Thursday, January 08, 2009

Excerpts on Clarence Thomas

My moderately famous (for me, anyway) posts on Black Conservatism have been reprinted on Racialicious: Black Conservatism Revisited today, and Black Conservatives in Large and Small Caps yesterday. These posts, however, were not the end of my examination of this topic. Far from it -- they actually inspired me to do an independent study my senior year at Carleton to delve further into what I took to be Black Conservative ideology and practice.

Many of the commenters on Racialicious (all of whom I want to thank for their feedback) were hesitant to apply my argument to Supreme Court Justice Clarence Thomas. So I thought I might post an excerpt from the essay I wrote for the above-mentioned research project, where I discuss Justice Thomas and his connections to my rendition of Black Conservatism. Remember that this is from a larger work in progress, so it might reference other sections not reproduced here. Also note that the original version has footnotes, which I had to delete to put this in blog form (I'll list the sources cited at the end, however).


Far and away the most prominent and influential figure in contemporary Black Conservatism is Supreme Court Justice Clarence Thomas. Born in tiny Pin Point, Georgia, Thomas quickly moved with his mother to Savannah, Georgia, where he attended Catholic school. After two years at the local St. Pius X High School, Thomas began preparing to enter the clergy, transferring to a boarding school six miles away. St. Pius, an all-Black school, was closed down after integration – something that left a lasting mark on the future Justice. He enrolled in Conception Seminary, but never graduated, leaving after just one year due to persistent racism by his fellow classmates.

When Thomas spoke of his experience with racism at Conception, many of his former classmates were stunned. Since high school, Thomas had become adept at hiding his anger at racial slights – apparently so adept that his colleagues did not realize he was being affected at all. A similar occurrence characterized his experience at Holy Cross, where he enrolled after leaving Conception. Though it had just begun a proactive effort to attract Black students when Thomas arrived, Holy Cross was still predominantly White, and Thomas reported feeling excluded and alienated – a memory that, like at Conception, clashed with former classmates who remembered him as quite warm and open. This misunderstanding is replayed again and again in Justice Thomas’ life – because he does not respond to racism the way we have been conditioned to expect Black people to respond to racism (either through overt support of civil rights action or more confrontational Black nationalism), it is assumed that Thomas believes that racism is not an operating factor in America. Nothing could be further from the truth, and nothing could be further from Thomas’ own experience as Black man. From his time at the Seminary, to his experience after graduating from Yale Law School (and not receiving offers from elite law firms), to his famous description of the Anita Hill controversy as a “high-tech lynching”, Thomas certainly conceived himself to be a man who had faced and overcome significant amounts of racism in his life.

Thomas’ experience at the Seminary made him deeply suspicious about the entire project of integration. In religion, Thomas expected to find “brotherhood and understand, but instead he found racism and hypocrisy at nearly every turn.” During his time at Holy Cross, he entered a distinctly nationalist phase, helping found the Black Student Union, dressing in army fatigues, and immersing himself in Malcolm X. His relationship with Whites and White society at the time was complex. He advocated engagement with the White community, but only because, as one friend put it, “In order to compete in our society, you’ve got to compete with them,” them being White folks. On the other hand, he led the Black students in a daring walk-out – threatening to abandon Holy Cross entirely – in response to overly harsh and disproportionate punishment meted out to Black students protesting General Electric job recruiters. His logic was simple: “[I]f someone is treating me unfairly, they are demonstrating to me that I am simply not welcome.” The gambit was successful, and the administration backed down. By the end of his time at Holy Cross, however, Thomas reported that his radical spirit was fading. After a particularly violent event in Cambridge, Massachusetts, he began to question his participation in protests for the likes of the Black Panthers, and felt he was becoming “drunk with anger.” From that point forward, Thomas claimed, his path was reset.

But, at least on questions of race, Thomas may not have strayed as far from his radical roots as it might seem. As a public figure, Thomas does not detach his opinion of how his public image had been manipulated from the question of race. He described the “controversy” over his tenure as head of the Equal Employment Opportunity Commission as stemming from his “refus[al] to bow to the superior wisdom of the white liberals who thought they knew what was better for blacks….” Reflecting back on his bumpy confirmation hearings, Thomas did not back off from his “lynching” description – indeed, titling the pertinent chapter of his autobiography “Invitation to a Lynching.” In his autobiography, Thomas mentions at several points the risk of self-consuming rage; a “beast” which threatened to overtake him and his soul. It was a “battle” he “lost” in 1968, and a sentiment he would continue to fight against for the rest of his life. This same rage appears to have returned during the confirmation fight: Thomas describes himself as having “lost [his] grip,” “spewing rambling questions” at his allies, and under attack by “a vast army of political operatives, left-wing academics, public-relations firms, and cynical reporters….” He analogized himself to Tom Robinson, the Black defendant in To Kill a Mockingbird. The racial injustice he had grown up with was back – albeit this time coming from those Whites who purported to support Black liberation. And Thomas concluded: “Twenty years earlier I’d prayed to God to purge my heart of anger, and since then I had managed to hold the beast of rage at bay. Now it had slipped its leash….”

His policy outlook likewise drew strongly from distinctively Black roots. He recalled reading Invisible Man and realizing that Blacks would never be free if they were forced to act in a particular way – and he turned away from his earlier politics of rage because he believed that was the outlook that White society expected of Black people. His skepticism towards government intervention grew out of the observation that giving more power to a majoritarian government, when the majority is in an oppressive relationship with the minority, will not likely further the interests of the oppressed. If freedom is what Black people want, only they can get it for themselves. Relying on a (White-dominated) government is a sucker’s move. And on the Supreme Court, Justice Thomas has battled back against the public sentiment that he is a “clone” of Justice Antonin Scalia: “Because I am black, it is said automatically that Justice Scalia has to do my work for me. That goes with the turf. I understand that deal.” And prior to joining the Court (but still well after his conservative turn), Thomas has emphasized Malcolm X’s place in the conservative camp, against the paradigm of the mainstream integrationist movement he loathes, and has spoken favorably of the nationalist commitment to Blacks building, nurturing, and patronizing their own institutions: “I don't see how the civil-rights people today can claim Malcolm X as one of their own. Where does he say black people should go begging to the Labor Department for jobs? He was hell on integrationists. Where does he say you should sacrifice your institutions to be next to white people?”

Even in terms of the law, Thomas’ jurisprudence echoes strongly of his past affiliations. His skepticism towards integration, and the reasons he gives to justify it, reverberates quite clearly of arguments made by his former Black nationalist allies. In Missouri v. Jenkins, the Supreme Court was faced with the question of how far the judiciary could go in ordering remedies to school segregation. Concurring in the Court’s ruling restricting these remedies, Thomas launched a broadside against the integration mentality writ large. “It never ceases to amaze me,” he thundered, “that the courts are so willing to assume that anything that is predominantly black must be inferior.” Later on in the same opinion, he insisted that “there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.” Compare this rhetoric to that of Carmichael and Hamilton, on the same subject. They lambasted integration as “based on the assumption that there is nothing of value in the black community and that little of value could be created among black people.” They continued:
“Integration” as a goal today speaks to the problem of blackness not only in an unrealistic way but also in a despicable way. It is based on complete acceptance of the fact that in order to have a decent house or education, black people must move into a white neighborhood or send their children to a white school. This reinforces, among both black and white, the idea that ‘white’ is automatically superior and ‘black’ is by definition inferior. For this reason, ‘integration’ is a subterfuge for the maintenance of white supremacy.

The parallels are unmistakable. On cases involving segregation, Justice Thomas has persistently limited his endorsement of governmental intervention only in cases of clear governmental action. If the segregation is de facto, then any remedy – whether judicial or legislative – is immediately suspect. Thomas does not believe that integration is a goal that sanctions government use of race, because he doesn’t view integration as an unadulterated good. As Angela Onwuachi-Willig argues, though Thomas is clearly a conservative jurist, his thinking is “distinct from that of his white conservative counterparts and is intrinsically linked to his identity as a Southern black man.”

Could it be argued that Thomas’ opinions in these cases are merely an outgrowth of his broad conservative legal philosophy, not his particularistic concerns about race? Perhaps, but to limited effect. Most obviously, the appeal to philosophy does not explain his passionate rhetoric on the issue, virtually accusing his liberal peers of racism in their purported belief that “anything that is predominantly black must be inferior.” But the larger problem is that Thomas’ jurisprudence on race does not mesh well with his broader originalist project. The reasoning that he uses in most constitutional cases before the Supreme Court does not seem to extend to racial questions. In the former, he looks solely at the intent and language of the framers, while in the latter, he engages in a far more abstract examination of the principles that underlie the constitution and declaration of independence. A significant amount of evidence exists that the framers of the 14th amendment were quite comfortable with color-conscious policymaking as within the legislative scope of the United States. When forced to account for this in the recently decided case of Parents Involved in Community Schools v. Seattle School District No. 1 (due to a pointedly worded dissent by Justice Breyer), Justice Thomas had little to say, airily dismissing his fellow justice’s argument as “half-hearted” while only observing that the race-conscious remedies around the time of the framing were part of program to remedy explicit governmental discrimination (in the form of slavery). But of course, this does not in any way show what, if any, limitations the framer’s intended to place on race-conscious policies in the future, and Thomas doesn’t provide any, making it difficult for him to elevate the principle of color-blindness to a constitutional mandate (under his prevailing originalist philosophy). When it comes to reconciling his originalism and his desire for a “color-blind” constitution, Thomas appears to have a blind spot of his own. His jurisprudence on questions of race are thus better explained by his personal experience as a Black man who has grappled with racism, than they are by appeals to an abstract and extrinsic judicial philosophy.

Indeed, once one replaces the roster of the standard racist bad guys from Southerner Klan members to patronizing White liberals, the difference between Thomas and old-school Black Power disintegrates nearly entirely. Thomas himself stated that he found the latter far more dangerous, for “at least southerners were up front about their bigotry: you knew exactly where they were coming from …. Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place.” Accepting the belief that White-sponsored affirmative action, and other government programs, are actually detrimental to Blacks (and may be simply instruments to serve White interests) means that there is actually very little space between their respective critiques: in both situations, a White dominated regime – even granting its possible good intentions – will not establish the sorts of policies that are in the interests of Black Americans. Even the element of trust was absent. Like the Garvey, the Black Power advocates, and the Black Liberation Theologians, Thomas assumed that “nothing I could say, however eloquent or sincere, was capable of overcoming the evil assumptions” upon which his accusers during the Anita Hill controversy relied. As a child, he recalled, he had been warned that he “could be picked up off the streets of Savannah and hauled off to jail or the chain gang for no other reason other than I was black.” The mob he saw attacking him, though not carrying ropes, had the same goal in mind: to instill fear in the Black population, and insure that Black men did not deviate from their “place”.


Though White Conservatives may count (some) Black Conservatives as friends or allies, by and large they do not acknowledge the significant divergences in their respective outlooks on race and racism in the United States. White Conservatives are prone to believe that racism in the United States is primarily a problem of the past. While this is a belief shared with some Black Neoconservatives, it is not a positioned adhered to by Black Conservatives writ large. Rather, “unlike their white conservative counterparts, many black conservatives do not believe that a colorblind society is, practically speaking, attainable.” This, to reiterate, is not a position only held by left-wing Black Conservatives: Clarence Thomas has been quoted as saying “I don’t care how educated you are, how good you are at what you do—you’ll never have the same contacts or opportunities, you'll never be seen as equal to whites.”

The gap between what White Conservatives want Black Conservatives to believe, and what they actually believe, is a point of serious tension. According to Professor Angela Onwuachi-Willig, Justice Thomas has been used (against his will) as a “tool” of conservative administrations, who exploit his race for political purposes, while simultaneously opposing affirmative action or race consciousness. Thomas has resisted this to some degree, particularly the efforts by some White Conservatives to create a new politics of White victimology. Speaking at the University of Mississippi, Thomas critiqued elements of the “angry white male” backlash against affirmative action. While Justice Thomas is an outspoken critic of affirmative action, and thus shares the sentiment by many White Conservatives that it is an unjust policy, he observed that “something far more insidious is afoot. For some white men, preoccupation with oppression has become the defining feature of their existence. They have fallen prey to the very aspects of the modern ideology of victimology that they deplore.” Thomas deviation from the conservative political line echoes a broader – normally submerged – facet of modern Black Conservatism: “a certain ‘distrust’ of Whites – even the conservative Whites with whom black conservatives work.”

For obvious reasons, the problem becomes more acute when the focus shifts to left-wing Black Conservatives. Though I noted that there have been some surprising links between Black Nationalists and White Conservatives, in general the mainstream White establishment has remained harsh critics of those groups. But it may be that this hostility is due more to familiarity than difference. Barry Goldwater claimed that defining point of (White) Conservatives was that they are “not too proud to learn from the great minds of the past.” Conservatives draw from the collective past, history, and experience of the people in order to develop their current beliefs. Black Conservatives are the same – except they are drawing from the collective Black past, Black history, and Black experience in order to construct and sustain contemporary political action. Black Nationalists, who were far more aggressive in urging Blacks to jettison White historical figures and arguments in favor of allowing their own traditions to blossom, simultaneously echo and repudiate the White Conservative mindset. They echo it insofar as the argument is essentially the same: political action should be based on the collective historical knowledge of the group, not idealized theories and fantasies about future utopias, and not the lectures and treatises of outsiders whose experiences, ties, and culture are remote from the group. But because that very argument leads them to draw on thinkers and experiences quite foreign to White Conservatives, the practical upshot is repudiation. For Black Nationalists, Whites are among the “outsiders.” Their theories of how to think about race relations, insofar as they are not grounded in Black lived experience, are to be dismissed. For American White Conservatives, used to thinking of the wisdom of past (White) generations as sacrosanct, this is a difficult pill to swallow.

An example of this disjuncture might be found, oddly enough, in the treatment of Justices Scalia and Thomas regarding citations to “foreign” law and legal theory. In Roper v. Simmons, which ruled unconstitutional imposing the death penalty on juvenile defendants, Justice Scalia (joined by Justice Thomas and Chief Justice Rehnquist) a blistering dissent attacking the majority’s reliance on foreign law and legal norms as a basis for its ruling. The contemporary laws of foreign countries (unlike pre-revolutionary English common law, upon which Scalia relies extensively in his opinions) played no bearing in determining the text or original meaning of the constitutional clauses the Court is called upon to interpret. Rather, it is being “cited to set aside … centuries-old American practice.” By stripping the decision away from those who actually deliberated and ratified the constitution (and the sources they used to rationalize and contextualize their decision), the Court is engaging in intolerably undemocratic behavior.

But in Justice Thomas’ rulings on race cases, something peculiar emerges. In his opinion in Grutter v. Bollinger, which upheld the University of Michigan Law School’s use of race-based affirmative action, Thomas opens by quoting Frederick Douglass’ famous admonition of what Black people want from Whites:
In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us …. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... Your interference is doing him positive injury.

This quote by Douglass thus serves as Thomas’ earliest antecedent for his “color-blind” position. The argument itself is not peculiar – it is, to the contrary, quite standard fare from Justice Thomas. But, from a principled conservative perspective (as mediated through the lens of originalism), quoting Frederick Douglass to support a legal proposition is problematic. In 1865 (when this speech was delivered), Thomas was not a member of America’s voting community. Indeed, he was not even yet a citizen. The Reconstruction Amendments, which (nominally) extended these privileges to Blacks would not be passed for several more years (and would not be enforced with anything approaching a substantive protection for many more years after that). Douglass cannot fairly be included as part of the political deliberations among White Americans that created the original public meaning of the Reconstruction Amendments, and there is no proof that his voice or perspective on the matter was included by proxy. But Douglass is undoubtedly a key element of the Black political history and the Black experience with regards to how Black equality was envisioned after the Civil War. So for Thomas, whose conservatism is rooted in personal (and thus Black) experience, Douglass remains very relevant even though, for all practical purposes, he was “foreigner” during the drafting of the Reconstruction Amendments.

Most of the time, however, this tension remains beneath the surface. Even in Grutter, the problem did not truly manifest itself, for two reasons: first, because the Douglass quote was primarily a rhetorical flourish, not as substantively relevant to the merits as the citation to foreign law in Roper, and second, because the legal/political result Thomas was advocating for was in line with that favored by his fellow Conservatives. Consequently, the White Conservative political and legal establishment did not have to engage with the underlying outlook which made Thomas cite to Douglass. But ignoring the problem does not make it go away; in the words of Naito Jenga, it “may reduce consciousness of a problem, but…does not change the underlying reality.” If White Conservatives solely think of their Black fellows as friends of convenience, useful not for their ideas but for the simple manpower and political influence they can bring to bear on favored right-wing agenda items, this is a tolerable response. But assuming that they view their nominal collaborators as more than just expedient political allies, respectful engagement means looking past the similar end-results and truly accounting for the Black Conservative worldview.

Reckoning with Black Conservatism means, first, reading their arguments and hearing their stories. Too often, as George Yancy argues, “whiteness admits of no ignorance vis-à-vis the black. Hence, there is no need for white silence, a moment of quietude that encourages listening to the black.” The assumption on the part of many White Conservatives that they do understand their Black brethren (by which they mean they understand themselves, and do not perceive any difference worth exploring) flows out of this lack of “quietude.” White Conservatives cannot read Black Conservatives parasitically – for only what immediate sustenance they provide to their political ambitions. Clarence Thomas’ opposition to affirmative action may line up with White Conservative political aims, but the why matters. Thomas may believe the constitution is color-blind, but he has no illusion that society is. His strong support for all- or predominantly-Black schools, for example, does not mesh well with how Conservatives conceptualize “color-blindness.” If White Conservatives truly were concerned with learning from Justice Thomas, they would need to vocalize their support for these sorts of academies and offer them as a definitive counter-argument to the Liberal orthodoxy. As it stands, their criticism of affirmative action comes with no alternative, and thus looks to Blacks suspiciously like abandonment.

More concretely, White Conservatives who seek to engage with their Black peers must grapple with the latter’s belief that racism continues to exist and acts as a salient force in American life. Whenever an “official” report documents the truth of this observation, White Conservatives are shocked. This is new information – but only if ignored the words of generations of Black writers making the same claim. Such ignorance comes off as arrogant and patronizing. Black Conservatives do not see racism as the only influence on Black Americans, but they do see it as very significant one. Shelby Steele went as far to say that “no explanation of black difficulties would be remotely accurate were it to ignore racial victimization.” As the Black Conservatives have persuasively argued, accepting this fact does not mean accepting all the stock liberal remedies to it. But it does mean offering up some remedy. Particularly given Black Conservative aversion to White attempts to “help” Blacks, it seems most fruitful for Whites to turn inward and direct their anti-racism efforts towards their own community.

One way to conceptualize this is with reference to the belief held by (some) Black Conservatives and (some) White Conservatives in favor of “limited government.” For many Whites, this belief stems from abstract theorizing by libertarian-influenced writers and philosophers (Hayak, Nozick, Friedman) who argue that too much governmental power is inefficient or a priori immoral. For other Whites, mistrust of government might come from a more concrete and experiential basis. In the early days of American democracy, the experience of British colonialism gave advocates of small-government much of their argumentative force. Today, a White immigrant from the former USSR might also have solid experiential basis to be mistrustful about the wisdom of big government.

Black Conservatives could, too, base their support for limited government on abstract moral reasoning (and often times this is the logical underpinning of the Black Neoconservative position). But when it is experientially based, it is comes from experience with governmental abuse not from a foreign power or society, but from the American government and American society. Thomas recalled an argument he had while at Yale Law School (prior to his identification as a Republican – he voted for McGovern later that year) over the new requirement for cars to have seat belts. His interlocutor asked him: “Clarence, as a member of a group that has been treated shabbily by the majority in this country, why would you want to give the government more power over your personal life?” The question, Thomas recalled, “stopped me cold.” Black Conservative mistrust of governmental authority is motivated by mistrust of abusive foreign authority, just as White mistrust often is. The difference is that, for Black Conservatives, White America is part of – indeed, represents – the foreign.



Book Note, Justice Thomas’s Inconsistent Originalism, 121 HARV. L. REV. 1431 (2008)



Richard Delgado, Affirmative Action as a Majoritarian Device: Or, Do You Really Want to Be a Role Model, 89 MICH. L. REV. 1222 (1991)

Frederick Douglass, What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 THE FREDERICK DOUGLASS PAPERS 59, 68 (J. Blassingame & J. McKivigan eds. 1991)

Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 BUFF. L. REV. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants)


Natsu Saito Jenga, Unconscious: The “Just Say No” Response to Racism, 81 IOWA L. REV. 1503 (1996).

Tony Mauro, Clerks: Minority Ranks Rise, LEGAL TIMES, Oct. 16, 2000, at 10


Angela Onwuachi-Willig, Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 IOWA L. REV. 931 (2005)

Angela Onwuachi-Willig, Using The Master’s “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, 47 ARIZ. L. REV. 113 (2005)

Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985)

Christopher E. Smith, Clarence Thomas: A Distinctive Justice, 28 SETON HALL L. REV. 1 (1997)



Clarence Thomas, The James McClure Memorial Lecture in Law, (October 19, 1995), in 65 MISS. L.J. 463 (1996).


Elwood Watson, Guess What Came to American Politics?—Contemporary Black Conservatism, 29 J. BLACK STUD. 73 (1998)

Juan Williams, A Question of Fairness, ATLANTIC MONTHLY, Feb. 1987, at 73

George Yancy, Introduction: Fragments of a Social Ontology of Whiteness, in WHAT WHITE LOOKS LIKE (George Yancy, ed. 2004)


Grutter v. Bollinger, 539 U.S. 306 (2003)

Missouri v. Jenkins, 515 U.S. 70 (1994)

Roper v. Simmons, 543 U.S. 551 (2005)

Parents Involved in Community Schools v. Seattle School District No. 1, 127 Sup. Ct. 2738 (2007)

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