Sunday, October 30, 2005

What Would Justice Thomas Do?

I don't expect to see a lot of WWJTD buttons sprouting up. We pretty much know what Clarence Thomas will do. He'll say very little and vote the same as Antonin Scalia. The more interesting question might be, "What would Justice Thomas have done?"

In particular, let's suppose that rather than succeeding Thurgood Marshall on the Supreme Court, that Clarence Thomas had been sitting on the court when it heard Marshall's arguments in Brown v. Board of Education. When the Supreme Court ruled against the principle of segregation disguised as "separate but equal" in 1954, it overturned "settled law" as established by Plessy v. Ferguson. It suggested that regulations which, on their face, were neutral with regard to opportunities for black people, might in reality be designed to keep them down.

Where would Justice Thomas have stood on that issue? It's an interesting question.

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