Clarence Thomas’s Fatalism on Race In America

[Chris]

Clarence Thomas’s Fatalism on Race In America is an excerpt from a longer piece, Why Clarence Thomas’s Rulings on Race Are so Idiosyncratic.

Thomas is the most conservative judge oon the bench.

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.

[Mister D]

Not sure I would characterize an acceptance of the human condition (part and parcel of conservatism, IMO) as "fatalism". I think such a characterization indicates more about the author than it does about Justice Thomas.

[Chris]

True, if Justice Thomas thought things determined he wouldn't be making law.

[Mister D]

True, if Justice Thomas thought things determined he wouldn't be making law.

In this context, I took fatalism to mean something more along the lines of resignation or acceptance but that doesn't do Thomas, or any conservative, justice. If Thomas is resigned it just means that he understands that racial prejudice exists and it's a behavior that simply will not disappear any more than avarice or pride. It's an attitude that stands in stark contrast to that of a progressive (or a classical liberal) who can genuinely envision a world where racism doesn't exist.

[Chris]

You're right, he doesn't accept the status quo standard answers and says what some liberals might label Uncle Tomist. Thomas Sowell and Walter Williams are similar and not much respected by the left. The author of the OP piece is, I think, struggling with his own liberal perceptions and finding respect.

[Chris]

Here's the opening of his dissent in Grutter v. Bollinger 539 U.S. 306 (2003)

USTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on to day's majority:

"[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the $#@! is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the $#@! cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny."

No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.