Clarence Thomas opinion in Brumfield v. Cain: Has he forgotten he’s a Supreme Court justice?

Clarence Thomas’ Newest Opinions Are Retributive Ramblings. Has He Forgotten He’s a Supreme Court Justice?

Clarence Thomas’ Newest Opinions Are Retributive Ramblings. Has He Forgotten He’s a Supreme Court Justice?

The law, lawyers, and the court.
June 18 2015 5:07 PM

Has Clarence Thomas Forgotten What His Job Is?

Two of his latest opinions abandon reasoned judgment for fiery condemnation. From a Supreme Court justice, that’s downright disturbing.

U.S. Supreme Court Justice Clarence Thomas arrives for inauguration ceremonies on the West front of the U.S. Capitol in Washington, January 21, 2013.
Supreme Court Justice Clarence Thomas on Jan. 21, 2013.

Photo by Kevin Lamarque/Reuters

Many people who come before the Supreme Court ask the justices to do something huge: devastate the Affordable Care Act, for instance, or declare a constitutional right to same-sex marriage. Kevan Brumfield just wanted a hearing. When Brumfield was convicted for the murder of Louisiana police officer Betty Smothers, the court still permitted states to execute mentally disabled people. In 2002’s Atkins v. Virginia, the court ruled that subjecting such people to capital punishment qualified as unconstitutional “cruel and unusual punishment.” Brumfield, who was sentenced to death, simply argued that he deserved an opportunity to prove in court that he is mentally challenged.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

On Thursday a slim majority of the court granted his request. Joined by the other three liberals and Justice Anthony Kennedy—who is generally a death-penalty progressive—Justice Sonia Sotomayor held that Brumfield must be given a chance to prove his disability in federal court. Brumfield’s trial record, Sotomayor explained, contains plenty of evidence that he might be mentally challenged, including a very low IQ, a persistent language deficiency, several stints in mental hospitals, and “substantial functional limitation.”

Before Atkins, a defendant like Brumfield would have had no reason to dwell on his potential disability in court—in fact, he would’ve had a good reason to hide it. Back then, juries regularly considered mental disabilities to be cause for harsher sentences, not lesser ones, because mentally challenged people were presumed likely to be dangerous repeat offenders. Now that the Eighth Amendment firmly forbids the execution of mentally disabled people, Sotomayor explained, Brumfield must be given an opportunity to demonstrate that he is mentally challenged. 

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The court’s ruling is narrow, straightforward, and legally sound. So, of course, it drives Justice Clarence Thomas absolutely mad. Thomas dissented from Atkins, joining an opinion by Justice Antonin Scalia that complained that symptoms of “mental retardation” can “readily be feigned.” But Thomas doesn’t take this opportunity to reargue Atkins. Instead he uses his dissent to retry Brumfield—this time not under any criminal statute but under his own code of morality. Here and in other opinions, the justice replaces the dictates of the law with what can only be seen as his own desire for vengeance.

Thomas begins by describing, in graphic and completely superfluous detail, Brumfield’s crime: the murder of Corporal Betty Smothers, an off-duty Baton Rouge police officer and a single mother of six children. He then praises Smothers’ character, lauding her ability to work two jobs to support her family and still find time to be “a volunteer coach at a local track club.” That’s appropriate enough: Victims deserve our sympathy, even if a Supreme Court opinion is an odd place to express it.

But Thomas’ dissent then takes a strange turn. Brumfield, Thomas notes, claimed that his terrible fetal health and illness-plagued youth contributed to his mental disability. This argument, Thomas writes, “is striking in light of the conduct of Corporal Smothers’ children following her murder. Most widely known is that of Warrick.” Thomas then devotes an entire section of his opinion to a summary of Warrick Dunn’s memoir, Running for My Life: My Journey in the Game of Football and Beyond.

“Though he had turned 18 just two days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. In his view, it ‘was up to [him] to make sure that everybody grew up to be somebody,’ ” Thomas explains:

Like Brumfield, Warrick’s father was not a part of his life. But, unlike Brumfield, Warrick did not use the absence of a father figure as a justification for murder. Instead, he recognized that his mother had been ‘the family patriarch’ when she was alive, and that he had a responsibility to take on that role after her death at 37.
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After describing Dunn's stellar football career—first with the Florida State Seminoles then in the NFL—Thomas recounts Dunn's devotion to his family and the memory of his mother. (“He kept his mother’s pearl earrings, stained with her blood from the night she was murdered, in a box on his dresser.”) Thomas also catalogs Dunn's charity work helping single mothers furnish their homes and providing no-cost grief counseling services to children. At the end of his opinion, he includes a photograph of Smothers.

Dunn's myriad achievements are indisputably commendable. But do they belong in a Supreme Court opinion about federal law and the Eighth Amendment? Justice Samuel Alito and Chief Justice John Roberts don’t seem to think so. Although the two justices joined most of Thomas’ dissent, they explicitly refused to join the summary of Running for My Life. “The story recounted in that Part,” Alito explains, “is inspiring and will serve a very beneficial purpose if widely read, but I do not want to suggest that it is essential to the legal analysis in this case.”

But why is Dunn's story even there if it doesn’t play some role in Thomas’ legal analysis? Alito and Roberts may want to run away from Thomas’ précis of Dunn's memoir, but Thomas’ admiration for Dunn's and his mother clearly forms the cornerstone of his reasoning. As a straightforward application of federal and constitutional law, Brumfield’s case is an easy one. Thomas’ dissent is an effort to muddy the waters, to pass off his own retributive notions of morality as rational legal logic.

Unfortunately Thomas’ Brumfield bluster wasn’t even his most cringeworthy moment Thursday. In a different case, Kennedy wrote a concurring opinion registering his discomfort with the fact that Hector Ayala, who was convicted of murdering three people, has spent most of his sentence in solitary confinement, awaiting execution. “[I]f his solitary confinement follows the usual pattern,” Kennedy writes:

[I]t is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone.
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Kennedy then decries the “terrible price” exacted by solitary confinement, the “human toll wrought by extended terms of isolation.” He concludes that “the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist.”

That’s a pretty sensible statement in a country whose Constitution bars “cruel and unusual punishment.” But it proves too much for Thomas, who writes separately (and by himself) “to point out” to Kennedy that,

[T]he accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.

Thomas’ retributive ramblings are embarrassing enough on their own terms. In the context of a Supreme Court opinion, they’re downright disturbing. Why is Thomas spilling so much ink to remind us that Brumfield and Ayala committed horrible crimes? Has he simply given up any pretense of judicial impartiality and decided to play the arbiter of righteousness? In his years on the bench, Thomas has occasionally injected personal passion into his decisions. But never before has he so blatantly replaced reasoned judgment with fiery condemnation.  

When prisoners bring constitutional claims to the court, the justices are often called upon to weigh profound concepts like “due process” and “cruel and unusual punishment.” Now Thomas seems to have devised his own standard by which to judge a convicted murderer, no matter how bad his injustice: He got what he deserved.