Monday, October 8, 2012

The Formation of Clarence Thomas

How does a Supreme Court Justice arrive at his mature legal views? Like every other human being, he absorbs a variety of experiences and influences, and processes them with his own rational categories. Some of this is in the setting of formal legal education, and some of it is through life experiences. Clarence Thomas grew up in the home of his grandparents - he called his grandfather "Daddy" - and assimilated the worldview of the African-Americans in the deep south. He recalls:

I had come to feel that virtually every discussion of race in America was fundamentally dishonest. The continuing controversy over busing was a prime example. Many whites were crying foul about school busing, saying that they wanted "neighborhood" schools for their children. This, of course, was nothing more than what blacks had wanted during segregation - the chance to attend good schools near their homes instead of being carted across town to all-black schools. Why, then, should they now wish to be carted across town to all-white schools? Daddy and I were at loggerheads about most things, but we found ourselves in full agreement when it came to busing. Even in a segregated world, education was our sole road to true independence, and what mattered most was the quality of the education that black children received, not the color of the students sitting next to them. "Nobody ever learned anything on a bus," Daddy said. Nor did either of us believe that busing would somehow help ease white racism. What made anyone think that white people who didn't want to eat with us were going to like our children any better? We both saw busing as a tragic digression from the quest for real equality: the ostensible means of achieving a desirable end had become the end itself.

Justice Thomas captured not only the Black understanding of the situation, but also the social structures which prevented Blacks from expressing that understanding openly. There was a cultural mechanism which inhibited African-Americans from speaking on the issue:

I felt sure that Daddy and I weren't the only blacks in America who doubted the value of bussing, but only black nationalists and separatists, it seemed, were allowed to say so in public. The rest of us, we were told, didn't speak for blacks, thus making us irrelevant. Those who dared to speak out anyway were written off as sellouts or Uncle Toms. Why, I asked myself, did the advocates of busing answer all objections to their views not with reasoned arguments but contemptuous ad hominem attacks - and what made the media so willing to go along with them? I couldn't see what made these people so sure of themselves, yet whenever I shared my doubts with a supporter of bussing and pressed him to explain why I was wrong, I was fobbed off with the non-argument that no black person had a right to think the way I did. The popular political answers of the day, I saw, had hardened into dogma, making anyone who questioned them a heretic.

Later, in Washington, these same insights would make themselves felt in a different setting. Clarence Thomas was witness to a meeting between Coretta Scott King and Senator Jack Danforth. Danforth had been a longtime supporter of Morehouse College, sitting on its board of trustees, and helped to create the Martin Luther King Foundation. Clarence Thomas noticed that Coretta Scott King took it as obvious that, despite his valuable service to the Black community, many African-American voters did not support him, and voted for his opponents, merely because he was a Republican.

It didn't surprise me, for I, too, had reflexively disliked most Republicans (John Bolton had been an exception) prior to going to work for Senator Danforth in Jefferson City. Still, I found it hard to accept. "Black is a state of mind," one black Democratic staffer told me, by which I assumed he meant being a liberal Democrat. That king of all-us-black-folks-think-alike nonsense wasn't part of my upbringing, and I saw it as nothing more than another way to herd blacks into a political camp. But some of the black staffers I met on Capitol Hill were so sensitive to criticism that they found it necessary in conversation to elaborately disavow the positions of the Republican congressmen or senators for whom they worked, and I liked that even less. If I hadn't felt at ease with Senator Danforth's political views, I would have found myself another job.

Frustrated by the lockstep mentality which dictated that all Blacks owed allegiance to the Democrat Party - even when it harbored unrepentant segregationists - and by the imposition upon Blacks that they dare not vote for Republicans - even though GOP legislators passed the Civil Rights Acts over Democrat opposition - Clarence Thomas began to forge his own political path, and to the meet other African-Americans who were willing to defy the leadership of the Democrat Party and think for themselves.

I saw a memorable demonstration of this kind of hypocrisy when Thomas Sowell met with a group of black Capitol Hill staffers in 1980. By that time I'd read most of his books and many of his articles, and I wasn't surprised to hear him express in no uncertain terms his opposition to school bussing, racial quotas, and increasing the minimum wage, all of which he believed to be bad for blacks. His bluntness ruffled more than a few feathers; in the eighties these were all hot-button issues for black politicians and community leaders. What bothered me was that some of the questions from the Republican staffers were both hostile and embarrassingly uninformed. That didn't fluster Sowell. (As I was to learn, nothing flusters him.) He defended his positions with cool, clearheaded logic, and though his questioners grew emotional, none of them was able to refute his arguments.

On the bench, Justice Thomas continued to think for himself, not being prey to political pressure groups or the organized intellectual thuggery of the Democrat Party. Breaking ranks with the leftist dogma that the federal government should grow in power, and that state and local governments should yield ever increasing amounts of that authority to the national government, he voted to allow more flexibility for states to shape their own sentencing guidelines. Understanding that "states' rights" is not a synonym for racism, he wrote in Kansas vs. Marsh (2006) that

decades of back-and-forth between legislative experiment and judicial review have made it plain that the constitutional demand for rationality goes beyond the minimal requirement to replace unbounded discretion with a sentencing structure; a State has much leeway in devising such a structure and in selecting the terms for measuring relative culpability, but a system must meet an ultimate test of constitutional reliability.

Likewise seeing that phrase 'under God' in the Pledge of Allegiance does not constitute any binding religious creed, he wrote in a 2004 opinion about school recitation of the pledge that

Through the Pledge policy, the State has not created or maintained any religious establishment, and neither has it granted government authority to an existing religion. The Pledge policy does not expose anyone to the legal coercion associated with an established religion. Further, no other free-exercise rights are at issue. It follows that religious liberty rights are not in question and that the Pledge policy fully comports with the Constitution.

Justice Thomas sees the 'under God' phrase as innocuous and benign, and in no way presenting cause for a civil suit under the first amendment. The life of Clarence Thomas has been one of refusing to submit to pressure in his academic career, in his legal career, and in his spiritual life. He explores the breadth of the definition of the word 'independence.'