The Unjust Judge
Doubting Justice Thomas's intentions
I don’t like Justice Clarence Thomas. I admit it right off the bat and this dislike long predates his Harlan Crow Vacation Fund discovery. I’ve lived long enough to experience life in the United States with a Supreme Court before his arrival and life then was better. Not ideal but better. Not only was this nation better then, it was on a trajectory to keep improving. It was on a path to becoming more inclusive and better positioned to answer for and address its past. Our country was continuing to make corrective strides, moving in fits and starts away from institutions born in bigotry to growing, developing, maturing and realizing the ideals put forth in its founding documents. Then the progress slowed and many backward steps made. Thomas didn’t do it alone but he sure helped.
Another man held the seat now ignominiously occupied by Justice Thomas. The Honorable Associate Justice of the Supreme Court of the United States, Thurgood Marshall, was Thomas’s predecessor and a full 180° away from everything Justice Thomas is and represents. Justice Marshall had a modest upbringing, with parents that worked hard to afford his nimble mind every opportunity to sharpen. This part of both men’s story is similar, then it digresses. Despite myriad challenges buffeting Marshall as a Black man in a nation still under segregation, he strove, achieved and excelled. You can read about his exploits here, here, here and here. There is some overlap in those references but there is no such thing as too much academic nutrition. His crowning achievement was shattering the foundation for segregated facilities when he won as plaintiff’s counsel in Brown v. Board of Education before the Supreme Court. That victory led to the dismantling of Jim Crow laws. His defeat of the “separate but equal” doctrine established in Plessy v. Ferguson, eviscerated the basis for the practice of southern states writing laws that openly denied Black people access to programs and places Whites could go, while it restricted them to programs and places of inferior appointment assigned only for Blacks.
The first gains were in education, the original scope of Brown, which set the stage for more. Brown enabled gains toward equal opportunity in employment, housing and other services. I believe that the civil rights gained for Blacks, helped bring more ammunition in gaining rights for women, people who aren’t heterosexual and those who don’t identify in other traditionally conventional ways. So, although Marshall fought most immediately for the fair treatment and protection of Black people, his wins became wins for all people. He then carried that interpretive perspective to the Supreme Court, reading the Constitution with the intent of realizing the promise held in the words of the founding documents, rather than replicate the racist and exclusionary mindset of many of its writers. That bend toward inclusiveness helped him attempt to ensure throughout his career that all people, regardless of background or ethnicity, experience the fullness of the Bill of Rights, and kept the country poised to keep working until none could say they were denied.
Justice Marshall retired in 1991 when I was in college, opening the door for then-President George H. W. Bush to nominate a replacement. It is this moment that began the erosion of my youthful optimism for this country’s prospects, and conjured the cynical specter that haunts and currently dominates my outlook for the nation. All suggestions that individual rights, freedoms and opportunities can and will improve, are now met with disbelief, smirks and sucked teeth, first by my specter and then by me.
That Bush chose Thomas to replace Marshall, showed adherence to a cynical streak in post-civil rights Republican thinking that I call, “any Black guy is like any other Black guy, and Black people won’t see the difference either.” When it was noted how hostile Thomas’s positions were to civil rights stands Marshall supported, like abortion, quotas or affirmative action (a policy that Thomas, who came from modest means himself, benefited from in his Yale acceptance), a Bush administration official replied, "They can't say Clarence isn't aware of what it's like on the other side of the tracks."
The confirmation process was intense and that ratcheted up with Anita Hill, a former employee of Thomas’s, when he led the Equal Employment Opportunity Commission (EEOC) testifying. Hill was pressed by the Senate Judiciary Committee to recount to them, in embarrassingly graphic detail, all the things Thomas said and did. Three other women came forward, with two of them also testifying about Thomas’s actions as their supervisor. In response, Thomas answered those charges before the committee, in a performance that would set the example for Brett Kavanaugh nearly three decades later. He scowled and spat back the following:
“As far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”
Yes, the man who would go on to lecture Black people from the bench to rise on their own merits, not to depend on government programs to correct historic wrongs, or flat out blame them for manipulating Whites for preferential treatment based on the suffering in their history, played the race card. It was a trump card too, because he effectively deflected just about any other questions about his character when invoking the dreaded “R word.” From then on, any Democratic Senator that further pursued lines of questioning about Thomas’s character could be painted as a racist. Republicans could paint interrogators citing character as racists who picked favorites, only nominating Blacks if they would be “activist judges” furthering their own party’s agenda. This was a pot and kettle introduction if ever there was one. Thomas has gone on to be the very definition of an activist judge; it’s just that his activism is in removing previously established protections for individual’s rights who aren’t wealthy, male, straight, “Christian” and White. (Christian is in quotes because many who claim to follow Jesus don’t speak or behave in any way like him.)
A Black man who is hostile to Black people in his rulings from the bench, you ask? Yes, also hostile to those having non-traditional sexual preferences or identities, or those who don’t fit his particular vison of god-fearing. They are all recipients of the stick from his opinions. He’ll spin his decisions in some, wordy, legalese using the haughty and condescending tone he’s come to be known for but effectively that’s what he’s done and contrary claims are nonsense. Since his confirmation, he’s been on the side of stripping individual rights and protections from people in this country who have been historically victimized. I glancingly mentioned other effected groups but I want to focus on his interpretation of the Constitution as it pertains to race.
Let me state now that I hate the idea of race. I despise that this country is obsessed with it and one of the greatest limitations to its further growth is the insistence on observing this ridiculous, antiquated, unscientific construct that insists that people are automatically sorted with different abilities, potential and ultimately spoken about as some different type of species, because of their uncontrollable physical attributes. The concept of racism is born from a different and more ignorant time. The height of our world’s knowledge then brought groundbreaking technology like hitching horses to a wagon, sending paper letters to be delivered by hand, sea voyage speeds that were determined by how hard or when the wind blew and cutting-edge medical science like attaching leeches to people to “bleed them.” We do these things nowadays, ok maybe not the leeches, but all of the other things as leisure items or if someone is filming a period piece. Almost no one in today’s world sees any of these activities as an everyday first choice. Those old methods are considered ridiculous and passé and racism needs to go this way too. Nevertheless, our country runs under this understanding and so I begrudgingly frame the remainder of this post under its terms.
This country was founded and its laws were written under the construct of race. Everything including; whether or not you were free; if you could look someone of European descent in the eyes if your ancestors didn’t hail from Europe; if you had the right to keep your own children or have them ripped from your arms and given away for adoption or sold; if you were allowed to buy land or live in a certain place, were all determined by notions of race. As mentioned before, Jim Crow laws are now illegal thanks to the heroic work of Justice Marshall before his appointment, but that doesn’t mean the residual effects of those policies, official policies which stood for almost 250 of the over 400 years that this nation was settled by Europeans, are eradicated. The lingering effects exist and the racist mindset that informed those who established the country persists in many of their successors. As much as I wish I could say that racism is gone and no one governs, buys a home, chooses where to shop and how to speak based on racism, no amount of hoping currently makes that so.
Justice Marshall understood that too and it is why his opinions generally leaned towards inclusion of more people under the Bill of Rights. He saw our Constitution with protections for those who were historically victimized, whether by legislation, physical violence or both. He saw our nation as it is, not as it is often painted by jingoistic simpletons who gloss over its past and recount an infallible country that never existed. Where Marshall interpreted the Constitution for our nation to enfold all of its citizens in the enjoyment of rights, Thomas is an originalist, someone who allegedly interprets the Constitution with the understanding and intent of the original framers. This is a curious position as Thomas, a Black man, would have been seen by many of the Constitution’s framers as unqualified to be taught how to read, much less make rulings as a Supreme Court Justice.
Marshall supported affirmative action, a program that was imperfect but acknowledged that assumptions of candidate job performance often turned on race and it tried to provide assurance of opportunity. Thomas, although former head of EEOC, later decried affirmative action and assisted in helping dismantle it when considering employment and awarding government contracts. Marshall’s efforts ensured equal access to education for all, which also helped to acknowledge that educational opportunities were not equal for all and programs could and should exist to address the discrepancy. Thomas disagreed here too and although he is the beneficiary of race-based policies that enabled him an Ivy League education from Yale Law School, he ruled against such programs.
Thomas voted with the current conservative supermajority to remove federal protections for abortion, a decision that affects all women but especially women of color, who often have disproportionately low access to obstetric care and insurance coverage for it. Thomas ruled with the conservative majority to roll back EPA protections, most recently EPA’s ability to protect wetlands. Again, this assault on the EPA affects us all, but especially low income and people of color who suffer environmental health effects at greater numbers than their counterparts. Justice Thomas ruled in the dissent of a 7-2 ruling that upheld that a Virginia cross-burning was an act of intimidation and not free speech. You read that right. Justice Clarence Thomas, a Black man originally from rural Georgia, wrote an opinion claiming that someone burning a cross in Virginia is an act of free speech and not an expression of intimidation.
Thomas ruled with the majority to weaken voting rights protections because the conservative majority said the formula to calculate racial impact was outdated and an undue burden on the states that had racist voting histories, rather than ruling to update the formula. The chilling effects of weakening the Voting Rights Act are already observed in the rapid construction of election hurdles for people of color (POC) in legacy racist states, replacing the literacy tests and poll taxes of yore with new obstacles. Today, voting rights were on the docket again, with the Supreme Court narrowly protecting the Voting Rights Act’s authority to determine if election districts are mapped in a way that neuters voting power of a minority group. The case began in Alabama specifically but essentially would affect every state where racists could be in charge of mapping out election districts. Guess who dissented against protecting POC from being gerrymandered out of relevance by a hostile opposition party? Thomas.
So, WTH is wrong with him?! In college, Black students referred to a subset of Black people who were filled with “self-hate.” Self-haters looked down on their appearance and did all they could to mask African traits as much as possible. They were disparaging to aspects commonly embraced by Black culture; whether music, fashion, food, expressions, who they kept company with or how harshly and condescendingly they judged other Black people and their behaviors. The most commonly observed and despised characteristic was placing the full blame on the Black community for any perceived shortcomings, and speaking about other Black people in such a way that they saw themselves as different, the way someone who isn’t Black might.
I watch Thomas, observe his opinions and see a seething hostility towards other Black people, a self-hate, in his opinions. I am no lawyer, yet from my layman’s perusal he looks to produce very scholarly and well-researched arguments. However, law does not exist in a vacuum, it effects people and the assumptions he makes of the country in which he’s interpreting those laws to apply are a fantasy. The Constitution was originally written to allow slavery, prescribed where it could be practiced and how to handle African slaves in a census count. This country’s laws and traditions were not constructed in the colorless world he pontificates about, where racism, its assumptions and its intentions did not exist in creating its laws. The racism it had didn’t suddenly evaporate when the ink dried on the Emancipation Proclamation, after secessionists surrendered at Appomattox or after the 1965 Voting Rights Act passed. To configure rulings based on a colorblind fantasy, restrict avenues of redress for historically victimized Black people, and do so while the progeny of racists continue to uphold racism as an ideal, use neutral sounding focus-group tested phrases, while working diligently in the halls of power to restrict rights is cruel. To be a member of that victimized group as you do so is sadistic. Honestly, it often appears that Thomas is going out of his way to ensure that Black people always travel the road with the most potholes, hills, poisonous vipers and traps. It is similar to someone teaching another to swim by telling them how to do it, then tying weights to their student’s feet and holding them under while they fight to stay afloat. If they can learn to swim in these conditions and survive, they’ll be able to swim anywhere!
A voting rights provision survived today but who knows which one the court will take away in the future? Other rulings that protected and expanded rights to a class have been rescinded, and the protective power of federal agencies to work on behalf of people without political connections, and protect those who traditionally had few protections, is under constant assault. More enraging is that an active conspirator in the removal of protections was a past beneficiary and from a victimized group himself. It is hard to advance if those who are against you work the levers. It’s even harder when someone you hoped would help you is actively working with your opponents.
Laws continue to be written that entrench and further protect the wealth, power and place of those who have never had their own rights limited here. Many recent Supreme Court interpretations of existing laws further strengthened that power. The court rules more and more to build legal buttressing to protect those who were already empowered, already connected and already rich. Power doesn’t need protection because it already has power to protect itself. The exposed and vulnerable need protection and I hope one day soon we get more on the court in the mold of Earl Warren, Ruth Bader Ginsburg and the illustrious Thurgood Marshall to join Kagan, Sotomayor and Jackson to do it.
I’ll let Ms. Jill Scott sing us out of here.