The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him
1. The hunt for the bad justice
As of a half-dozen years ago, most Americans could not name a single Supreme Court justice. That may still be true today. But of those who could name at least one, the most likely would be Clarence Thomas, probably the single most written-about and longest-serving justice currently on the court, the most fearless or infamous, depending on whether or not you agree with his opinions. Much of what has been written about him is not flattering. Liberals and leftists have worked tirelessly from the time of his confirmation hearing in 1991 to have him, initially not confirmed and, after his narrow Senate confirmation, to have him removed. Anita Hill accused him of workplace sexual harassment at his confirmation hearing. Other women who worked with Thomas testified in his favor but he was tainted, damaged severely, by Hill’s charges as she seemed a credible witness. He remains bitter and angry about what happened to him at his confirmation hearing, claiming it was the result of White and especially Black liberals wanting to destroy him because he was a Black conservative, something they could never countenance since his arrival in Washington as a legislative assistant for Missouri’s Republican Senator John Danforth in 1979. The Black liberals found him particularly irksome when he became the chairman of the Equal Employment Opportunity Commission in 1982, as he was supposed to enforce the Civil Rights Act of 1964. He had become a Republican when working for Danforth when the latter was the attorney general of Missouri and he had become publicly known as a Black conservative after attending the controversial Fairmount Conference in 1981, organized by Black conservative economist Thomas Sowell who would become Thomas’s intellectual hero. From the perspective of his detractors, how could Thomas head the Equal Employment Opportunity Commission when he had become an open skeptic of the goals and even the rhetoric of the Black civil rights establishment? For them, he was an agent of social and political retrenchment; he wanted to undermine civil rights.
Much of what has been written about him is not flattering. Liberals and leftists have worked tirelessly from the time of his confirmation hearing in 1991 to have him, initially not confirmed and, after his narrow Senate confirmation, to have him removed.
Thomas had the good fortune to be chosen by President George H. W. Bush to serve on the Supreme Court. He had the ill fortune of being chosen to replace Thurgood Marshall on the Supreme Court, the first Black to so serve. Marshall was a Black legal giant, a staunch liberal, a pillar of civil rights jurisprudence. Thomas’s detractors said that Thomas was no Thurgood Marshall, to paraphrase Lloyd Bentsen’s famous putdown of Dan Quayle in the 1988 vice presidential debates. Thomas had only served little more than a year as a judge on the U. S. Court of Appeals when he was tapped for the Supreme Court. He had nothing like the credentials in his profession or the standing among Blacks that Marshall possessed. Of course, it should be remembered, in fairness to Thomas, that he was selected for the Supreme Court at the age of 42; Marshall was 59 when he was chosen. But Marshall was a hard act to follow and Thomas was certainly not Marshall’s heir apparent, not the person Marshall would have suggested to replace him. Black liberals felt President Bush was playing a cynical affirmative action game by selecting Thomas: How could Blacks object to a Black being selected for the Supreme Court even if he is conservative? Thomas’s critics saw Thomas as a White conservative masquerading or disguised as a Black. In sum, at the time of his confirmation, his critics, his enemies, considered Thomas a lightweight legal intellect with politically unenlightened views who hated Black people and his own Blackness. This assessment, in addition to his now being considered a Black lawn jockey for rich White conservatives who shower him and his activist White conservative wife with gifts, has made him the subject of intense liberal and leftist vitriol. This passage from former Missouri Congressman Bill Clay’s blistering diatribe against Thomas, Clarence Thomas: A Black Knight in Tainted Armor (2014), is as representative as any from a Thomas hater:
“Clarence Thomas’ (sic) addiction to the adolescent fairytale of the infallibility of founding fathers (sic) has resulted in decisions that horrendously impact negatively on the wellbeing of a large segment of society. His fixation on applying the rights of citizens based on the arcane concepts of imperfect men, also clothed in tarnished garments contravenes simple logic and exceeds the bounds of reasonable justice.
“Justice Thomas’ (sic) most serious problems are two-fold, (1) a stubborn refusal to view the Constitution as an evolving document that can accommodate a changing modern world, and (2) an inability to truly grasp the full meaning of the 14th and the 15th Amendments to the Constitution that made blacks equal citizens to all others.” (Clarence Thomas: A Black Knight in Tainted Armor, 313)
The anti-Thomas movement has never ceased to seek a way to get him removed from the court. Despite the controversies involving White conservative justices Samuel Alito and Brett Kavanaugh, no conservative justice is as hated by his enemies as much as Thomas.
2. The quest for the good justice
The People’s Justice by Amul Thapar, a judge on the U. S. Court of Appeals for the Sixth Circuit and the son of Indian immigrants, seems to be doing several things at once. First, it is written in an engaging and highly accessible way, the cases selected here are compelling, dramatic, at times, moving. They are not highly technical or legalistically abstract. The book is a page-turner, not for legal scholars but for the general public. The reader gets stories, vivid vignettes about the real people and situations behind Supreme Court cases. In this sense, here is The People’s Supreme Court book about The People’s Justice, a smart way for the author to “show Justice Thomas’s true character,” (xx) as the author sees it by captivating the reader with the personal details of the cases. Second, the book is a defense of Thomas’s originalism, the legal theory that the Constitution must be interpreted by the Court as the Founding Fathers intended, a kind of filiopietistic historicism for some like Bill Clay, that is meant to limit the reach of government and to apply the law equally to all. What is most important for Thomas is limiting the reach of federal power, which, for Thomas, is what the Constitution was designed to do, in order to ensure freedom and the empowerment of local communities. Thomas is perplexed that his critics want to modernize or “evolve” this idea when the idea itself, the Constitution itself, defined modernity, is modernity. Thapar calls Thomas “one of the greatest originalist jurists ever.” (xx) Third, relating to the first point about revealing Thomas’s true character, Thapar intends to undermine the belief that, as a conservative, Thomas is essentially a misguided, not-very-bright reactionary who decides in favor of fat cat business interests and power brokers. Thapar writes that The People’s Justice shows “how Justice Thomas, applying originalist principles of jurisprudence to the cases before the Court, responds to the struggles of everyday Americans.” (xxi) In other words, Thomas is empathetic, and there is ample evidence from people’s personal interactions with him that this is so. Fourth, Thapar, as a jurist who is a person of color or a racial minority, wants to show that Thomas is not alone in his views or somehow a fluke, a mistake, or an aberration as a minority jurist. Others think this way too and admire Thomas as a pathbreaker. In other words, Thapar wants to make clear that Thomas’s relationship with the American community of color is not defined solely by the people who hate him. This is certainly not the first or only positive book about Thomas but it does have, in this regard, a bit of an advantage over similar efforts by White conservatives.
Thomas had the good fortune to be chosen by President George H. W. Bush to serve on the Supreme Court. He had the ill fortune of being chosen to replace Thurgood Marshall on the Supreme Court, the first Black to so serve.
The twelve cases Thapar selects involve rape, murder, eminent domain, affirmative action in college admissions, school vouchers, legalized marijuana, gun rights, and the Ku Klux Klan. Thomas’s view does not always prevail. In fact, Thapar highlights Thomas’s dissents in several instances.
In two cases where the court refused to grant a petition for review, Thomas commented. In Doe v. United States, a female cadet was raped by a fellow cadet which so traumatized her that she quit West Point, although she had been doing well before the rape. A few years later, she decided to sue West Point under the Federal Tort Claims Act for making it possible for the assault to happen. But Feres v. United States, which made it very difficult for military personnel to sue their superiors, essentially made her suit impossible. Thomas was the only justice willing to hear the case after the plaintiff had failed in lower courts. He thought it was time for the court to reconsider Feres and that it was unfair that Doe could not get a chance to present her case in the same manner that any civilian could sue the military for damages. (93-94) The other case was McKee v. Cosby in which actress Kathrine McKee, some years after the fact, gave an interview where she claimed comedian Bill Cosby raped her. When Cosby’s lawyer called her a liar publicly, she wanted to sue for defamation on the grounds that she was telling the truth and wanted an opportunity in court to prove it but the court found that under the precedent of New York Times v. Sullivan, she could not because the newspaper interview she gave made her a “limited-purpose public figure” who now had an impossibly high bar to meet in a defamation suit. Thomas had long wanted to revisit Sullivan which he thought was federal overreach as “States are perfectly capable of striking a balance between encouraging a robust public discourse and providing a meaningful remedy for reputational harm.” (quoted, 105)
In every instance, Thomas sides with the underdog in these cases, whether it is the White working-class homeowners fighting pharmaceutical giant Pizer in an eminent domain case or the two chronically ill women fighting for their right to grow small amounts of marijuana to smoke in order to manage their pain. Of course, detractors will simply say that Thapar cherry-picked cases to prove his point, a fact that may, ironically, undermine his project but is, of course, unavoidable. Moreover, a skeptic may ask, “How representative are these cases?” Thomas has been on the Court for over thirty years and has written hundreds of opinions. Naturally, the entire premise of Thapar’s book is that these cases are indeed representative of Thomas’s legal views and values.
3. Full faith and credit
Those issues aside, I think there is another strategy underlying this book. The People’s Justice seems a defense of Thomas’s, the Black conservative’s, view about Blackness, race, and belief in the Constitution. Consider, for instance, Thapar’s choice of a case like McDonald v. City of Chicago, where Otis McDonald, a hard-working, law-abiding Black man living in a crime-ridden neighborhood that he is trying to reclaim, wants to challenge Chicago’s law against private handgun ownership. He wants a handgun to protect himself and his family but that is against the law in Chicago. The majority of the Supreme Court sides with McDonald, applying the Second Amendment to the states through substantive due process. Thomas concurs with the majority but in his opinion writes about the arming of Black men during the Civil War and the Southern states banning Blacks from possessing firearms that a proper understanding of the 14th Amendment’s privileges or immunities clause would have prevented. It is not simply a matter of the correct Constitutional interpretation here but that Thomas is on the side of law-abiding Black folk who want to take back their streets from gangs which anti-gun White liberals and leftists will not let them do.
In City of Chicago v. Morales, a case where the court struck down a loitering law meant to curb the presence of gangs on a streetcorner in a poor Chicago neighborhood, a law that the residents of the neighborhood desperately wanted, Thomas castigates his colleagues in his dissent: “Today, the court focuses on the ‘rights’ of gang members and their companions. It can safely do so—the people who will have to live with the consequences of today’s opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Mrs. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs.” (Quoted on page 136)
What angered Thomas, as it does many Black conservatives, is that liberals and leftists ignore law-abiding, respectable Black people who support norms and respectability in their community while valorizing the criminal, the sociopath, the nihilist as heroes who make the lives of law-abiding Black people more difficult than their lives need to be.
In Zelman v. Simmons-Harris, a case about school vouchers in Cleveland, Thomas sees himself as siding with Black parents who want school choice that hypocritical White liberals and leftists will not support but who do not themselves send their children to public schools but exercise school choice because they can afford it.
In Brumfield v. Cain, a case where a convicted Black murderer of a Black single, working mother petitions for vacating his death sentence on the grounds that he is “mentally retarded,” the term that was used at the time, Thomas, in his dissent, chastises his colleagues for not taking the suffering of murdered woman’s family seriously, and accepting the claim of Brumfield, the plaintiff, that his actions were the result of his socio-economic background, although his background was identical to that of the victim’s son, who went on to become a successful football player, college graduate, and supporter of his family. As Thapar writes, “Justice Thomas’s discussion of the crime and its effects on the victim’s family was unorthodox for a Supreme Court opinion—so much so that the other three dissenting Justices did not join this second of the opinion.” (119) What angered Thomas, as it does many Black conservatives, is that liberals and leftists ignore law-abiding, respectable Black people who support norms and respectability in their community while valorizing the criminal, the sociopath, the nihilist as heroes who make the lives of law-abiding Black people more difficult than their lives need to be. What makes Black conservatives particularly controversial is their belief that many Black people make their own lives trying. In his autobiography, My Grandfather’s Son (2007) Thomas complained that liberal Whites used him and other Black students as guinea pigs when White colleges began employing affirmative action in their admission policies. To understand Thomas is to understand that he wants to be seen as a race man, someone who is fully committed to the advancement of Black folks. But he abhors the idea of being some sort of “radicalized” race man because radicalization has distorted Black people’s sense of what is in their best self-interest.
That Thomas is bitter about his experiences with Black and White liberals and leftists is clear. But what I think he hates more than their actual views is their snobbery about their views. There is something about Thomas’s parvenu background that would make him especially sensitive to the bourgeois snobbery of liberal and leftist intellectuals. His full faith in the Constitution as it was conceived, the fact that as a Black man, he can defend the Constitution in the way he does, is something that he feels is an achievement, a validation of his being an American, and it is. Whether his legal opinions are the best way to combat the liberal and leftist hegemony he feels we are living under and persuade others of it is impossible to say. The sheer vitriol and anger they generate among his enemies gives him at least this satisfaction: He is not and cannot be ignored.
