The Grinch That Saved America?

How The Grinch Stole Christmas

I have always been a sucker for The Grinch That Stole Christmas. Not the Jim Carrey live-action version, but the Chuck Jones cartoon, which uses all of Dr. Seuss' original artwork and concepts.

A version of that story may be playing out right in front of us. I did not want to write this without proof, but proof came yesterday, so here it is.

Clarence Thomas has been a very Grinchy Justice. He was nominated for his ideology and color to replace Thurgood Marshall. His confirmation hearings made him a laughingstock, filled as they were with images of pubic hairs on Coke cans. And so he vowed to spend the rest of his life giving nothing but pain to liberals, to "show them" the price of making the political personal.

He has been at it for nearly 20 years, an ideological clone of the slimy, smarmy Antonin Scalia, a reliable vote for any business interest. He is never seen to smile and, on the bench, never appears to speak. His opinions, when he writes them, speak to an antebellum conservatism, a pre-Marbury vs. Madison conservatism, the conservatism that kept his ancestors in chains, in south Georgia, in the small town where he later grew up.. He's like that KKK guy Dave Chappelle played once, the one who didn't know he was black because he was blind.

Thomas was famously asleep at the Inauguration, but he came down the aisle in his black robe for the President's speech on the economy. He sat down as he always did, and then the First Lady entered the gallery above the chamber.

Michelle Obama, a beautiful, strong, brilliant black woman, arms-bared, in complete command of herself, drew a standing ovation from the Congress and the gallery, then sat down next to a young black girl and hugged her tight.

Clarence Thomas smiled. No, that's not right. He grinned. No, that's not right either. His face broke into the light of day, a tremendous gleam of satisfaction spread over him, something I had never seen before. I watched the TV transfixed as he transformed before me, a light shining inside his heart, his anger gone, his eyes watering. It looked, to me, like the scene where the Grinch pulls the sled back from the mountain, that moment where "they say the Grinch's heart grew three sizes that day."

The camera left him when the President entered, as he walked down the aisle signing autographs and shaking hands. It was all a dream, or it seemed like one. Then Speaker Nancy Pelosi said the magic words, "Ladies and Gentlemen, the President of the United States." And it wasn't a dream. It was all true.

I can't speak to what Mr. Justice Thomas thought of the President's remarks. To me, he hit it out of the park with the nonchalance of Nat King Cole doing a turn on his old variety show. Every note perfect, every move sheer class. And then, at the end, the President turned toward the girl next to Michelle. He told her story, that she went to a poor school in a poor town in South Carolina, a school that would shake each time a train rattled by. He told of how she wrote him a letter, asking for help but saying in part "Americans don't quit."

For a few moments I thought Mr. Justice Thomas was going to cry. Because he had come from the identical town, in south Georgia. And here he was, in his long black robe, a senior justice of the Supreme Court, forgiven and forgiving, belonging.

Now here's the rest of the story.

It's the case of Wyeth vs. Levine. The whole Bush-era project of letting companies get away with murder was aimed at Wyeth vs. Levine.

Think about it. You make a bad drug, or a bad medical device. You get the drug or medical device approved by regulators who are in your pocket. Now their approval means no one can sue if the drug or medical device kills them.

The Bushies had gotten halfway there, a year ago, in a case called Riegel vs. Medtronic. If your FDA-approved heart device kills you, tough. The device-maker points to the regulator, the regulator points to the device maker, and they both laugh their heads off because they can kill you, or those you love, with literal impunity.

The Wyeth case was the crowning glory. Get this one through and, even if the warnings on the drug's packaging are wrong, you have no right to sue. None. Drop dead. The drug companies are always right. Just keep the FDA corrupted (as it has been) and you're golden.

How important was this case? Despite an obvious conflict-of-interest (his latest forms on the matter show he owns stock in Pfizer, which is buying Wyeth), Chief Justice John Roberts was there to vote aye on pre-emption. Justice Alito and Scalia (of course) made three. They were opposed by the "liberal wing" which now consists of Justice Stevens (appointed by Ford), Justice Souter (appointed by the first Bush) and the two Clinton Justices, Ginsberg and Breyer.

Justice Thomas went with Levine. Not only did he go with Levine, but he wrote a "concurring opinion," a separate opinion in agreement with the majority under Justice Stevens, saying he would go further, and ban all pre-emption, the whole edifice the Bushies had been building for 8 years. He cited the Federalist Papers and the 10th Amendment.

Yes, it was still a conservative opinion, but conservative in the "the document means only what it says" sense, not the "business is always right" sense of Scalia. Justice Kennedy also went that way, narrowly, and the final score was Levine 6, Wyeth 3. She can get her day in court.

No more making up the law to protect business from responsibility, said Mr. Justice Thomas. We look to the Constitution, we look to the law, and if it's not there we don't go making stuff up.

For plaintiff's, for people like Diana Levine, who lost an arm because Wyeth was too lazy to get the latest evidence into the instructions it packed with the drug (don't do it intravenously), it was Christmas in March.

Same for all the other Whos in Whoville.

Does this mean Justice Thomas is transformed? No. He's still a conservative, still a strict constructionist.

But he won't just jump because business says jump any more. He won't look people in the eye and say "you're screwed so stuff it" any more.

He got that much of his humanity back. I saw in his eyes when he finally saw the meaning of American possibility.