Where But for the Grace of God Goes He? The Search for Empathy in the Criminal Jurisprudence of Clarence Thomas

TL;DR: Muller as mentioned in this paper argues that Justice Thomas's vote in Williams shows a flicker of the sort of empathy that Thomas claimed for himself at his confirmation hearings, suggesting that his capacity for empathy seems to run only to those he imagines to be very much like himself -- not to the shackled inmates on the prison bus.

Abstract: At his confirmation hearings, Clarence Thomas went out of his way to suggest that he would bring to the Court a unique capacity to empathize with criminal defendants. In memorable testimony, he volunteered to the Committee that he often looked out his office window at the shackled inmates coming to federal court on prison buses and said to himself, "But for the grace of God there go I." Yet his performance on the Court in criminal cases has not exactly lived up to his promise: he has been among the Court's most predictable opponents of the claims of criminal defendants. In this Article, Professor Muller searches for an explanation for the unusual pro-defendant vote that Justice Thomas cast in United States v. Williams, 504 U.S. 36 (1992). The question in that case was whether a federal prosecutor was required to present material exculpatory information to a grand jury. The Court said no; Justice Thomas joined Justice Stevens's impassioned dissent criticizing prosecutorial misconduct. Professor Muller argues that Justice Thomas's vote in Williams shows a flicker of the sort of empathy that Thomas claimed for himself at his hearings. But because the issues in Williams were remarkably similar to some of the issues raised by Anita Hill's sexual harrassment allegations against him, Justice Thomas's Williams vote suggests that his capacity for empathy seems to run only to those he imagines to be very much like himself -- not to the shackled inmates on the prison bus.