Clarence Thomas makes rare break with Scalia — a sign of things to come?

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Associate Justice Antonin Scalia (L) and Associate Justice Clarence Thomas (R) while taking a group photograph at the Supreme Court building on September 29, 2009 in Washington, DC. Justice Sonia Sotomayor is the newsest edition to the high court. (Photo by Mark Wilson/Getty Images)

Associate Justice Antonin Scalia (L) and Associate Justice Clarence Thomas (R) while taking a group photograph at the Supreme Court building on September 29, 2009 in Washington, DC. Justice Sonia Sotomayor is the newsest edition to the high court. (Photo by Mark Wilson/Getty Images)

Are U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia parting political ways?  The two severely conservative judges—as Mitt Romney would call them— often see eye-to-eye on just about everything.  But in the recent high court decision involving voting rights and immigration, the two men who are often joined at the hip diverged in a significant way.  Could this be a preview of upcoming decisions on the Voting Rights Act, affirmative action, and marriage equality?

In a 7-to-2 vote, the Supreme Court tossed an Arizona law requiring prospective voters to provide proof of their citizenship before registering to vote under the federal “Motor Voter” law.

Apparently, the case of Arizona v. The Inter Tribal Council of Arizona, Inc. was too much even for Scalia to take.  He wrote the court’s opinion throwing the controversial Arizona law into the garbage can in which it belongs. 

Under the National Voter Registration Act of 1993 (NVRA), states must “accept and use” a federal form to register voters for federal elections.  The federal form requires that the applicant declares his or her citizenship.  But the Arizona law went a step further and rejected any application, including a federal form, if the applicant did not produce citizenship papers. Writing for the majority, Justice Scalia said federal law “precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself.”  While supporters of the Arizona law cited the need to crack down on “illegal immigration,” opponents rightly claimed the measure left immigrants, voters of color, the elderly and others vulnerable.

A lonely dissent

Writing in his lonely dissent, Thomas argued the Constitution “authorizes states to determine the qualifications of voters in federal elections, which necessarily includes the related power to determine whether those qualifications are satisfied.”  Thomas added that Arizona “’accepts and uses’ the federal form in the same way that an airline ‘accepts and uses’ electronic tickets but also requires an individual seeking to board a plane to demonstrate that he is the person named on the ticket.” 

Justice Alito wrote a separate dissent, as the only other justice voting in the minority.  Sen. Ted Cruz (R-Texas), who is Hispanic, has vowed to counteract the Supreme Court decision through an amendment requiring voters to show an ID before registering under the federal Motor Voter law.   

Meanwhile, Thomas misses the point, and perhaps he chooses to.  States erect barriers to voting because sometimes they don’t want people to vote— or at least people who look like Clarence Thomas, or some other person of a darker hue, or a certain sounding last name or national origin.  Through the Fourteenth Amendment and other just laws, the federal government is supposed to protect people from the whims of the states. 

Disagree as you might with a principled conservative on any particular issue, at least you can respect them—or not—for truly believing their absurdly incorrect position.  However, with Clarence Thomas it is a different story.  Some rightly accuse Thomas of living in a legal time machine.  In a twenty-first century world, Thomas adheres to the Founding Fathers, an originalist interpretation of the Constitution.  It is tricky business for a black man to long for the good old days, when those same Founders would have relegated you to someone’s backyard, and in chains no less.

Going a step further, for Thomas, this seems to be personal. And if that is the case, then we can expect more of the same from him.  If the Voting Rights Act, affirmative action and the legacy of the civil rights movement are erased by the Supreme Court, it will be due in no small measure to the bitterness of a former black campus radical named Clarence Thomas.

A beneficiary of affirmative action

Without question, Thomas benefited from affirmative action, programs which helped open the door of opportunity for those who were left out of the American dream.  And yet, he condemns those very policies as divisive and discriminatory.  He rails against “paternalistic whites” at Yale, his alma mater, those “ostensibly unprejudiced whites who pretended to side with black people while using them to further their own political and social ends.”  And he speaks about the arrival of a colorblind society, while he was the first to claim victimhood under a “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas…”

Conservatives would praise Thomas as courageous for standing up to the civil rights leaders who in his words do nothing but “bitch, bitch, bitch, moan and moan, whine and whine.”  Others would suggest he is uncomfortable in his own black skin, and holding grudges against other black folks, including President Obama.

“[T]he thing I always knew is that it would have to be a black president who was approved by the elites and the media because anybody that they didn’t agree with, they would take apart,” Thomas said of Obama at Duquesne University in April. “You pick your person. Any black person who says something that is not the prescribed things that they expect from a black person will be picked apart.”

Talk about the pot calling the kettle black.  They don’t come more elitist than Thomas.  Here is a man who graduated from a prestigious law school.  He was picked by Poppy Bush and confirmed by the elite club called the U.S. Senate, in a most cynical quota move to fill the seat of Thurgood Marshall with a mediocre black conservative. Barack Obama won a national election.   

Justice Thomas, a man who had a helping hand every step of the way, would demand bootstraps of everyone else.  The civil rights legislation of the 1960s was meant to bring equity, fairness and justice, and help level the playing field.  Nevertheless, Thomas views that glorious legacy as unfair handouts to those who don’t deserve them, so he would rather destroy it. 

And while it may be difficult to usher a person out of the eighteenth century, it is possible.  Evolution is possible, times change, people change and America is changing.  Change brought us Brown v. Board of Education.  Meanwhile, it is impossible to remove a person from the skin he hates so much.  This is why we should expect more of the same from a certain Supreme Court justice.  Clarence Thomas has a most atrocious record on issues of human dignity and justice, and of protecting the defenseless.  He needs prayer, but don’t we all, because of the price we’ll pay for his bad decisions?

Follow David A. Love on Twitter at @davidalove