Taking Clarence Thomas and the Conservative (Legal) Movement (Less) Seriously

Hillsdale College’s November newsletter, Imprimis, featured Justice Clarence Thomas’s recent address at the conservative Michigan college. Hillsdale is an important site for intellectual conservatism and Imprimis has a monthly circulation of 4.7 million. This number dwarfs National Review’s reach and comfortably outpaces the number who tune in each night to Sean Hannity’s and Tucker Carlson’s Fox News shows. At the October confab Thomas keynoted, the conservative knowledge structure’s full menu of offerings was on display. Conservative journalist and fabulist of the Brett Kavanaugh saga Mollie Hemingway, historian turned pro-Trump pundit Victor Davis Hanson, and longtime conservative media ecosystem denizen Mark Steyn all took turns from the speaker’s podium. Dedicating the college’s new chapel, Thomas proclaimed that “Christ Chapel reflects the College’s conviction that a vibrant intellectual environment and a strong democratic society are fostered, not hindered, by a recognition of the Divine.” Building to a Christian afterlife crescendo, Thomas told the university audience, “Let [the chapel] point to a day when ‘the dwelling of God’ will be ‘with men,’ when God himself will ‘wipe away every tear’ and mend every wound.” He was met with enthusiastic applause.

Rank-and-file liberals and residents of the Left have been slow to recognize the importance of Thomas to the conservative movement. This is not their fault. Due to conservatives’ penchant for deifying their intellectual heroes, Scalia’s “look at me” opinions and antics, and the elite media’s happiness to cover such, Thomas has largely avoided the mainstream spotlight Scalia so happily occupied. Thomas has long preferred venues such as the Federalist Society and conservative media outlets. Here, conservatives provide a safe space for Thomas.

Corey Robin’s recent book aims to help liberals and the Left better understand Clarence Thomas. Compulsively readable—the book’s primary audience is non-specialists—this volume of political theory-cum-political biography has a provocative argument: “Thomas is a black man whose conservatism is overwhelmingly defined by and oriented toward the interest of black people, as he understands them” (4). In fact, Thomas is “a black nationalist” (2). And crucial to this review, on Robin’s account, Thomas is the conservative thought leader of the Court (1, 3-16).

Combining a close reading of myriad publicly available statements, spoken and written, by Thomas and a deep familiarity with the oeuvre of reporting and scholarship on the justice, Robin’s tightly-argued book brings into conversation the justice’s Savannah, GA childhood, his days as a student radical at Holy Cross and his three years at Yale Law School, and the totality of his professional career especially his nearly thirty-year tenure on the Supreme Court. Divided into three sections—Thomas on race, Thomas on capitalism, and Robin’s renderings of Thomas’s “Black Constitution” and “White Constitution”—this is the first critical, book-length treatment of Thomas. (Conservative and libertarian offerings have tended to descend into hagiography, cheerleading for originalism, or are simply outdated). For the range of thought it captures temporally, theoretically, and substantively Robin’s work will likely set the baseline for future scholarship on Thomas.

II.

This post is the first of A House Divided symposium’s offerings on The Enigma of Clarence Thomas. Thus, instead of the typical book review format, I focus here on what is implicit in Robin’s project of making Thomas more legible: taking the intellectual content of his legal thought seriously. And by taking Thomas seriously, Robin is necessarily taking the conservative (legal) movement—of which Thomas’s thought is part and parcel—seriously. That is, Robin is treating Thomas’s constitutional vision as flowing from serious engagement with the Constitution even if the vision is one Robin ultimately finds disconcerting.

This may be too generous. What one encounters in the book—beyond Thomas’s obsession with race, a point well established by Robin throughout and one I expect other reviewers will grapple with—is the tropes and secular continuities long manifest in conservative (legal) argumentation. There is the tight embrace of “logic” and reliance on deduction to “solve” problems of constitutional law. Relatedly, there is devotion to ostensible first principles of economic and human nature that must be resignedly accepted as inalterable—a troublesome “elite,” though, just won’t accept these “laws.” There is the D’Souzian rearrangement of acontextualized historical facts to build a pleasing ideological argument. And, underlying all of Thomas’s arguments, is the power politics that is the sine qua non of The Long New Right.

Consider. In a 2007 opinion joining a conservative Court majority striking down voluntary school desegregation efforts by Louisville and Seattle, Thomas reasoned that if racial diversity concerns were driving this effort today, “then logically it will justify race-conscious measures forever” (45, emphasis added). An affirmative action opinion by the justice attacked the idea that the policy is benign discrimination. For Thomas, it was historically significant and persuasive that, “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life” (64). Thomas routinely dismisses “know-it-all elites” for refusing to see the world through his idiosyncratic racial lens (71; see also 22, 68, 69). The lodestar of Thomas’s economic thinking is the first classical liberalism principles of Friedrich Hayek (132). Indeed, Thomas requires each new crop of his law clerks to watch a film adaptation of Ayn Rand’s sophomoric libertarian fantasy The Fountainhead (86). 

There are more examples that don’t make it into Robin’s book. In 2011, law professor and former Thomas law clerk John Yoo took to the pages of the Wall Street Journal to assess Thomas’s first twenty years on the Court. Yoo told the Journal’s readers that Thomas is “the tea party’s intellectual godfather.” Indeed, to Yoo, “the Constitution’s inherently conservative nature” was self-evident. In a 2014 address, Thomas insisted “northern liberal elites” had done “the worst things that have been done to me,” juxtaposed to the whites in the Jim Crow Savannah he grew up in. (To be sure, this thread of Thomas’s thought is well-analyzed in The Enigma of Clarence Thomas).In 2017, Thomas appeared on a former clerk’s television show: Fox News’ The Ingraham Angle. Renarrating his childhood for a Laura Ingraham’s Fox News audience, Thomas suggested his exposure to conservative ideas helped him become the person he is today: “Why would a little kid in Savannah, Georgia be reading Ayn Rand? Why? Somebody exposed me to it . . . Somebody said it’s ok for you to read that and you should read that and learn from it.” (Robin’s more reliable narration is that Thomas first read Rand after graduating from Holy Cross on his way to Yale law school (86)). In 2019, the conspiracist conservative website, The Federalist, “translated” Thomas’s solo opinion in an abortion case for its audience. While amounting to little more than cherry-picked history, Thomas’s opinion and The Federalist’s story told conservatives a comforting story: they, as pro-lifers, are the anti-racist bulwark against a regime of racialized and eugenicist-inflected pro-choice liberals.  

This, in capsule form, is the judicial, middle-, and low-brow output produced by the collective intellectual energy of the conservative (legal) movement. (This is not to say there are not serious conservative attempts to understand constitutional politics; they are just much more likely to be found in heterodox political science departments rather than the law schools). Thus, rather than treating Clarence Thomas as a unique or trail-blazing conservative (legal) thinker, I want to suggest a more prosaic approach: perhaps the essence of Thomas is ideological purity. Vis-à-vis the legal academy, Thomas is the darling of conservative and libertarian law professors because he takes their politically activist scholarship and cites in his opinions pushing for an ever more conservative outcome (see, e.g., here, here, here, and here). Indeed, as Robin documents, in economic cases Thomas’s opinions instantiate the fever dreams of libertarians who want to push further in using the First Amendment as a deregulatory tool while reining in those aspects of the administrative state they most dislike. In cases touching on issues cultural conservatives find most important, Thomas’s opinions will reflect the most traditionalistic or far-reaching conservative understanding—LGBTQ+ rights are a good example of the former, gun rights the latter. Thomas himself makes so secret of his purity. In September 2018, he recalled to a Federalist Society audience with a wink and a nod, “I always told [Justice Scalia], ‘I’ll set the edge, and you can run to the inside of me.’”

III.

What does it mean to take Thomas and the conservative (legal) movement less seriously? It means highlighting the constitutive nature of the conservative legal movement and GOP politics. This is, after all, how his champions in conservative legal and media elite circles understand Thomas—“the tea party’s intellectual godfather”—the Constitution, and constitutional politics. Taking the conservative (legal) movement less seriously also entails highlighting that the arguments found on The Federalist’s website, the offerings of Laura Ingraham and Mark Levin, or conservative talk radio differ from those in the ostensibly sophisticated conservative legal movement—whether the justices, law professors, or other legal elites—not in substance but in their populist translation. As a corollary, it also means highlighting that the conservative justices’ constitutional opinions—and the scholarship and knowledge production they rely upon—are inherently political rationalizations for movement conservatism’s legal policy goals. In the end, rather than building elaborate narratives that intellectualize them, we might better understand Thomas and the conservative legal movement if we simply take them at their word.  

Hello. My name is Calvin TerBeek and I’m a political science PhD candidate at the University of Chicago. My work is focused on party politics and judicial politics from the Progressive Era to Trump. More specifically, I’m interested in how party politics helped create the constitutional politics of the Democratic Party's legal liberalism and the GOP's constitutional originalism. Before coming to Hyde Park, I clerked for two judges and practiced commercial litigation for large and boutique firms. For more, please see my c.v. -- http://calvinterbeek.com/

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