From Clarence Thomas to Samuel Alito
Pierre Tristam/Candide's Notebooks, January 13, 2006
He comes across as relaxed, self-assured, sharp and tough, but affable, even likable: Samuel Alito is not acting. That’s him on the television screen, being himself. He doesn’t need to act. He only needs to let his smoother persona, his dinner-table geniality, play into television’s weaknesses for those qualities. Not to make exaggerated claims, but it’s possible to be a crook, a hit man, a Jay Gould or an Abramoff and still be a terrific dinner companion. Robert Bork was a boor, in person and in his legal thinking. He came across as both in his Senate hearings. Alito is not a boor in person, nor is he coming across as such in his hearings. Not in the least. His questioners’ tactical mistake from the start was to try to make him look like a boor, like Bork, for his personal beliefs, his past demeanors, his associations, his indifference to conflicts of interests. Of course they failed. But Alito is a boor only in his legal philosophy. Hunting for scandal, Senators missed the obvious: the sort of thinking that will have Alito imprinting our laws for the next thirty-some years. It’s all there in his past decisions, his speeches, his on-the-record advocacies. It’s true that his claiming not to remember having been a member of a bigoted Princeton alumni association whiffs of Clarence Thomas’s claim in his hearings that he never once discussed Roe v. Wade with his law school classmates. But letting that pass, there’s his infamous abortion ruling that drips of contempt for women, there’s his imperial views of the presidency that drip with contempt for Congress, there’s his John Roberts-like, courtier’s draw to power, and in defense of power, at the expense of the weaker, the ordinary, the individual, for whom the Bill of Rights was written. For all the time they had, the oceans of space in this alleged information society, the newsprint, the blogs, the hearings, analysts and senators ended up skimming and evading rather than analyzing and tackling. Overwrought ruses of courtesy in the moment are more important than a man’s impact on law over the next several decades. When Alito’s hearings conclude and his confirmation fulfills its inevitable course, there’ll be all sorts of mea culpas in the media about Senators and reporters not doing their job, about letting themselves be caught up by gotcha strategies instead of tackling the nomination where it mattered. By then it’ll be too late. It already is.
The early fears of an Alito Justice was that he’d be an echo of Antonin Scalia, hence his nickname — Scalito. The right effectively banished the nickname early in the spectacle, not entirely unjustly. Alito is no Scalia, in the sense that, for all of Scalia’s self-righteousness and, in capital punishment’s case, his zealotry, he is not a mean justice. He is, Bush v. Gore aside, a strictly principled justice. Alito is just mean: An executor rather than a judge. And the best way to understand him is not by way of Scalia, but by way of Clarence Thomas.
On Oct. 16, 1991, the day after Clarence Thomas won confirmation to the Supreme Court on a 52-48 vote, Paul Barrett and Jill Abramson wrote in a front-page Wall Street Journal article that “Judge Thomas’s friends and foes agree that his nationally televised trial by fire cannot fail to change him as a jurist. In his own testimony, he said an assassin’s bullet would have been preferable to the public hearings over allegations of sexual harassment. Moreover, at 43, he is a relatively young man, and his confirmation hearings suggested that his views on many central legal questions are in flux. This recent traumatic experience is sure to affect his thinking.” The next paragraph quotes Clint Bolick, “a close friend of Justice Thomas” (these days he’s a lead lawyer for the school voucher movement) saying that the hearings will “deepen [Thomas’s] sympathy for victims and ‘will reconfirm his very strong belief in individual rights.’”
Four months after joining the court, Thomas showed in Hudson v. McMillan the depth, measurable in pixels, of his sympathy and belief in individual rights. The case involved two prison guards who handcuffed and shackled Keith Hudson, an inmate in a Louisiana prison, after he argued with them, and beat him while their supervisor watched, warning them only “not to have too much fun.” Hudson suffered a split lip, loosened teeth, facial swelling and a broken dental plate. The court ruled 7-2 that guards used excessive force, violating the Eighth Amendment’s ban on cruel and unusual punishment. Human rights groups and the first Bush administration backed the majority. Clarence Thomas, joined by Antonin Scalia, dissented.
“In my view,” Thomas wrote, “a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortuous, it may be criminal and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment.’” The Founders, he said, “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment,” so the “Eighth Amendment is not, and should not be turned into, a national code of prison regulation.” Set aside Thomas’s crudely narrow and tortuous interpretation of the Eighth Amendment aside, on which most commentary focused at the time. What the manner of thinking of his dissent revealed was what Abramson and Barrett had barely hinted around in their Journal piece four months earlier: The man has a mean streak, and he’d be ready to use it. He’s liable to be more Hammurabi than Solomon, and more likely to be neither. All that business about seeing busloads of prison inmates from his courtroom window and saying to himself every day, “There but for the grace of God go I” (one of the famously scripted confessions of his confirmation hearings) was a good show. But it was for public consumption, a ploy to quell the doubts over Thomas. It worked. Then he went to work, calling split lips and loosened teeth from a beating “insignificant harm.”
Hudson v. McMillan wasn’t a fluke. In the next court term, in Helling v. McKinney, another 7-2 decision held that the Eighth Amendment didn’t apply only to physical punishment, but to prison conditions as well. The prisoner in this case, a Nevadan, was being forced to breathe in the cigarette smoke of his cellmates. Justices agreed that it was an unnecessary risk. Thomas, joined by Scalia, dissented, taking on an 8-1 precedent dating back to 1976 (Estelle v. Gamble) where the court ruled that “Deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eight Amendment.” In Hudson, Thomas was upset that the court had extended that standard to cases in which the prisoner “had suffered only minor injuries.” In McKinney, he was upset that the standard was being extended to “cases in which there has been no injury at all.” This, remember, from a man who thinks an assassin’s bullet less injurious than a public hearing, no matter how debasing, to determine the fitness of a judge appointed to the highest court for life. But that, too, is not as important as one particular line Thomas used in his dissent, which has subsequently taken ion significant meaning in light of the John Roberts and Samuel Alito confirmation hearings: “Stare decisis,” Thomas wrote about the principle of respecting precedent, “may call for hesitation in overruling a dubious precedent, but it does not demand that such a precedent be expanded to its outer limits.” Using language like this, Alito and Roberts, who had plenty to say about stare decisis, can retrench every precedent they choose. Early on in Thomas, we had meanness and judicial activism.
But Thomas and Scalia have been to the Supreme Court what Ronald Reagan was to the conservative movement: a warm-up act for the reactionaries. In comes Alito in Roberts’s velvety wake.
Less than three years ago the judges of the Third Circuit Court of Appeals—Alito’s court—heard a case about an inmate, Ronald Banks, who was so violent that he had to be segregated in a prison within a prison, what Pennsylvania’s prison euphemisms terms a “Long Term Segregation Unit.” That is, solitary confinement. It’s where the so-called “worst of the worst” are kept when they don’t follow rules in lesser wards of their prison. The warden decides who’s assigned there, and for how long. There are no set limits, only minimums: once sent to solitary, you stay there a minimum of three months. You can stay there indefinitely. You’re not allowed books, magazines, newspapers or pictures from home. Only religious and legal tracts, even those that come in newspaper or magazine format. Ronald Banks claimed his First Amendment rights were being infringed by not having newspapers to read. The warden disagreed. The ban, he reasoned in court, was not only to punish inmates, but also to keep them from using newspapers as catapults and incendiary devices. Apparently, inmates are into flinging shit at guards with rolled up periodicals, and sometimes burning them. But if that were so, why couldn’t they use the religious or legal magazines for the same purpose? And where was the evidence of fire being an issue in Pennsylvania’s prisons? Two judges ruled in favor of Banks, calling the rules unjustified, exaggerated, unsupported by evidence of necessity, irrational. In other words: cruel, arbitrary, unusual. (What American prison rules aren’t?)
The three-judge panel was not unanimous. Samuel Alito was in dissent.
Two lines into his dissent, he notes, by way of evidence that the prison rules aren’t irrational, that they apply “on the most disruptive and dangerous .1%” of the prison population. That should be worrisome to anyone who thinks that the law is not a matter of numbers: It doesn’t matter if one person’s First Amendment rights are being flouted, as opposed to one hundred people’s. To Alito, it apparently does, especially when the .1% are not ordinary humans, but “the most disruptive and dangerous” of their kind. That alone is enough to suggest that Alito sees such things as the Bill of Rights as applying in a hierarchical, subjective sort of way: He leaves it to the warden to decide how to apply them.
It gets worse. He calls the rules in solitary “temporary, last resort” rules. They may be last resort. They’re not temporary when they depend on a warden’s whims. They’re arbitrary. Then, while conceding that the stringent rules may not deter the inmates in segregation from further misbehavior, “there is no reason to think that the [rules] entirely eliminate the deterrent effect of the regulations on the general prison population.” Rights, in other words, may be taken away, even unjustly, if the punishment serves as a valid example to others. He considers the uncertainty surrounding the lengths of solitary confinement to be one of those “incentives” for the rest to behave. So at that point it isn’t Ronald Banks’s rights he’s concerned with, but how to use Ronald Banks as an example. That, incidentally, is how Wahhabite law in Saudi Arabia works. The example to society (the severed hand, the severed head) is more important than the punishment being meted out on the criminal. Alito then suggests that if there’d been cases in which an inmate had been in solitary for an inordinately long time, despite behaving, then there might have been a better case for “different considerations.” But the majority wasn’t, and shouldn’t be, interested in case-by-case applications of the rules. Alito then worries about how much it’ll cost to accommodate Ronald Banks and others like him, missing entirely the irony of keeping inmates in maximum-security, solitary confinement at somewhere above $100 a day. And to give inmates a couple of newspapers a day “would undoubtedly impose a significant burden” on their guards.
Alito’s reasoning is Thomas’s: The state should not concern itself with individuals, with rules, with minutiae of warden’s and guards’ prerogatives, even when the prerogatives are irrational, debilitating, violent, psychologically counter-productive (as solitary confinement is), constitutionally offensive (as many a prison’s supermax mentality routinely has become). The concern is with deference to efficiency and power’s requirements. In a sense, Alito sees a warden the way he does the presidency, as a power not to be questioned but complied with. A rule’s ends justify its means, in a prison as with the executive. Alito may not be as crude as Thomas as to allow prison guards to beat up an inmate at will. His application of cruelty for a higher purpose’s sake (no matter how vague the higher purpose, or baseless) is more polished, more psychologically savvy. Alito’s judicial philosophy metes out the kind of brutality that leaves no mark. That’s what makes it so potentially effective and devastating. That what makes us no more fortunate than Ronald Banks, if we’re to be left in Alito’s hands, or their likes.
Incidentally, the Ronald Banks case is going to the Supreme Court. It will be decided by spring. Alito will recuse himself, of course. But his work is done. His dissent may well be his first majority victory, and without lifting a pen. That’s how effective he is.