Justice Clarence Thomas Can't Catch a Break

Supreme Court Justice Clarence Thomas returned to the news recently for two very different reasons.

U.S. Supreme Court Justice Clarence Thomas.

Earlier this month, Democratic lawmakers asked that Justice Thomas be investigated by the government for failing to report -- for 13 years -- an accurate reflection of his wife's income.  Judicial watchdogs and some left-leaning media outlets feel that the sources of her income may indirectly influence cases where their interests come to judgment within the Supreme Court.  An opinion piece from the USC Annenberg School of Journalism collects several reports on Thomas' behavior, including an item pointing out that the Justice received a $15,000 gift from The American Enterprise Institute, a conservative think tank, and decided favorably toward AEI in three cases before the Court.  The New York Times had written earlier this year on the increased scrutiny facing Supreme Court Justices.

Now, as reported today by National Public Radio, October 11 is the 20th anniversary of Justice Thomas' infamous confirmation hearings, when the nominee -- then a judge for the U.S. Court of Appeals for the District of Columbia Circuit -- was accused of sexually harassing an employee who had worked for him at both the Department of Education and the Equal Employment Opportunity Commission.  (The events of Thomas' confirmation hearings were a point mentioned by this blog recently when looking at the widely polarizing, and ultimately unsuccessful, Supreme Court confirmation hearings of Judge Robert Bork.) 

Transcripts of the Thomas nomination hearings -- as well as transcripts for all successful nominations to the Supreme Court since 1971 -- are available for download at the Web site for the U.S. Senate.

Rather than rehash the Thomas hearings, however, NPR approaches the Justice by taking a long view of his influence on the Court.  NPR reports of Thomas:

"Thomas is not a traditional conservative, not the kind of justice who believes that law should be built up incrementally over time and that adhering to workable precedent means the law is predictable and can be relied on. Instead, he, more than any other justice, believes that the court over the past century has gotten large swaths of the law wrong, and that those rulings should be reversed.

Though his defenders shy from calling his views radical, they trumpet Thomas for being the only justice to so consistently return to what they see as the original meaning of the Constitution when it was adopted in 1789. UCLA law professor and academic blogger Eugene Volokh compares Thomas to the Supreme Court's most famous justices — Louis Brandeis, Oliver Wendell Holmes, John Marshall — in the sense that he has a clear vision of where he thinks the court should go."

What is striking -- and to some, similarly controversial, is that for as non-centrist as his judicial opinions place him, Justice Thomas is far from the most outspoken of the Supreme Court justices.  Indeed, Justice Thomas has not spoken -- at all -- during an argument before the Supreme Court for was is going on five-and-a-half years.

The last time Justice Thomas spoke was on February 22, 2006 -- when most CU Freshmen were about 13 years old -- in the case of Bobby Lee Holmes v. South Carolina.  Transcripts taken from the Supreme Court Web site, show this to be his last remark:

There is no question that aspects of Thomas' tenure on the Court have their place in the American judiciary.  Reticence, however extreme, can be as much a virtue as a flaw, and hard-leaning political beliefs -- whether Left or Right -- are essential to challenging and even overturning commonly held assumptions of legal interpretations.  American political and judicial history has similarly been rife with individualists, radically independent thinkers, and those with an agenda to promote an internal systems of political belief that they see promoting the intentions of those who penned the country's legal boundaries.
So what, if anything, makes Justice Thomas different?  Did Thomas enter until a light of scrutiny unfairly applied to his later behavior?  Or are his actions so extreme that they deserve federal review?

To look at Thomas' legal opinions, other judicial decisions, and for sources that will help you explore the world of the American legal system, take a look at the Government Information Library's page on The Supreme and Federal Courts.  And feel free to express your own thoughts in comments below.

The Supreme Court Discusses a Minor's Right to Play Mortal Kombat

The Supreme Court this week heard oral arguments in Arnold Schwarzenegger, Governor of California v. Entertainment Merchants Association,a case that contemplates whether video games deserve specific legal treatment that excludes them from protection under the First Amendment.


SCOTUS transcripts of oral arguments are both enjoyable and fascinating to read, and in this case (number 08-1448, to be exact), the discussion has particular relevance to a younger set that has grown to see video games change from simple distractions between homework assignments to becoming a tournament sport and the source of very public discussions on whether the format is an recognizable art form.

In his questioning Zackery Morazzini, the Supervising Deputy Attorney
General for California, Justice Antonin Scalia frames the overall issue:

JUSTICE SCALIA: You are asking us to create a -- a whole new prohibition which the American people never -- never ratified
when they ratified the First Amendment. They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will.

But is -- is that -- are -- are we to sit day by day to decide what else will be made an exception from the First Amendment? Why -- why is this particular exception okay, but the other ones that I just suggested are not okay?

Where the discussion becomes difficult to deliberate is in reference to the games themselves. Three games were mentioned by name in Tuesday's discussion: Mortal Kombat, a fighting game that has also been turned into a movie franchise; MadWorld, an over-the-shoulder perspective video game in colored only in black, white, grey, and red; and Postal 2, an open-ended first-person-perspective shooting game, and the most widely discussed at the Court for its extreme violence. (Perhaps not surprising to those in public relations, the publisher of Postal 2, Running With Scissors, has created a page on its Web site to track the progress of the case, with considerable editorializing.)

Debates on the First Amendment are easily discussed in the abstract, but when recorded examples from gameplay in Postal 2 depict the brutalization of women and what appears to be a deliberate nod to the teen-aged perpetrators of real-life murders in public schools, the debate becomes far less abstract.

While avoiding approaching the topic's more nebulous aspects, the Court takes the practical considerations of censorship into consideration, such as when Justice Scalia asks Morazzini how video game developers can avoid prosecution, or if the expectation is to define video game obscenity trial-by-trial.



Also discussed is the effectiveness of the existing but voluntary ratings system for video games, as organized by the Entertainment Software Rating Board, and whether parents having the last word in the purchase of items otherwise unavailable to minors is protection enough from violent content. Chief Justice Roberts takes a particular interest in how the distribution of video games might be parallel, in the state's view, with the sale of cigarettes and other items seen to be as harmful toward minors.

The arguments overall are an excellent opportunity to see the working styles of individual Justices, and in particular its newest members, Justices Sotomayor and Kagan. Both Justices show a familiarity with the medium and good humor about the process (Kagan remarks that half her staff likely grew up playing Mortal Kombat), though nearly every Justice participates in the discussion.

All in all, the oral arguments are a short, timely, and interesting introduction to the deliberations of the Supreme Court about a topic on which surely most college students themselves have an opinion.