When I think of Clarence Thomas my first thought is not of the man himself but of Anita Hill. I vividly remember sitting in my dorm room between classes, watching her testimony, quivering with outrage. Even before Hill came forward, I had thought that Thomas should not be confirmed, given the American Bar Association’s tepid recommendation; after she came forward, I was exasperated by the way the overwhelmingly male Senate handled the allegations. When Thomas was confirmed, I bemoaned the Supreme Court’s fate to my friends. “He’s going to be on the Court forever,” I said. “He’s going to be there when we’re his age.”
Clarence Thomas was 43 then; I am 48 now. Justice Thomas is, as I predicted, still on the court, and I have spent the last twenty-eight years rolling my eyes at him. “He doesn’t even ask questions during hearings,” I say when his name comes up. Or: “His wife is terrible. Imagine if Michelle Obama hired an aide who had written ‘I hate whites.’” Or, before Antonin Scalia’s death: “He just repeats whatever Justice Scalia says.” I was quite sure where I stood on Clarence Thomas, and I saw no reason to reconsider my opinion, until I read Corey Robin’s The Enigma of Clarence Thomas.
Let me be clear: I still don’t think he should have been confirmed, and I am still mad about Anita Hill. I still think he’s been a participant in some of the most pernicious decisions the Supreme Court has ever made. And yet. I do not agree with every word of this book, but it is an illuminating and path-breaking book that should be read by everyone with an interest in the Supreme Court — even, and perhaps especially, by liberals. This is a short book with a lot to say, and it is worth a careful read. Corey Robin’s thesis is that Clarence Thomas’s jurisprudence is fundamentally misunderstood and (here’s the provocative part) rooted in large part in Thomas’s commitment to black nationalism. He makes it clear at the outset that he doesn’t agree with Thomas’s legal philosophy, but he is writing an analysis, not a takedown.1
Robin’s distinction between Thomas’s skepticism of political–i.e., voting–rights and his embrace of economic rights is compelling and insightful: Thomas believes that African Americans will always be hopelessly outnumbered in the political realm, but they can make money in a (by Thomas’s lights) neutral market and use that money to wield government influence. Thomas, in other words, is leaning in on Citizens United. “If the currency of politics is money,” Robin writes, “if the primary movers of politics are men of means, what better argument could there be for African Americans of few means to withdraw from politics? Why not concentrate instead, at least for the time being, on accumulating wealth in the market? That way, African Americans might return to politics one day, only this time as men of money rather than as a movement of masses.”
Thomas focuses not on the rights of black defendants, Robin argues, but on the rights of the black community to be protected from criminals of all races.2 Thomas’s position is that the black community, in the main, suffers less from overpolicing than from neglect by the police. Robin identifies the inherent contradiction between Thomas’s limits on state power in, say, second amendment decisions while simultaneously championing harsh policing at the expense of individual rights. Again, Robin argues, this strand of Thomas’s thought goes back to his belief in personal economic empowerment as a long-term racial strategy: Thomas’s jurisprudence “empowers the policing and punishing elements of the state. But that is only a means to an end. The utopian vision that Thomas sees beyond the carceral state is the creation of a new generation of black patriarchs–terrifying enough to make their children cry and thereby to teach them how to survive another chapter in America’s long history of white supremacy.” But it’s hard to read this chapter without thinking of the many people of color who have died at the hands of police even when they have not been convicted of any crimes, but this isn’t addressed and I’m not aware of any comment Thomas has made specifically about, for example, Black Lives Matter. To my mind, this was the weakest part of the book, and I don’t think Robin sufficiently answers the question of how someone motivated by black nationalism could be so quiescent in the face of racially disproportionate policing practices.
Robin’s argument that Thomas’s decisions are motivated in large part by black nationalism and a deep-seated belief that racism is a permanent feature of American society is often convincing and always interesting. At times I felt he was stretching to make a point, or working too hard to make Thomas’s worldview seem consistent. And, frustratingly, Robin does not discuss Thomas’s decades-long second marriage to a white woman with a bent for right-wing conservative activism; she barely merits a mention. How does Thomas reconcile his belief in inherent white racism with his marriage to a white woman? How has Virginia Thomas influenced his views? There’s got to be a story there — it’s hard to believe that Thomas has completely compartmentalized his work from his home life, given his wife’s abiding interest in politics. And yet there’s no hint of it in Robin’s book. To me this felt like a missed opportunity. Anita Hill gets slightly more attention — Robin points out that (a) journalism since the infamous hearings has established the truth of Hill’s accusations but also (b) Thomas himself sincerely believed in his own innocence. But I would have loved a chapter about Thomas’s approach to cases that involve sex discrimination, and how that might intersect both with Robin’s theories about his approach to racism and with Thomas’s response to Hill’s allegations.
Still, Robin has done good work here. Perhaps because of Thomas’s rocky start to his Supreme Court tenure, liberals have a tendency to write him off as a Scalia clone, someone who functions as a reliable conservative vote without having much of interest to say himself.3 Robin has made the case, I think, that Thomas grounds his opinions differently than other conservative justices do, even if they ultimately arrive at the same result. At a minimum, a good-faith liberal reader would be hard-pressed to walk away from this book without taking Thomas’s philosophy seriously and considering the challenges it poses to progressive thought. “We may wonder whether we’re not trapped in the same historical moment as he, making sense of the same defeats of the last century in not dissimilar ways,” Robin writes. ” . . . And then we may come to a realization: that the task at hand is not to retrace and rebut his moves from premise to conclusion, but to go back and start again with different premises.”
1 From my point of view, the book treated Thomas very fairly and engaged earnestly with his ideas; I would love to have a conversation with a conservative reader to learn whether they felt the same way. Did Robin do a good job presenting Thomas’s thinking or did he put his thumb on the scale?
2 For a different spin on a similar argument, see James Forman Jr.’s excellent Locking Up Our Own: Crime and Punishment in Black America.
3 Robin points out that conservatives often made the same sorts of criticisms of Thurgood Marshall–and so one has to wonder if the tendency to dismiss Thomas is an objective assessment or the product of unconscious bias.