Judging Thomas

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Which is why Thomas causes such pain to women's groups, liberals and above all black leaders. In a remarkable snub, Thurgood Marshall, the civil rights pioneer whom Thomas replaced on the court, did not attend Thomas' swearing-in ceremony last November. Later in the fall, Thomas quietly sought out Marshall in his chambers, where he took notes for two hours while Marshall held forth. Not long after, Thomas got some unsolicited -- and angry -- advice from another prominent black jurist, A. Leon Higginbotham Jr., chief judge emeritus of the Third Circuit Court of Appeals in Philadelphia. In a November letter to Thomas that he published two months later in the University of Pennsylvania Law Review, Higginbotham wrote that the young Justice displayed "a stunted knowledge of history and an unformed judicial philosophy." He proceeded to give Thomas a lengthy lecture on the civil rights struggle that had helped land him on the high bench.

That did not stop Thomas from outraging the black leadership in one civil rights case, Presley v. Etowah County Commission, in which he joined a 6-to-3 majority in allowing two Alabama counties to strip powers from black officials - after their election. Then came Hudson v. McMillian, a case that involved a shackled and handcuffed black convict who was beaten by two Louisiana prison guards in a punch-out that loosened teeth, cracked a dental plate and left his face bruised and swollen. The court majority concluded that this was cruel and unusual punishment forbidden by the Eighth Amendment. But not Thomas' Eighth Amendment: In a dissent joined only by Scalia, he wrote that while the guards' behavior was deplorable, the majority ruling was "yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society . . . The Eighth Amendment is not . . . a National Code of Prison Regulation."

"I cannot, to save my life, understand that vote," says N.A.A.C.P. executive director Benjamin Hooks. "I don't think Thomas is dumb; I think he is wrong." Such criticism may explain why in some of his writing Thomas has appeared anxious to signal that he is mindful of black struggles. In a major integration case, U.S. v. Fordice, the court ruled 8 to 1 two weeks ago that because of continuing evidence of racial segregation in its state university system, Mississippi must continue efforts to attract more blacks to its mostly white campuses and more white students to its three traditionally black colleges. But though it would ordinarily offend his notion of color-blind laws, Thomas wrote a separate concurrence to stress the importance of finding some way to preserve the black-student majorities at historically black campuses -- a significant goal for some blacks. "It would be ironic, to say the least," Thomas wrote, "if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges."