The Enigma of Clarence Thomas

HENRY HOLT & CO., 2019
320 PP.; $30.00

Clarence Thomas is the most right-wing justice on the Supreme Court, and one of the most right-wing justices in the last hundred or so years. There’s not an execution, abuse of power, or petty act of exploitation he won’t find constitutional protection for. When the Bush administration tried stripping the legal rights of American citizens who they labeled “enemy combatants,” Thomas was the only justice to side with the administration. He’s argued that horrific prison conditions do not qualify as “cruel and unusual punishment,” because punishment is the prison sentence imposed by judges and juries, not the prison conditions imposed by guards and wardens.

In Citizens United v. FEC (2010), Thomas went even further than his conservative colleagues, arguing that not only was political bribery constitutional but even requiring donors to disclose their donations was a violation of the First Amendment. According to the New Yorker’s Jeffrey Toobin, Thomas’s favorite legal opinion is the one he wrote for 
Norfolk & Western v. Hiles (1996), where the court unanimously ruled that a railroad company didn’t owe worker compensation to an employee who injured his back while “coupling” two train stacks. Years after the court’s decision, the employee was still bedridden from the injury; Thomas said he liked the opinion so much because it was “fun” to learn about “the history of trains.”

In The Enigma of Clarence Thomas, Corey Robin (author of The Reactionary Mind and Fear: The History of a Political Idea) doesn’t mention Thomas’s favorite opinion, which at first seems odd given Robin’s own socialist politics. But the purpose of Enigma is not simply to catalog Thomas’s judicial and personal transgressions. Robin, for example, only mentions in passing Anita Hill’s sexual harassment allegations against Thomas. Rather, the purpose of Enigma is to understand the values and assumptions that underlie Thomas’s conservative jurisprudence.

In politics we assume our disagreements stem from underlying values and assumptions: what one side takes for granted the other thinks is absurd. But when Robin reads through Thomas’s legal opinions and public speeches, he finds not the standard noises of conservatism but the twisted echoes of radicalism. Seeing “the world through his eyes,” Robin writes, we “realize, perhaps to our surprise, that his vision is in some ways similar to our own. Which should unsettle us.” At times Robin seems to think this merits undergoing a political identity crisis. “When brought face-to-face with an enemy whose vision we share,” he writes, “we may ask ourselves not where he goes wrong, but where we did.” But this is where Robin goes wrong: ceding ground just because your enemy makes a claim for it.

Although Thomas votes the way you’d expect a conservative justice to vote, he rarely uses the same arguments and justifications as other conservative justices. In twenty-eight years on the Supreme Court, Thomas has written over 700 opinions; often more than any other justice in a given year; yet with just one or two exceptions he’s never written a major opinion for a conservative majority. This is for two reasons: first, because Thomas’s opinions are often more ideologically extreme than the conservative majority’s. He’s a true believer in the conservative faith, and his faith burns rather than illuminates. He’s more St. Paul than St. Aquinas: a zealous apostle rather than a scholarly apologist. His legal opinions therefore often resemble long jeremiads rather than concise arguments, and his ideological zeal takes him to conclusions that his conservative colleagues—who, in comparison with Thomas’s apostleship, look like mere Christmas-and-Easter churchgoers—shy away from.

Second, whereas Thomas’s conservative colleagues minimize or discount race, Thomas reads it into everything. His legal opinions frequently center around race, even when the case at hand is ostensibly or relatively race-neutral. Conservatives like to complain that liberals “make everything about race”; Thomas, the Supreme Court’s most conservative justice, really does. On cases about free speech, gun rights, abortion, campaign finance, and the separation of church and state, he has invoked our country’s brutal history of racism. And his conservative jurisprudence and race consciousness are not at odds; rather the latter informs and emboldens the former. In McDonald v. City of Chicago (2010), on the constitutionality of Chicago’s handgun ban, for example, Thomas wrote in his opinion about the murder and harassment of blacks by white militias in the post-Civil War South, and how one of the first things these militias did was disarm black communities. And in Citizens United, Thomas reminded his fellow justices that it was racist Southern Democrats who first passed campaign-finance restrictions, because they were “concerned that the corporations, Republican corporations, were favorable toward blacks.”

Thomas was a black nationalist in his youth, and it’s Robin’s argument that he never really stopped being one. “The central claim of this book,” Robin writes, is that “Thomas is a black nationalist whose conservative jurisprudence rotates around an axis of black interests and black concerns.” But like some other manifestations of minority pride, Thomas’s black nationalism was never anything more than white racism turned upside down: during his radical days he was, among other things, against race-mixing, fine with segregation as a social fact, and opposed to white liberal efforts to help black people because he found such efforts condescending if not secretly malignant. Later in life, Thomas always stressed that while he was once a radical he was never a liberal. Both radicals and conservatives find liberalism ineffective—radicals because it doesn’t go far enough, conservatives because it goes in the wrong direction. Thomas, Robin writes, eventually just swapped his “radical disdain” of liberalism for his “conservative disdain for the same reforms.”

Enigma is lucid and brilliant in its handling of details. For example, on Thomas’s famous “high-tech lynching” testimony before the Senate Judiciary Commitee, Robin writes,

Anita Hill was an overdetermined figure for Thomas, so laden with political and social meaning he could not but respond to her accusation as he did…Thomas elected not to rebut or refute Hill’s accusations but rather to repulse them.

(In his memoir My Grandfather’s Son, Thomas described himself as an “angry black man,” and he’s never really stopped being angry.)

But, after proving his thesis—that Thomas’s conservative jurisprudence “rotates around an axis of black interests and black concerns”—Robin isn’t sure what to do with it. He wants to draw a political lesson from his thesis but is vague on what the lesson should be. “The task at hand is not to retrace and rebut his moves from premise to conclusion,” Robin writes, “but to go back and start again with different premises.” But he never argues why that’s the lesson to draw and never says what premises he has in mind.

Conservatives have always found plenty to like in black nationalism. After Malcolm
X’s assassination, National Review praised him for having called on black America “to seek education, respect their women, show pride in themselves, work hard, save their money and start a business.” And Robin himself quotes Richard Nixon and Ronald Reagan appealing to “black power” for votes. In 1984 Reagan
told a black audience there was no reason they shouldn’t be able to buy their toothbrushes from a local black-owned store. Under this line of thinking, a line of thinking Thomas shares, black power was going to come from economic self-determination rather than political participation. I share Robin’s socialist antipathy to employee-employer relations and capitalist ownership—Reagan’s fictitious store should be run by black workers rather than an absentee black owner—but I don’t see anything wrong with Thomas’s line of thinking in itself. It’s the cynical and predatory use of it by conservatives that’s the problem. One doesn’t have to choose between economic self-determination and political participation. Black Americans should have both integration and independence, democracy and entrepreneurship. These things are not at odds; in fact it’s truer to say they’re codeterminate. Thomas says you can only have one; we should say you can only have both.

For Thomas, the worst kind of racism is liberal paternalism (busing, welfare, affirmative action, et al.) because it assumes black inferiority and casts doubt on individual accomplishment. With affirmative action, for example, an employer isn’t sure if black applicants actually deserved the education they received or if they just got it to fulfill a racial quota. Thomas himself got into Yale Law School because of affirmative action and feels like he suffered professionally for it. (This despite him getting his first job after law school because a friend of one of his classmates was “looking for other Yallies to work for him.”) Liberalism (so the argument goes) makes it harder for black Americans to get jobs because of trade unions, professional licenses, and minimum-wage laws, then gives them welfare which makes them dependent on the state. This is all done in the name of helping black Americans but so, Thomas points, out, were slavery and segregation. Slave apologists said slaves were better off picking cotton in Christian America than roaming the fields of pagan Africa; segregationists said they were protecting black Americans from white bigotry and being put into competition with white workers.

The fallacy of Thomas’s whole outlook derives from this inability (or unwillingness) to discern these obvious debating points from actual motives. Both sides of every argument say that what they want is better than what the other side wants. Accordingly, you don’t judge which one is actually better by what they confess to be their motivations, but by what you see as the likely outcome of what they’re arguing for. Before the Civil War, slave apologists said they were the ones really looking out for black people by keeping them as slaves; after the war Republicans said they were the ones actually looking out for black people by giving them the right to vote. To help black people was not the primary motive of either; those Republicans wanted black people to vote not because voting is the right of every citizen but because they wanted the Republican Party to win the South. Still, one of these things left black people enslaved and the other gave them the right to vote. The outcome is what matters, not what someone says to win an argument or to help themselves sleep at night.

Thomas has a reputation for being sensitive and hypocritical, and that reputation is well earned. He is the quintessential victim conservative. His memoir is full of comic juxtapositions of woe-is-me victimhood followed immediately by personal good news. As previously mentioned, Thomas felt his law degree was tainted by affirmative action; he wrote in his memoir that he believed this act of liberal paternalism was why he initially had trouble finding a job after law school. Yet literally the next paragraph is him getting a job at the Missouri Attorney General’s office through the personal connections of a friend from Yale. Later, when Thomas is working for the Reagan administration, he complains that people are saying mean things about him for being a black conservative: “I’d only just begun to take the measure of the price I would pay for going my own way.” That price? In the next paragraph he gets a call from the White House offering him a promotion.

Thomas has not only not suffered from being a black conservative or from liberal paternalism, he’s benefitted from them. And that absence of suffering is what he suffers from: convinced that greatness requires suffering, if he hasn’t suffered then he must not be great. Thomas wants to—needs to—be a martyr banished into the wilderness, but in reality he has always been a hollowed-out cardinal accommodating himself to a corrupt Rome.

Read Enigma as well as everything else Robin has written. No political thinker in our time has been more devoted to understanding political thinking (as opposed to sociologizing or moralizing politics). The one or two foibles of Enigma don’t take away from it being a magnificent and serious study of a consequential and fool-hearted man.