Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.
That’s the message of an astonishing decision handed down by the Supreme Court on Friday. The facts of the case, known as Flowers v. Mississippi, are straightforward. As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.” Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)
As Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.“
But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged—not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”
The decision in Flowers was 7–2, with Neil Gorsuch joining Thomas’s dissent. The two have become jurisprudentially inseparable, with Gorsuch serving as a kind of deputy to Thomas, as Thomas once served to Antonin Scalia. But Thomas usually has a majority of colleagues on his side, in a way that often eluded Scalia. The Flowers case notwithstanding, Thomas now wins most of the time, typically with the assistance of Chief Justice John Roberts, Samuel Alito, and Kavanaugh.
Despite Thomas’s usual silence on the bench (he did ask a question during the Flowers argument), he is clearly feeling ideologically aggressive these days. In his Flowers dissent, Thomas all but called for the overturning of the Court’s landmark decision in Batson v. Kentucky, from 1986, which prohibits prosecutors from using their peremptory challenges in racially discriminatory ways. Earlier this year, he called for reconsideration of New York Times Co. v. Sullivan, from 1964, which established modern libel law, with its protections for journalistic expression. And in a decision earlier this month, Thomas made the case that the Court should be more willing to overturn its precedents. It’s customary for the Justices to at least pretend to defer to past decisions, but Thomas apparently no longer feels obligated even to gesture to the Court’s past. As he put it last fall, in a concurring opinion in Gamble v. United States, “We should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” Erroneous, of course, in the judicial world view of Thomas. The Supreme Court’s war on its past has begun, and Clarence Thomas is leading the charge.
What, exactly, is Gorsuch’s view of the use of and right to contraceptives?
Unlike the conservative justices currently on the court, during his confirmation hearing Gorsuch did not say he agreed with the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives, setting an important precedent for Roe v. Wade. The Griswold decision effectively found that a married couple has the constitutional right to privacy to choose to use contraception, and hasn’t been a very controversial decision.
Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas said they agreed with the Griswold decision. Thomas said he had “no quarrel” with Griswold. Roberts said: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”
However, the New Yorker in 2012 noted that Republican support for Griswold isn’t a given anymore, amid a new push to roll back the constitutional right to privacy. And in his confirmation hearing, Gorsuch did not clearly state he agreed with the decision. See this exchange:
Sen. Richard Blumenthal (D-Conn.): “Let me invoke your beliefs as a commentator. Do you believe it was the right result, based on your understanding of law — not your personal beliefs about whether contraceptives are a good thing or a bad thing, but your beliefs about the constitutional underpinning, the right to privacy, the Fourth Amendment, substantive due process, underpinning of Griswold versus Connecticut, was it the right result?”
Gorsuch: “Senator, I’ve consistently — I’m not picking out Griswold or any other particular case — I’ve drawn a line that I think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the United States Supreme Court, as we were talking with Senator Flake, they’re all precedents. They all deserve respect of a judge. […]
I have said, Senator, that, with this particular precedent we’re talking about, that it’s over 50 years old — weighty factor; that the reliance interests around it are many and great. I have said that it has been repeatedly reaffirmed by the United States Supreme Court. I’ve said that I cannot imagine a state actually legislating in this area. And I have said that I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously. I don’t know how much more clear I could be to you, Senator.”
Later, Blumenthal tried again:
Blumenthal: “You’re unwilling to say that. And you’re unwilling to say, as Chief Justice Roberts did about Griswold, I agree with the Griswold court’s conclusion, that marital privacy extends to contraception and availability of that.”
Gorsuch: “Respectfully, Senator, I think we’re splitting hairs. I really do because I have told you quite clearly that both of those precedents are in the realm of 50 years old, that have serious reliance interests around them, that they’ve been repeatedly reaffirmed. And Senator, what I’ve tried to do with respect to all precedents is treat them equally, in my presentation before you. Because as a judge, I come at them equally. In my line of work, a precedent is a heavy, a weighty thing. And it deserves respect as precedent, as part of our history. And …
Blumenthal: “With all due respect, Your Honor, we’re doing more than splitting hairs here, because words matter. And the words of Chief Justice Roberts and Justice Alito were different than yours. Asking you to agree that these results were correct, I think is a relevant and important question. And your declining to do so — I respect your reasons, but I think that it speaks volumes, with all due respect.”
Gorsuch: “Well, let me try one more — this way, Senator, for you. Maybe this will help. The way I look at it is, I don’t come at these issues fresh. It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris. Because a precedent, once it’s decided, it carries far more weight than what I personally think.”
The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.
The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.
Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.
Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.
If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.
The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.
The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.
The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.
Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.
At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.
Discussion of natural law predates Christianity, but Christian theologians such as Aquinas are key figures in developing the theory (this makes intuitive sense, as natural law appeals to a higher and absolute moral authority on what constitutes justice, and God fits this authority well.) Finnis, a Catholic natural law philosopher, traces much of his thinking to ideas first expressed by Aquinas.
Interpretations of natural law have massive and widely varying influence. The US Declaration of Independence refers to the equality that “the laws of nature and nature’s God entitle” and is clearly founded on a belief in natural law. English Common Law sought to uphold natural law, and those who wrote the US Constitution referred, in the course of various writings, to the notion that God is the ultimate source of legal authority. The concept of human rights is also closely intertwined with natural law.
Though the US constitution is a positive law, the Supreme Court justices have not totally ignored the notion of natural law. Justice Anthony Scalia believed that “the government derives its authority from God,” and Justice Clarence Thomas argued at his Senate confirmation hearing that “we look at natural law beliefs of the Founders as a background to our Constitution.” (Meanwhile, as Mother Jones notes, then-Senator Joe Biden once criticized Reagan’s Supreme Court nominee Robert Bork for not believing in natural law. “As a child of God, I believe my rights are not derived from the Constitution…They were given to me and each of my fellow citizens by our creator,” said Biden in 1987.)
Natural law philosophers have differing theories on the fundamental rights that must be protected by this law, and these rights are derived from absolute human goods. Georgetown moral and legal theorist Mark Murphy explains that, for Finnis, these basic goods include life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.
He argues that it is inherently wrong to intentionally harm any basic good. This framework means that, in Finnis’s view as laid out in articles, abortion is inherently wrong as it’s an attempt to harm life. His theory does, however, allow for some exceptions where abortion would be considered permissible. Finnis argues that if an abortion is carried out to save a mother’s life, then it is not the intention to harm the fetus and so is morally permissible. “Finnis is obliged to say the doctor did not intend the baby’s death, because he believes there is an absolute prohibition on intentionally killing innocent people. (The alternative would be to treat the procedure as impermissible, but this is clearly not his view.),” explains legal philosopher Jonathan Crowe.
Finnis’s beliefs about the absolute value of protecting life also means that the philosopher strongly opposes the death penalty and nuclear armament.
Conversely, Finnis argues that marriage is a basic good and, in his view, it’s a heterosexual good that should lead to procreation. “It is the sort of loving union inherently oriented to family life; it is the sort of living bond that by its nature would be fulfilled—extended and enriched—by the bearing and rearing of children,” he writes. Based on his interpretation of the good protected by natural law, Finnis is strongly against giving same-sex couples the same benefits as heterosexual married couples.
Relatedly, Finnis believes that the “good of marriage” should be the foundation of all sexual relations—in other words, sex is only moral if it takes place within a heterosexual marriage. Homosexual sex, masturbation, adultery, and bestiality are all grouped in the same category and marked similarly immoral by Finnis. “The truly morally significant thing about all non-marital sex acts is that, in diverse forms, they involve disrespect for the basic good of marriage,” he writes.
Of course, though Supreme Court nominee Neil Gorsuch has worked closely with Finnis, that does not mean the two share the same views. Finnis supervised Gorsuch’s Oxford dissertation on euthanasia in the 1990s, and the Supreme Court nominee developed this work into a book where he argues that euthanasia is impermissible as “human life is intrinsically valuable and that intentional killing is always wrong.”
Gorsuch’s views on abortion and gay rights outside of the same-sex marriage debate remain unclear, as he has not explicitly written or ruled on either subject. Meanwhile, when the Guardian asked Finnis about Gorsuch’s nomination, he replied “I have resolved not to say anything to anyone at all.”
Gorsuch’s confirmation hearings are scheduled to begin next month. Only once he’s confirmed will we know how much Finnis’s thinking has shaped the Supreme Court nominee.