Clarence Thomas’s Fatalism on Race In America

In the wake of Clarence Thomas being the swing vote in yesterday’s case holding North Carolina’s racial gerrymanders unconstitutional, I have a piece in the New Republic about his jurisprudence on race:

In part because he rarely speaks at oral argument, there was a common perception that Thomas is just a clone of the late Antonin Scalia. This assumption—which, in some cases, carried the odor of racist condescension—is profoundly wrong. “What [Thomas] has done on the Court,” wrote Mark Tushnet, now a professor at Harvard Law School, in his 2005 book A Court Divided, “is certainly more interesting and more distinctive than what Scalia has done and, I think, has a greater chance of making an enduring contribution to constitutional law.” Thomas and the recently retired Justice John Paul Stevens are the two most idiosyncratic Supreme Court justices of the last 40 years, the most likely to stake out a unique position on a particular issue.

Thomas’s approach is particularly visible in cases involving race. Typical Republican nominees like Chief Justice John Roberts and Antonin Scalia combine a belief in formal colorblindness with the view that racism is no longer a major problem in American society. This willful optimism reached the point of self-parody with Roberts’s 2013 opinion gutting a section of the Voting Rights Act that required states with a history of discrimination to get approval from federal authorities for any changes to election law. Roberts held that because the Voting Rights Act had been so effective in addressing race discrimination in voting, Congress no longer had the power to enact its most important enforcement mechanism.

Thomas also generally believes in formal colorblindness, but for very different reasons rooted in (sometimes explicit) black nationalism. Thomas believes that the state should be race-neutral not because he has any illusions that racism has ended in the United States, but because he believes that color-blindness is the best that African-Americans can reasonably expect from the state.

Thomas’s fatalism can be seen even in opinions where he ends up in the same position as his conservative colleagues. His 2003 dissent from the Court’s opinion upholding the University of Michigan Law School’s affirmative action program is a powerful argument even if, like me, you ultimately disagree with the bottom line. Beginning by quoting Frederick Douglass, he makes a subtle, complex argument with pointed discussions about the fallacious assumptions that predominantly black institutions must be inferior; the dubious necessity of the state maintaining an elite law school; the disgrace of legacy admissions preferences; and the false “merit” reflected by standardized tests. Even if one ultimately finds it unpersuasive, it’s certainly not the boilerplate defense of American “meritocracy” that underlies Republican arguments against affirmative action.