As a justice, Thomas has remained the most extreme conservative on a court increasingly packed with conservatives, hewing to a set of far-right positions on federalism, corporate free speech, police and prisons, civil rights, and other issues. He rhetorically invokes originalist jurisprudence but follows it quite inconsistently — and rarely with regard to race discrimination, the issue that concerns him most. He officiated at the third marriage of Rush Limbaugh, the right-wing talk show host and racial provocateur. But Thomas also understands himself to be a black justice, and he sometimes inserts references to black history and anti-black racism into his opinions. Thomas is, in short, a bundle of contradictions, which Corey Robin proposes to sort out in his important and well-argued book, “The Enigma of Clarence Thomas.” Thomas’s racial dilemma, he argues, is a microcosm of America’s.
Robin, a political scientist, asserts that a consistent strain of black nationalism unites Thomas’s politics and jurisprudence from his early adulthood through his decades as a justice — a general point that, Robin concedes, has been made by other scholars. What makes his account distinctive is his claim that three central frameworks organize Thomas’s thought: race, capitalism and the Constitution.
On race, Robin shows how the black nationalism of the early 1970s, with its skepticism of the civil rights movement’s successes and its emphasis on black self-help, fed into Thomas’s embrace of conservatism. But Thomas, as usual, went further. Thomas, according to Robin, believes that “whites — southern and northern, liberal and conservative, rural and urban — are racists” and have always been. Thus, in one opinion Thomas took a swipe at campaign finance laws by noting that the Tillman Act of 1907, which regulated corporate contributions, was named for the white-supremacist Sen. Benjamin Tillman of South Carolina. Such regulations, he seems to think, have their roots in racism — although exactly how remains unclear. Thomas’s jurisprudential opposition to affirmative action, Robin concludes, is based on his belief that the practice is a continuation of historical white supremacy — a system that requires blacks to ask for the patronage of white people.
Thomas also embraced black capitalism, Robin argues, but it is a black enterprise with little protection under law. Aided by the writings of the conservative black economist Thomas Sowell, Thomas came to believe that blacks should eschew civil rights and politics and instead pursue the kind of work that Thomas’s self-employed, middle-class grandfather used to do. In a 1994 voting rights case, Holder v. Hall, and in later opinions, Thomas rejects the notion that blacks can achieve any kind of collective political agency through voting rights, Robin asserts. In economic matters, Thomas embraces what Robin calls a futilitarian argument — that white supremacy is so entrenched, it is not worthwhile fighting it through law — as he seems to do in a 2015 dissent rejecting “disparate impact,” a theory that even facially neutral state policies may discriminate based on race. Even his grandfather’s patient support of the NAACP, it would seem, was a fool’s errand.
Ultimately, Thomas believes in what Robin calls the White Constitution — an American Constitution so tainted by its historical origins in slavery that its main use has been (and continues to be) to oppress African Americans. He also, according to Robin, believes in a Black Constitution — a spare set of constitutional rights claimed by self-sufficient, patriarchal black men during Jim Crow, such as the Second Amendment right to bear arms, which Thomas described at length in a 2010 case involving a Chicago handgun ban. Thomas seems to argue that even these rights are few in number and offer little legal protection for blacks, for expansive rights guarantees would only sap the manhood of black America. He almost seems to pine for the lost world of lynching and Jim Crow.
Robin argues that Thomas inhabits a bleak world of entrenched white supremacy that might seem unrecognizable to many — with the exception of many writers and advocates on the left who, Robin argues, largely share it. Robin asserts that the progressive left parts company with Thomas only in that it seeks legal remedies for discrimination and inequality. He closes on a somber note: “We may ask whether we, in the shadow of defeat, have simply come to accept and repeat, without realizing it, the story he has been telling us for decades.”
Robin has produced a thoughtful and careful explication of Thomas’s core ideas, showing how they emerge partly from his biography and setting out their disturbing implications. This is as good a synthesis of Thomas’s intellectual world as we are likely to get. But Robin’s ambitious project is based on the assumption that a unified philosophy ties together Thomas’s complicated life. Robin acknowledges that on several key issues — affirmative action and disparate impact, for instance — Thomas indicated a flexibility as a young, ambitious Republican officeholder that later hardened into an inflexible pessimism. Moreover, judicial opinion-writing is hardly a transparent vehicle for the explication of a judge’s social philosophy. After all, Thomas’s racial observations occur in relatively few of his opinions, and on most issues he seems to get to the same general position as his conservative white colleagues, albeit sometimes more extreme. As Robin acknowledges, “In certain cases, where Thomas is trying to reason his way to a conservative outcome, race affords him easy access to that destination.”
Moreover, if Thomas has a philosophy, black nationalism is an odd name for it. Most black nationalists, from 19th-century figures such as the abolitionist Martin Delany to the Black Panthers of the post-civil-rights era, could claim a nation — some set of black institutions through which they sought to practice their nationalist craft. Thomas, by contrast, has articulated his vision largely in white-dominated settings where he is often the only black person in the room. He seems most comfortable in far-right circles where even traditional black conservatives now often feel unwelcome, and among those whom he believes are openly racist and intend to do his people harm — at least if one takes his rhetoric at face value. Whatever the proper name for it, Thomas’s philosophy is perplexing. Despite Robin’s valuable efforts, Thomas remains, in so many ways, an enigma.
The Enigma of Clarence Thomas
By Corey Robin
Metropolitan. 301 pp. $30