From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity

by Corey Robin on June 29, 2015

Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas:

What she remembered most vividly, however, was the way [Clarence] Thomas woke up each morning. He had a theme song which he would play at high volume in his room at the start of every day, “kind of like a mantra.”

“What’s that?” she remembered asking [Gil] Hardy [Clarence Thomas’s roommate] when she was first rocked out of bed by it at an early hour.

“Oh, that’s just Clarence,” Hardy replied with a laugh. “It’s his theme song.” The song, “The Greatest Love of All,” was a pop anthem celebrating self-love rereleased by Whitney Houston.


Clarence Thomas, My Grandfather’s Son:
I’d heard the song many times, but it had never meant more to me than it did now…I took heart from George Benson [who originally performed the song]: …No matter what they take from me/ They can’t take away my dignity.

Clarence Thomas, Obergefell v. Hodges, dissenting:
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

 

{ 47 comments }

1

Daniel O'Neil 06.29.15 at 7:47 pm

dammit you have made me feel pity for Clarence Thomas

2

Adam Hammond 06.29.15 at 7:52 pm

Yes … if we were to define dignity as a kind of fish, people who catch fish would supply all of human dignity! Amazing what one can logically accomplish by starting with a clearly stated definition!

3

Sandwichman 06.29.15 at 8:47 pm

Justice Thomas, that line, “learning to love yourself,” doesn’t mean what you think it means.

https://youtu.be/N1KvgtEnABY

4

bianca steele 06.29.15 at 8:50 pm

No one ever wakes up to a recording of middle school choir singing it. I don’t have video, sorry.

5

Salem 06.29.15 at 8:52 pm

I was thinking more like this:

[youtube http://www.youtube.com/watch?v=UZKCgravnzU&w=560&h=315%5D

6

Salem 06.29.15 at 8:54 pm

Didn’t work. Trying again:

7

a.r. 06.29.15 at 9:34 pm

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

-Article 1, Basic Law for the Federal Republic of Germany.

8

Barry 06.29.15 at 9:52 pm

I know that I’m carping, but it’s been weird to watch nothing but an odd book seminar here, during such a week.

9

bjk 06.29.15 at 10:19 pm

So you can deny someone’s dignity? I don’t think so. See, this thread is about belittling a black man and giggling at his taste in music, but he still maintains his dignity. But it is possible to lose your dignity, as this thread also demonstrates.

10

Alan White 06.29.15 at 10:21 pm

Corey (if I may)–thanks so much for this. The last quote sent me to read his dissent to see what the context was. Well, it’s that “that principle” from which this statement is a corollary is:

“Human dignity has long been understood in this country
to be innate. When the Framers proclaimed in the Declaration
of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all
humans are created in the image of God and therefore of
inherent worth. That vision is the foundation upon which
this Nation was built.”

How can Thomas ignore (i) that the concepts of rights and dignity may not have even an asymmetric entailment relation, (ii) that the domain of “all men” is most historically relevant here as precedent cases and suffrage and civil rights legislation clearly show in the gradual elucidation of rights (if not dignity), (iii) (as your post reads off between the lines) that apparently dignity to Thomas is some Achilles-total-immersion-in-the-Styx property that cannot possibly be besmirched in any way, because, well, Houston and Benson sang it so dang well, and. . .

Well, it’s all just breathtakingly shallow and teems with non sequitur. He desperately needs to hire some clerks of a contrary political persuasion who also passed a logic course.

11

Rich Puchalsky 06.29.15 at 10:26 pm

In addition to the great direct benefits of this court decision, hopefully this means that we never have to pretend to pay attention to some conservative’s analysis of what marriage really is ever again.

Oh wait, I forgot: they can just get going on this.

12

Sandwichman 06.29.15 at 11:12 pm

bjk,

Clearly you contain multitudes. Your post suggests a distinction between a private and a public dimension of dignity. If you can “lose your [public] dignity” then it can also be taken away, even though you retain your personal dignity. Justice Thomas was also banking on eliding the distinction between public and private and thereby asserting the persistence of the private even when the government has denied the public.

Such an elision leads to nonsense. Under such logic an individual couldn’t be wrongfully convicted of an offence because that person would retain their personal knowledge that they didn’t commit the offence and thus their feeling of innocence vindicated.

Stone walls do not a prison make,
Nor iron bars a cage;
Minds innocent and quiet take
That for a hermitage.

Imagine jurisprudence founded on such poetry.

13

Dr. Hilarius 06.30.15 at 12:12 am

My guess is that slaves were less concerned with abstractions like dignity than the daily reality of being owned as property. Thomas, much like the late Robert Bork, forgets he is not a philosopher king, he’s a judge, a civil servant charged with settling concrete disputes.

14

LFC 06.30.15 at 2:27 am

Abstracting somewhat (though not completely) away from the context of Obergefell (I’ve looked through the opinions but not read them carefully), it seems to me the underlying issue here is not all that complicated. On the one hand, there is an inherent dignity that all humans might be said to possess simply by virtue of their humanity. That kind of dignity can’t be taken away by government action. Then there is another kind of dignity that stems from how a society and a polity treats its members, and it’s that kind of dignity that Kennedy, in his less-than-superbly-crafted majority opinion, had in mind.

Two fairly eminent scholars, G. Kateb and M. Rosen, have published books on dignity in the last several years. I have no intention of reading either of them but I wd have expected to see them mentioned in these discussions and I haven’t.

Finally, I’m not sure I ‘get’ this post. Thomas is an interesting Justice for various reasons, one of which is that he has an interesting and unusual biography that has obvs. affected and shaped his views. But in looking at Thomas’s opinions over the years (n.b. not studying them closely), I don’t see very much evidence that he is a really deep political thinker. Perhaps I am wrong on that. He is very drawn to including concrete stories in his opinions, at least recently. For instance, in the capital punishment case that came down today he has a concurrence describing in graphic, almost lurid detail various horrible crimes that people sentenced to death have committed. It’s not going to change anyone’s mind about the death penalty nor did it bear much of any relation that I cd discern to the particular legal questions at issue in the case, but it does show once again that Thomas is a very independent Justice who says exactly what he wants to say in his opinions and often doesn’t seem to care how they are going to be received by anyone — his fellow Justices, the legal scholars, the bar, or the casual interested reader. One subtext seems to be, roughly: “I’m going to write whatever I want, whether it bears directly on the legal questions at issue or not, and if you [meaning anyone] don’t like it, you can f*** yourself.” (Many of Scalia’s dissents, though more self-consciously ‘clever’, also seem to carry this attitude. Though Scalia is more given to epithets: “gobbledy-gook,” “pure applesauce,” “nonsense,” and “logic worthy of the Mad Hatter” are just a few of the phrases he’s used in dissents in these recent end-of-term cases.)

15

LFC 06.30.15 at 2:31 am

Minor correction: “gobbledy-gook” is not from a dissent, it’s from Scalia’s concurrence today responding to Breyer’s dissent in the death-penalty (lethal-injection-cocktail) case.

16

LFC 06.30.15 at 2:36 am

I now see that Sandwichman @12 already made roughly the same pt re two different kinds of dignity.

17

Anderson 06.30.15 at 3:28 am

Thomas could stand to read Fukuyama on recognition.

His solipsistic notion of “dignity” seems better suited to a Stoic philosopher or Buddhist priest than to a liberal republic.

18

LFC 06.30.15 at 3:44 am

Thomas could stand to read Fukuyama on recognition.

Or some others I can think of, but no pt in getting into a listing of names.

His solipsistic notion of “dignity” seems better suited to a Stoic philosopher or Buddhist priest than to a liberal republic.

Not really. His notion can be read as *one* , but only one, aspect of the dignity that a “liberal republic” rests on (see several comments above); the other aspect is the more ‘recognitional’ one.

Btw the fact that he got this from a song that is apparently a “celebration of self-love” (and which I don’t intend to listen to, I don’t think) doesn’t make any difference to whether the aspect of dignity discussed in the quoted passage is valid. The song, fwiw, is prob. awful. That’s one reason I don’t intend to listen to it.

19

oldster 06.30.15 at 3:57 am

It’s also pretty clear (e.g. in the quote from “My Grandfather’s Son”) that the reason Judge Thomas is so fixated on this song is because he is deathly afraid of having his dignity taken away from him. So he is correspondingly enraptured to hear someone tell him that this is (somehow?) impossible to do.

But things that we genuinely, unproblematically believe are impossible? We are not afraid of their happening. I don’t wake up every morning to a song telling me that it’s going to be okay today, because no one can make three into an even number. I don’t find solace in humming “no matter what they take from me, they can’t take away my self-identity!” That’s because I genuinely believe that it is impossible for three to be an even number, or for anything not to be self-identical.

My point being: this guy does not even believe the line he is selling. He is whistling past the graveyard of his gravest fear: that he will have his dignity taken away from him.

Which is very sad for many reasons, but perhaps most of all because, in fact, he voluntarily gave away his dignity many years ago. He is not a buffoon and a laughing-stock because of things that others did to him, but because of what he has made of himself. Maybe they can’t take away your dignity, pal, but you sure lost it nonetheless.

20

Suzanne 06.30.15 at 7:25 am

@13: Would that Justice Kennedy bear that in mind as well. Not that I disagree with the end result, but I never read such fatuous drivel in all my life.

@14: There was that digression by Thomas about the football hero. Even Alito was like, Dude?

Respect for Whitney: Ms. Houston made some awesome sound in her day and she was a true diva, even if it/she wasn’t your cup of tea. (She was a guilty pleasure of mine. What a voice. I also cherish her performance in “The Bodyguard”: “I just want to have brunch with my friends!”)

And Thomas is an odd bird, to say the least, but I can well understand why a song about the importance of believing in yourself and a dignity that no one can take away would resonate with him.

21

LFC 06.30.15 at 12:43 pm

There was that digression by Thomas about the football hero. Even Alito was like, Dude?

Yup (for people who don’t know which case this is, I’ll try to give the cite later).

Re Houston: agree she did have a good voice.

22

Lynne 06.30.15 at 12:49 pm

Context is everything. That quotation would be very moving if it were set in the context of Thomas’ thoughts about his own life, his own family and ancestors. But in the context of arguing against equal rights to marriage it really stinks. You could justify anything that way. “You already have your intrinsic dignity, it doesn’t matter if the cops strip-search you in the street, nothing can take your dignity away.”

23

LFC 06.30.15 at 12:56 pm

The ‘football digression’ to which Suzanne refers @20 is in Brumfield v. Cain (June 18).

24

Jim Buck 06.30.15 at 1:25 pm

The Greatest Love of All was written for the 1977 biopic: The Greatest ; and the line
…No matter what they take from me/ They can’t take away my dignity,
refers to Muhammed Ali being stripped of his title, in 1967:

https://en.wikipedia.org/wiki/The_Greatest_(1977_film)

25

Sandwichman 06.30.15 at 3:05 pm

@24

Nice catch!

26

Alan White 06.30.15 at 4:00 pm

It’s probably just because I’m old, but I assumed everyone knew the origin of the song and its connection with Ali’s trials in the 60s, and thus why Thomas identified with it.

Still, his thoughts on dignity aren’t even half-baked no matter what the inspiration for them.

27

JimV 06.30.15 at 4:52 pm

It was not obvious to me from Justice Thomas’ confirmation hearings that he would be as terrible a judge as I think he has been (not that I would have voted to confirm him).

If in additional to a counter-factual vote I had a counter-factual examining role in his confirmation process, I would have liked to dig up some old, not too controversial case, change the names and some of the events, and ask him to write an opinion on it (in as many hours as he needed without consultants except to provide law texts he asked for). That might have smoked him out. This is all in hindsight and probably wouldn’t have flown, as demeaning.

Of course in a better system, Justices would have a trial period before getting tenure, or something like that. Partisanship might nullify that, but Justice Thomas did sneak in with a very slight majority in a majority-Democratic Senate.

There are a lot of difficult jobs that Justice Thomas could do very well, I’m sure, but I just don’t think Supreme Court Justice is one of them. In most jobs you can learn by experience what works and what doesn’t, and get better over time.

28

David C 06.30.15 at 5:17 pm

While whining that “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Scalia signed onto a dissent based on the pop-psychology of easy listening.

29

Anderson 06.30.15 at 6:48 pm

” In most jobs you can learn by experience what works and what doesn’t, and get better over time.”

Being a judge is no exception. Thomas is an ideologue, and is not interested in “what works,” which he would take as a pragmatist fallacy contrary to the proper judicial function. He sees no point in learning from experience.

30

bobbyp 06.30.15 at 7:27 pm

A. cannot escape death
B. cannot escape taxes
C. cannot escape dignity

One is true. One is nearly always true unless A precedes B. One is false.

31

CJColucci 06.30.15 at 10:51 pm

Thomas, much like the late Robert Bork, forgets he is not a philosopher king, he’s a judge, a civil servant charged with settling concrete disputes.

They would both insist, with great heat, that the opposite is true. And they would be wrong.

32

Z 06.30.15 at 11:45 pm

Oldster is completely right, this is weird inverted projection. But I should say I do find solace in the fact that no one will come and make 3 and even number…

33

Salem 07.01.15 at 12:10 am

The only thing I find more stupid and annoying than that ridiculous song is using pop-psychology to analyse people you’ve never even met.

34

oldster 07.01.15 at 1:27 am

Thanks, Z. And remember:

no matter what they take from three,
they can’t take away its leaving one over when divided by two!

35

LFC 07.01.15 at 2:22 am

salem
using pop-psychology to analyse people you’ve never even met

I think this thread has been fairly light on that, no?

Put together Thomas’s memoir (which I haven’t read), his judicial opinions, his interviews and speeches and etc., and there’s a fair amount of material there. If sensitively used (a big “if”), psychology might help illuminate it, as would be the case for many public figures, but I don’t think resort to “pop psychology” is esp. called for.

36

Dean C. Rowan 07.01.15 at 6:29 am

Props to Thomas for appreciating even the most pop incarnation of George Benson. Whitney Houston supernova’d, but Benson has grown, evolved, perhaps matured, mas o menos, over the years. Both deserve measured respect, at the very least. But the fuck does this have to do with the law? At all? Indeed, this seems to be Thomas’ complaint. Dignity isn’t a legal concept, thus any invocation of dignity in a judicial opinion is inapt. The premise is true, but the conclusion sucks. When ham-handed Kennedy writes, “They ask for equal dignity in the eyes of the law,” it’s not as if he’s writing, “They ask for treble damages.” He’s trying, abysmally, to impart a rhetorical force to the plaintiffs’ arguments. Furthermore, even taking as true Thomas’ plausible assertion that the government is incapable of bestowing dignity, why should we accept the reciprocal assertion that dignity cannot be taken away by government? We pretend our dignity is “innate” precisely because we know it is so vulnerable to obliteration by family, friends, enemies, government, bureaucracy, the faux-meritocratic bullshit we call higher education, ordinary assholes, and, on occasion, those nine fat balding white men we call Justices of the Supreme Court.

37

Salem 07.01.15 at 9:54 am

I think this thread has been fairly light on that, no?

I was specifically referring to oldster, and the ridiculous notion that the real reason Thomas is attached to the song/quote is because he’s afraid of having his dignity taken away from him, and not because he actually believes it can’t be done. I mean, this theory is possible, but let’s just say it’s not exactly compelled by the facts.

My uncle really loved the proverb “You can’t put a quart in a pint pot,” and would use it in every possible occasion. He didn’t wake up every morning to it being sung, but if there’d been a major hit with that as the key line, he probably would have. Are we to conclude that he was secretly terrified that someone, somewhere had managed to fit two pints into a one pint container? Or that, in his wild and misguided youth, he himself had filled a half quart space with a whole quart of liquid, and was now trying to atone for the fact, hypocrite that he was? Or should we just take him at his word, like normal people?

The simplest explanation is that Thomas thinks it’s a true statement, beautifully expressed. I happen to agree with Thomas that human dignity is innate and the government can neither bestow it nor take it away (but I don’t see why a belief innate dignity means you should oppose gay marriage). But I can’t agree with his choice of song, which is one of the worst ever recorded. Well, except for the Randy Watson version.

https://www.youtube.com/watch?v=KzANAr1V82c

Dean – in a thread about Clarence Thomas, it’s quite incredible that you think the Justices of the Supreme Court are all white men.

38

jake the antisoshul soshulist 07.01.15 at 1:49 pm

I understand why Thomas does not trust the state in the area of human dignity.
However, while the state cannot confer dignity, it can prohibit others from publicly denying that dignity.

39

phosphorious 07.01.15 at 2:29 pm

As I recall, human dignity creates an obligation of some kind. A person’s dignity requires that we treat them a certain way.

Apparently I was wrong! If a person has dignity it doesn’t matter WHAT you do to them!

40

Adam 07.01.15 at 10:49 pm

Isn’t the whole function of slavery that slaves lose their humanity, that slaves are not treated as fellow-humans but commodities? Seems weird to argue otherwise in a legal context, when, legally speaking, slaves were not people at all (well, 3/5ths of a person I guess; must be all the good bits fall in the other 2/5ths).

Also, I think I don’t understand what “dignity” is even supposed to be — isn’t it just, like “honor,” some old-fashioned fuzzy concept founded in war & religion, incapable of supporting anything more than empty platitudes?

41

William Berry 07.01.15 at 11:28 pm

Skinner was right.

About “freedom” and “dignity”, at least.

High time, and past time, for that one last, big push to beyond.

42

Alan White 07.02.15 at 1:38 am

I’m no expert on this, but dignity as used in Thomas’ remarks as a property of self-conscious beings is connected with if not identical to rationally acknowledged self-ownership of one’s being in terms of beliefs, attitudes, actions (and reactions), and so on. What Thomas seems to assume is that every rational person, in virtue of being a rational person, thus possesses dignity, and this evokes a sort of Kantianism about that. So if someone rationally acknowledges such self-ownership, then one has dignity. In those cases, like Ali’s conscientious objection to the draft, indeed no one by external action can extract one bit of dignity from him as long as his convictions and self-ownership are intact. Certainly one of the strong messages of Roots that the general public applauded back in the 70s was that the dignity of African-Americans often persevered under the cruelest of circumstances. But this picture of dignity requires (i) rationality of self-ownership and (ii) identification with ownership. It seems to me that either or both of these are corruptible and from purely external sources (as well as internal ones). People raised from childhood to believe that they have no such self-ownership, or that they are corrupt to believe that self-ownership is part of their make-up, plausibly cannot form rational assessments of such. Thomas’ unwarranted posit that birth from a certain kind of parentage inherently confers dignity stands behind his quote–but at most each human being is from the get-go capable of dignity ceteris paribus. Then it’s left up to nature and nurture: one can become a happy and willing shill of powerful forces (I can think of a couple of governors running for President here) because they can’t or don’t want to understand the influence of those forces, or one can embrace ends that do not reflect well on one’s ability to rationally assess self-ownership (for some reason Divine’s final scenes in John Water’s Pink Flamingos comes to mind).

Are there not undignified people and not just undignified actions? Yeah, I get that attributions of undignified (or dignified) actions are probably widely value-ranging. But to hold that no one who is a human being cannot have dignity stripped from them or by their own devices?

C’mon man, in ESPN-speak. Talk to me about Hitler’s or Pol-Pot’s dignity. And don’t merely circularly presuppose it to justify Kantian retributive punishment for their deeds.

Ok, full disclosure: I am a dignity skeptic.

43

William Berry 07.02.15 at 2:50 am

@Alan White:

Great comment.

” Talk to me about Hitler’s or Pol-Pot’s dignity.”

Yes. And what about their victims? Where is the “dignity” of one who is begging for mercy?

WTF is dignity, and who does it (the concept of) serve?

44

Sandwichman 07.02.15 at 3:17 am

“…dignity as used in Thomas’ remarks as a property of self-conscious beings is connected with if not identical to rationally acknowledged self-ownership of one’s being in terms of beliefs, attitudes, actions (and reactions), and so on.”

And like Marx’s frock coat, even if my dignity gets tattered, “it can still have a number of features which make it valuable for me, it may even become a feature of me and turn me into a tatterdemalion.”

A dignified tatterdemalion, to be sure.

45

someotherdude 07.02.15 at 9:33 pm

Thomas lost his “dignity” when it came out that he used the ole, “Who put a pubic hair on my coke can?” line.

46

CharleyCarp 07.03.15 at 2:28 pm

Folks may have seen the news that a polygamous 3some in Montana is looking at filing suit if their license is denied. I suppose their argument might be based on Montana const. art. II, section 4, the dignity provision: http://leg.mt.gov/bills/2013/mca/CONSTITUTION/II/4.htm

47

JimV 07.03.15 at 3:40 pm

Re: “Being a judge is no exception.” (To being able to learn what works and what doesn’t.)

Well, most judges can have their rulings overturned in higher courts, and learn that way, but not judges in the Supreme Court. I agree that anyone can learn from experience if they want to, and so my point could have been better stated as “In most jobs, there are strong incentives to learn by experience what works and what doesn’t.” But the Supreme Court is different so our system for selecting Justices should be as rigorous as possible – that is what I was trying to suggest.

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