The Role of Justice Clarence Thomas

It's no accident that Justice Clarence Thomas dissented from the Supreme Court's best decisions this term. What was more startling was Thomas' willingness to take an extreme stand, even further to the right than other members of the conservative majority.

One Thomas opinion in particular should get close attention. The most ominous concurrence of the term goes to Justice Thomas in Berghuis v. Smith, a case striking down the Sixth Amendment challenge by a criminal defendant who argued that women and African Americans had been excluded from his jury. The African-American defendant argued that the all-white jury was convened using a process that violated his right to be tried before a jury drawn from a ''fair cross-section of the community.''  The ''fair cross-section'' requirement has been recognized by the Supreme Court since 1975. In Berghuis, a majority of the court found that the procedures for jury selection did not violate the defendants' right in that case. But Justice Thomas -- in a one-paragraph concurrence -- offered a startling take on the case. He contended that the Sixth Amendment does not contain a fair-cross-section guarantee, and had the state raised this argument, Thomas implied that he would have decided the case on that ground. Thomas' willingness to read the guarantee out of the Sixth Amendment goes against a line of decisions that has ensured the inclusion of women and racial minorities in juries throughout this country. It's an astonishing position, one that chillingly foreshadows the willingness of at least one member of the Supreme Court's conservative majority to dismantle wholesale guarantees that have become part of the mainstream of criminal constitutional law.

It's often said that the Supreme Court nominations and confirmations have little to do with the lives of average people. But as the court's decisions showed this past term, the stakes are high indeed for the poor, the marginalized and minorities. As Justice Kagan takes her seat, she joins a court aggressively engaged in a struggle over constitutional interpretation that will shape the lives of average people for decades to come.

Sherrilyn Ifill is a civil rights lawyer and professor at the University of Maryland School of Law.

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