Misjudging Clarence Thomas

Misjudging Clarence Thomas
Corey Robin’s assessment of the Supreme Court justice is lost in left field.
Myron Magnet
September 29, 2019 Arts and CulturePolitics and law
The Enigma of Clarence Thomas, by Corey Robin (Metropolitan Books, 320 pp., $27)

What deliciously ironic wit the New Yorker’s first art editor, Rea Irvin, deployed in his iconic drawing of Eustace Tilley, the Regency dandy quizzically inspecting a butterfly through a monocle on the magazine’s inaugural cover nearly a century ago. Ah yes, we Gotham cosmopolites view the rest of America as exotic insects worth a moment’s gaze as they hatch from the basket of deplorables and flit by for their 24 hours in the sun. But, Irvin hinted, what an affected fop is Eustace himself—as showy as the bright creature catching his glance but oh, how much more contrived in his top hat and impossibly high neckcloth. I can’t help wishing that Corey Robin, a Brooklyn College professor who has made a career of turning a supercilious monocle on conservatives and explaining their curious, “reactionary” ideas to his fellow enlightened “progressives,” had shown a scintilla of Irvin’s wry self-knowledge in his new book, The Enigma of Clarence Thomas, an excerpt of which the New Yorker coincidentally has just published. But since Robin’s assessment of the Supreme Court justice lacks a single self-questioning moment, let’s look back at him through his monocle and take our own measure of the author before we consider his account of our era’s greatest jurist.

How fashions have changed! Despite a modish dash of race, class, and gender, today’s New Yorker of refined sensibility, if Robin is a representative specimen, presents himself in his book as a conventional socialist, an admirer of the French rather than the American Revolution, and still mooning with nostalgia for that imaginary 1960s “revolution” that Bernie Sanders has dreamt of since his long-ago youth. In Robin’s vision, politics centers on the “power the state will have to involve itself in the affairs of the citizens,” making “rules for a more just and humane economy.” It is a realm of “democratic transformation, where men and women act deliberatively and collectively to alter their estate,” led by the “heroic action of an elite few,” masters of “the arts of persuasion, the mobilization and transformation of popular belief”—though Robin’s evocation of the Robespierres and Lenins of the world is bound to make one wonder just how democratic his vision of the popular will really is. What were the editors of the publication for which he writes a column thinking when they called it Jacobin, after a political elite that wrought its social transformation by removing the heads of those of the wrong class or opinion?

For Robin, capitalism is a system of “overwhelming, anti-democratic constraint” that takes “the great questions of society—justice, equality, freedom, distribution—off the table of public deliberation,” shielding them from “the conscious and collective interference of citizens acting through their government.” In this collectivist vein, he casts a cold eye on Madison’s classic formulation of American constitutionalism in Federalist 10. The Constitution protects life, liberty, and property, Madison writes, and since individual citizens have a boundless variety of talents, ambitions, and energies, the liberty the Constitution safeguards will result in different and unequal outcomes, including economic inequality. The danger in the democratic republic that the Constitution frames, Madison wrote, is that the unpropertied majority could use their voting numbers to expropriate the wealth of the rich few, trampling the Constitution’s protection of property. Such an expropriation is what Madison meant by the tyranny of the majority, and a key goal of the Constitution’s checks and balances is to forestall just that. When Robin holds up Justice Thomas’s citation of Madison’s argument as a mere ploy “to moralize moneymaking, to lend the market a legitimacy it had been denied by New Deal liberalism, to shield money and the market from political critique,” he seems to be looking at the Constitution through the wrong end of a telescope, seeing FDR and the New Deal’s tyranny of the majority, rather than James Madison and the protection of individual liberty, as the nation’s real Founding Father. Of the individual citizen whose liberty the Constitution is meant to shield, we hear nary a word until a third of the way through the book, and then only once or twice thereafter. Everyone is simply an atom dissolved in the mass of race, class, or gender.

The lens through which Robin views Thomas is even more distorting—not surprising, given that he “reject[s] virtually all of Thomas’s views” and moreover believes that the justice, during his confirmation hearings, “lied to the Judiciary Committee when he stated that he never sexually harassed Anita Hill,” an allegation that’s now the stock, and thus increasingly incredible, gambit for opponents of conservative judicial nominees. In the justice’s opinions, what Robin sees, as anyone who spends even an hour or two reading them must see, is Thomas’s striking concern with race, a subject that he raises repeatedly, even in cases seemingly far from the question. Upon this observation, Robin erects a wildly far-fetched account of the justice’s worldview and jurisprudence, one that imperiously sweeps away Thomas’s own careful exposition of his intellectual journey in his speeches and memoir as if he must be incapable of understanding his own mind and heart. But of course, this concern springs not just from Thomas’s personal history but also from the belief, central to his jurisprudence, that it’s precisely on race matters that the Court has made so many fateful wrong turns that need correction.

In Thomas’s telling, his upbringing, under the vigilant eye of his self-made if semi-literate grandfather, aimed to make him self-reliant, independent, persevering, and upwardly mobile. Grandfather Anderson, the founder of a one-man fuel-delivery company that never made more than $7,000 a year, sent him to a strict Catholic school, segregated like everyplace else in Savannah but teaching that all men are created equal and that segregation was therefore wrong. Thomas and his younger brother worked after school and on weekends helping to deliver oil. In the summers, together with their grandfather, who urged them on with a rich stock of moral maxims, they farmed 60 acres across from where their ancestors had been enslaved, producing food enough to see them through the winter—an almost pioneer-like school of self-reliance.

The racism he met as one of the only blacks in a Catholic seminary extinguished Thomas’s calling to the priesthood and prompted a transfer to Holy Cross, just when affirmative action was getting under way. In Worcester, he joined most of his few black classmates in the Black Students Union and went through a black-radical phase, spouting off about how he was “oppressed and victimized,” he recalls, by “a culture irretrievably tainted by racism.” But when a rally he attended in Harvard Square in support of black “political prisoners”—Black Panther criminals—turned into a full-scale riot, he recoiled with horror at the arson and looting, the injuries to rioters and cops. Back at Holy Cross, he rushed to the chapel to pray to be purged of the anger that he felt would ruin his life. He also began to see how affirmative action was no favor to its supposed beneficiaries, making resentful failures of smart kids who would have excelled at colleges a rung or two less demanding, and marking successes like himself with the imputation of inferiority. He began moving sharply away from his radicalism and back toward his grandfather’s self-reliant individualism, though—not wanting to break with his friends, he says—he publicly cloaked that individualism in the Black Muslim mantra, “Do for self, brother.” He now found Ayn Rand more congenial than Malcolm X. Yes, he had embraced black radicalism for a couple of years in college, he says, but “then I grew up.”

In Robin’s account, the mature Thomas’s concern with race shows that he is stuck in his college radicalism and remains a black nationalist, even a black separatist, to this day. The justice believes, he contends, that “racism is a constant, perhaps ineradicable feature of American life; and that the best hope for black people lies within themselves, not as individuals but as a separate community with separate institutions, apart from white people.” White America’s attempts to help black citizens over the last 60 years have actually done harm, both because whenever blacks have succeeded, Robin says, “[w]hite benevolence denies African Americans the pride of achievement, the knowledge that their success is theirs—not as individuals . . . but as African Americans”—though Thomas has repeatedly and proudly emphasized that his success is his own—and also because, “by elevating whites to the status of benefactors who dole out scarce privileges to the few African Americans they decide to reward,” affirmative action “deepens the power of white people.”

While it is certainly true that Thomas is scathing in his Grutter v. Bollinger opinion about how the University of Michigan Law School’s affirmative action program benefits white administrators by fueling their sense of their own tolerant self-righteousness, though it yields equivocal results for its supposed beneficiaries, and while it is true that he doesn’t believe the rationale of school integration and forced busing—that a black child can learn better sitting next to a white child—it is nonsensical in every particular to say that, “[i]n keeping with his conservative black nationalism, Thomas sees in the integration of the races real harm to black people and in the separation of the races the condition of black flourishing.” And while he thinks government can’t solve the key problems plaguing black Americans today, for they are cultural, nor can it erase past racial injustice and past inequality of opportunity but can only ensure justice and equal opportunity now, he would dismiss Robin’s conclusion that the civil rights movement failed. Surely some larger good flowed from his own years of personal “loneliness that came from being ‘the integrator,’ the first and the only.” Is not American society more open, and opportunity more equal, when a black man can rise from the kerosene lit shanty in a Georgia swamp, where he was born, to the High Bench, if only because white America ”stopped stopping us?” While in 1987, before he joined the Court, Thomas told his journalist friend, Juan Williams, that “there is nothing you can do to get past black skin; you’ll never be equal to whites,” by 2012, he remarked in a colloquy with law professor Akhil Amar, the son of Indian immigrants, that however strange it may once have seemed to see two minorities discussing the Constitution on the National Archives stage, “now, it’s hardly noticed.”

After reading through the works of economist Thomas Sowell, whom Robin calls a mix of Malcolm X and Milton Friedman—a description that would make the tolerant Sowell chuckle, as would Robin’s contorted recasting of the staid, conservative Booker T. Washington as a black nationalist—Thomas fully embraced conservatism, recognizing that protest marches were not the way forward for black Americans. If “[y]ou want to be free,” then get a job, earn a living, pay the mortgage, “and take risks like everybody else.” His model, of course, was his grandfather, who once explained that he worked so hard to maintain his own business because “it’s mine”—meaning that no one told him “what to do or where to go,” Thomas says, and he had the satisfaction of being “successfully independent and thus free.”

Robin belittles all this as making Grandfather Anderson—gasp!—middle class, part of a tiny aristocracy, utterly separate from the mass of black poor, so much so that he even had surplus to share with his neighbors. But that surplus was not money; it was not “wealth,” as Robin calls it. It was the abundant produce that he and his grandsons had grown over the summer, working, as their grandfather told them, as hard as their ancestors had toiled “in slavery time.” Robin seems to think that such small-scale entrepreneurialism is beyond the capacity of most black Americans. But almost in the same breath, he disparages it, mocking Thomas’s criticisms of campaign-finance laws as First Amendment violations on what Robin considers the risible assumption that “spending money and making money [are] the constitutional equivalents of artists creating art, writers writing books, journalists reporting the news, citizens arguing views, and believers expressing belief.” In fact, those criticisms represent Thomas’s Madisonian belief that property should have the right to speak up in its own defense against the tyranny of the majority, such as FDR orchestrated by illegitimately using the Interstate Commerce Clause to seize control of the entire U.S. economy. But even deeper is the justice’s Hamiltonian belief that entrepreneurialism is part of the pursuit of happiness, an activity that draws forth one’s latent talents and allows one to realize all the potentialities within oneself, which might otherwise lay dormant. So yes: enterprise is self-expression.

In this fanciful book, there is nothing more fanciful than Robin’s extended argument that Thomas imagines two Constitutions, one black and one white. “The purpose of Thomas’s Black Constitution is to support the black patriarch where he exists; the purpose of Thomas’s White Constitution is to create that patriarch where he does not exist,” Robin contends. “[T]he project of the Constitution . . . is the construction of black male authority.” The logic by which Robin reaches this bizarre conclusion, with its fashionable invocation of gender and patriarchy, begins with a proposition that would mystify Thomas: that the Constitution that countenanced slavery and Jim Crow had the advantage of providing black men with an abundance of adversity that led them to develop “virtues of independence and habits of responsibility, practices of self-control and institutions of patriarchal self-help, that enabled them to survive and sometimes to flourish.” Thomas does not think that slavery and Jim Crow were any kind of boon to black Americans. In his view, you don’t need the government to create adversity; nor is adversity the special lot of blacks. Everybody, black or white, faces it, and overcoming it is the test and the training ground of character. As Thomas sees it, free societies require for their survival a special kind of personal and national character, marked by the independence, responsibility, and self-reliance necessary to surmount the inevitable obstacles that are part of the human condition.

Robin is correct that Thomas thinks that the New Deal began the dissolution of that free, self-reliant national character by “foster[ing] the illusion” that the state would eliminate “suffering and adversity” and give citizens not just the right to pursue happiness, but happiness itself. He is right that the justice believes that the next step in that dissolution, the cultural revolution of the 1960s, proved particularly catastrophic to black America. The “rights revolution”—the Warren Court’s undermining of the authority of police to fight crime and drugs, and to preserve order, and of teachers and principals to discipline disruptive kids—the sexual revolution, and the come-and-get-it welfarism of the decade led to an epidemic of inner-city crime and the zombification of many black citizens by drugs, the disruption of black families by an “if-it-feels-good-do-it culture,” and a “culture of welfare and entitlement” that “undermined the independence and autonomy that come to those who provide for themselves.” While the cultural revolution swept up all of America, it’s true that the policing and welfare components of it were yet two more misguided social policies designed to help blacks but that unintentionally produced incalculable harm to them. But in no sense did these crackpot policies malevolently “target” black men, as Robin claims, or aim to “undermine black male authority.”

After the carnage of the 1960s cultural revolution, Robin correctly says, Thomas seeks a “counterrevolution.” But in describing that counterrevolution, our author floats away from Thomas into a phantasmagorical stratosphere. First, he ascends into what he calls the “Black Constitution,” that is, the framers’ Constitution as transformed by the Reconstruction Amendments, which the Supreme Court almost instantly gutted in two infamous 1870s decisions, Slaughter-House and Cruikshank, a tale Thomas dramatically tells in his finest opinion, his 2010 concurrence in McDonald v. Chicago, concerning an elderly black Chicagoan’s right to keep a gun in his house in a crime-plagued inner-city neighborhood. Those two post-bellum decisions murdered Reconstruction in its cradle by nullifying the central provision of the Fourteenth Amendment, which conferred full citizenship on freed slaves. The Supremes ruled that the amendment’s prohibition against any state abridging the privileges or immunities of a citizen of the United States did not mean—as the amendment’s framers had distinctly said it did mean—that freed slaves were cloaked with all the rights of the first eight amendments against invasion by state governments. Those decisions licensed Jim Crow to rule the South, right up into Thomas’s childhood, when Georgia segregation was “as close to totalitarianism as I would like to get,” the justice says.

The New Deal Court found a way to finesse these monstrous decisions by inventing a fiction called “substantive due process,” which held that some rights are so fundamental that no government can abridge them. In McDonald, Thomas objected that that doctrine, purportedly based on the Fourteenth Amendment’s next clause, had encouraged judges to make up fundamental rights out of thin air, and, more important, there was no need for the Court slavishly to respect such obviously incorrect precedents as Slaughter-House and Cruikshank, which ought to be overturned. McDonald had a right to keep a gun in his house not on “substantive due process” grounds, as the Court majority ruled, but rather because the Fourteenth Amendment guaranteed his Second Amendment privilege and immunity to do so.

All Robin can see in this profound, principled jurisprudential argument is a black man—pardon me, a black patriarch—with a gun. All of Thomas’s impassioned and deeply informed plea to complete the work of Reconstruction in a way that honors the nearly 400,000 Union soldiers who died to make men free boils down, for our author, to a “vision of a racialized society armed to the teeth,” with gun-toting “black men protecting their families from a residual and regnant white supremacy.” Robin can’t, or won’t, recognize that Thomas’s rejection of the “substantive due process” doctrine is not an abandonment of the Fourteenth Amendment’s Equal Protection or Due Process Clauses, and his call to revive the original meaning of the Privileges or Immunities Clause broadens the protection of citizens’ constitutional rights. It does not “radically limit the scope of rights provided by the Constitution, while placing racial violence at the center of his constitutional vision.” But for Robin, all McDonald does is to “make violence—black violence—the emblem of black liberty.” To him, Thomas remains nostalgic for Stokely Carmichael’s Black Power declaration, in the wake of Martin Luther King’s murder, that “Black people know that they have to get guns.”

However, it’s now a new era that calls for a new strategy, which Robin imagines as Thomas’s supposed “White Constitution,” whose purpose is to restore something like the character-building “harsh rules and authoritarian strictures” of slavery and Jim Crow. It’s a truism that people do right both because they are afraid of police punishment and also because they have a virtuous character that leads them to choose the right. But the police power and all the order-keeping discretion that used to be attached to it are important signaling mechanisms, delineating social norms and strengthening the private conscience, as Thomas once explained in these pages. As the rights revolution hamstrung police, discouraging or barring them from enforcing the laws and traditional rules of public order and decorum, Thomas says, the criminal justice system no longer dependably carried out its principal function of holding people “accountable for the consequences of their actions,” tacitly acquiescing in the cultural revolution’s “anything goes” code.

Thomas’s jurisprudence, Robin asserts, seeks to undo the rights revolution and “restore the ‘moral authority for the state to punish.’ Even if punishment is implemented in a racist fashion—especially if it is implemented in a racist fashion—it holds out the promise of a life of constraint and transcendence, of obstacles and overcoming,” he preposterously contends. Through “policing, punishment, and prison, . . . black people, particularly black men, are restored to a world of harsh consequences from which they can learn the virtues of responsibility.” Can anyone argue this with a straight face?

Even worse, Thomas’s vision of what Robin calls the “carceral state,” so “laden with racism,” makes the world safe for . . . capitalism! After all, the goal of right wingers in general—and of Thomas in particular, with his “bitter mix of right-wing revanchism and black nationalism”—is “to redirect the state away from its social democratic and welfarist functions and to concentrate its power on policing and punishment . . . to shore up markets in multiple ways: . . . by policing neighborhoods to make them safer for investment; by turning proverbially lazy and criminally inclined dependents, often coded as black, into responsible actors,” and so on. In other words, Thomas, like Hobbes and Locke, wants government to protect the first civil right, the right to be safe in your streets and homes, and he’s willing to use the ancient loitering and vagrancy laws to ensure the public order that prevents crime from happening in the first place, because the ill-intentioned can see that cops are on the watch.

And all this, moreover, Robin complains, is also to safeguard the institutions of civil society, “the social infrastructure on which a capitalist society depends: [the] schools, families, and churches . . . that cultivate, ideally, the virtues and habits necessary for middle-class success: responsibility, discipline, deferred gratification, respect for authority, temperance, prudence, and thrift.” If these institutions and virtues, which maintain community, allow for individual development and flourishing, nurture a sense of the meaningfulness of life, and have fostered painters since the Medicis founded their bank and sponsored Botticelli and Leonardo, literature since Shakespeare flourished in the England of the Virginia Company and John Donne wrote his sermons and his poems, are nothing but ideological auxiliaries to capitalism, it’s hard to know what Robin thinks human existence is for, beyond the Jacobin tumbrils that will somehow roll the ineffable vision of the socialist elite into as-yet-indescribable being. Does he really think that the social-democratic welfare state has a better recipe for the good life, for blacks and whites alike?

Some books enlighten. This one obscures.

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