Published on Thursday, July 3, 2003 by CommonDreams.org
In 1789, Thomas Jefferson wrote a note to James Madison about the future possibility of a president who didn't understand the principles on which America was founded. "The tyranny of the legislatures is the most formidable dread at present," he wrote, "and will be for many years. That of the executive will come in its turn, but it will be at a remote period."
The new so-called conservatives claim the power to violate citizens' private lives because, they say, there is no "right to privacy" in the United States. In that, they overlook the history of America and the Declaration of Independence, signed on July 4, 1776. And they miss a basic understanding of the evolution of language in the United States.
Of course, they're not the first to have made these mistakes.
When I was a teenager, it was a felony in parts of the United States to advise a married couple about how to practice birth control. This ended in 1965, in the Griswold v. Connecticut case before the U.S. Supreme Court, when the Court reversed the criminal conviction of a Planned Parenthood program director who had discussed contraception with a married couple, and of a doctor who had prescribed a birth-control device to them.
The majority of the Court summarized their ruling by saying, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy...."
However, Supreme Court Justice Potter Stewart disagreed back in 1965, saying that he could find no "right of privacy" in the Constitution of the United States. Using his logic, under the laws of the day, the couple in question could themselves have been sent to prison for using birth control in their own bedroom.
As Justice Stewart wrote in his dissent in the case, "Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone.... What provision of the Constitution, then, makes this state law invalid? The Court says it is the right of privacy 'created by several fundamental constitutional guarantees.' With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court."
In that view of American law, Justice Clarence Thomas - George W. Bush's "role model" for future Supreme Court nominees - agrees.
In his dissent in the Texas sodomy case, Thomas wrote, "just like Justice Stewart, I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,' or as the Court terms it today, the 'liberty of the person both in its spatial and more transcendent dimensions.'"
Echoing Thomas' so-called conservative perspective, Rush Limbaugh said on his radio program on June 27, 2003, "There is no right to privacy specifically enumerated in the Constitution." Jerry Falwell similarly agreed on Fox News.
Limbaugh and Thomas may soon also point out to us that the Constitution doesn't specifically grant a right to marry, and thus license that function exclusively to, say, Falwell. The Constitution doesn't grant a right to eat, or to read, or to have children. Yet do we doubt these are rights we hold?
The simple reality is that there are many "rights" that are not specified in the Constitution, but which we daily enjoy and cannot be taken away from us by the government. But if that's the case, Bush and Thomas would say, why doesn't the Constitution list those rights in the Bill of Rights?
The reason is simple: the Constitution wasn't written as a vehicle to grant us rights. We don't derive our rights from the constitution.
Rather, in the minds of the Founders, human rights are inalienable - inseparable - from humans themselves. We are born with rights by simple fact of existence, as defined by John Locke and written by Thomas Jefferson in the Declaration of Independence. "We hold these truths to be self-evident," the Founders wrote. Humans are "endowed by their creator with certain inalienable rights...." These rights are clear and obvious, the Founders repeatedly said. They belong to us from birth, as opposed to something the Constitution must hand to us, and are more ancient than any government.
The job of the Constitution was to define a legal framework within which government and business could operate in a manner least intrusive to "We, The People," who are the holders of the rights. In its first draft it didn't even have a Bill of Rights, because the Framers felt it wasn't necessary to state out loud that human rights came from something greater, larger, and older than government. They all knew this; it was simply obvious.
Thomas Jefferson, however, foreseeing a time when the concepts fundamental to the founding of America were forgotten, strongly argued that the Constitution must contain at least a rudimentary statement of rights, laying out those main areas where government could, at the minimum, never intrude into our lives.
Jefferson was in France when Madison sent him the first draft of the new Constitution, and he wrote back on December 20, 1787, that, "I will now tell you what I do not like [about the new constitution]. First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land..."
There had already been discussion among the delegates to the constitutional convention about whether they should go to the trouble of enumerating the human rights they had held up to the world with the Declaration of Independence, but the consensus had been that it was unnecessary.
The Declaration, the writings of many of the Founders and Framers, and no shortage of other documents made amply clear the Founders' and the Framers' sentiments that human rights were solely the province of humans, and that governments don't grant rights but, rather, that in a constitutionally limited democratic republic We, The People - the holders of the rights - grant to our governments whatever privileges our government may need to function (while keeping the rights for ourselves).
This is the fundamental difference between kingdoms, theocracies, feudal states, and a democratic republic. In the former three, people must beg for their rights at the pleasure of the rulers. In the latter, the republic derives its legitimacy from the people, the sole holders of rights.
Although the purpose of the Constitution wasn't to grant rights to people, as kings and popes and feudal lords had done in the past, Jefferson felt it was necessary to be absolutely unambiguous about the solid reality that humans are holders of rights, and that in no way was the Constitution or the new government of the United States to ever be allowed to infringe on those rights. The Constitution's authors well understood this, Jefferson noted, having just fought a revolutionary war to gain their "self-evident" and "inalienable" rights from King George, but he also felt strongly that both the common person of the day and future generations must be reminded of this reality.
"To say, as Mr. Wilson does, that a bill of rights was not necessary," Jefferson wrote in his December 1787 letter to Madison, "...might do for the audience to which it was addressed..." But it wasn't enough. Human rights may be well known to those writing the constitution, they may all agree that governments may not infringe on human rights, but, nonetheless, we must not trust that simply inferring this truth is enough for future generations who have not so carefully read history or who may foolishly elect leaders inclined toward tyranny. "Let me add," Jefferson wrote, "that a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference."
Madison took Jefferson's notes and shared them with Hamilton, Adams, Mason, and others, and then sent a letter to Jefferson outlining the objections to a Bill of Rights that had been raised by the members of the constitutional convention.
On March 15, 1789, Jefferson replied to Madison: "I am happy to find that, on the whole, you are a friend to this amendment. The declaration of rights is, like all other human blessings, alloyed with some inconveniences, and not accomplishing fully its object. But the good in this instance vastly overweighs the evil.
"I cannot refrain from making short answers to the objections which your letter states to have been raised [by others]:
"1. 'That the rights in question are reserved, by the manner in which the federal powers are granted.' Answer. A constitutive act [the Constitution] may, certainly, be so formed, as to need no declaration of rights. ... In the draught of a constitution which I had once a thought of proposing in Virginia, and I printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. ... But...this instrument [the U.S. Constitution] forms us into one State, as to certain objects, and gives us a legislative and executive body for these objects. It should, therefore, guard us against their abuses of power, within the field submitted to them."
In this, Jefferson is stating openly that the purpose of the Constitution - and even the Bill of Rights - is not to grant rights to the people, but to restrain government. It doesn't grant, it limits.
And, Jefferson said, his proposed Bill of Rights was only a beginning and imperfect; it would be nearly impossible to list in detail all the rights humans have. But a start, a try, is better than nothing - at least it will make clear that the purpose of the constitution is to limit government:
"2. 'A positive declaration of some essential rights could not be obtained in the requisite latitude.' Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."
His third point was that the states may try to limit peoples rights if the explicit nature of government and rights wasn't spelled out in the Constitution through a Bill of Rights, so the constitution protected citizens from tyrannical state governments who may overreach (as the Supreme Court ultimately ruled Connecticut had done in banning birth control).
And, finally, Jefferson noted that if they were to err, it would be better to err on the side of over-defining rights - even if past efforts had proven unnecessary or nonviable - than under-defining them.
"4. 'Experience proves the inefficacy of a bill of rights.' True. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen, with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniences of the want of a declaration are permanent, afflicting and irreparable."
A Bill of Rights wasn't necessary, but it was important. We all knew the constitution was designed to define and constrain government, but it's still better to say too much about liberty than too little. Even though this thrown-together-at-the-last-minute Bill of Rights doesn't cover all the rights we consider self-evident, and may inconvenience government, it's better to include it than overlook it and risk future generations forgetting our words and deeds.
Beyond that, there's good reason to believe - as the majority of the Supreme Court did in the Griswold case, the Texas sodomy case, and at least a dozen others - that the Founders and Framers did write a right to privacy into the Constitution. However, living in the 18th Century, they never would have actually used the word "privacy" out loud or in writing. A search, for example, of all 16,000 of Thomas Jefferson's letters and writings produces not a single use of the word "privacy." Nor does Adams use the word in his writings, so far as I can find.
The reason is simple: "privacy" in 1776 was a code word for toilet functions. A person would say, "I need a moment of privacy" as a way of excusing themselves to go use the "privy" or outhouse. The chamberpots around the house, into which people relieved themselves during the evening and which were emptied in the morning, were referred to as "the privates," a phrase also used to describe genitals. Privacy, in short, was a word that wasn't generally used in political discourse or polite company during an era when women were expected to cover their arms and legs and discussion of bedroom behavior was unthinkable.
It wasn't until 1898 that Thomas Crapper began marketing the flush toilet and discussion of toilet functions became relatively acceptable. Prior to then, saying somebody had a "right to privacy" would have meant "a right to excrete." This was, of course, a right that was taken for granted and thus the Framers felt no need to specify it in the Constitution.
Instead, the word of the day was "security," and in many ways it meant what we today mean when we say "privacy." Consider, for example, the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."
Similarly, "liberty" was also understood, in one of its dimensions, to mean something close to what today we'd call "privacy." The Fifth Amendment talks about how "No person shall be ... deprived of life, liberty, or property..." and the Fourteenth Amendment adds that "nor shall any State deprive any person of life, liberty, or property...." And, of course, the Declaration of Independence itself proclaims that all "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
So now, on the anniversary of the signing of the Declaration of Independence, we have come to that remote period in time Jefferson was concerned about. Our leaders, ignorant of or ignoring the history of this nation's founding, make a parody of liberty and, with their so-called "Patriot Act," flaunt their challenges even to those rights explicitly defined in the Constitution.
Our best defense against today's pervasive ignorance about American history and human rights is education, a task that Jefferson undertook in starting the University of Virginia to provide a comprehensive and free public education to all capable students. A well-informed populace will always preserve liberty better than a powerful government, a philosophy which led the University of California and others to once offer free education to their states' citizens.
As Jefferson noted in that first letter to Madison: "And say, finally, whether peace is best preserved by giving energy to the government, or information to the people. This last is the most certain, and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them... They are the only sure reliance for the preservation of our liberty."
The majority of the Supreme Court wrote in their opinion in the 1965 Griswold case legalizing contraception that, "We deal with a right of privacy older than the Bill of Rights [and] older than our political parties..." saying explicitly that the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live."
Hopefully Americans - including Clarence Thomas - will realize that the Constitution doesn't grant rights but instead constrains government. Our rights predate any government, a fact recognized when the Declaration of Independence was signed on July 4, 1776. We must teach our children and inform the world about the essentials of human rights and how our constitutional republic works - deriving its sole powers from the consent of We, The People who hold the rights - if democracy is to survive.
Thom Hartmann (thom at thomhartmann.com) is the author of over a dozen books, including "Unequal Protection" and "The Last Hours of Ancient Sunlight," and a nationally syndicated daily talk show host. http://www.thomhartmann.com This article is copyright by Thom Hartmann, but permission is granted for reprint in print, email, blog, or web media so long as this credit is attached.
Clarence Thomas Renews Dubious Claim of a Lynching
By Ann Woolner Last Updated: October 3, 2007 10:07 EDT
Oct. 3 (Bloomberg) -- Clarence Thomas, in his new autobiography, gives a gut-wrenching account of the harm done him 16 years ago during hearings into his confirmation to the U.S. Supreme Court.
``I felt myself crushed beneath the accumulated trials of a lifetime,'' he writes in ``My Grandfather's Son.''
Describing the horror of being accused of sexual improprieties in a nationally televised forum on the cusp of his highest achievement, he likens himself to Bigger Thomas, the young, poor black man tormented by white racism in Richard Wright's novel ``Native Son.'' Thomas quotes from the book to make his point:
``He felt that this white man, having helped to put him down, having helped to deform him, held him up now to look at him and be amused.''
Thomas's account of that period is painful to read. I don't doubt the experience was excruciating for him and his family. His public humiliation and the debasement of the confirmation proceedings are hard to justify, even if the worst that was said about him is true -- as I believe the evidence shows.
Given that evidence, it is also hard to see Thomas as the victim he says he is. He still calls his treatment a modern day version of lynching, in which white mobs would string up black men for perceived sexual misconduct.
Meeting The Man
Thomas claims he was tormented by The Man, never acknowledging that he was The Man to the black women -- yes, more than one -- who said they were tormented by him.
Even now, the fact that he, The Boss, was the one with the power over them, the subordinates, never enters Thomas's equation. Nor does he seem to notice that these black women probably weren't motivated by racial animus against him.
In his telling, they were merely the instruments of white liberals bent on destroying him for failing to cleave to traditional civil rights dogma.
``I was being pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony,'' he writes.
There is no doubt that civil rights organizations and their leaders were mostly opposed to his nomination for fear he would set back their cause (which he has). It's true, too, that they had the ear of the Democrats leading the committee. And yes, it was an ugly hearing indeed.
Female Subordinates
But none of that disproves what now seems clear. Thomas, as chairman of the very agency charged with protecting women from sexual discrimination and harassment, the U.S. Equal Employment Opportunity Commission, engaged in completely inappropriate and probably illegal conduct toward female subordinates and lied about it under oath to become one of the nine most powerful judges in the country.
In his memoir, Thomas goes on for page after page about his chief accuser, Anita Hill, who had come to the EEOC with a law degree from Yale University, Thomas's alma mater, and had worked for him previously.
He never mentions Angela Wright, another former EEOC employee who was in the wings as a reluctant but subpoenaed witness, according to at least two books on the topic, ``Strange Justice'' and ``Supreme Discomfort,'' as well as news accounts.
Wright was ready to tell how Thomas had asked her about her bra size, told her what he liked about her legs, commented as to which outfits made her look sexy and remarked on other women's bodies.
Lack of Interest
Notwithstanding her lack of interest and the illegality of a boss creating a hostile work environment, he kept coming on to Wright and showed up at her place one night, unannounced.
Wright awaited the committee's call for days, but it never came. The Democratic-controlled committee, headed by Senator Joseph Biden of Delaware, seemed to lose its nerve after Thomas accused it of a ``high-tech lynching for uppity blacks.''
Both women had corroborating witnesses, as the two other books on Clarence Thomas recount. EEOC speechwriter Rose Jourdain was prepared to testify that Wright confided in her at the time. Wright was becoming so distressed that, when Thomas began scheduling one-on-one meetings with her at the end of the work day, she asked Jourdain to wait for her before going home.
Hill, too, had told friends through the years how disturbed she had been about her boss's sexual remarks to her. Four such witnesses corroborated Hill's account in testimony, although Republicans attacked each of them for vagueness in their recollections.
Emotionally Charged
Why drag all this out now? Because Thomas, rather than let this undoubtedly painful chapter of his life pass into history, has written a convincing, emotionally charged account that simply doesn't match the bulk of the evidence.
And on his way to claiming victimhood, Thomas again victimizes Hill by calling her a ``mediocre'' employee who lied under oath.
As Hill wrote in an opinion piece in the New York Times this week, this is the sort of character attack that victims of discrimination often suffer at the hands of supervisors unwilling to admit their own misconduct.
The fact that it comes from a Supreme Court justice makes it all the more chilling.
To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.
Justice Clarence Thomas, speaking in Florida in February, has never hired a clerk who had not worked for a judge appointed by a Republican president. Ray Carson/University of Florida, via Associated Press
By ADAM LIPTAK Published: September 6, 2010
WASHINGTON — Each year, 36 young lawyers obtain the most coveted credential in American law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a résumé that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge.
Justice Clarence Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.
That unbroken ideological commitment is just the most extreme example of a recent and seldom examined form of political polarization on the Supreme Court. These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats.
Each justice typically hires four clerks a year. Since Chief Justice John G. Roberts Jr. joined the court in 2005, Justice Antonin Scalia has not hired any clerks who had worked for a judge appointed by a Democratic president, and Justice Samuel A. Alito Jr. has hired only two. At the other end of the ideological spectrum, only four of Justice Ruth Bader Ginsburg’s clerks on the Roberts court came from judges appointed by Republicans. The early data on President Obama’s two appointees, Justices Sonia Sotomayor and Elena Kagan, show a similar pattern.
By contrast, Chief Justice Warren E. Burger, a conservative appointed by President Richard M. Nixon who led the court from 1969 to 1986, hired roughly even numbers of clerks who had worked for judges appointed by Democrats and Republicans. Judge Richard A. Posner, a generally conservative judge appointed to the bench by President Ronald Reagan, clerked for Justice William J. Brennan Jr., a liberal.
The recent divide in the selection of clerks amplifies the ideological rifts on a polarized court, one political scientists say is the most conservative in recent memory. And it echoes as clerks go on to prominent careers in government, the legal academy and major law firms.
David J. Garrow, a University of Cambridge historian, said the court had in this way started to mimic the political branches of government.
“We are getting a composition of the clerk work force that is getting to be like the House of Representatives,” Professor Garrow said. “Each side is putting forward only ideological purists.”
Supreme Court law clerks share the justices’ chambers, do much of their work and influence their thinking. They make recommendations about which cases the court should hear, help prepare the justices for oral arguments, discuss the cases with them and draft major portions of the opinions and dissents.
“You can’t possibly delegate as much as the justices do without turning over a degree of responsibility,” said Lawrence Baum, a political scientist at Ohio State who has published empirical studies of Supreme Court clerks.
A handful of federal appeals court judges known as feeder judges are gatekeepers. J. Michael Luttig, for instance, produced more than 40 Supreme Court clerks in his 15 years on the federal bench, with 33 of them going to work for Justices Thomas or Scalia. Mr. Luttig, now general counsel of the Boeing Company, said the justices’ overall hiring practices reflected a fundamental shift.
“As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts,” Mr. Luttig said. “Given this politicization, it should come as no surprise to learn that the more liberal judges tend both to hire clerks who would self-describe themselves as Democrats and to hire clerks from other judges who would likewise self-describe themselves as Democrats, and vice versa for the more conservative judges.”
But ideological orthodoxy can dampen the robust discussions in chambers that clarify issues and shape rulings. Justice Scalia for instance used to seek out candidates from the opposite ideological camp when he served on a federal appeals court in Washington and in his early years on the Supreme Court.
“He made it a point of telling me that I was his token liberal,” said E. Joshua Rosenkranz, who clerked for Justice Scalia in 1986, his last year on the appeals court. “To his credit, I’m sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking.”
The politics do not stop when clerks leave the court. Though a clerkship is a ticket to a law firm job that can include a $250,000 signing bonus, many former clerks take positions consistent with their former bosses’ ideological leanings in the legal academy, the government and elsewhere.
Laura Ingraham, the conservative political commentator, served as a law clerk to Justice Thomas, for instance. So did John C. Yoo, the Bush administration official who provided legal advice about interrogation practices.
The clerks who do join law firms often form ideological clusters. According to a study [ http://www.vanderbiltlawreview.org/articles/2009/11/Nelson-et-al.-Supreme-Court-Clerkships-62-Vand.-L.-Rev.-1749-2009.pdf ] published last year in the Vanderbilt Law Review, several of the leading firms — Kirkland & Ellis, Sidley Austin and Jones Day — have largely hired clerks from the more conservative justices. Others — including Wilmer Cutler Pickering Hale & Dorr and Jenner & Block — have tended to hire from the more liberal justices.
The rise of “politically oriented practice groups,” the study said, reinforces the impression that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.”
For his part, Justice Thomas has said that choosing clerks is like “selecting mates in a foxhole.”
“I won’t hire clerks who have profound disagreements with me,” he said at a luncheon in Dallas a decade ago. “It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”
Three members of the current court — Chief Justice Roberts and Justices Kagan and Stephen G. Breyer — are themselves former Supreme Court clerks. So were Justice John Paul Stevens, who retired in June, and Chief Justice William H. Rehnquist, who died in 2005.
Sometimes it seems that a Supreme Court clerkship has become a prerequisite to a seat on the court. The three candidates on President Obama’s short list to replace Justice Stevens — Justice Kagan, who joined the court in August, and Judges Merrick B. Garland and Diane P. Wood — had all served as Supreme Court clerks (and all to liberal justices).
Indeed, if Justice Kagan’s recent hiring is any guide, a Supreme Court clerkship may even be a prerequisite for a Supreme Court clerkship. Three of her four clerks have completed clerkships with other members of the court, Justices Ginsburg, Breyer and Anthony M. Kennedy.
Justice Kagan’s hiring is telling and savvy. It immediately aligns her with the two more senior justices on the court’s liberal wing — Justices Ginsburg and Breyer. And her hiring of a clerk who worked for Justice Kennedy will provide insights into the methods and thinking of the court’s swing justice.
Delegated Duties
“The reason why the public thinks so much of the justices,” said Justice Louis D. Brandeis, who served from 1916 to 1939, “is that they are almost the only people in Washington who do their own work.”
These days, respect for the court must be grounded on other factors. Opinion writing is largely delegated to clerks, and Chief Justice Rehnquist candidly acknowledged that the justices’ chambers were “a collection of nine autonomous opinion-writing bureaus.”
With the departure of Justice Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks.
A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.
“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor Garrow said.
The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time.
Reviewing the book in The New Republic, Judge Posner, a close student of the court, wrote that “probably more than half the written output of the court is clerk-authored.”
Justice Ginsburg, a famously hard-working justice, described her own habits in an interview with Todd C. Peppers, who teaches public affairs at Roanoke College, for “Behind the Bench: Portraits of United States Supreme Court Law Clerks and Their Justices,” a book to be published next year by the University of Virginia Press. Justice Ginsburg said she was an energetic supervisor and editor who made sure the final product faithfully reflected her views. But the initial draft, she said, is prepared by a clerk.
“I write the opening,” Justice Ginsburg said. “It will be anywhere from one to three paragraphs. It’s kind of a press release, and it will tell you what the issue was and how it was resolved.”
Then she said she provided a law clerk with a detailed outline. “Sometimes, to my delight, they will give me a draft that I can make my own version through heavy editing, but I don’t have to redo it,” Justice Ginsburg went on. “I’d say it’s a good year if I have two law clerks that have that skill.”
Polarized ‘Feeder Judges’
There are about 160 active federal appeals court judges and more than 100 more semiretired ones, yet more than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks.
There is ideological polarization among the feeder judges just as there is in the larger population. Judge Garland of the District of Columbia Circuit, appointed by President Bill Clinton, has sent 21 clerks to nine justices in the Roberts court years, but 17 of them went to members of its liberal wing.
On the other hand, Judge Alex Kozinski of the Ninth Circuit, in San Francisco, appointed by President Ronald Reagan, sent 13 clerks to the court in those years, but only one to the court’s liberal wing.
In a 1998 interview published in The Green Bag, a law journal, Judge Kozinski, a generally conservative judge on a court with a reputation for liberal decisions, said he took account of ideology in hiring clerks, giving “an extra measure of consideration to conservative and libertarian law students” in considering whom to hire.
“There are a lot of liberal judges out there,” he added.
Judge J. Harvie Wilkinson III, appointed to the Fourth Circuit in Richmond, Va., by President Reagan, has sent clerks to justices across the ideological spectrum.
“I’ve tried in my own hiring on the circuit court level not to put an ideological litmus test on anyone I’ve hired,” Judge Wilkinson said in an interview. “Law is a craft and profession that in many ways transcends philosophy.”
Some 1,000 people apply for Supreme Court clerkships each year, and the usual practice is to apply to all of the justices. Put another way, justices cannot tell anything about applicants’ ideological leanings from the fact that they applied.
Lacking other information on that score, the justices seem to look to the ideology of the feeder judge, Professors Baum and Corey Ditslear wrote in a study published this year in The Justice System Journal.
“The identity of the judge with whom a clerk works has become more valuable as a source of information about the clerk’s proclivities,” they wrote.
Nonpartisan Past
The stark political divide among the clerks is recent.
“The Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s,” according to detailed data in the Vanderbilt study.
Over the Roberts court years, by contrast, none of the five more conservative justices — Chief Justice Roberts and Justices Thomas, Scalia, Alito and Kennedy — hired more than 20 percent of their clerks from judges appointed by Democrats. Three of the more liberal justices — Justices Stevens, Ginsburg and Sotomayor — hired 12 percent to 35 percent of their clerks from judges appointed by Republicans.
Only Justice Breyer hired roughly half of his clerks from judges appointed by presidents of each party.
The Justice System Journal study, which considered the 10 years ending in 2005, found “a growing polarization in the system.” In particular, those data “suggest a high level of bipartisanship for Breyer and a lack of bipartisanship for the relatively moderate Kennedy.”
The ideological divisions continue after clerks leave the court, another recent development.
Clerks from conservative chambers are now less likely to teach, according to the Vanderbilt study, which looked at data through 2006. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.
Political polarization among Supreme Court clerks may be curious, but is it consequential?
According to the DePaul study, by Professor Peppers and Christopher Zorn, the political leanings of law clerks influence the votes of Supreme Court justices. The study used information about political party affiliations collected from more than 500 former clerks and standard measures of judicial ideology.
“Over and above the influence of the justices’ own policy preferences,” the study concluded, “their clerks’ policy preferences have an independent effect on their votes.”
Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study said, while the presence of additional conservative clerks pushes justices in the opposite direction.
Judge Guido Calabresi, who sits on the federal appeals court in New York and has placed some 30 clerks with the justices, overwhelmingly with the more liberal ones, said he “has no litmus test” and hires “clerks who are conservatives and clerks who are liberals.”
At the Supreme Court, Judge Calabresi continued, the ideological leanings of clerks may sometimes have an impact.
“To the extent that justices are really strong, it doesn’t matter,” he said. “To the extent that justices are uncertain or weak, it can make a difference.”
Amanda Cox contributed reporting.
Copyright 2010 The New York Times Company (emphasis added)
Supreme Court justices generally hire clerks who have worked for federal appeals court judges. The conservative half of the court overwhelmingly hires clerks who served judges appointed by Republican presidents, while the liberal half of the court is more likely to hire clerks from judges appointed by Democrats, a pattern that was not as strong 30 years ago. Below, justices are shown from most to least conservative.*
* Order is based on the percentage of “conservative” votes cast by justices during their careers. Justice Elena Kagan’s position is an estimate. Only clerks who previously served a federal appeals or district court judge are shown.
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Origins of the Roberts Court Clerks
Although there are currently about 160 active federal appeals court judges, more than half of the Roberts court clerks came from just 10 judges. The top three — all once Supreme Court clerks themselves — placed one-fifth of the clerks.*
* Excludes Justice Sandra Day O’Connor’s clerks in 2005 (two of whom also served Judge Samuel A. Alito Jr. that term), and clerks serving retired justices. Clerks who served two terms are counted twice.
Appeals Court in Atlanta Again Rejects Racial Discrimination Claim
By ADAM LIPTAK Published: September 6, 2010
WASHINGTON
John Hithon, a black man, spent 13 tough years working his way into the lower ranks of management at a Tyson Foods chicken plant in Gadsden, Ala. He started out as a “live hanger,” hoisting 24 squirming birds onto moving metal hooks every minute. Then he moved up to what court records called “killing and picking.” He was later made a supervisor in charge of “eviscerating and deboning.”
But when two better jobs as shift supervisors opened up, Mr. Hithon was passed over by the plant manager, who was white, in favor of two white candidates from other Tyson plants. Mr. Hithon thought his skin color had something to do with it, and he sued for racial discrimination.
As evidence, he testified about the manager’s habit of calling black employees “boy.”
Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”
“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination.
Two Alabama juries had seen things differently.
They had heard testimony from another black Tyson worker, Anthony Ash, who recalled sitting in the cafeteria at lunchtime when the plant’s manager said, “Boy, you better get going.” Mr. Ash said the manager’s tone was “mean and derogatory.”
Mr. Ash’s wife was there. “He’s not a boy,” Pam Ash shot back, according to her husband. “He’s a man.”
Ms. Ash testified that the manager, Tom Hatley, “just looked at me with a smirk on his face like it was funny.”
Mr. Ash explained to the jury why the remark stung.
“You know,” he said, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”
Mr. Hithon testified that Mr. Hatley had once summoned him by calling out, “Hey, boy.”
Mr. Hatley denied using the term and said he had good reasons for hiring the two white managers that had nothing to do with race.
In 2002, the first jury awarded Mr. Hithon more than $1 million, but a unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit in 2005 ordered the case retried. In the process, it made an interesting distinction.
“The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent,” the panel said. But “the use of ‘boy’ alone is not evidence of discrimination.”
The Supreme Court unanimously reversed that decision, suggesting that the real world was the right modifier. “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,” the justices said in an unsigned opinion.
After a second stop at the appeals court, Mr. Hithon’s case was retried in 2007. The second jury also ruled for him, again awarding him more than $1 million. The jury had a single black member, said Alicia K. Haynes, one of Mr. Hithon’s lawyers. The first jury was overwhelmingly white, too, she said.
Notwithstanding the nudge from the Supreme Court, a different panel of the 11th Circuit overturned the second verdict last month.
The judges had not seen the testimony and so had to infer “inflection” and “tone of voice” from a transcript. They probably knew less about “local custom and historical usage” than the jurors did. But the judges in the majority nonetheless ruled that “a reasonable jury could not have found” race discrimination.
The court went further, criticizing Mr. Hithon’s lawyers for eliciting testimony likening the word “boy” to the most charged of racial epithets, saying that their conduct had been “highly improper.”
But U. W. Clemon, who was a civil rights lawyer before becoming Alabama’s first black federal judge in 1980, said in an interview that the two terms had the same force.
Mr. Clemon, who resigned from the bench last year, said he had followed the Hithon case closely. He added that he knew something about the “local custom and historical usage” of the word “boy,” having grown up in the segregated South.
“It’s the same as calling him a nigger,” the retired judge said.
Stephen B. Bright, president of the Southern Center for Human Rights, said the Atlanta appeals court was an outlier among the federal appeals courts, one that is consistently hostile to suits from people claiming racial discrimination.
“There is no such thing as racial discrimination in employment in the 11th Circuit,” Mr. Bright said, adding that the court’s response to the Supreme Court’s ruling in the Hithon case amounted to “outright defiance.”
Mr. Hithon’s lawyers said they had not decided whether to ask the Supreme Court to hear their case again.
Gary Mickelson, a Tyson spokesman, said in a statement that the company was “pleased the appeals court has reversed the jury verdict.”
“It’s the policy of our company to provide a work environment free of unlawful discrimination,” Mr. Mickelson added, “and it’s also part of our core values to operate with integrity and be respectful of others.”
Justice Clarence Thomas has given various reasons for declining to participate in oral arguments. Win McNamee/Getty Images
By ADAM LIPTAK Published: February 12, 2011
WASHINGTON — The anniversary will probably be observed in silence.
A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.
If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.
In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota. Justice Thomas’s epic silence on the bench is just one part of his enigmatic and contradictory persona. He is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like “Saving Private Ryan.”
He talks freely about the burdens of the job.
“I tend to be morose sometimes,” he told [ http://www.nytimes.com/2009/04/14/us/14bar.html ] the winners of a high school essay contest in 2009. “There are some cases that will drive you to your knees.”
Justice Thomas has given various and shifting reasons for declining to participate in oral arguments, the court’s most public ceremony.
He has said, for instance, that he is self-conscious about the way he speaks. In his memoir, “My Grandfather’s Son,” he wrote that he had been teased about the dialect he grew up speaking in rural Georgia. He never asked questions in college or law school, he wrote, and he was intimidated by some fellow students.
Elsewhere, he has said that he is silent out of simple courtesy.
“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.
Justice Thomas has also complained about the difficulty of getting a word in edgewise. The current court is a sort of verbal firing squad, with the justices peppering lawyers with questions almost as soon as they begin their presentations.
In the 20 years that ended in 2008, the justices asked an average of 133 questions per hourlong argument, up from about 100 in the 15 years before that.
“The post-Scalia court, from 1986 onward, has become a much more talkative bench,” Professor Johnson said. Justice Antonin Scalia alone accounted for almost a fifth of the questions in the last 20 years.
Justice Thomas has said he finds the atmosphere in the courtroom distressing. “We look like ‘Family Feud,’ ” he told the bar group.
Justice Thomas does occasionally speak from the bench, when it is his turn to announce a majority opinion. He reads from a prepared text, and his voice is a gruff rumble.
He does not take pains, as some of his colleagues do, to explain the case in conversational terms to the civilians in the courtroom. He relies instead on legal Latin and citations to subparts of statutes and regulations.
His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.
By the time the justices hear arguments, they have read briefs from the parties and their supporters, and most justices say it would be a waste of time to have advocates merely repeat what they have already said in writing.
“If oral argument provides nothing more than the summary of the brief in monologue, it is of very little value to the court,” Chief Justice William H. Rehnquist wrote in 1987.
Lawyers who appear before the court and scholars who study it are of mixed minds about Justice Thomas’s current silence. His views can be idiosyncratic, and some say lawyers deserve a chance to engage him before being surprised by an opinion setting out a novel and sweeping legal theory.
Others say they are just as happy not to waste valuable argument time on distinctive positions unlikely to command a majority in major cases.
Justice Thomas routinely issues sweeping concurrences and dissents addressing topics that had not come up at argument.
Neither side had advanced that position. The basis for and implications of his concurrence were not explored at the arguments, because, by asking no questions, Justice Thomas did not tip his hand.
No other justice joined Justice Thomas’s opinion. “If Justice Thomas holds a strong view of the law in a case, he should offer it,” David A. Karp, a veteran journalist and third-year law student, wrote in the Florida Law Review in 2009. “Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.”
Justice Thomas’s last question [ http://www.supremecourt.gov/oral_arguments/argument_transcripts/04-1327.pdf ] from the bench, on Feb. 22, 2006, came in a death penalty case. He was not particularly loquacious before then, but he did speak a total of 11 times earlier in that term and the previous one.
“Is there anything in the record to alert us to the race of the prosecutor?” he asked. “Would it make any difference? There seemed to be some suggestion that there are stereotypes at play.”
Justice Thomas’s most famous comments also came in a case involving race.
In a 2002 argument [ http://www.supremecourt.gov/oral_arguments/argument_transcripts/01-1107.pdf ] over a Virginia law banning cross burning, his impassioned reflections changed the tone of the discussion and may well have altered the outcome of the case. He recalled “almost 100 years of lynching” in the South by the Ku Klux Klan and other groups.
“This was a reign of terror, and the cross was a symbol of that reign of terror,” he said. “It was intended to cause fear and to terrorize a population.”
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