The Embarrassment that is Clarence Thomas - Requiem for the Sixth Amendment

When very public acts by notable public figures occur, we sometimes feel a sense of pride or embarrassment because of their actions. Some people expressed both regarding the public confrontation between Actor Will Smith and Comedian Chris Rock at the Academy Awards. But it is vital to note that neither Smith nor Rock is "representative" of Black men or Black folk. The case of SCOTUS Justice Clarence Thomas is another matter. He holds power that represents and can greatly affect the lives of citizens, and should be expected to vote on important Constitutional cases while mindful of the history and perspectives, as well as the implications, related to people of color under the US "rule of law."

Some people take umbrage at the characterization of SCOTUS Justice Thomas as "Uncle Thomas.” Yet sometimes a sobriquet is quite fitting and earned. The archetype character of "Uncle Tom" was a slave sitting at the foot of his "massa," making clownlike apologies while doing the oppressive bidding of white slaveholders. Clarence Thomas sits on the SCOTUS as the only current Black citizen. [Thankfully, the SCOTUS will soon seat a highly intelligent, experienced, and culturally aware Black female jurist.] 

Like Uncle Tom, Clarence Thomas has disavowed or completely forgotten his heritage and history. His lead opinion in the recent ruling in the Arizona Ineffective Assistance of Counsel Case shows not only a disregard for the Sixth Amendment guarantee to criminal defendants the right to effective assistance of counsel, but also the history of abundant criminal justice system abuse, particularly against Black citizens, that makes that Constitutional guarantee so fundamental.  

For decades, state level courts have imposed convictions on criminal defendants of color, while ignoring due process, abuse of procedure and misconduct by prosecutors, reliance on circumstantial evidence [if that], while so-called “defense counsel” sat by and did nothing to protect the rights of those defendants. Federal court intervention has often been the only effective means of redress for the wrongly convicted. But “Uncle Thomas” opines that the same state level abuse and bigotry that has produced such practices must be deemed paramount and prevent correction or relief by federal courts. Moreover, federal courts cannot even conduct hearings to consider whether ineffective assistance of counsel was evident, even in cases where the consequence may well be execution of the criminal defendant.  Justice Sotomayor, in dissent, properly described Uncle Thomas’ opinion as “perverse” and “illogical.” And that harsh assessment was tempered by a level of customary civility among justices. 

Neither the rest of us nor history will be so kind in assessing Uncle Thomas’ ruling. It is likely to be considered as infamous and as inhumane as prior SCOTUS opinions of Taney in the Dred Scott Case [that African Americans “had no rights which the white man was bound to respect.”] or the Holmes opinion in Buck v Bell approving involuntary sterilization of the disabled [“Three generations of imbeciles in enough.”] Such perfidy might be expected from Justices Kavanaugh, Barrett, and Alito, who deftly positioned Thomas into the leading role of authoring the majority opinion.  Thomas ought to be embarrassed by his actions, but all of us should be embarrassed to have a Supreme Court of such character as to issue such a ruling. 

https://www.cnbc.com/2022/05/23/supreme-court-decision-makes-it-tougher-for-inmates-to-win-release-from-prison.html

The Hate Mongers Among Us - From Buffalo Forward

We do not have the luxury of fatigue. But I confess that I grow weary of listening to talking heads braying on about how "horrible the senseless deaths" in Buffalo, NY were. All the while their prattle serves to normalize and rationalize behavior that is neither civilized nor rational. The deaths were not "senseless," as every person of color sensed loss and dread upon hearing of the incident [yet another one!] And we know that the attack was not mindless, as it was well planned and intentional. And we now know that more attacks were planned and would have been deliberately executed, cheered on by the likes of Tucker Carlson, Alex Jones, Marjorie Taylor Greene, and their ilk for profit and notoriety. And we, as a society, lack the courage or commitment to call it out, to condemn the conduct and those who traffic in such hate and violence.

We miss important distinctions when talk shifts to “free speech.” The law makes clear that yelling “fire” in a crowded theater is not protected “speech,” it is an act of terrorism intended to cause serious harm. Yelling to an assembled mob to go and attack the seat of government is not "free speech," it is a treasonous act of violence. And broadcasting messages to white supremacists to take up arms to “defend” the “white race” by massacre of people of color is not free speech. As those who lie dead in Buffalo have paid the cost, and the many persons of color who have preceded them will attest, such actions are far from “free.”  Yet we lack collective fortitude and commitment to condemn and hold accountable those who would engage in such acts. That lack of courage is evidence of the distinction between the “America” we talk about and hope to build, and the "Amerikkka" that we now HAVE. Is it a tacit concession that the elements engaged in such hateful and violent beliefs and conduct reflect a significant faction of “normal” Americans?

Beyond standing or sitting around shaking heads, wiping tears, and wondering, action is required. We believe in a system of government and collective “representative” action. Thus, we must both look to and demand that the government begin to seriously address such behavior as domestic terrorism. No one of us can draw the line, but we must collectively define it and make clear that which is NOT normal or acceptable behavior in OUR society. We rue deaths of innocents slain because of the color of their skin or their ethnicity, after the fact. Yet there were clear advance signals, opportunities, if not encouragements, for the Buffalo shooter and like-minded individuals to plan and execute such terrorism. The Governor of New York throws up her hands and wonders why the Buffalo shooter was not “red flagged” and prohibited from purchasing the semi-automatic weapons used, or the materials to modify ammunition clips. But we know how easily they were acquired and how.

We do not need to adopt an Orwellian pre-emptive state. A free society does entail risks associated with open expression of ideas, including unpopular ones. Rather, the point is to regain rationality. We accept that police can recognize the difference between someone driving safely and someone driving wildly and erratically. The latter needs to be stopped, whether the cause is inebriation or a mental or physical disorder. The police may even prohibit such person from driving. Otherwise, imminent danger to the lives of others is at stake. It is no less a sign of impending danger when a group assembles in an online forum and goes beyond ranting to discuss specific strategies for mass murder and how to acquire equipment for such actions. There ARE warning signs. Is it a sign of what we "tolerate" when police can and do engage in surveillance if a group is planning to rob a bank, but are unwilling to use surveillance when a group is planning a race based massacre? 

We cannot prevent all such incidents, and it is not a simple matter to do so, but we do have intelligence that enables us to observe when controversial “speech” crosses the line to become action and conspiracy to commit violence. We have the capacity to address the hate speech that precipitates violence, and we have the capacity to restrict guns from acquisition by those who engage in such plans. What we lack is the courage and commitment to reject such elements as part of an acceptable society and to employ that capacity to intervene. Those deficiencies define our society.