Posted on June 11, 2013

Three Questions for Clarence Thomas

John Blake, CNN, June 9, 2013

He wore a black beret and army fatigues, warned people that a revolution was coming and memorized the speeches of Malcolm X.

“I now believed that the whole of American culture was irretrievably tainted by racism,” he once said, describing his reaction to the assassination of the Rev. Martin Luther King Jr.

Soon, that same man is expected to help the U.S. Supreme Court bury two pillars of the civil rights movement: the Voting Rights Act and affirmative action.

There may seem to be a contradiction between the Clarence Thomas who was the angry campus radical in the 1960s and the conservative hero who sits on the Supreme Court today. But some legal observers say Thomas sees himself as a “prophetic civil rights leader” who is still fighting for the same cause–a colorblind America.

Thomas is an American hero, says Henry Mark Holzer, author of “The Supreme Court Opinions of Clarence Thomas.”

“A lot of people who are what I call professional Negros have ridden white guilt and socialism to very lucrative lives,” says Holzer, who uses the term “Negro” because he says he doesn’t classify people by skin color.

“Thomas didn’t,” Holzer says. “He made a very deliberate and gutsy decision to go where his intellect and his study took him, and that’s heroic.”

One man’s hero, though, is another man’s sellout. During his 22 years on the nation’s highest court, Thomas has been called a self-loathing “Uncle Thomas.” {snip}

Yet he is still a mystery to many. There are questions about Thomas that have persisted even after two decades on the Supreme Court as its lone African-American justice.

Here are three of them:

Question 1: Why does Thomas condemn affirmative action if he benefited from it?

When the Supreme Court issues a ruling soon on the constitutionality of using race in college admissions, the impact could be momentous. {snip}

There seems to be little mystery about how Thomas will vote.

He consistently votes against affirmative action policies because he says they’re divisive, unconstitutional and harmful to their recipients. He cites his own experience as an example.

Thomas was born in poverty in rural Georgia but managed to gain admittance to Yale Law School. He acknowledges that he made it to Yale because of affirmative action but says the stigma of preferential treatment made it difficult for him to find a job after college.

In his memoir, “My Grandfather’s Son,” Thomas says he felt “tricked” by paternalistic whites at Yale who recruited black students.


Some observers, though, counter with one question:

If affirmative action is so bad for its recipients, how come you’ve done so well?


Thomas’ constitutional philosophy is simple, Gerber says: All Americans should be treated as individuals and not as members of a racial or ethnic group.

Gerber says Thomas has ruled against the Voting Rights Act in the past because he believes that laws based on the “proportional allocation of political powers according to race” should be overturned.


The Supreme Court is considering abandoning Section 5 of the act, which requires states with a history of discrimination to “pre-clear” any changes in voting law with the U.S. Justice Department first.

Thomas isn’t the only Supreme Court justice whose life has been shaped by affirmative action. One of his colleagues is grateful for the role it played in her life.

Sonia Sotomayor recently told “60 Minutes” that affirmative action helped her gain admittance to Princeton University. (She also graduated from Yale Law School.) She is the first Hispanic justice on the Supreme Court.

“It was a door-opener that changed the course of my life,” Sotomayor said in the January interview.

Question 2: How does Thomas embrace an “originalist” view of the Constitution when the framers would have considered him a slave?

A lot of originalist judges rhapsodize about the wisdom of the Constitution’s framers, but Thomas approaches the Constitution with a different racial history. Blacks were enslaved by many of the founding fathers who talked about liberty and freedom.

How does a black judge become an originalist when the “original intent” of the Constitution was to preserve slavery and classify slaves as three-fifths of a human being?

Thomas addressed that question in part in one of his most cited opinions, a 2007 school integration case, Parents Involved in Community Schools v. Seattle School District No. 1.

Thomas joined a conservative majority that ruled 5-4 that race cannot be a factor in assigning children to public schools. In a concurring opinion, Thomas cited one of the Supreme Court’s greatest judges, John Marshall Harlan, known as the “great dissenter.”

Harlan issued a thunderous dissent in the notorious 1896 Plessy v. Ferguson case, which sanctioned the separate but equal doctrine that provided the legal foundation for the brutal Jim Crow era. Plessy is considered one of the high court’s lowest moments.

Thomas invoked another landmark Supreme Court decision, the 1954 Brown v. Board of Education ruling, which declared segregated schools and the separate-but-equal doctrine of Plessy unconstitutional.

Thomas wrote in the Seattle decision:

“My view of the Constitution is Justice Harlan’s view in Plessy: ‘Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.’ And my view was the rallying cry for the lawyers who litigated Brown.”

Thomas embraces an originalism that is rooted in the principles of the founders rather than their practices, wrote Hannah L. Weiner, author of an article in the Duke Law Journal on Thomas entitled “The Next Great Dissenter.”


Thomas and other conservative judges believe the 14th Amendment bans any preferential treatment of minorities because the Constitution is colorblind. It doesn’t matter if a person is white, black or green, they say, dividing people up by race is unconstitutional. They cite Harlan’s “colorblind” dissent in Plessy in which he invoked the 14th Amendment.


Question 3: Why doesn’t Thomas follow his own advice about not playing the victim?

When he worked for the Reagan administration, Thomas once told a reporter that all civil rights leaders did was “bitch, bitch, bitch, moan and moan, whine and whine.”

Thomas has long preached that blacks should be self-reliant and stop complaining about racism. He traces that philosophy to his childhood in Georgia, where he was raised by a stern grandfather who told him he had to “play the hand” fate dealt him.

“I’d long believed that the best thing to do was to stop government-sanctioned segregation, then concentrate on education and equal employment opportunities,” he wrote in his memoir. “The rest I thought would take care of itself.”

Yet critics say Thomas doesn’t follow his own advice. They say he regularly portrays himself as a victim even though he sits on the nation’s highest court.

Fletcher called him “the most successful victim in America.”

He says Thomas holds grudges against old college classmates, black critics and “elites.” He often equates his plight to that of slaves when he compares critics to “overseers” and talks about blacks who expect him to be an “intellectual slave.”

“He has a lot of slights that he catalogs carefully throughout his life,” Fletcher says.


Thomas’ behavior at his confirmation hearing in 1991 soured some critics as well. When he was accused of sexual harassment, Thomas publicly told a Senate panel that he was the victim of a “high-tech lynching” reserved for uppity blacks.


In his memoir, he wrote about his confirmation hearing:

“As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan; as an adult, I was starting to wonder if I’d been afraid of the wrong white people all along. My worst fears had come to pass not in Georgia but in Washington, D.C., where I was being pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony.”