The Dead Letter of the Law

Three good things might be said about the fortnight which just ended: 1) It’s over; 2) We won’t have to go through it again; 3) It may help clarify the nature of the power structure in our much-vaunted, supposedly democratic republic.

Two statements are sufficient to sum up how most people in this country stand in relation to our justice system: they are protected by it and unrestrained; or, they are restrained by it and unprotected.

At the very apex of this justice system, doing his level best to assure that it stays the way it is—or becomes even more unjust—sits Clarence Thomas, on a rich man’s bench, smoking an expensive cigar.

Strictly speaking, the statement above is inaccurate. As it is currently constituted, the Supreme Court is often called “The Roberts Court.” That honorific is applied because John Roberts is the Chief Justice—a trifling technicality.

Thomas is the oldest member of the Court, and the longest-serving, with a decade and a half of seniority over Roberts. More to the point, he has the boldness and audacity to leave Roberts in the dust. Thomas acts—or, as in the case of filing financial disclosures, fails to act—and Roberts struggles to keep up.

Thomas is the second Black Justice to serve on the Supreme Court. The first was Thurgood Marshall. He had been appointed by President Lyndon Johnson after a long and stellar career as a civil rights lawyer. “I was appointed to a life term, and I intend to serve it,” he sometimes said. Announced his retirement on June 27, 1991, he said he was only leaving because “I’m getting old and I’m coming apart!”

Just four days later, an eager President George Herbert [Hoover] Walker Bush nominated Marshall’s antithesis.

“In retiring when he did, Marshall very reluctantly gave the opportunity to name his replacement to a man he truly scorned and had publicly ridiculed on a major television network news show, George Bush. On Primetime Live, he told his interviewer, Sam Donaldson, what he thought of the President: ‘Let me put it this way. It’s said that if you can’t say something good about a dead person, don’t say it. Well, I consider [Bush] dead.” When Donaldson, incredulously, said, ‘He’s still alive, Mr. Justice,’ Marshall said: ‘You’re damn right he is! I just don’t understand it.’” *

Marshall had just cause. Bush’s 1988 presidential run set a new, low standard for race-based, dog whistle politics. Speaking of Bush’s Democratic opponent, Michael Dukakis, Bush’s campaign manager, Lee Atwater, vowed to “strip the bark off the little bastard” and “make Willie Horton [a Black convicted murderer] his running mate.”

In 1987, as Bush and Atwater sought to use race to their advantage, Marshall delivered a speech commemorating the bicentennial of the drafting of the U.S. Constitution. He said the government it devised “was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”

Its framers, he said, “could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. ‘We the people’ no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice’ and ‘equality,’ and who strived to better them.”

Marshall’s replacement appears to disagree. He seems to believe the nation should hold itself bound to the intentions of rich white men, many of them slaveholders, who have been dead for centuries.

Further, he claims to be capable of divining those intentions himself. This, even after he has demonstrated that he either cannot, or will not, correctly complete a financial disclosure form.

In 2011, Thomas was obliged correct many such forms, after they were exposed by Common Cause, most involving his wife Ginnie. As she pulled in six-figure incomes from right wing institutions, Thomas was reporting her income as “None.”

Then, a week ago yesterday, all those blotches on Thomas’ escutcheon suddenly seemed to pale, in light of a report from ProPublica:

“For more than two decades, Thomas has accepted luxury trips virtually every year from [Dallas businessman Harlan Crow] without disclosing them… he has vacationed on Crow’s superyacht around the globe… flies on Crow’s Bombardier Global 5000 jet… gone with Crow to the Bohemian Grove… to Crow’s sprawling ranch in East Texas… [and] spends about a week every summer at Crow’s private resort in the Adirondacks.”

A week later we learned that Crow “was in an unusual position: He now owned the house where the justice’s elderly mother was living.”

Thomas, protected and unrestrained, enjoys Crow’s cigars; President Biden is restrained from appointing judges because Sen. Diane Feinstein has shingles.

Longtime readers know of our skepticism regarding the efficacy of military solutions. That comes in no small part from direct personal experience. Violence organized in service of the state makes perverted justice look benign in comparison.

The extreme situations which wars create do offer a unique window, though, into what humans may accomplish when truly challenged.

Considering everything that’s at stake right now—which is to say, everything: droughts, deluges, atmospheric catastrophes in general, mass extinction, famine, pollution, economic chaos, the resurgent threat of nuclear war—this seems as good time a time as any to draw upon the spirit of Marine Col. Lewis Burwell “Chesty” Puller at the Chosin Reservoir, Korea, 1950:

“We’ve been looking for the enemy for some time now. We’ve finally found him. We’re surrounded. That simplifies things.”

* A Defiant Life: Thurgood Marshall and the Persistence of Racism in America, by Howard Ball, (1998).

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