Justice Thomas:

In the past, we’ve sometimes posted about how various people don’t seem to give Justice Thomas a fair shake (see, e.g., here and here). Here’s another example, from a panel that I was on a while back. Another panelist, a noted constitutional law scholar and expert on — among other things — the First Amendment and the Supreme Court, said (this is a transcription from an audiotape I have of the panel; emphasis added):

Here again I want to make three quick comments. The first concerns the lineup of the Justices. And specifically, I want to talk about Justice Thomas’ vote. After all Justice Thomas would be thought of as probably the most conservative or one of the two most conservative Justices on this Court; on any Supreme Court case in history. And yet I think there are two principles that explain Justice Thomas’ votes. Not all of the votes, but some of them. First he’ll consistently vote in favor of pornography under the First Amendment and second he’ll always vote against plaintiffs in sexual harassment cases. As to the former, this case illustrates it, a case from a couple of years ago, Free Speech Coalition v. Ashcroft illustrates it. And to the latter with regard to sexual harassment there’s a Supreme Court case this term, Pennsylvania State Police v. Suders, which was an 8-1 with only Justice Thomas voting against the sexual harassment victim. Now if one thinks back to Justice Thomas’ confirmation hearing, one might predict an opposite set of votes, but I think this says something very revealing about Justice Thomas’ personality, what he’s trying to say, with regard to his reaction to his confirmation battle.

As it happens, Justice Thomas does indeed take a narrower view of hostile environment harassment law than do some other Justices; he’s mostly with Justice Scalia and Chief Justice Rehnquist on this, though occasionally he does write alone. He has voted for sexual harassment plaintiffs in the unanimous Oncale v. Sundowner Offshore Services (writing a one-line concurrence that didn’t disagree with the bottom line) and Harris v. Forklift Systems, so “always” is wrong. But let’s set that aside for now.

The trouble is that it’s simply false to say that Justice Thomas “consistently vote[s] in favor of pornography under the First Amendment.” I give below a list of what I think are all the porn-related cases that Justice Thomas has considered while on the Court, and here they are. When Justice Thomas’s vote would clearly protect porn or clearly authorize its restriction, I’ve just used one word “protect” or “restrict”; when it was based on a more pro-restriction approach than some of the other pro-restriction votes, I’ve said “restrict+”; when it was based on a less pro-protection approach than some of the pro-protection votes, I’ve said “protect-“:

Surely this is not “consistently vot[ing] in favor of pornography” — it’s voting for protecting pornography in some situations (though not as often as, say, Justices Kennedy or Ginsburg, or even Stevens or Souter) and against it in others. So I said as much in my exchange with the other professor, though with many fewer details than I give above; I cited X-Citement and Denver Area, pointed out that Justice Thomas’s pro-protection votes in Free Speech Coalition and Playboy were quite narrow, and explained that in Playboy Justice Thomas basically took a formalist view that obscenity could be defined broadly and was unprotected, but material outside the obscenity definition was protected.

Here’s what the other professor said in response:

As to the second point about Justice Thomas, he is not going to position me into rationalizing or defending Justice Thomas’ opinions. I do find it curious that Justice Thomas does often, does not always vote in favor of, the pornography position and he consistently votes against plaintiffs in sexual harassment cases. I leave you to draw your own conclusions.

So this professor — who knows the First Amendment caselaw quite well — says that he won’t be “position[ed] into rationalizing or defending Justice Thomas’ opinions,” not even to the extent of squarely acknowledging his error. He seemed happy to insinuate that Justice Thomas’s supposed affection for pornography leads him to “consistently” vote to protect pornographers, even though that turns out to be false. But then when confronted with his error, the chief response is that he won’t rationalize or defend Justice Thomas’s opinions.

Now I suspect that the professor sincerely believed he was right when he made his initial statement. But in fact he was wrong, and as a constitutional scholar who often opines on the First Amendment, he should have known better.

Yet I also suspect that his contempt for Justice Thomas blinded him to this reality: Rather than looking squarely at the facts, the professor selectively ignored those that were inconsistent with his pejorative theory.

The professor’s hostility was intense enough that it kept him from thinking straight, as intense hostility often does. And I think this is pretty emblematic of how some on the left react to Justice Thomas.