The strange jurisprudence of Justice Thomas

Charles J. Ogletree Jr. | 7/1/2009, 5:18 a.m.

Justice Thomas’ comments are not surprising given the remarkably controversial ways he now addresses issues of civil rights as compared to the views he expressed before his lifetime appointment. During Thomas’ confirmation hearings, Sen. Herbert Kohl, D-Wis., asked him why he wanted the job. Thomas responded:

“… I believe, Senator, that I can make a contribution, that I can bring something different to the court, that I can walk in the shoes of the people who are affected by what the court does. You know, on my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, busload after busload. And you look out and you say to yourself, and I say to myself almost every day, ‘But for the grace of God, there go I.’”

Since Justice Thomas ascended to the Supreme Court, the prison population has more than doubled to over 2 million, and more than half of those are African American males.

Thomas’ asserted concern for the plight of those in prison has not produced any decrease in incarceration levels. Indeed, his decisions while on the court show a remarkable lack of concern about the need to exam disparities in the criminal justice system today. As Congress begins to consider the proposed National Criminal Justice Commission legislation introduced by Sen. Jim Webb, D-Va., evidence of these disparities and of the need for a thorough examination of the causes and remedies for these, will become more obvious to the public.

Justice Thomas’ assertion that discriminatory practices — in voting rights and in criminal justice — are now confined to our nation’s past is misplaced and dismissive of the massive evidence that has been accumulated about them. Indeed, it is now obvious to those who study these disparities that they will continue until we acknowledge them, and make deliberative, thoughtful and informed efforts to address and end them.

Harvard Law Professor Charles J. Ogletree Jr. is the founder and executive director of the Charles Hamilton Institute for Race and Justice.