It was easy enough, and not wrong, to be appalled by the concurring opinion Supreme Court Justice Clarence Thomas wrote this week. He was supposedly writing about the court’s decision to reinstate one Indiana law that required fetal remains to be buried or cremated, while making no ruling about the overturning of a second law, which would have banned abortions done for reasons of sex, race, or disability. Although Thomas agreed that it was not time for the court to take up the second question, he decided to preview his thoughts on it anyway, by composing a rambling disquisition about how abortion is birth control and birth control is eugenics and eugenics is racism.
Here was a crackpot, extremist performance, delivered by a justice with a record of disdain for what he considers performativeness in his colleagues, such as their willingness to speak during oral arguments. The high point, or low point, came when Thomas decided to compare eugenics to the Supreme Court’s history of civil-rights enforcement—on the grounds, citing Thomas Sowell, that the Court “continues to attribute legal significance to the same types of racial-disparity evidence that were used to justify race-based eugenics.”
It was John Roberts’ old glib line about how the way to stop racial discrimination was to stop discriminating by race—that is, to stop noticing racial discrimination—spun off into interstellar space by the force of debate-contest conservative argumentation. Thomas was so proud of this flourish, he expanded on it in a footnote:
Both eugenics and disparate-impact liability rely on the simplistic and often faulty assumption that “some one particular factor is the key or dominant factor behind differences in outcomes” and that one should expect “an even or random distribution of outcomes . . . in the absence of such complicating causes as genes or discrimination.” Sowell 25, 87. Among other pitfalls, these assumptions tend to collapse the distinction between correlation and causation and shift the analytical focus away from “flesh-and-blood human being[s]” to impersonal statistical groups frozen in time. Id., at 83; see id., at 87–149 (explaining how statistics and linguistics can be used to obscure realities). Just as we should not assume, based on bare statistical disparities, “that the Negro lacks in his germ-plasm excellence of some qualities which the white races possess,” Applied Eugenics 285, “[w]e should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent.” Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 8). Both views “ignore the complexities of human existence.”
If you claim that racial discrimination holds back black people relative to white people, that is, you are doing the same thing as the people who claimed that black people were being held back by genetic inferiority. This was the considered argument of one of the nine Supreme Court justices, and the only black member of the Court.
And then, eight pages after dismissing disparate-impact analysis as a racist fallacy, Thomas turned around and argued that abortion has a disparate impact on black people:
[A]bortion in the United States is also marked by a considerable racial disparity. The reported nationwide abortion ratio— the number of abortions per 1,000 live births—among black women is nearly 3.5 times the ratio for white women….And there are areas of New York City in which black children are more likely to be aborted than they are to be born alive—and are up to eight times more likely to be aborted than white children in the same area….Whatever the reasons for these disparities, they suggest that, insofar as abortion is viewed as a method of “family planning,” black people do indeed “tak[e] the brunt of the ‘planning.’”
One of the excuses for Clarence Thomas is supposed to be that, whatever else he may be, he is a consistent and principled thinker. Instead, he couldn’t even keep his own argument straight in the course of an opinion that existed for no reason other than to present his argument. It would be embarrassing, if Thomas were not already out beyond embarrassment, alone and answerable only to himself.
There’s a book due out in September, The Enigma of Clarence Thomas, in which Corey Robin will present, according to the publisher’s summary, a “revisionist take” on Thomas, explaining that he is “a black nationalist” and that he “believes white people are incurably racist.” In a 2014 essay about Thomas for Jacobin, Robin described that outlook:
Racism is so profoundly inscribed in the white soul that you also have to dig deep in order to see its full extent. The deeper you dig, the closer you get to its beating heart. The overt bigotry of the South is merely the surface; its true depths are to be found in the North. Not among the angry white faces throwing rocks in South Boston, but in the genteel white smiles of liberal institutions like Yale Law School, which Thomas attended….
For white Americans, race sincerity means owning up to the racism that lurks within. Particularly among white northern liberals, who find in programs like affirmative action a more palatable way to express their racist condescension toward blacks. So many of Thomas’s opinions about affirmative action have far less to do with any commitment to state neutrality or color-blindness — or even a formalistic comparison between the use of race under Jim Crow and today — than they do with a belief that affirmative action is really just the sneaky face of contemporary racism.
On one level—the level at which Thomas’ work on the court lands on his fellow citizens—this can and should be taken as the self-serving mythology of a lonesome and damaged man. Thomas owes his job to a feat of bare-knuckled racist politicking by Republicans, and whatever complaints he may have about white liberals, he has spent his personal and professional life one handshake away, at best, from overt bigots, and from a movement actively dedicated to stripping political power from black people. No amount of cleverness or obtuseness on his part can change the fact that he voted with the right-wing bloc to strike down Section 4 of the Voting Rights Act, and argued that they should have struck down Section 5 as well, after which his fellow Republicans immediately set about disenfranchising as many black voters as they could.
And yet the very terribleness of Thomas’ record makes it hard to dismiss his worldview. It was Republican cynicism that made him the replacement for Thurgood Marshall, but whose cynicism was it that left him as the only replacement for Marshall? How is it that this particular man is closing in on 28 years of being the only black justice on the Supreme Court?
Thurgood Marshall was not on the court because he was a judge who happened to be black. He was on the court because he was an essential architect of civil rights law, charged with sustaining and developing the court’s, and the country’s, late-arriving and fragile commitment to equality. Clarence Thomas’ insistence on his embattled individuality wasn’t just a difference in temperament, but a rejection of Marshall’s entire project.
Democratic presidents have had four—or five—chances to try to do something about this, to fill Marshall’s absence not just racially but intellectually. Ruth Bader Ginsburg arrived as her own kind of Marshall figure, an intellectual architect of women’s rights, and Sonia Sotomayor has brought an underrepresented sense of empathy to the court’s deliberations on ethnicity and justice. But what did Stephen Breyer or Elena Kagan bring to the bench, that they needed to be included among the nine most influential voices on the law? With the court hanging in the balance, and the opportunity to set the stakes for a single seat, why did Barack Obama settle for drawing battle lines around the eminently interchangeable Merrick Garland? More than a quarter-century after Thomas blustered and lied his way past Anita Hill, how is it that no black woman has ever been found worthy, as a legal mind, for nomination to the Supreme Court? The shame for Democrats is not that they look at Clarence Thomas and think, in their hearts, he isn’t good enough because he’s black. It’s that they’ve demonstrated they do believe he’s good enough.
