Max Stearns
It’s my custom to end each semester of constitutional law with a spiel. I’ve covered a broad range of topics, as you’ll see should you visit my blog, Blindspot, where most are posted. Today I want to discuss a somewhat sensitive topic. I’ve titled my talk “Character, Humility, and the Fortuity of Success.”
The topic is sensitive because I’ll be discussing specific individuals. I’ll preface this by saying we all must be careful in making broad claims about an individual’s character. I continue to deeply worry about the prevalent cancel culture and the risk of essentializing someone based, for example, on a singular bad exercise of judgment. If we accept McArthur Fellow Bryan Stevenson’s admonition not to define persons convicted of serious crime by the worst thing they’ve ever done, then it follows that as a society should extend more grace to those who engage in far less consequential judgmental errors. And yet, when we observe a longstanding pattern of egregious behaviors, especially among those empowered with the public trust, it’s appropriate to hold such individuals to account.
I assume you’re familiar with the ProPublica story concerning elaborate trips that Clarence and Ginny Thomas took, funded entirely by Texas real estate developer and billionaire, Harlan Crow, including free travel and accommodations all in stunning style, by some estimates at a value of multiples of Thomas’s judicial salary. Thomas, who has been friends with Crow for twenty-five years, hasn’t denied the claims.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable . . . . I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
I want to focus very clearly on Thomas’s language. Thomas “endeavored to follow . . . counsel.” So, what does “endeavor” convey? Here are two definitions from the Merriam Webster Dictionary, on-line, of endeavor used as a transitive verb:
1
: to attempt (something, such as the fulfillment of an obligation) by exertion of effort
endeavors to finish the race
2
archaic : to strive to achieve or reach
Note the emphasis on exertion or obligation, and in the older meaning, on striving. This operates in parallel with how “endeavor” is defined as a noun. The verb connotes dedicated effort to achieve something challenging to which one is committed. One endeavors to perform well on an exam by studying hard; to run a 10K, half marathon, or full marathon by persistent training; and to becoming accomplished at a musical instrument by dedicated practice.
Now compare Justice Thomas’s usage. Rarely would one say that he or she endeavors to do the very thing one wishes to do, that’s easily accomplished, and that’s self-serving, especially when doing so avoids personal responsibility for conduct that looks problematic under scrutiny. Words matter, and it’s not unfair to hold a Justice on the nation’s highest court to task for a deliberate choice of misleading language as part of a larger deliberate choice to mislead.
Michael Sandel is an eminent Harvard Philosophy Professor, and author of The Tyranny of Merit. I recommend his book, which I won’t summarize here. I want to focus on one aspect of his larger thesis. Sandel admonishes his readers to avoid the mistake, or conceit, or imagining their successes or failures are entirely, even predominantly, the sole product of personal agency. Every one of us has been benefited, or burdened, in significant ways—ways we might never fully understand—that are well beyond our limited control. We do well—we exhibit character—when we appreciate the role of circumstance in our successes, and with equal force, the role of circumstance in the challenges that others face.
Once we recognize this, examples become too obvious to count. Take your favorite athlete, singer, composer, novelist, artist, etc. And imagine that he or she lived at a time when that sport, musical style, or artistic genre was either unknown or not appreciated. Michael Jordan, Cal Ripken, or Ray Lewis might have lived in obscurity in an earlier time or different place. Same with Billy Joel, Bruce Springsteen, or Alicia Keys. You can extend this to any domain, no matter how great the talent, from Mozart to the Beatles, from DaVinci to Picasso. And yes, we can say the same of successful doctors, lawyers, engineers, research scientists, and more.
Stephen Carter is an eminent professor at Yale Law School, which he also attended. Carter and Thomas are close in age. Thomas was born in 1948; Carter in 1954. In 1991, Carter published Reflections of an Affirmative Action Baby. He recounts a painful story from his law school application process. He applied to six law schools, five of which accepted him, all but Harvard which eventually rejected him. Then he received phone calls from a professor and admissions officer. They explained that the committee somehow lacked information about Mr. Carter’s race and encouraged him to enroll at Harvard. He did not.
Professor Carter is critical of affirmative action, as is Justice Thomas, but he is also critical of his younger self. Specifically, he criticizes his earlier discomfort with acknowledging the role that benign racial preferences inevitably played in providing opportunities for his flourishing career. Criticizing affirmative action is certainly legitimate; people hold different views. As I’ve said in this course, the Supreme Court might well end affirmative action this very term. But Carter is also right to question, as an accomplished professor at the nation’s most elite law school, why it mattered so much to his younger self that racial preferences undoubtedly contributed to his opportunities for success. After all, everyone has been benefited and burdened by countless fortuitous circumstances beyond their control.
Over these past few years, I’ve found myself disagreeing, sometimes arguing, with friends, former colleagues, and in some instances, sadly, former friends. A common thread is claiming that their successes are purely their own. I’ve had friends from well-to-do families disclaim the benefits of their personal circumstance in their later successes, pointing out that their parents didn’t pay for their homes, put their own children through fancy schools, and more. I’ve had well educated professionals, including in my own profession, regale me with stories of their ancestors who weren’t in the U.S. during the periods of slavery, the Black Codes, or even Jim Crow. And whenever their ancestors arrived here, they were oppressed. I don’t doubt that for a minute. Immigrating to a new country is often brutally difficult.
And so, the stories continue: Their ancestors lifted themselves up from their own bootstraps; worked incredibly hard; cared not for themselves, but for their children in future generations. I don’t mean to take away from the kinds of stories that help define who we believe we are. Okay. If I’m honest, I suppose I do.
Yes, we all play a role in who we become, and how we contribute to our children’s and later generation’s opportunities. When we do that well, we should be proud. When our parents or grandparents sacrificed, we should be thankful. But we can do all those things without being so hubristic as to imagine that we, or those who cared for us, are alone responsible for our successes. Why does this matter? Because when our world view imagines we’re completely responsible for our successes, we likewise begin imagining that those who are suffering are entirely at fault for their failures. This is among Professor Sandel’s central claims.
And if we think that everyone is getting their just moral deserts, then it makes us more confident that if we are doing well, we deserve all the rewards that come our way. If we are further lavished by others, well, that’s just part of the package. We must be entitled to those gifts as well. But in reality, our successes, and failures—and those of others—are always bound up in a complex intertwined web. We can never untangle it; it’s the height of conceit to imagine we can.
Imagine this mindset instead: Start by assuming others work as hard as we did, or would if presented productive opportunities, but that they faced obstacles that we somehow managed fortuitously to avoid. Instead of thinking of how much more we deserve, consider what others deserve and aren’t getting, and just how fortunate we are. In this frame, perhaps we should all “endeavor” to claim less and give more. And here’s the most radical idea of all: If we accept the role of fortuity in all of this, we should stand less confident, and yes, less dogmatic, about the absolute rightness of our views.
Why is the ProPublica report so troublesome? Not just because of the lavish gifts. Not just because of the false pretense to simpler tastes. Not just because of the closed ideological mindset that Thomas has so long embraced. It’s also troublesome because it’s impossible to believe that with those social commitments—and all that comes with them—Thomas, unlike other jurists in the long history of the Court, has the wherewithal, ever, to change his ideological commitments. I don’t know if Harlan Crow would continue to bestow such gifts on a suddenly irreverent, or even liberal, Justice Thomas. But I have a hunch.
Remember the conversation we had about impeachment. Why for presidential impeachment did the framers include Bribery? Because of all the possible criminal offenses, that’s the one that undermines public confidence in the genuine bases for decision.
I suspect being a Supreme Court Justice can be lonely. At least when it’s done right. Meaning at least when the person doing it has character.
Thank you.
Special thanks to Eric Segall, who has written thoughtfully about Justice Thomas, for his helpful comments on an earlier draft.