Would Clarence Thomas strike down his own marriage?

OPINION: The justice's 'originalist' judicial philosophy and conservative worldview fit perfectly with the ideas expressed in the Dobbs draft overturning Roe v. Wade, which could open the door to overruling other landmark cases such as Loving v. Virginia, which made interracial marriage legal.

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

“There is nothing you can do to get past Black skin. I don’t care how educated you are, how good you are at what you do—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”

Clarence Thomas

There have been numerous alarming takeaways from Justice Samuel Alito’s leaked draft of an opinion in the Dobbs v. Jackson Women’s Health Organization case, which could force thousands of women to remain pregnant against their will. There was Alito’s absurd assertion that abortion hasn’t been a part of the “fabric” of American life when it absolutely has. There was his decision to cite as a legitimate source a 17th-century judge who infamously sentenced women to death for witchcraft and excused marital rape. And there was his general lack of concern for the collateral damage that overturning Roe v. Wade could have, especially for women who seek abortions because their pregnancy is a result of rape or incest—or because it might kill them.

But probably the most frightening prospect that Alito’s draft put into stark focus is the possibility that overturning Roe, and by extension, the privacy justification that was given for it nearly 50 years ago, could lead to a slippery slope that puts several major civil rights—that are perceived to be settled—in danger of destruction. This includes same-sex marriage, interracial marriage and even the landmark 1954 decision desegregating American schools, Brown v. Board of Education.

True to form, people raising concerns about this have been painted broadly with the brush of Chicken Little paranoia. After all, Alito himself claimed that the majority opinion should only be applied to abortion. But the reality is that the ruling would almost certainly be used to call several other decisions into question, and Republican politicians across the country have made it painfully clear that they intend to.

As recently as Judge Ketanji Brown Jackson’s confirmation hearings, Republican senators were suggesting that the historic 2015 Obergefell v. Hodges decision that legalized same-sex marriage should be revisited. Republican Sen. Mike Braun of Indiana mused about whether interracial marriage should be a state-based question. And most recently, reactionary Texas Gov. Greg Abbott said he would seek to overturn a 1982 Supreme Court ruling that granted access to public education for all children, a move that is being couched as an effort to boot out undocumented children but could easily lead to more ways to re-establish segregation in American education.

Many of these decisions—especially Brown v. Board—have since their inception become, if not overwhelmingly popular, profoundly respected. So much so that right-wing justices like Amy Coney Barrett have testified under oath that such decisions should no longer be questioned. But of course, she has questioned the legitimacy of Brown v. Board herself.

Associate Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC. (Photo by Drew Angerer/Getty Images)

Which brings me to Clarence Thomas. Besides the fact that we are both Black and have Ivy League degrees, I think I can safely assume that we have very little in common. We do both, however, have spouses who are of a different race. When speculation started after the Alito leak that the landmark 1967 Loving v. Virginia case could be targeted, my wife—who is Puerto Rican—and I asked each other aloud: If that law was struck down, would it apply to us too—or just white people who married outside of their race? 

And this made me think about Justice Thomas. He has been a mercurial public figure, to say the least. On the bench, he famously speaks very little (if at all), but his writings and public comments suggest a deeply aggrieved and embittered man. He seems to have a particular antipathy to any race-based efforts at achieving social justice—whether it be voting rights or affirmative action—despite the fact that he has been the beneficiary of both. For instance, he was one of the only justices to defend a Mississippi prosecutor who deliberately removed African-Americans from juries six times in order to ensure a Black defendant would receive the death penalty. 

In the 7-2 majority opinion in Flowers v. Mississippi, written by Justice Brett Kavanaugh of all people, the court found that the prosecutor’s “relentless effort to rid the jury of black individuals” was both “blatant” and “extraordinary.”

Thomas, on the other hand, seemed especially engaged—on behalf of the prosecutor. He wrote an usually lengthy 42-page dissent in which he not only defended the prosecutor’s tactics but argued that they gave “race-neutral” excuses for dismissing the jurors, even though the evidence showed they had struck 41 of 42 potential Black jurors while accepting 71 white jurors instead.

Perhaps Thomas’ position should not have come as a surprise. He is now arguably the most conservative justice currently sitting on the court. And yet, he hasn’t been shy about the subject of race. He has spoken often and eloquently about his modest upbringing and called the state-enforced segregation he endured “as close to totalitarianism as I would like to get.” He became a self-described “angry black man” who admired Malcolm X so much that he memorized passages of his speeches.

However, his professed affinity for Black power politics was coupled with a healthy resentment and distrust of white liberals, which later metastasized into a contempt for the civil rights laws they championed. Thomas would come around to embrace interracial marriage, but he would remain a lifelong skeptic about integration, finally settling on the bleak conclusion that racial inequality “cannot be solved by law…”

And yet, at some point, even Thomas must realize that the court’s overreach into the private lives of everyday Americans—particularly women and people of color—could come for him, too. After all, he and his wife reportedly live in Virginia, one of the states, at least in the 1960s, that was fighting desperately to preserve a ban on interracial marriage. 

Thomas has demonstrated fidelity to a strict “originalist” judicial philosophy, which essentially means he believes the nation’s Constitution should be interpreted only as it was intended upon its conception. That might sound eminently reasonable if not for the fact that the exclusively land-owning (and in many cases, slave-owning) white men who wrote that document almost certainly did not have marriages like Thomas’ in mind when they wrote it.

These men also didn’t account for LGBTQ people or abortion. In fact, they didn’t account for women at all—which is pretty wild when we’re talking about half of the human race. And yet Thomas and Alito would have you believe that these men knew better than not just you or me, but any modern woman, about what they have the right to do with their bodies.

I have no doubt that Justice Thomas loves and reveres his wife. Not only has he referred to her gushingly as his “best friend,” but he has stood by her amid major recent revelations about her active role in perpetuating an attempted coup for the presidency—a scandal that has led to calls for his recusal from all January 6 related cases, and even for his resignation.

But will his humanity trump his commitment to manifesting his arcane worldview? So much of what he and the far-right conservative moment that champions him have fought for has already come to pass. Meanwhile, the country has been about as gerrymandered as it can be. Two of the last four presidents won office without even winning the popular vote. Those presidents selected five of the sitting members of the Supreme Court, who all enjoy lifetime appointments and more or less regulate themselves. And those justices appear poised to exacerbate the gap between the privileged and the poor, the corporate and the consumer.

And yet, some of these decisions can and will affect all of our lives. 

Just like how COVID and climate change have no party affiliation and don’t distinguish a blue state from a red one, the revoking of bodily autonomy for millions of American women will have an unavoidable impact on people far and wide, maybe even those who don’t know it yet. 

But can a man like Clarence Thomas see that or feel that? He hasn’t said.

Adam Howard is a senior associate producer for “Full Frontal with Samantha Bee” and a producer on the “Full Release with Samantha Bee” podcast. He has written about pop culture, sports and politics for The Daily Beast, Playboy, and NBC News and has recently curated an exhibition of the history of blaxploitation for the Poster House museum in New York City.

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