In this week’s fiery dissents to Supreme Court rulings on the Affordable Care Act and same-sex marriage, Justice Antonin Scalia has introduced much of the world to his sputtering fury and creative word choices — employing “jiggery pokery” and “mummeries,” for instance.
But just because Justice Clarence Thomas has a reputation for staying silent on the bench, doesn’t mean the polarizing conservative didn’t apply his own brand of knotty logic in his written dissent of the court’s rulings.
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Here are two head-scratching, jaw-dropping examples of Thomas’ recent logical gymnastics at work.
Discrimination exists, we just have to live with it
In the case dealing with the Fair Housing Act, the Supreme Court ruled that the law constitutionally protects against actions that lead to discriminatory results — known as disparate impact — in addition to implicit discrimination. Here’s a nugget from Thomas’ dissent.
“Racial imbalances do not always disfavor minorities … [I]n our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.”
Thomas appears to be saying that, sure, there’s plenty of discrimination floating around but it’d be unfair to chalk it all up to racism. Just look at the NBA. They’re fine, even though most players are black.
In making that point, Thomas fails to acknowledge the actual application of disparate impact claims. Just because the NBA employs a majority of black players doesn’t mean that there is discrimination at work — or that a white player would file a suit to claim as much. Even if that were to happen, the courts would then still have to determine whether the claims of disparate impact discrimination were valid and violated the law. So merely claiming that, in some industries, for instance, minorities have a majority stake apparently does nothing to address the actual application of the law.
But there is one aspect of Thomas’ argument that is indisputable: A majority of NBA players are black.
Your dignity is not the government’s problem In a win for marriage equality advocates around the country, the court ruled that all states must license and recognize same-sex marriage — regardless of state laws or where the marriages were performed. Justice Anthony Kennedy notably used the word “dignity” nine times in his 34-page opinion. Thomas had a different take on the issue of dignity. “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.” Despite being beaten, raped, and treated as subhuman property — all while living under a government that ostensibly permitted such treatment — slaves either did not lose their dignity at all or, in a broader reading, they can’t blame the government for any loss of dignity. Basically, not the government’s fault, Thomas appears to be saying. By that application, Thomas’ point seems to be that same-sex couples should just buck up and recognize that it’s the not the government’s role to “bestow dignity.” While those are just two points by Thomas that have triggered much bafflement and outrage this week, there are likely still be more to come — Monday will bring more decisions from the Supreme Court.
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