To get a grasp of what is at stake in the next election, both at the Presidential and Senate levels, there may be no better book to read than The Enigma of Clarence Thomas by Corey Robin.
It is not a fun read, mind you. It is certainly not entertaining. In numerous passages, the content is equal parts confusing and maddening. About fifty pages in, it is tempting to assume the author has done a horrible job presenting his case on whatever he thinks the reader should know about how Clarence Thomas thinks and how that thinking has influenced nearly thirty years of Supreme Court decisions and America's direction.
If you continue reading, a different understanding emerges…
Clarence Thomas is noted for saying very little in session at the Supreme Court and equally noted for not saying much on the record via "traditional" communication avenues like television biography segments, human interest stories, etc. Few people realize that he is actually among the more prolific opinion writers for rulings from the Supreme Court, even -- as they often are -- dissenting opinions. Even fewer realize that Thomas has actually NOT been shy about appearances where he sheds more light on his thought process. It's just that those appearances are almost exclusively at closed-door events sponsored by think tanks and conservative organizations. Those appearances occurred both before and after his elevation to the Supreme Court and left paper trails.
Robin's book makes no attempt at being a traditional biography of Thomas the individual from boyhood to present. Instead, the book is an analysis of that paper trail of commentary that represents SOLELY what Thomas wanted the world to understand about his thinking at the time. The only biographical details referenced in the book involve details Thomas himself uses in his rulings, opinions and appearances. Robin examines those stories and juxtaposes the contradictions between them against his commentaries in his Supreme Court writings and outside events. It becomes very apparent that any "biography" of Thomas the Justice is GOING to be confusing / illogical / muddled because the THINKING of Thomas is exactly those things -- confusing, illogical and muddled.
Robin organized the book around a few key themes of Thomas' thinking, namely
- Thomas believes racism is permanent and as long as blacks are an electoral minority within the United States, the political sphere will NEVER provide fairness to blacks so blacks should essentially ignore politics and focus on economic issues and self-sufficiency.
- Interpretations of Constitutional law in the United States have centered on two modes, "the White Constitution" (Robin's term...) from 1789 to the Civil War and "the Black Constitution" (again, Robin's term...) dating from the Thirteenth, Fourteenth and Fifteenth Amendments at Reconstruction to the present. While "Black Constitution" interpretations granted more rights and protections to blacks and that would SEEM to be a good thing, those new rights and protections have coincided with problems in the black community and have contributed to patterns of behavior that have actually HURT blacks more than they HELPED them.
- The "Black Constitution" phase of interpretation of the balance of power between states and the Federal government shifted power to the federal level in order to enforce the Equal Protection, Due Process and Privileges and Immunities clauses of the Fourteenth Amendment. Since Thomas associates the advent of those interpretations with a downward trajectory in social and economic outcomes for blacks, his judicial cure involves reverting AWAY from "Black Constitution" interpretations BACK to "White Constitution" interpretations which limit federal control over nearly everything influenced by what we would call modern interpretations of Due Process and Equal Protection.
While Robin covers other concepts in Thomas' thinking in the book, the three above are enough to use as a basis for explaining exactly how muddled Thomas' thinking really is. But you really have to tighten your seat belt. It's a rough, topsy-turvy ride.
Regarding the "Black Constitution" versus "White Constitution" dichotomy, Thomas makes it very clear the interpretation of the original ("White") Constitution from 1789 was, in Thomas' own words, "tainted by a deeply rooted history of prejudice." So the newer "Black Constitution" interpretations are better for blacks and the country, right? Nope. After Reconstruction failed and state governments revoked voting rights and white mobs attacked and killed blacks to remove their guns, the resulting society became more racist, violent and regressive (Robin's words…) Thomas' solution? Revert to the prior "White Constitution" mode of interpretation that assigned no role to the federal government in ensuring states did not trample the rights of their citizens -- of any color.
The belief of Thomas that the political sphere in a democracy will NEVER reflect the needs and goals of a minority so blacks shouldn't bother is a real cynical head scratcher. This conclusion obviously ignores the fact that a political minority can still act as a swing vote in a larger political plurality -- especially in a country where a forty one percent base can result in a Presidential win that puts someone in a position to put people like -- well -- CLARENCE THOMAS on the bench for 30 years. Robin highlights more damaging results from this belief in Thomas' rulings and opinions in the economic and legal spheres.
Because Thomas believes blacks are better off focusing on their ability to be self-sustaining at the family and community level, he tends to very extreme, pro-business decisions. After Reconstruction, cases that reached the Supreme Court involving business discrimination and labor practices generated rulings that recognized a wider set of rights for and granted protections to individuals. Justices issuing those rulings relied upon the enforcement clause of the Fourteenth Amendment that gave the federal government power to enact laws and rules to achieve Equal Protection across the states. Conservatives have long viewed these protections as anti-business and signs of federal overreach. Since Thomas already believes any effort to protect individuals is futile, he has no qualms about rolling back nearly any decision in the area of labor law, discrimination, privacy, etc. whenever the opportunity arises.
Thomas has also undermined generations of jurisprudence regarding anything in the realm of Due Process. He has been extremely pro-law enforcement in any case that has reached the Supreme Court in his tenure. His thinking? You really have stop and ponder mightily to follow the logic...
He believes acting in the political sphere will never help minorities such as blacks. The best (or maybe least worst) option available for minorities is to succeed economically at the family and community level. Even if law enforcement unfairly targets minorities for arrest, unfairly charges minorities, unfairly prosecutes and convicts minorities or unfairly punishes minorities in sentencing or with inhumane prison conditions, the political realm won't solve that problem. Don't try. Just raise the bar on your own behavior and stay away from any "gray area." To the extent minorities ARE swept up into an unjust system, well, that's just more incentive for the rest of the minority to shape up, isn't it? I told you the gray area was dangerous.
Ergo, any attempt by the federal government to control state policies in policing, prosecution, sentencing and incarceration are just more federal overreach like that in the economic sphere. People going to prison for property crimes being subjected to systemic rape by gang members? Too bad. Innocent people being executed on death row? Too bad. Let that be a warning to others to stay away from anything that might attract the attention of a cop and turn your life upside down before killing you.
A final concept covered by Robin in the book explains how the above thinking swirls around and winds up convoluting Thomas' thinking on two other key issues -- free speech and gun laws. The idea that over a century of rulings enforcing the Equal Protection clause of the Fourteenth Amendment has gone too far in granting rights to individuals at the expense of business leads directly to the belief that restricting corporate spending on campaigns is an unfair restriction of a corporation's right to free speech. This is the thinking that gave us Citizens United and billions in corporate money sloshing around drowning out ideas from individuals within our election process.
Thomas puts an even odder twist on this concept. A 1995, case, United States versus Lopez, involved a law banning possession of firearms within one thousand feet of schools. The Supreme Court overturned the law with Justice Renquist writing the majority opinion stating the law reflected an undue level of federal control over state gun laws. Thomas wrote a separate opinion for the majority ruling that not only argued that the law would be an undue level of federal control over state gun laws, it argued that attempting to enact such a law reflected the overreach of the existing common interpretation of the Commerce clause that has included a wide variety of activities as "commerce." Thomas wrote that the definition should be substantially curtailed to exclude manufacturing and agriculture -- a change that would roll back SIGNIFICANT legislation over the last one hundred years.
The general theme behind both of these opinions is that Thomas places no value on individual free speech because he believes it has no power for minorities in a majoritarian system so why focus on trying to protect it? Because that majoritarian system will continue yielding a racist, unequal society, those in the minority cannot trust the government and its institutions to protect their lives or livelihood so they need the right to arm themselves and look out for their family and community. As the author put it at one point in the book, that's a very Mad Max meets Do The Right Thing kind of world view.
The key point for the casual -- if not occasionally confused - reader to draw out of this profile of Thomas is that the public image of Thomas as a lone-wolf, reactionary conservative saying nothing in session and writing bitter dissents and unjoined opinions doesn't convey his true influence on the court or the country. It doesn't even accurately reflect the diversity of thought on the conservative side. Thomas' contempt for the past one hundred fifty plus years of precedent that emphasizes the rights of "We The People" of a single country versus "we of X number of separate states in a pact" is shared by every conservative appointee to the Supreme Court who has joined him on the bench. Any difference in degree of that contempt is getting smaller with each new member. The long term consequences of that change in constitutional interpretation aren't hard to predict and they aren’t pretty.
If you are interested in seeing an alternate take on this book that is exactly one hundred and eighty degrees opposite of the above, you can check out this opinion piece
https://www.city-journal.org/the-enigma-of-clarence-thomaswritten by Myron Magnet, author of the book Clarence Thomas and the Lost Constitution, also published in 2019.
WTH
