Whose Side Is Clarence Thomas On?

The Apparatchik

The rise of Clarence Thomas.

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Appointed 28 years ago, Clarence Thomas holds the honor of having held a seat on the Supreme Court longer than any of the other current justices. He is also the nation’s second African American justice, having succeeded the first, Thurgood Marshall, in 1991. Born in Pin Point, Georgia, in 1948, Thomas grew up poor, though not destitute, and in circumstances in which he experienced both anti-black racism and the opportunities pried open by the civil rights movement. He attended Holy Cross College and Yale Law School, pursuant to admissions programs that expressly sought to assist promising black students. Upon graduating from Yale, he associated himself with Jack Danforth, an ambitious, well-connected Republican and future Missouri senator who became a lifelong mentor and door opener. Through his budding ties with the GOP, Thomas steadily rose on the rungs of the political appointee ladder. In 1981 he became assistant secretary for civil rights at the Department of Education, in 1982 chairman of the Equal Employment Opportunity Commission, and in 1990 a judge on the United States Court of Appeals. In 1991, George H.W. Bush tapped him for the Supreme Court, triggering a rancorous battle over his confirmation, especially after he was accused of sexual harassment by his former aide Anita Hill.

As a justice, Thomas has developed a distinctive persona. Resolutely silent during oral arguments, he writes bold opinions in which he uninhibitedly repudiates precedent, wielding an interpretive methodology in which he purports to propound an originalist understanding of the Constitution. He focuses on the racial consequences of cases more than his colleagues do, and he also refers to black thinkers—for example, Frederick Douglass and Thomas Sowell—who are largely ignored by the other justices. With a voting record that places him at the right edge of a conservative court, there is little question where his politics lie, and he is said to be President Trump’s favorite justice.

Thomas’s influence is now poised to grow as the federal judiciary lurches to the right—a sobering prospect, given that if he had his way, there would be no federal constitutional protections against state power aimed at punishing the provision of contraception or abortion or against laws punishing disapproved sexual relations between consenting adults. The ability of the federal government to regulate industry on behalf of consumers, workers, and the environment would be sharply curtailed; prisoners would have virtually no recourse to federal constitutional redress against governmental abuse; affirmative action would be prohibited; and previously narrowed prohibitions against invidious discriminations would be trimmed even further. How successful Thomas will be in realizing such an agenda is unclear, but he has already made himself matter dramatically. In 2000 he cast a decisive vote in Bush v. Gore, which handed the disputed election to George W. Bush. In 2008 he did the same in District of Columbia v. Heller, in which the court, taking a cue from an earlier opinion by Thomas, held that the Second Amendment grants individuals the right to bear arms. In 2013 he cast another decisive vote, this time in Shelby County v. Holder, a 5-4 decision that eviscerated a key section of the Voting Rights Act of 1965.

In The Enigma of Clarence Thomas, political theorist Corey Robin sets out to explicate the justice’s motivations, writings, and votes—to make sense of his contradictions and ambiguities. The author of two previous books, Fear and The Reactionary Mind, Robin wants to show how Thomas “has managed to take his peculiar blend of black nationalism and black conservatism and…fit this alien and intransigent politics into that most traditional and stylized genre of the American canon, the Supreme Court opinion.” According to Robin, Thomas has done so by making race “the foundational principle of [his] philosophy and jurisprudence…. It is the ground of his thinking about morals and politics, society and the law.”

Other academics have noted this feature of Thomas’s thinking, but Robin develops the argument for a general audience, updates it, and extends it to a broader range of topics than those typically discussed in relation to Thomas. Robin observes, for example, how Thomas justifies his hostility to the state’s power to take private property through eminent domain by referring to episodes when municipalities callously used that power to demolish black communities.

Robin also cites how Thomas put his disapproval of campaign finance restrictions in the context of repudiating the notorious white supremacist senator Benjamin Tillman of South Carolina, who authored legislation that barred corporations from contributing to candidates for federal elective office. “For Thomas,” Robin argues, “even the seemingly non-racial subject of campaign finance is, like so many constitutional questions, deeply enmeshed in race.”

Robin portrays Thomas as self-​consciously committed to improving the lot of black people, albeit by means at odds with the prescriptions of many prominent African American politicians and voters, most of whom are liberal Democrats. Convinced that the federal government cannot help black Americans with what he sees as their most pressing problems—those of communal issues of morale—Thomas favors shrinking social welfare programs. Insisting that stringent law enforcement is necessary to save black people from the depredations of criminality, he favors strengthening policing.

In perhaps the most novel feature of his analysis, Robin argues that Thomas’s willingness to countenance disfranchisement and racially discriminatory punishment (conduct that many observers see as anti-black) derives from his apparent belief that the best qualities in black America have been elicited in oppressive circumstances and that therefore, paradoxically, those circumstances are good for black Americans. With those views, Robin argues, Thomas has rationalized nearly all of his efforts to maintain the legal architecture under which African Americans have suffered most because “adversity helps the black community develop its inner virtue and resolve.” Robin adds, “It’s astonishing how openly Thomas embraces not just federalism but a view of federalism associated with the slaveocracy and Jim Crow.”

To make his case, Robin opts for “interpretation and analysis rather than objection and critique.” He abhors Thomas’s politics, maintaining that the justice’s “beliefs are disturbing, even ugly; his style brutal.” But Robin wants his readers to confront this discomfort head-on and engage with Thomas’s thinking in detail rather than evade it through ignorant dismissal. Robin does this by describing Thomas’s views with sufficient equanimity to enable his readers to glimpse the world through the justice’s eyes—no matter how troubling this perspective may be.

This approach has won Robin notable plaudits. In Boston Review, Joshua Cohen lauds The Enigma of Clarence Thomas as “a wonderful book” that is “a model of interpretive generosity.” In his determined effort to be coolly analytical and give Thomas his due, however, Robin can at times accord the justice an excessive solicitude. Eschewing charges that Thomas is intellectually superficial and “narrowly partisan,” Robin depicts him as a figure of impassioned idealism and substantial intellectual depth. But is he really a formidable thinker, or is his thinking merely that of a Republican apparatchik skilled in bureaucratic self-promotion and intensely focused on using the power he has amassed to promote retrograde policies? This is the central question posed by Thomas’s status as one-ninth of the living American Constitution, and it is one that Robin fails to answer in a fully satisfying way.

Since his appointment to the Supreme Court, Thomas has routinely pretended that he is an accidental justice, someone who was promoted by others without his prompting. That is, of course, untrue. As Jane Mayer and Jill Abramson show in Strange Justice, he campaigned assiduously for the Supreme Court position. One skill that enabled him to succeed was his artful manipulation of other people’s decent inhibitions. Particularly consequential was his exploitation of an abhorrence of racism in others to shield himself from scrutiny. The most striking instance of this surfaced in the wake of Hill’s allegation that Thomas had sexually harassed her. With appalling effectiveness, he cowed the Senate Judiciary Committee, led by then-Senator Joe Biden, by charging that the public examination of her claim constituted a “high-tech lynching.” Another came when, under routine questioning, Thomas offered ignorant or evasive answers that should have been disqualifying. When Senator Patrick Leahy asked him to name a few important decisions handed down by the Supreme Court over the previous two decades, Thomas mustered a halting and fragmentary reply that would have been embarrassing for any law student. Asked about Roe v. Wade, he responded as if he had hardly even thought about the case. It is true that, as Robin states, the two justices about whom complaints concerning competence have consistently been raised are Marshall and Thomas, and that is not coincidental. Racism has played a role in some of those complaints. But that should not excuse Thomas’s lack of legal fluency or the weakness of his preconfirmation legal record, his subsequent reluctance to enter into public disputation at oral arguments and other nonscripted occasions, or the poor quality of his memoir (My Grandfather’s Son), all of which provide a reasonable basis for questioning his intellectual heft.

Robin mostly accepts at face value Thomas’s portrayal of himself as a race man deeply invested in black America. After all, Thomas quotes approvingly from Douglass. He talks admiringly of the black folk who persevered under the brutal reign of Jim Crow. He notes the continuing prevalence of anti-black racism, and he concerns himself with the racial consequences of disputed policies. But this is mostly pretense. When Thomas cites Douglass, he does so not to perpetuate that great man’s challenge to white supremacy but to burnish his own brand, signaling to black Americans that, beneath his reactionary politics, he has not forgotten where he came from and signaling to white Americans that he is no ordinary right-wing Republican but something more valuable: a black right-wing Republican with code-switching capabilities.

In some readings of Thomas’s opinions, Robin can also be excessively impressed by his arguments, such as his lone dissent in Virginia v. Black. In that ruling the court invalidated on First Amendment grounds a statute criminalizing cross burning. To Robin, Thomas’s dissent shows the justice getting his black on. But the position he adopted—supporting the broad criminalization of cross burning—in addition to being misguided as a matter of First Amendment law, in fact posed no threat to most white conservatives, who are happy to sustain a system of racial hierarchy even as they condemn KKK-style symbolic mayhem.

Thomas, it seems, gets his black on only when the stakes are marginal or when he is shielding himself from scrutiny. When the stakes are high and urgent, his attentiveness to the interests of black Americans is scant. The best illustration is his vote with the majority in Shelby County v. Holder. Its dramatic undercutting of the Voting Rights Act is the most unjustifiable and hurtful decision imposed on black America in the past half century. It is atrocious, right alongside such judicial delinquencies as Plessy v. Ferguson, Giles v. Harris, and Korematsu v. United States. Yet here is Thomas providing a crucial vote to cripple legislation for which the proponents of racial justice marched, bled, and in some instances died. For Robin, Thomas’s vote in cases like Shelby County is an expression of belief that the rules of political engagement are so stacked against African Americans that no intervention, including that proffered by the Voting Rights Act, can effectively assist them. His vote, therefore, was meant to convey the message that, for black Americans, electoral politics is a futile game in which whites will always ultimately call the shots, set the rules, and determine the winners.

This interpretation, though creative, is unconvincing. A more familiar and prosaic reading of Thomas’s voting-rights jurisprudence is far more plausible: that for reasons of partisanship and indifference to racial wrongs, Thomas joined four other conservative justices in drumming up a rationale to seize an opportunity to do what their numbers enabled them to do—hobble a statute that, from their vantage, had been used all too effectively to encourage and protect voters who were likely to support their political enemies.

Despite offering illuminating readings of Thomas’s legal and political career, The Enigma of Clarence Thomas sometimes falls victim to a talented con artist who, over the course of his long career, has seduced and traduced many observers, allies, and adversaries. Robin maintains that Thomas is authentic, even if misguided, in his devotion to advancing the best interests of black America, and he leans heavily on the apparent sincerity that suffuses Thomas’s reminiscences about the black people he claims to idolize, particularly the demanding grandfather who raised him; his stated desire to protect and advance African Americans; and his claim that he feels hurt because many of them revile him for his pronouncements. But an honest belief that a policy is beneficial ought not insulate a supporter of the policy from condemnation if it can be shown that the policy in question is profoundly unjust and seriously harmful to those purportedly helped.

At the turn of the 20th century, a black commentator, William Hannibal Thomas, recommended that African Americans embrace their racial subordination, even to the extent of permitting the state to divest them of authority over their children. He offered this advice out of the apparently honest belief that it was in the best interests of black people. Fortunately, his sincerity did not assuage the properly outraged sentiments of observers like the essayist and novelist Charles W. Chesnutt, who denounced these proposals as a “traitorous blow.” Many African American critics of Clarence Thomas have responded similarly. Addressing black Americans in 1993, writer Pearl Cleage insisted starkly that Thomas “is an enemy of our race.” His record over the ensuing quarter century has only accentuated the prescience of her judgment.

At the same time, I sympathize with those who have been solicitous of Thomas. I am among their number. Several years after his appointment to the court, he was invited to address the National Bar Association, the black analogue of the American Bar Association. (The NBA was created when the ABA was hostile to black lawyers.) Judge A. Leon Higginbotham of the Court of Appeals for the Third Circuit, a stalwart champion of social justice, objected and urged the NBA to rescind its invitation. I wrote an article agreeing with the NBA’s decision to honor Thomas and its effort to draw him into dialogue. I was a sap, and Higginbotham was correct: Thomas did not deserve the platform that was offered to him. He had shown little distinction as a jurist and, contrary to his claims, was uninterested in a candid and reciprocal exchange of ideas.

Subsequently, I erred again. In my book Sellout: The Politics of Racial Betrayal, I absolved Thomas of any such dereliction. But if he is not a sellout, then the term has no utility. He is the paradigmatic figure that many African Americans rightly despise, someone who has been promoted by white Americans and then from a position of power and privilege subverts struggles for group elevation. He is the classic free rider and defector. Especially galling is that he has deployed his blackness so effectively for such wrong-headed judgments and opinions, repeatedly invoking his racial minority status to reinforce his broadside attacks against affirmative action.

It is understandable why Robin grants Thomas a grudging respect, but alas, the seriousness of his effort to understand an ideological adversary contrasts sharply with the vapidity, cruelty, and opportunism of his subject. This is not to say that Thomas is diabolical in every facet of his life. Many who have engaged with him personally, including those who disagree strenuously with his politics, report that, one on one, he is remarkably personable—courteous, cordial, without presumption. In the Supreme Court Building, he is widely appreciated for taking the time to know and assist members of its workforce who are often ignored, such as security personnel, secretaries, and food service and janitorial crews. There is reason to think that he would be a nice neighbor. On occasion, he has even quietly assisted people professionally whose ideological leanings he opposes.

Notwithstanding Robin’s portrait of a conservative black nationalist consciousness deeply involved in deliberation, Thomas’s thinking is little more than a distillation of reactionary sentiments, supplemented by a superficial acquaintance with black political thought and a resentment that remains on boil because of the humiliation he suffered at his confirmation hearings. He has substantiated the forebodings of those who warned that he would be a disaster as a justice and disappointed those who believed that the circumstances of his upbringing would, with time, make him more attuned to the plight of those subject to the many injustices that menace America.

With respect to the most consequential rulings of his career, a far better guide to Clarence Thomas’s thinking than the Constitution or The Autobiography of Malcolm X are the platforms of the Republican Party and the talking points of Rush Limbaugh.

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