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June 14, 2011

"Clarence Thomas takes hard line on defendants"

The title of this post is the headline of this recent piece by Joan Biskupic appearing in USA Today. Here are excerpts:

During two decades as the court's most consistent conservative, he has taken a tough approach to criminal defendants' cases, showing a disdain for hard-luck tales of bad childhoods and a conviction that defendants accept responsibility. As several cases this term have shown, criminal law is one area in which Thomas — who almost never speaks during public court sessions — is making his mark.  He often writes alone, yet with strong rhetoric that gets attention — particularly in light of his difficult background and professed concern for men who took the wrong path.

"When he steps in the shoes of people," says Stanford University law professor Jeffrey Fisher, "he's more likely to say tough-love is necessary and you have to take responsibility."...

Thomas is establishing a significant legacy on the law, notably on cases involving prisoners.  This spring, he dissented alone when the court threw out a harsh re-sentencing order for an Iowa drug dealer who earlier had won leniency, entered rehabilitation and turned his life around.  Thomas also wrote the court's opinion reversing a $14million civil rights judgment for a New Orleans death-row inmate whose prosecutors had concealed blood evidence that could have helped him prove his innocence.  And Thomas wrote a recent opinion against a California convict who claimed his lawyer was ineffective because the jury was never told about his childhood brain injuries, abuse and deprivation.  In that case, Thomas referred disapprovingly to an "infatuation with 'humanizing' the defendant."

"He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them," says George Washington University law professor Orin Kerr, who like Fisher specializes in criminal cases.  "The themes you see in his criminal law cases are the themes that you see elsewhere.  He says, 'If you do wrong, you have to take the consequences.'"...

 "Justice Thomas is probably the most conservative on matters related to crime and   punishment, followed closely by Justice (Samuel) Alito" says Cornell law professor John Blume. He notes that Alito, who joined the court in 2006, is a former federal prosecutor.  Thomas often separates himself from fellow justices with his lack of consideration for a defendant's plight. "Some of his opinions reveal a failure to appreciate the facts and circumstances of (a defendant's) life," Blume said, "and a myopic focus on the crime itself."

June 14, 2011 at 11:46 PM | Permalink


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The cruelest judge by far. A pervert, and an angry, self-hater of his own race.

Posted by: anon | Jun 15, 2011 12:59:00 AM

yep i hope i'm alive to see when he GET'S HIS! just deserved PUNISHMENT!

Posted by: rodsmith | Jun 15, 2011 1:03:48 AM

And to think he took Thurgood Marshall's seat. Such deterioration...

Posted by: Jeremy | Jun 15, 2011 2:29:22 AM

We have to remember that there would be no Apprendi/Ring /Blakely had Thomas not switched his position from Almendarez-Torres. Remarkably, he acknowledged the error of his thinking and urged many times for his colleagues to tackle what I think is an area of criminal law that is a total morass-how recidivism can be used. Can it elevate a crime or simply increase punishment?


Posted by: bruce cunningham | Jun 15, 2011 3:56:14 AM

"Thomas also wrote the court's opinion reversing a $14million civil rights judgment for a New Orleans death-row inmate whose prosecutors had concealed blood evidence that could have helped him prove his innocence. "

really? if he actually proves his innocence and the courts accept it, doesn't that mean thomas also takes a hard line on innocent persons?

Posted by: . | Jun 15, 2011 9:24:11 AM

@ .
The justices ruled that the inmate could only sue the DA's office if it had been a general practice of the whole office to hide evidence, not just the actions of the prosecutors in that particular case. He is still free to sue on other grounds.

You buy his accuser's story? She followed him from job to job, that doesn't sound like someone who hates the man. As for a self hater, does he have to bend over backwards for criminals in order to be Black enough for you?

Posted by: MikeinCT | Jun 15, 2011 11:42:34 AM

Can anyone cite the New Orlean's death-row inmate case? Being tough on existing prisoners is one thing; not allowing constitutional rights, such as access to evidence in court, is quite another. I wanted to see the context of that particular case.

Posted by: Eric Knight | Jun 15, 2011 11:42:49 AM

Connick v. Thompson, No. 09-571 (Mar. 29, 2011), available at:

Posted by: Def. Atty. | Jun 15, 2011 11:47:07 AM

As Bruce notes, the story's omission of Thomas's role in the Apprendi line is a distortion. Ditto for Crawford. Someone reading the story would think that Thomas is uniformly on the prosecution side, and that is simply not true.

More here.

Posted by: Kent Scheidegger | Jun 15, 2011 11:50:49 AM

"Someone reading the story would think that Thomas is uniformly on the prosecution side, and that is simply not true."

I agree. That distinction belongs to Alito.

Posted by: anon | Jun 15, 2011 12:34:30 PM

@anon: You're exactly right. Alito is much worse than Thomas on this score.

Posted by: desktop | Jun 15, 2011 3:42:00 PM

Kent's defense of Clarence is quite revealing.

Posted by: Sultan Pepper | Jun 15, 2011 4:23:47 PM

If Kent were really interested in truth, he would need to acknowledge his unresolved hatred, try to figure out where it came from, and ask himself if he wouldn't be better off trying to deal with it in himself rather than by wanting to make sure others suffer as much as possible.

Something he indeed shares with Clarence Thomas.

Posted by: Sultan Pepper | Jun 15, 2011 4:39:11 PM

@Sultan Pepper
And if you cared about the truth, you make logical arguments to advocate your beliefs. Anything other than the personal slights would be more useful.

Posted by: MikeinCT | Jun 15, 2011 9:24:27 PM


If you want to presume some connection between your apparent love for logical positivism and truth:

Please take note on what you are actually doing on here...


Posted by: Sultan Pepper | Jun 16, 2011 3:02:34 PM

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