Making Sense of Clarence Thomas

When Supreme Court Justice Clarence Thomas cast the lone vote against the Supreme Court's ruling that Dallas prosecutors systematically excluded black jurors in the trial of Texas death row inmate Thomas Miller-El, the legion of Thomas foes again lambasted him. They called Thomas cruel, spiteful, and even implied he was unbalanced. African-Americans make up more than half of those stuffing America's jails; many cases that land before the high court involve abuses of black prisoners. Thomas's seemingly nonsensical vote was merely his latest judicial salvo on the hyper charged issue of prisoner's rights.

From the time he hit the bench over a decade ago, Thomas has taken a see-no-evil stance on cases involving the beating and torturing of prisoners, corralling prisoners to hitching posts, and executing the mentally retarded.

But even by Thomas's reflexive anti-prisoner rights standard, his vote against Miller-El was far over the top. There was near smoking gun proof that Dallas prosecutors bullied, cajoled and ultimately axed nearly every prospective black juror in Miller-El's trial. A 1963 circular distributed in the DA's office virtually ordered prosecutors to dump blacks from jury panels. This was more than enough to convince hard-line conservatives Justices Rehnquist, Scalia, and Kennedy that not much has changed since then and that Dallas prosecutors were guilty of racial bias.

In trying to make sense of Thomas's doctrinaire, contrarian court votes, the simple answer is that they are the payback to civil rights and civil liberties groups for waging all-out war against his confirmation to the high court. There's probably some truth to this. In an American Enterprise Institute lecture in 2001, Thomas cloaked himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion.

But it's also true that no matter how outlandish and obstructionist his votes on the court appear, Thomas is in step with the political conservatism of many whites, and many blacks. Many forget that even as civil rights leaders grabbed headlines and the cameras for mercilessly savaging Thomas at his confirmation hearings in 1991, a parade of blacks quietly praised Thomas's views, and backed his appointment. They were not front men on the payroll of the Heritage Foundation or other conservative think tanks.

On the eve of his confirmation hearing, a near majority of blacks told pollsters that they were pro-life, pro-school prayers, and anti-gun control. A significant number even opposed affirmative action programs. Polls conducted over the years by the Joint Center on Political and Economic Studies reconfirm that many blacks share Thomas's views on social and political issues. Indeed, black parents and students at a middle school in Landover, Maryland made national news a few years ago when they battled civil rights groups who tried to scotch their invitation to Thomas to appear at their school.

However, the issue that blacks agree most with Thomas on is the thorny issue of crime and punishment. Polls show that more blacks than ever back three strikes and mandatory drug sentencing laws. Their biggest volte face has been on the death penalty. In the past, blacks were the staunchest opponents of capital punishment, and with good reason. The death penalty was a vicious, blatantly racist weapon wielded against blacks by prosecutors, particularly in the South. Blacks currently make up nearly half of all death row inmates. And while the Supreme Court found that Dallas prosecutors were the most outrageous in racially cleansing juries, in many capital cases blacks are tried before all or mostly white juries, and they are far more likely to get the death penalty.

But Dallas prosecutors, and others, are stuck in a racial time warp when it comes to black attitudes toward the death penalty. A Newsweek poll in 2000 that measured white and non-white attitudes toward the death penalty found that nearly 60 percent of non-whites support the death penalty. An ABC News poll also found substantial support for the death penalty among blacks. The blacks that are likely to get on these juries are much more likely to fit the same profile as whites, namely older, more conservative, middle class professionals, business persons, and retirees. The one black juror in the Miller-El case sounded every bit the death penalty hard liner when he quipped "they should pour honey on them (killers) and stake them out over an ant bed."

Eventually, the Supreme Court will be forced to deal with the sensitive issues of minimum mandatory sentencing, teen executions, DNA testing in capital cases, the search and seizure laws, and racial profiling. Some justices have shown increasing flexibility in death penalty and drug sentencing cases. But Thomas's vote in the Miller-El case, and his swim in the rushing tide of conservatism outside and within black communities, guarantee that he won't be one of them.

Earl Ofari Hutchinson is an author and columnist. Visit his news and opinion Web site: He is the author of "The Crisis in Black and Black" (Middle Passage Press).

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