continued:
“The Framers themselves adopted the Equal Protection Clause (embedded in the first section of the fourteenth amendment), the fourteenth amendment, the fifteenth amendment in a race-conscious way…they were, in fact, trying to ensure that people who had been discriminated against — the (Black) freedmen during the Reconstruction period — were actually brought equal to everyone else in society. I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the fourteenth amendment. And that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced the amendment said that unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedman. That’s not a race-neutral, or race-blind in terms of the remedy, and even more than that, I don’t think that the historical record establishes that the Founders believed that race neutrality or race blindness was required.”
Whew. That is a lot to process. However, Justice Jackson wasn’t finished delivering the verbal lashing to the abjectly forlorn solicitor general:
“They drafted the Civil Rights Act of 1866, which specifically stated that Black citizens would have the same civil rights enjoyed by white citizens…They recognized that there was unequal treatment, that people, based on their race, were being treated unequally and, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the fourteenth amendment came into play. It was drafted to give a foundation, a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less equal rights to white citizens. With that as the framing in the background, I’m trying to understand your position, that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that’s remedied — it’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the fourteenth amendment, given the history and background of the fourteenth amendment.”
I have eclectic tastes, reflected through the videos I choose to watch on YouTube. Recently, I have become obsessed with videos featuring Dr. Pimple Popper, the Asian dermatologist who became famous for treating unsightly growths that attack some human bodies. My sister thinks that I am a little unhinged for enjoying the grotesque exercise performed by Dr. Pimple Popper. I do not think I am deranged, but I am strangely satisfied after one of Dr. Lee’s patients gets much needed relief. Satisfied is how I felt after imagining the look on LaCour’s smug face as Judge Jackson spent four of the longest minutes of his life giving him a real education.
I have a question.
How did Mr. LaCour, an ostensibly educated man, not know this information about the 14th amendment? What prevents the other members of the conservative wing of the court from perusing information about the equal protection clause? I performed a quick google search and found a simple description of the amendment’s purpose. A fucking ten-year-old could have done the same.
Unfortunately, I think I have an unvarnished understanding of why the conservatives attending arguments on that day abdicated their basic duties. In their fervent quest to create a supposed “colorblind” society, conservatives are creating a distinctly inequitable world, where programs are designed to induce the strict control over an America that is becoming more diverse with the passing of each year. Justice Clarence Thomas, a black man reared in the deep and remote south before the advent of the civil rights movement, should be speaking out against encroaching white supremacy. However, since Justice Thomas refuses to do the right thing, it will be up to Justice Jackson to pick up the slack for the lazy and deluded Justice Thomas.
It seems that she is more than up to the task. Thank goodness for that.