Clarence Thomas and justice clarence thomas and understanding of religion and newdow and incorporation of the first amendment and coercion test

If there is any figure that approaches the tragic on the United States Supreme Court today it is Clarence Thomas. Growing up in the segregated South in Pin Point, GA, yet a graduate of that most prestigious of law schools (Yale), he was a first generation "affirmative action baby," with all the rights, privileges and albatrosses pertaining thereto. The rights and privileges are clear: access for exceptional Black students to the most elite White schools, favorable consideration for federal jobs after graduation and in his case, eventually, a Supreme Court nomination and confirmation. Yet, the albatrosses have probably been more of a factor for Clarence Thomas in his fourteen year tenure at the Court. One can't help but think that he looks at the "special treatment" he received along the way as more of a hindrance than a help; more of a psychological branding than of a ticket to full inclusion in American life; more of a sign for self-doubt than commendation for self-achievement.

He will forever be known as Thurgood Marshall's replacement, and a replacement that got the nod from Bush I primarily because he was Black and not because of an overly distinguished career (he was only in his early-40s when the nomination came, and jurists and legal scholars almost never make a mark by the time they are this age). He will always be known as the one who was attacked, fairly credibly in my mind, during the confirmation process by a person whose lurid stories did nothing but confirm in White America's minds their most visceral stereotypes of Black men. His sidling up to Justice Antonin Scalia in the first several years of his service on the Court, and his probing a path that leads, if anything, to some results even more conservative than Scalia on some issues (especially in instances where there may be a Black defendant in a case), makes him a rather curious figure even to those on the Right.

It is almost as if he is trying to carve out a niche for himself, a way to shout to the world, "Take me for what I am, rather than your stereotypes of Blacks," even though the stereotypic images are so firmly emblazoned on most hearts that his voice is faint indeed. That, in my mind, is the tragedy of Clarence Thomas. It doesn't approach the Shakespearian, to be sure, but it shows the way that the best intentioned plans of the best scholarship in the most optimistic decade (the 1960s) have led to most unexpected results.

Thomas in Newdow

And, in Newdow, Justice Thomas shows his independence of mind even as he concurs in the judgment. He makes two major points in reaching the conclusion that the Pledge of Allegiance in the Elk Grove School District does not violate the Constitution. First, he argues, using his select Establishment test, that the recitation of the Pledge would violate the Constitution under the Court's current jurisprudence. But then he further argues that this current jurisprudence is misplaced not because it defines the concept of coercion improperly (which he believes it does), but because the Establishment Clause was improperly "incorporated" into the Fourteenth Amendment restrictions on the States. Each point calls for comment.

Coercion

When I say that Justice Thomas uses "his" Establishment test, I do not mean that he invented it. But, possibly because of a growing dissastisfaction with Lemon, with Justice O'Connor's willingness to put forward her Endorsement Test and with the different facts of each case, in 1992 Justice Kennedy developed the Coercion Test. In that case, Lee v. Weisman, concerning the constitutionality of prayers at graduation ceremonies in public schools (they aren't constitutional), Kennedy argued that school children were basically coerced into listening to the prayer and really had no way of registering their dissent, disagreement or lack of desire to participate in the prayer. Coercion therefore was a subtle concept, working possibly by social pressure and embarrassment rather than threat and sanction of law. Thomas concludes that under the Court's precedent this rather psychological notion of coercion is the law of the land. He freely admits that if this is what coercion means, then the students in Elk Grove School District are being coerced to recite the Pledge. Thus, under the Court's precedents, he would agree with Newdow. However, two things kept him from doing that. First, he would adopt the narrower definition of coercion developed by, who else, Scalia ("by force of law and threat of penalty") and, second, he need not get into the "coercion" mess because of his point about incorporation.

Incorporating the Establishment Clause

Thomas' second point is an arcane one, even for many lawyers. In my judgment it ultimately has no merit, but it has a superficial appeal. Thomas argued that when the First Amendment religion provisions became "incorporated" by the Supreme Court into the Fourteenth Amendment (that is, became obligatory not simply upon Congress but also on the States) during the 1940s, the Court made a mistake. The Establishment Clause only really was intended to relate to Congress' not establishing a religion; it had nothing to do, in fact, with state establishments. Thomas doensn't note it here, as he does elsewhere, but several states had an established church long after the First Amendment was adopted (MA, for example, was not fully disestablished until 1833), and so, the argument goes, the First Amendment couldn't have referred to state establishments. Thus, according to Thomas, since the CA state law requiring patriotic observances in each school district is the result of state action, the US Supreme Court, interpreting here only the federal constitution, has no authority to deal with the question. The states are supreme in this instance. As Thomas says, "the text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments."

Conclusion/Criticism

I think Thomas is correct historically--that the Establishment Clause probably originally had little to do with state establishments. They gradually faded away, to be sure, but I think a good argument can be made that their continued existence meant that everyone didn't think that the First Amendment mandated their elimination. But, his argument doesn't pass the "reality" test. Sooner or later legal arguments have to make sense in order to carry and keep carrying the day. The implication of his argument is that there are no limitations on states now in establishing churches. Under Thomas' reasoning, RI could name the Catholic Church its "official church" (more than 65% of RI residents are Catholics); the UT legislature could proclaim the LDS Church as its official church (more than 70% of UT residents are Mormons), etc, and the Supreme Court would be powerless to do anything. Huh? Thus, Thomas has the germ of an interesting idea but he appears to be rapidly going down a dead-end as he writes. I hear a man who so much wants to make a distinctive mark. Sometimes you do so, however, by not trying to do so.

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