Recently voted 6-3 to uphold two Alabama...

THE SUPREME COURT

February 08, 1992|By THEO LIPPMAN JR.

THE SUPREME COURT recently voted 6-3 to uphold two Alabama counties' changes in laws that were clearly designed to get around the Voting Rights Act and keep blacks from participating in local government.

The majority position was articulated with the cold, clean, clear intellectual conservatism that is now the hallmark of the court. Justice Clarence Thomas joined it.

My colleague Garland Thompson thought it an atrocious opinion and wrote, "To those well-meaning whites who thought Justice Thomas' humble background would prompt him to display a special sensitivity on the court. . . it's time to paraphrase rapper Cool Moe Dee: How Ya Like Him Now?"

Good point. As Justice John Paul Stevens said tellingly in dissent, "This is a case in which a few pages of history are far more illuminating than volumes of logic and hours of speculation about hypothetical line-drawing problems."

Since Thomas' history of growing up black in Georgia gives him a truer insight into how white Southerners have always looked for ways to lock blacks out of political life -- and what the true consequences of that are -- I hoped that he would say something like Stevens did. When Thomas' nomination was being debated, I was one of those who expressed the opinion that his history would leaven his philosophical conservatism in crucial moments on the court. So I guess I don't like him now as much as I hoped to.

On the other hand, George Will, who also wrote about this decision on the page opposite, likes him just fine. He wrote that the Alabama decision, "Perfectly demonstrates why he deserved be confirmed." Will doesn't exactly have a reputation of being Mr. Well Meaning when it comes to civil rights, so I suspect Thompson had the likes of me rather than the likes of Will in mind.

I would respond in two ways.

One, we don't know what went on in the justices' conference before they agreed on this decision. Maybe, just maybe, Thomas said some things that came from his history rather than his intellect that toned done what might have been an even worse LTC decision. Maybe it was in response to him that Justice Anthony Kennedy said for the court: "Nothing we say implies that the conduct at issue in these cases is not actionable under a different remedial scheme." Or, there's more than one way to skin a redneck.

Well, that's fanciful, I know. But this isn't: Two, one summer doesn't make a swallow, and one decision doesn't make a

justice. For instance, Oliver Wendell Holmes Jr. surprised and outraged liberals in his first important vote on the court, but over the next 30 years he became the liberals' darling.

L. Gordon Crovitz wrote in the Wall Street Journal that Clarence Thomas was proving his greatness not only in the Alabama case but in every case: "It is noteworthy that in the 25 opinions the Supreme Court has issued so far, Justice Thomas has voted with Justice Scalia more than with any other justice. Indeed, they have differed in only one case." Antonin Scalia is the most conservative justice today.

That's not necessarily predictive, either. In his first 25 opinions in his first term (1970-1971), Justice Harry Blackmun voted with Chief Justice Warren Burger, then the most conservative justice, 23 times. That whole term, he voted with Burger 89.9 percent of the time.

In the last term, Blackmun voted with Scalia only 49.6 percent of the time, but with Thurgood Marshall 81.7 percent of the time.

Garland, George, L. Gordon, you may be right, but let's wait awhile.

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