Doubting Thomas

At a holiday party, a television reporter I'll call Hubert was telling me about going to the Supreme Court to observe oral arguments. "The extraordinary thing about Clarence Thomas is that he doesn't simply not ask questions," Hubert said. "He doesn't move. Not a muscle."

"What are you implying?" I asked. Hubert shrugged, and walked off to replenish his drink.

I couldn't help thinking of those scenes in World War II movies when the German guards take their daily count of Allied prisoners, not realizing that one of the "prisoners" is an artfully designed mannequin.

A crazy thought? Yes, but this was a matter of no small importance. George W. Bush has chosen John Ashcroft to be Attorney General. The two people who will presumably have the principal responsibility for filling vacancies on the Supreme Court have both publicly stated--Bush in answering an interviewer's question, Ashcroft in a law-review article--that Clarence Thomas is their ideal justice. Since Justice Thomas doesn't speak in oral argument, and has written no particularly memorable opinions, what exactly is it that they admire about him?

One possibility occurred to me. I used to assume that when conservatives decried "judicial activism," they were referring to those judges who picked the side of the case they personally preferred and then stretched the Constitution or ran roughshod over state-court decisions in order to make the outcome fit their preference. But I was apparently mistaken, since the conservative, antiactivist majority on the Supreme Court employed precisely that method to decide the Florida voting case that made Bush President. (Extrapolating from some surveys I've done, I calculate that there are now approximately 23 people in the U.S. who genuinely believe the Justices would have made the same decision had it been Al Gore who held a slim lead and was desperately trying to prevent a hand recount. That figure includes non-English speakers.)

So is it possible that all these years the conservatives were really using "activism" to mean, literally, active? Could that be why Justice Thomas has been singled out for praise? Is it possible that the judges conservatives most admire are nonactivist to the point of being, well, inert? Or maybe not there at all?

The day after the party, my wife told me that my theory was absurd. "So when was the last time anyone saw Justice Thomas in public?" I countered. "I mean, saw him speaking and moving appropriate limbs."

Minutes later, she handed me a New York Times article reporting that the day after the Florida decision, Justice Thomas had attended a long-scheduled meeting with high school students. He told the students it was a mistake for anyone to believe that politics played a role in any of the court's deliberations and decisions.

"Precisely my point," I said. "Could someone who had actually participated in the deliberations on that case have said such a thing with a straight face? Did anyone get a close look at this man who said he was Clarence Thomas?"

"What are you implying?" my wife asked.

I shrugged, and went to mix myself a drink.