SEPTEMBER 30, 2019
THAT CLARENCE THOMAS is now the longest-serving justice on the US Supreme Court, as Corey Robin tells us at the outset of The Enigma of Clarence Thomas, inspires me to start doing the math on my own age. Anita Hill, jade-suited, sitting alone before the Senate, is among my earliest memories of American politics and what is now called “the news cycle.”
Since his 52-48 confirmation in October 1991, Thomas has exerted quiet influence on American jurisprudence and politics. The majority of justices now share Thomas’s politics, if not his unique perspective and reasoning. Neil Gorsuch and freshman Justice Brett Kavanaugh, whose own confirmation hearing was a Thomas-like affair, are lockstep with their judicial elder. Among Thomas’s former clerks are 11 nominees to the federal bench, including seven on the court of appeals, and 10 who are either administration officials or members of the Office of US Attorneys, helping to craft current US immigration and deregulation policy. Just as importantly, Thomas has written “more than seven hundred opinions, staking out controversial positions on gun rights, campaign finance, and other issues that have come to command Supreme Court majorities.”
But he remains an enigma, particularly to liberal White America whose knowledge of him is often limited to the Anita Hill hearing, his silence during oral arguments, and the mistaken belief that Thomas was merely Antonin Scalia’s “puppet.” “As a longtime reader of the right from the left,” Robin writes, “I know how tempting it is for people on one side of the spectrum to dismiss those on the other as unthinking defenders of partisan advantage.” To his great credit, Robin’s aim is to avoid facile critiques from the left of Thomas’s political and legal philosophies.
He also aims for something other than a biography of the justice who filled the seat of Thurgood Marshall, who was himself too easily dismissed by liberal heavyweights like Archibald Cox and Bob Woodward. He writes,
Because the temptation to dismiss is even greater in Thomas’s case — perversely mimicking the dismissal of Marshall — and because it’s sufficiently difficult to get people to believe that Thomas has a jurisprudence, much less to hear it, the imperative to let him speak without the interruption of easy criticisms is that much more acute.
Instead, Robin engages in a close reading of Thomas’s writings in the hopes of providing a coherent description of Thomas’s political and legal philosophies as well as their historical and personal contexts.
Throughout, Robin demonstrates that Thomas’s worldview is complex, contradictory, and, at times, has plenty in common with far more progressive modes of thought than liberals might think. For one thing, Thomas is a Black nationalist. He can quote Malcolm X, chapter and verse. As the child of Jim Crow, he remains deeply skeptical of the conciliatory, post-racial politics of liberal America. His jurisprudence is almost universally informed by a race-consciousness that stands in stark contrast to the thinking of almost all of his fellow Justices.
Moreover, despite his conservatism, many of his arguments have, over the years, utilized a type of structural analysis of race and class in American society that could rest, if uneasily, next to that of radical left thinkers. What’s most fascinating about the book is watching Thomas’s thoughts evolve, seeing him move to the right in real time; from the Black Student Union treasurer at the College of the Holy Cross in Worcester, Massachusetts, who chanted, “Ho, Ho, Ho Chi Minh” during a rally in Cambridge to free Bobby Seale and Ericka Huggins; to the law student at Yale who argued for government regulation with a young John Bolton; to the head of Reagan’s EEOC who was still relying on the theory of disparate impact when considering affirmative action policies; to the nominee who claimed that the Anita Hill hearings were a “high-tech lynching for uppity blacks”; to the Justice who has staked out the most conservative position on the Supreme Court.
Robin splits the book into three parts — Race, Capitalism, and Constitution, “the primary categories of Clarence Thomas’s jurisprudence” — and their development corresponds, roughly, to Thomas’s biography. The parts build off one another as we get closer to the present. His early experiences in Jim Crow Savannah and his chastening experiences as a Yale Law student flow into his post-law-school drift toward political and economic conservatism, thanks in large part to encounters with explicitly pro-capitalist Black thinkers in the mid-to-late 1970s. By the 1980s, with Thomas heading the EEOC under Reagan, there appeared a real chance of being named to the bench; only then did he start thinking seriously about developing a constitutional jurisprudence, of which, as a career politician, he had had little need. Thomas was on the federal bench a mere 16 months before his nomination by George H. W. Bush.
At Holy Cross, Thomas spoke the grammar of 1960s Black Power and was elected secretary-treasurer of the newly formed Black Student Union. The BSU’s 11-point manifesto was steeped in the Black nationalism of Marcus Garvey, Kwame Ture, and Malcolm X, whose Autobiography Thomas read as a freshman: “7. The Black man wants […] the right to perpetuate his race”; “9. The Black man does not want or need the white woman.” Thomas was one of the more radical members of the BSU, remembered for his “edgy race consciousness.”
But it wasn’t all Little Red Books and hard left resistance to The Man, as Robin explains:
Like all ideologies, black nationalism is a contested tradition, whose exponents and analysts seldom agree on its basic tenets. While a stringent definition might entail a belief in the separate cultural identity of African Americans and a commitment to their gaining a sovereign state, black nationalists frequently have taken up one position without the other, larding both with a thick layer of pragmatism.
One evening Thomas might take a hard line on an issue, but by the next morning, he might soften his stance. He was a young man testing the limits of his politics during one of the more incendiary periods in American history.
Although Thomas has since denied being a Black nationalist, Robin points out that he has never completely disavowed the movement’s grammar as the formative base upon which he built his subsequent politics. Black nationalist theory continues to pepper his court opinions. Thomas is the only justice to frequently quote W. E. B. Du Bois and Frederick Douglass. He’s even lifted from James Baldwin, without attribution.
At Yale Law — chosen because it had a more liberal reputation than Harvard — Thomas first questioned the welfare state’s intervention on behalf of African Americans. He began to view such liberal political programs as both perpetuating and masking the deep racism at the heart of the American project. In Thomas’s mind, to a White student, a Black student at Yale Law could only ever be the result of White largesse, thereby undermining any sense of achievement the Black student might derive from having gained admission.
His position on the court, undermining affirmative action programs, was an irony lost on no one, with Rosa Parks once quipping, “He had all the advantages of affirmative action and went against it.” Yet, unlike fellow conservatives who decry affirmative action as simply reverse racism, Thomas’s beliefs rest on the notion that affirmative action further marks already marked bodies. “For Thomas,” Robin explains, “the most important form that racism takes is the stigma or mark it puts on black people, designating them as less worthy or capable than white people.” Thomas has said as much in the 1995 decision Adarand Constructors, Inc. v. Peña:
So called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences.
Yet Robin astutely notes that Thomas’s form of race-consciousness doesn’t extend to all classes: “The victim of racial stigmas Thomas has most in mind is not a poor black person racially profiled by the police but the ambitious black striver condescended to by liberal whites. The victim he has in mind is someone like him.”
Thomas’s feelings about affirmative action were still inchoate in the early 1970s. And even several years into his appointment, Thomas was conflicted about completely giving up on such political measures. It makes sense that, as Thomas struggled with the racial politics of the welfare state, he became receptive to the radical free-market ideology that had started creeping into the mainstream from the fringes, while faith in Keynesianism on both the center right and left disintegrated under the weight of the Vietnam War and domestic civil unrest.
Free markets promised solutions to Black self-sufficiency in a still utterly racist landscape. After Yale, Thomas went west, where he found himself working in the Missouri Attorney General’s office, headed by the Republican John Danforth. At this point, according to Thomas, the most conservative thing he’d done was vote for George McGovern in 1972, but philosophically he was “in transit,” writes Robin, moving away “from a black left that disquieted him and white liberals who looked down on him.”
In 1976, he had his first important encounter with conservative Black politics when a friend recommended the University of Chicago–trained economist Thomas Sowell’s Race and Economics, which Robin calls a “mix of Malcolm and Milton.” Through an analysis of urban and rural slavery and the varying economic experiences of immigrant groups in the United States, Sowell lays out an argument that politics is the domain of White power and that the market is the key to Black survival. Even in the antebellum South, argues Sowell, market logic constrained the master’s cruelty more than morality. A slave was, after all, an investment and an asset; to harm a slave was to work against the goals of capital accumulation. This contention had an immense impact on Thomas’s politics and, later, his jurisprudence. He registered as an independent in 1976, voted for Gerald Ford, and “became the most conservative attorney in an office that included John Ashcroft.”
Though Thomas claims a Pauline conversion to conservatism, Robin is skeptical. Sowell may have been the final straw, but in the summer of 1971 Thomas read Ayn Rand’s Atlas Shrugged and The Fountainhead (he still requires all his clerks attend a judicial term-opening screening of King Vidor’s 1949 film version of The Fountainhead), and was increasingly disenchanted by his own participation in tear-gassy demonstrations as an undergraduate, which never seemed to put a dent in state power.
Thomas’s personal path in the ’70s also reflected larger currents in Black politics at the time, which were increasingly shot through with “pessimism and fatigue” and the belief that, for all its achievements — such as 1964’s Civil Rights Act and 1965’s Voting Rights Act — the movement had done little to improve the daily life of African Americans and left a bloody trail in its wake. “Black nationalism often gains traction,” Robin writes, “when conditions for African Americans are getting worse, as was the case with the Garvey movement in the 1920s, or when the movement for multiracial democracy comes up against the hard limits of white supremacy.”
Under these conditions, Black leaders, like Thomas, turned to the markets, recalling Adam Clayton Powell’s initial use of the phrase “Black Power” to suggest Black business ownership. This is not to say that Black Power in the ’70s was simply co-opted by capitalism, but there was significant discussion and disagreement within the movement about the direction in which it should head. And the discussion remains relevant today, as the recently slain Los Angeles rapper Nipsey Hussle is eulogized for encouraging Black business ownership and entrepreneurship as a means of empowerment.
Capitalism resonated with Thomas on a personal level as well. His own father, M. C. Thomas, or simply “C,” abandoned his family when Thomas was one, and the boy and his siblings were raised primarily by Myers Anderson, their grandfather, to whom Thomas refers as “Daddy.” In Thomas’s memory, Myers represented what capitalism could accomplish for African Americans. As a young man, Myers owned his own fuel oil business, supplied ice, and had several rental properties. In Myers, Thomas saw the archetype of a strong, independent Black man living on his own terms; he contrasted his grandfather with his mother and sisters, whom he viewed as weak and incapable of providing for their family. This valorization of Black masculinity, which was also deeply informed by the vernacular of Black Power, remains a core feature of Thomas’s worldview.
Memories of his grandfather and Sowell’s writing confirmed to Thomas that there was a surer route to Black emancipation than politics. On the court, he has gone out of his way to deemphasize, even discourage Black political participation, in the hope that African Americans would turn to the markets — something of a rehash of Marcus Garvey’s declaration:
[The Negro] cannot resort to the government for protection for government will be in the hands of the majority of the people who are prejudiced against him, hence for the Negro to depend on the ballot and his industrial progress alone, will be hopeless as it does not help him when he is lynched, burned, jim-crowed, and segregated.
While Thomas’s jurisprudence regarding ballot access hews mainly to the conservative line on federalism, when it comes to the question of electoral power, or “the ability of a group to elect representatives of its choosing,” he diverges from the general consensus of the court as well as from conservative politics at large.
Since the ’80s, when Thomas briefly tried to convince Blacks that they should be Republicans either to influence Republican politics or to signal to Democrats that the Black vote could not be taken for granted, Thomas has largely abandoned the belief that there is any constitutional solution for incorporating Blacks into a political process that Sowell and others argued was forever rigged against them. Thomas sees the Court’s attempt to address Black disenfranchisement and voter dilution as just more liberal White paternalism, which allows Whites to maintain symbolic and real power over Blacks.
Robin identifies this as an argument of despair, which resembles the social theorist Albert O. Hirschman’s futility thesis. According to Hirschman, futility is a common tool for conservatives, who argue that attempting broad political action results in largely superficial changes, leaving structural inequities in place. And Hirschman notes that thinkers on the left may also be daunted by the difficulty of structural change and fall into the trap of futility thinking. Futility arguments, along with the concomitant arguments of perversity (that a policy will have the opposite effect) or jeopardy (that a policy will undo some previous achievement), are convenient for Thomas; he uses them frequently to “demonstrate” the failure of state intervention and regulation.
Another important aspect of Thomas’s project to steer African Americans away from politics is his contention that they do not constitute a stable, collective political class. They may share a collective stigma and experiences vis-à-vis racism, but for Thomas that doesn’t necessarily translate into a coherent collective Black politics. It’s hard to argue with the notion that individuals hold wildly different perspectives on a great number of things, or that there is an obvious class hierarchy within Black life. Still, when Thomas argues for a Black capitalism at the expense of politics he fails to take into account how capitalism and race are inextricably tied. If American politics is rigged against Blacks, capitalism is doubly so. As Huey Newton warned on the pages of Ebony in 1969, Black capitalism “would merely be trading one master for another. A small group of blacks with control our destiny if this development came to pass.” People like Thomas’s grandfather entered the rentier class, extracting labor value and rents from the Black community.
While Thomas’s views on capitalism and race are unique among his peers on the court, they often fit, without too much effort, into the arc of contemporary conservative politics. His justifications may be different, but the result is the same. However, Thomas’s conception of the Constitution, to which Robin devotes the last third of his book, resides in a wholly different sphere. This section of Robin’s book may represent his most interesting break with the conventional reading of Thomas’s thought.
While many legal scholars brand him a constitutional literalist, often to fit the “Scalia’s puppet” narrative, Robin argues that “Thomas’s originalism is at best episodic,” and of greater import is his conception of two separate versions of the Constitution. This conception supports his belief that a strong moral authority is necessary for keeping African Americans on the straight and narrow. One version is the Constitution of Reconstruction, with its signal achievements, the 13th, 14th, and 15th Amendments, since undermined by liberal paternalism and a misapplication of their content. The other is the original Constitution of three-fifths and states’ rights, which, after the failure of Reconstruction, was revitalized as Jim Crow.
At no time does Thomas argue that United States should return to forced segregation or chattel slavery. Rather, he looks to those times as exemplary moments when “African Americans developed virtues of independence and habits of responsibility, practices of self-control and institutions of patriarchal self-help, that enabled them to survive and sometimes flourish.” During Jim Crow, in other words, authority was clearly marked out; it offered a framework within which Black men could protect and provide for their families and communities. That framework was obscured and undermined by the welfare state.
Both Thomas’s Black and White Constitutions work to create a stark form of authority meant to order Black political and social life. For Thomas, the most important part of the Black Constitution is its extension of the Bill of Rights to all citizens after the Civil War, most notably, the right to bear arms. This Constitution granted Black men the means to physically confront White terror, a means that was — with notable exceptions like the Nat Turner Rebellion in 1831 — absent in the antebellum United States. Thomas’s Black Constitution “allows [him] to tell a version of American history — from the revolution against slavery to the counterrevolution of Jim Crow — in which racial violence has been the motor of change [and] black actors and black violence are central both to the making of freedom and to its unmaking.”
However, in order for Thomas’s Black Constitution to exist, “society must remain in a permanent state of tension,” and it’s in the last chapter, “The White Constitution,” that Robin presents the Justice’s logic at its most perverse. Only an antagonistic White Constitution of states’ rights can “re-create the conditions that made for black survival[,] undo the culture of rights and replace it with a state of exigency. That exigency is to be found in the harsh rules of the penal state.” All the better if these “harsh rules” are implemented in a racist fashion, because only then will the necessary tension rescue Black patriarchal authority.
How could a Justice who spends so much of his energy arguing that affirmative action and welfare are the tools of White domination give a pass to the carceral state? Here, Robin reads between the lines, surmising that the carceral state
serves a vital function: it provides African Americans with every reason they need to steer clear of trouble. That is a foundation not only for law-abiding behavior but also for the market-based activity […] Thomas regards as critical to the African American community. The carceral state re-creates the kind of adversity African Americans once suffered under Jim Crow.
Unless the state enacts carceral violence there is no hope, in Thomas’s mind, of bringing about his ideal of the strong Black patriarch, who will protect his race from the forces of White supremacy. This is the disturbing core of Thomas’s constitutional jurisprudence — a nostalgic project that aims to return us to the idealized life of his childhood, where men were patriarchs, women wore their finery to church, and boys never strayed from the lines that authority had laid out for them.
Corey Robin has done all US citizens a great service by reading Thomas with such care, and by providing a fascinating and original interpretation of the man who, in many cases, quietly determines the direction we are taking. Thomas now wields significantly more power on the Court than he did even a decade ago, and his acolytes are in step with him on deregulation, the expansion of the state monopoly on violence, and the project to erode hard-won rights. Even if they don’t share his unique views, the results are the same: the vote is 5-4.