Clarence Thomas’ legal time machine zooms to 1789


Bloomberg News

Don’t let the U.S. Supreme Court’s very contemporary cases on gene patenting and same-sex marriage fool you: At least one justice is still living in the 18th century and doesn’t care who knows it.

Justice Clarence Thomas followed his astonishingly consistent originalism in Alleyne v. U.S., joined by the court’s four liberals — and none of its conservatives — in holding that a fact that increases a defendant’s mandatory minimum sentence must be found true by the jury, not by the judge alone.

Just a few minutes earlier, however, it was announced that Thomas had provided the deciding vote in Salinas v. Texas, arguing that a defendant’s exercising the right to remain silent can be used by the prosecutor to argue to the jury that silence is evidence of guilt.

From a policy perspective, these two opinions, one liberal and one conservative, make no sense. The only way to reconcile them is to enter the mind of Justice Thomas, in which the court’s job is to bring us back to the nation’s founding and damn the consequences.

Thomas’s opinion on what facts must be submitted to the jury derives from a series of opinions he has written over the past 15 years, all of which amount to a concerted historical attack on the way modern legislatures and judges handle criminal punishment. In the good old days, the English common law defined a limited set of felonies, and they all had the same punishment: death. Like the Islamic Shariah, the Jewish Halakha and many other early legal systems, the common law wasn’t so much bloodthirsty as designed to operate in an environment with little formal police enforcement. Capital punishment was counterbalanced by a low likelihood of detection — kind of like harsh sentences for insider trading.

But human beings who administered these old legal systems were capable of being humane, and they developed procedural tricks to avoid executing everybody. In common law, the check on extreme punishments was the jury, which could engage in what was called “pious perjury” — a kind of jury nullification where the jurymen (always men) would pretend, for example, that the value of the object stolen was less than the minimum required to make the crime a felony punishable by death. For Thomas, the principle that the jury is the escape hatch against harsh punishment specified by the law has become the touchstone of criminal justice.

Today, however, it is lawmakers who try to let the punishment fit the crime, as Gilbert & Sullivan’s The Mikado so memorably put it in the era of sentencing reform. Hence measures such as minimum- and maximum-sentence laws. And, it stands to reason, if sentencing is a specialized and precise function, it should be done by a trained government official with experience and expertise: in other words, a judge.

Thomas rejects this view — not because he’s especially concerned about defendants, but because he is exquisitely sensitive to William Blackstone’s description of the jury as “the palladium of our liberties.”

If you doubt my claim that Thomas has no special solicitude for vulnerable defendants, look no further than his rather extreme concurrence in the self-incrimination case, Salinas v. Texas. Genovevo Salinas, the defendant, was brought to the police station for photographs and questioning, supposedly to clear him in a murder case. He answered the police’s questions in the interview room until they asked him whether his shotgun at home would match the shells at the scene. That shut him up. At his trial, the prosecutor told the jury that an innocent man wouldn’t have remained silent: He would have said “What are you talking about? I didn’t do that. I wasn’t there.”

Wait, you say, isn’t that exactly what the prosecutor can’t say if you really have the right to remain silent? What kind of right is it if exercising it will be used to make you look guilty? Which, in fact, is just what Justice Stephen Breyer and the other liberals asked in their dissent.

Yet Justice Samuel Alito — writing for plurality that included Chief Justice John Roberts and Justice Anthony Kennedy — said that because Salinas was there voluntarily and wasn’t in custody, he had to say the magic words, “I invoke my right to remain silent under the Fifth Amendment.” Because he didn’t, his words could be used against him.

There is something a little impractical about this holding. After all, we read suspects their Miranda rights because we figure they don’t always know to invoke them. Yet for Justice Thomas, even that apparent contradiction didn’t go far enough.

Writing a separate, decisive concurrence joined by Scalia, Thomas took the opportunity to re-express his view that the right not to be compelled to be a witness against yourself doesn’t include the right for the jury not to be told that your silence is evidence of guilt — ever. (Never mind that the Supreme Court has explicitly interpreted the self-incrimination right that way since 1965.)

At the founding, Justice Thomas noted, defendants were encouraged to make unsworn statements defending themselves, and their failure to do so could be mentioned at trial. Of course, he didn’t mention that at the time, defendants were also generally prohibited from testifying on their own behalf, lest they endanger their souls by perjury.

If criminal justice, or the rest of our constitutional, system, were actually turned back 225 years or so, the results would be so unfamiliar as to seem bizarrely un-American. Originalism is valuable because it reminds us that there are certain core values that we as a people have preserved throughout our history — not because we should stop using zippers and go back to a world of buttons.

That said, I have to admit that there is something inspiring about a justice who takes a principle to its logical end out of a sincerely held commitment, even if it makes him look ridiculous. So long as there aren’t four others who agree with him consistently.

© 2013, Bloomberg News

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