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Judging Clarence Thomas
USC Gould School of Law

Friday, March 16, 2012

Scholarly work provides thoughtful view of polarizing figure

Story and photos by Maria Iacobo

One of the tenets of academia is the encouragement and cultivation of a variety of ideas and opinions for open discussion and debate.

So imagine being shunned by academic institutions for writing a book on a figure unpopular with one political group, however large.  Now imagine that some of these institutions are law schools and the figure in question is a United States Supreme Court Justice.

This is the quandary in which Scott Douglas Gerber has found himself over his entire academic career.
“For good and bad, I’m forever linked with Clarence Thomas,” Gerber told a classroom full of USC Law students recently.

  Prof. Scott Douglas Gerber

Gerber, a professor of law at Ohio Northern University, spoke on the jurisprudence of Justice Thomas at the invitation of the Federalist Society.  In his first book, “Founding Principles: The Jurisprudence of Clarence Thomas,” Gerber demonstrated how Thomas’ opinions over his first five years on the Court were consistent in his adherence to the Declaration of Independence and its reliance on natural law.

Since most members of the audience were barely out of kindergarten during Thomas’ confirmation hearings, Gerber provided an analysis of what Thomas’ positions were prior to his nomination to the Court, his positions as stated in his confirmation hearings, and his opinions on the Court.

“Thomas is a liberal originalist on civil rights, in that he appeals to the ideal of inherent equality in the Declaration of Independence in deciding cases,” Gerber said.  “He’s a conservative originalist on civil liberties and federalism.  I found that he was methodologically consistent within categories of constitutional law but inconsistent across categories.”
“Consistent”—in an either/or sense—would describe the American public’s view of Justice Thomas since his nomination.

“People judge Clarence Thomas on almost purely partisan terms,” Gerber said.  “The left hates him and the right loves him.”
Thomas’ critics strove to mischaracterize his views about the Declaration of Independence during his nomination process in 1991, according to Gerber.

 “For example, Harvard Law Professor Laurence Tribe wrote in a scathing “New York Times” op-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation’s history.  Quoting Tribe:  ‘Most conservatives criticize the judiciary for expanding its powers, creating rights rather than interpreting the constitution.  Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the founders’ natural law philosophy… which he maintains is revealed most completely in the Declaration of Independence.  He is the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.’

“What critics such as Tribe fail to appreciate was that Thomas was articulating the standard individual rights interpretation of the Declaration, an interpretation shared by Jefferson, Lincoln and Rev. [Martin Luther] King Jr.,” Gerber said. “To secure these rights, the Declaration proclaims, governments are instituted among men.”

Providing an alternate examination of the opinions of Thomas was USC Law Professor Michael H. Shapiro, an expert on Constitutional Law and bioethics.

“I’m all for multiple perspectives,” said Shapiro, explaining why the Federalist Society had invited him to discuss

      Prof. Michael H. Shapiro

Professor Gerber’s work.  “In fact, that’s my main complaint about Justice Thomas.  He discusses only one perspective—his own.  Justice Thomas simply does not acknowledge or deal with multiple frameworks of the sort that we expect from judges. And, he treats his opponents with disdain, calling them elitists or faddists.”

Shapiro said Thomas was treated poorly during his confirmation hearings, is understandably defensive, and has some reason to be “angry.”

 “But I am more concerned with the quality of his opinion-writing as judged   on basic, reasonable criteria of Constitutional interpretation.  And as for his decisional outcomes, I don’t think that either the results or his underlying views promote a regime of liberty, equality, or justice, or our overall public welfare.”

Another concern Shapiro pointed out is that [Thomas] “just cites the Declaration of Independence as if it were a part of the text of the Constitution.  Sorry.  You can’t do that. There is nothing in the Constitution that says we hereby incorporate the Declaration of Independence,” Shapiro said.  Still, as he observed, the values expressed in the Declaration, to the extent they were shared by the Framers, are rightly considered in Constitutional interpretation.

This year marks Thomas’ 20th term on the Supreme Court, and Gerber has been asked to speak at law schools across the country.  However, he has been received coolly at some schools, with faculty “boycotting” his appearance even when he was to speak on his recently published book by Oxford University Press on the origins of an independent judiciary.

Gerber, who earned his J.D. and Ph.D. from the University of Virginia, was writing his dissertation on the relationship between the Constitution and the Declaration of Independence when Thomas was nominated to the Supreme Court. Gerber said he “simply started following him because I was interested in knowing what he thought about that relationship.”

Given the polarizing nature of the Thomas confirmation hearings, Gerber’s work attracted the attention of publishing companies, and his dissertation eventually became his first book.  Gerber accepted a contract with a top-tier university press and a sizeable research grant.  He thought all was well until he received a note from a friend who wrote, “I think it is a very worthwhile venture, but one fraught with potential problems.”

“‘What potential problems could there be?’ I asked myself upon reading this,” Gerber said.  “Has academia come to this?  Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises?  Note that this does not mean I am supporting Clarence Thomas; it does mean, however, that I am not against him.”

On this point Shapiro agrees, noting that one of the merits of Gerber’s book is that it focuses on the opinions and not on the politics, and presents multiple perspectives and contending arguments—unlike much of what Thomas has written in those opinions.

In any case, Gerber said that his friend “proved prescient.”

Despite publishing several scholarly books on different subjects and three books of fiction, Gerber has been linked to Justice Clarence Thomas these past 20 years and does not expect that connection to dissipate any time soon.




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