Are we witnessing the new Clarence Thomas?
Thomas did a shocking thing when he voted with the majority of his Supreme Court colleagues to strike down two racially gerrymandered congressional districts in North Carolina. If the new Clarence Thomas wants to stick around for awhile, we’re not mad at him, because in this new era when the Republicans own every branch of government—at least for now—we need all the help we can get.
This is not a friendly time, nor is it a hospitable environment for civil rights and voting rights.
For Thomas, this decision is a dramatic departure from many of his past opinions. The case at hand is Cooper v. Harris, where the nation’s high court upheld the lower court’s decision to strike down Districts 1 and 12 in North Carolina, which violate the Constitution because the GOP legislature racially gerrymandered them to dilute black voting power.
Thomas joined the court’s four liberal justices in rejecting the racially biased districts, which were redrawn after the 2010 census. Typically, states are not allowed to use race as the chief factor in drawing electoral districts. Some believe the decision will make it easier for voting rights advocates to challenge voting districts that were crafted and manipulated with political partisanship and racial discrimination in mind. So, Thomas is on the right side of history, at least when it comes to this case. But whether a righteous Clarence Thomas will reappear and do us a solid with other important civil rights cases is an open question.
On civil rights and criminal justice, Thomas has generally disappointed. His “originalist” interpretation of the Constitution from the viewpoint of the Founding Fathers does not help those who originally were regarded as three-fifths of a person. He has advocated for a racially unjust death penalty. The justice was the lone dissenter in a case where the court ruled in favor of a black man sent to death row by an all-white jury, in which there was a concerted effort by prosecutors to keep blacks off the jury.
His judicial record suggests he has believed in colorblindness, that the state should be neutral on matters of race—not the notion that racism is over, as white conservatives will proclaim, but rather that colorblindness is the best black folks will get from the government. Thomas’ worldview stems from a black conservatism which speaks to someone who grew up in a segregated South and who has a pro-Malcolm X, black nationalist past, as some will suggest.
However, rejecting the role of the government in helping black people get ahead, Thomas has effectively put his head in the sand and advocated a bootstraps mentality, giving a green light to white supremacy and institutional racism. Yet, he found it useful to invoke racial discrimination and argue his confirmation hearing was a “high-tech lynching for uppity blacks who in any way deign to think for themselves” when allegations of sexual harassment from Anita Hill became an issue and things weren’t going his way.
Thomas has opposed affirmative action, and even suggested his Yale Law degree was devalued because of he was admitted under the program. He disagreed with the 2003 court opinion upholding the University of Michigan Law school’s affirmative action program.. He regarded such programs of inclusion as racial discrimination that weaken equality and “stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” Invoking Frederick Douglass–who told whites to let black people fall if they cannot stand on their own legs, because their interference was hurting us– Thomas said “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
Similarly, in the 2013 Fisher v. University of Texas affirmative action case–which involved the reverse racism charges of a mediocre white student who was denied admission to college– Thomas wrote: “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”
Thomas also participated in the gutting of the Voting Rights Act in Shelby County v. Holder. His rationale for eliminating key provisions of the law was that times have changed, and rampant, pervasive discrimination in voting no longer exists.
However, in a few opinions, such as a cross burning case, Thomas pleasantly surprised observers in civil rights advocates and the black community. “In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote in Virginia v. Black.
While it is reasonable to have a healthy dose of skepticism that Justice Thomas will moderate his stance in light of the North Carolina gerrymandering case–against the backdrop of over 25 years of a staunchly conservative record—it is worth considering. With his colleague Neil Gorsuch replacing the late Antonin Scalia on the bench, the Supreme Court is once again unambiguously conservative, and nine times out of ten, presumed to be no friend to people of color. Barring imprisonment, impeachment and/or electoral defeat, Trump and the GOP Congress have the potential to damage the country a great deal with draconian policies and threats to civil rights and civil liberties, from travel bans and immigration sweeps to voter purges. Thomas has the power to tip the scales and reverse course on Trumpland, derailing the Republican agenda if he chooses to become a black man who seeks justice.
If Thomas wanted to act more like his predecessor Thurgood Marshall, now would be a good time for him to turn a new leaf and make that change.
Follow David A. Love on Twitter @davidalove.