Will the Real Justice Thomas Please Stand Up? The Endurance and Power of Erroneous Political Narratives

Corey Robin’s Enigma of Clarence Thomas advances a provocative new interpretation of the Justice’s puzzling legal-political philosophy. As everyone knows, since his appointment by George H. W. Bush in 1991, Thomas has staked out jurisprudential turf as a judicial right-winger, shining as a conservative’s conservative even among the right-wing luminaries of the Rehnquist and Roberts Courts. The “Enigma” here—i.e., what everyone doesn’t know—is why Thomas argues for the controversial positions he takes in the particular way he does (e.g., why does he think the right to bear arms is a Privilege and Immunity and not a right protected by Due Process?), and how his own conception of judging connects to his unique past. Accordingly, the chief merit of Robin’s interpretation is to argue persuasively that Thomas’ jurisprudence, while frequently yielding boilerplate or near-boilerplate conservative outcomes, nevertheless stands on a set of radically heterodox theoretical positions, quite unlike those held by his conservative brethren on the Court. In Robin’s rendering, Thomas is a conservative black nationalist, which means that he views many standard political positions associated with movement conservatism—e.g., gun rights, “free markets,” limited reproductive rights—as means for advancing the distinct group interests of black Americans, whose relations with white Americans and the American state he regards as inevitably—indeed, necessarily—adversarial and agonistic.

Lawyers and legal theorists steeped in Supreme Court jurisprudence might take issue with Robin’s hermeneutic, which bears the hallmarks of political theory rather than legal analysis, and which Robin accordingly describes as an act of interpretive reconstruction or, to use his own language, “translation” (13). But for my part, I find little to quibble with in Robin’s rendering of Justice Thomas’ thought—mainly because, as Robin himself observes on several occasions, most of Thomas’ heterodox opinions are “a secret hiding in plain sight” (8). Far from imposing a pre-conceived interpretation on the text, Robin as far as I can tell fastidiously unpacks and elucidates what anyone who cared enough to read Thomas’ entire oeuvre—legal and non-legal—with a truly open mind would presumably discover for him or herself. Indeed, Thomas is forthcoming and unabashed about his entrée into black nationalism during the 1960s; many of his most notable opinions, such as his Fisher and McDonald concurrences, emphasize the interminability of conflict in black-white race relations—in sum, taken as a whole, Thomas’ jurisprudential utterances make a great deal more sense to me when read through the lens Robin proposes.

In observing that he has spelled out what has been, in many respects, there for everyone to see all long, I do not mean to undercut Robin’s achievement—far from it. The virtue of Enigma is that it manages to pierce the discursive veil that has so severely distorted Thomas for so long, a veil that has transformed him into someone seemingly familiar and intelligible, someone we mistakenly think we understand—namely a run-of-the-mill conservative originalist à la Rehnquist and Scalia—when in fact Thomas maintains a philosophy so unusual as to render him intensely unfamiliar, perhaps incomprehensible, when viewed through clear eyes.

This last point will be the animating concern of my brief contribution to this symposium. Rather than test the integrity of Robin’s interpretation—Calvin TerBeek has already begun to do this in his remarkable essay from January 9, and other serious readers will do so, as well—I would like to offer some reflections on perhaps the most glaring question that Enigma raises and leaves us to grapple with. If Clarence Thomas is a secret hiding in plain sight, as Robin maintains, how has he managed to hide for so long and so successfully? What political dynamics are responsible for making him seem—to conservatives and liberals—like something he is not? Cui bono?In whose political and coalitional interest has it been to misconstrue Thomas as a regular, predictable conservative, when in fact he is someone utterly different and profoundly more complex?

In proposing an answer, it might help to glance briefly at the post-2012 Republican Party whose nascent reform efforts Donald Trump has so successfully and ruthlessly scuttled.

It has long been a point of confusion and frustration among conservatives why black Americans overwhelmingly identify with the Democratic Party and political liberalism. For Republicans, things came to a head after Mitt Romney’s loss in 2012, in response to which the Party broke with its traditional stance vis-à-vis minorities—“We think they should like us but we’re unwilling to change what it is about us that they don’t like”—and began to talk of rebranding. Read the post-2012 “Growth and Opportunity Project”:

[W]e need to go to communities where Republicans do not normally go to listen and make our case. We need to campaign among Hispanic, black, Asian, and gay Americans and demonstrate we care about them, too. We must recruit more candidates who come from minority communities.

Or in Dick Armey’s sardonic formulation, “You can’t call someone ugly and expect them to go to the prom with you.” 2013 thus promised to be a time for reckoning, when Republicans would finally own what it was about “colorblindness” and Reaganism that made these ideologies seem so tone-deaf and loathsome to non-whites in the first place.

Donald Trump has put an end to this, of course. But well before the rise of Trumpism, Clarence Thomas had seemed to corroborate what conservatives long wanted to believe but had such difficulty demonstrating. Seen through the heuristic of the post-Reagan partisan regime, Thomas’ life seems to tell a story that movement conservatism relishes and has long wished to see made real. According to this narrative, a black man who is born into poverty yet who pulls himself up by the proverbial bootstraps and becomes educated will invariably come to see the world through the lens of conservatism. Or, in slightly different terms, conservatism and everything it entails is the political philosophy that black Americans and other minorities would embrace if they truly understood their interests. If only they would abandon their parochial attachments to the Democratic Party, these groups would finally come to see the Truth that the party of Goldwater embodies.

The fly in this discursive ointment, however, is that Clarence Thomas emphatically rejects the rose tinted vision through which American conservatism teaches us to view the world. As Robin contends, Thomas embraces the core tenets of conservatism, not out of a belief in their unifying power, but, quite the opposite, because he understands them as the most effective tools that the American black community has at its disposal to improve its standing in the American polity, tools which that community can use to thwart a professedly benevolent—though invariably hostile—white majority. Whereas many blacks saw and continue to see white liberalism, with its benevolent promise of integration and its embrace of affirmative action and the welfare state, as the surest means to improving the estate of black people, Thomas sees thinly veiled malevolence—a wolf in sheep’s clothing. In his concurrence in Fisher v. University of Texas, for example, Thomas contends that “[t]he worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.” In Thomas’ view, affirmative action—the policy in question in Fisher—is one such form of discrimination.

In a certain respect, then, Thomas’ views do align with those of conventional conservatives, who loathe liberal policies like affirmative action. Yet as Robin maintains, Thomas views liberalism, not from the standpoint of a white conservative—who takes his hegemonic status in the regime for granted and who therefore feels empowered to lecture and chastise the underprivileged for not pulling themselves up by their bootstraps—but rather from the perspective of a black man who feels he can take nothing for granted in a white-dominated regime, and who therefore suspects that every effort by white liberals to “help” him is actually an attempt to further enfeeble and emasculate him. For Thomas, liberalism’s promises reduce to white largesse, which has the effect of emasculating an already vulnerable, demoralized black community, making it dependent on fickle, self-satisfied whites and unable to attain the ruthless self-reliance necessary to fend for itself in a regime that has demonstrated time-after-time its contempt and malevolence towards people of color.

In conservatism, by contrast, Thomas sees the resources the black community needs to restore its lost virility and vitality. Paradoxically, voting-rights policy unfriendly to minorities (e.g., the Court’s decision in Shelby County v. Holder [2013]) will discourage black people from wasting their time trying to influence a political system that is necessarily rigged against them, thereby incentivizing them to channel their energies into reconstructing their own communities and civil societies apart from those of white people. Unregulated commerce and the “free market” provide an arena in which black people can develop virtues of self-reliance and toughness all the while serving each other’s material and economic interests. A conservative regime in reproductive rights and welfare policy restores the black father as the foundation of the black family, paving the way for a unified, disciplined, hierarchical black society that will replace the hedonistic, disintegrated one that the liberal welfare state has left in its wake. And, most fundamentally, gun rights outfit the black patriarch with the raw force he needs to guarantee his family’s and his community’s safety from a potentially tyrannical white majority.

In each of these policy areas, then, Thomas ends up on the conservative side—though for reasons that would make a conservative recoil. For Thomas, conservative policies are good because under them American black people can finally be left alone, no longer having to worry about intrusive, destructive meddling by whites. Conservatism facilitates a kind of division in American society that Thomas feels will accrue to the benefit of the black community.

Thus, the fictive Thomas that vindicates the conservative vision of race relations while at the same time muting the elements in Thomas’ philosophy that are fundamentally discordant with that vision bears almost no relation to the Thomas that Robin exposes. To confirm this, one need only survey the outraged reviews of Robin’s book that have begun to appear in conservative publications.

Reviewing Enigma for Law & Liberty, Scott Gerber uses the term “Marxist” pejoratively seven times in a brief 1,673 word essay, all in a hair-pulling, teeth-gnashing attempt to use McCarthy-esque ad hominem to discredit the man, Corey Robin, without even attempting to refute his arguments. The result is an unbearable amount of heat and no light whatsoever.

For instance, Gerber hastily dismisses Robin’s contention that gun-rights are uniquely central in Thomas’ philosophy—“Nothing could be further from the truth”—without offering a shred of counter evidence. Instead, he lamely asserts that Thomas shares the same view of gun rights as Scalia and the other conservatives who joined Scalia’s opinion in DC v. Heller (2007). But as Robin discusses and explicates at length (chapter 8, esp. 176-181), Thomas saw fit to write a fifty-six page, eighteen-thousand word concurrence in McDonald v. Chicago (2010), in which he simultaneously rejects Court doctrine regarding incorporation, proposes that the Second Amendment is a “Privilege and Immunity” rather than a right incorporated by the Due Process Clause, and, in Robin’s words, “returns repeatedly to scenes of white terror and black revolt” (179) to bolster his case for the necessity and fundamentality of gun rights. This remarkable opinion, bearing almost no resemblance either to Scalia’s majority in Heller or to Alito’s majority in McDonald, should stand out to anyone, “Marxist” or otherwise; and Robin compellingly situates it within Thomas’ spoken and written remarks on black nationalism and the history of black oppression and persecution by white people.

To be sure, one does not have to agree with every aspect of Robin’s provocative and controversial interpretation. There is plenty of room for critique and counter-interpretation. But Gerber for his part offers neither. Rather than engage Robin on the merits of his argument, or even acknowledge what his full argument is, he tries to get by with smearing Robin as a “Marxist”—as if doing so constituted a refutation.

One sees the same thought patterns on display in Myron Magnet’s review of Enigma in City Journal. Commenting on Robin’s interpretation of Thomas’ McDonald concurrence, Magnet writes:

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.”

There is nothing “boiled down” about Robin’s interpretation of Thomas vis-à-vis gun rights, however. Quite the contrary: a sympathetic reading of it shows an unusually thoughtful attempt to explain Thomas’ highly idiosyncratic approach to the Second Amendment, one that reflects something much more radical and unconventional than the boilerplate majorities of Scalia and Alito. In Thomas, Robin sees a genuinely unconventional set of theoretical positions—ones with which Robin himself disagrees, to be sure, but which he thinks deserve attention and critical analysis, nonetheless.

Magnet further evinces his unwillingness to even ponder the controversial policies raised by Enigma when he asserts that Thomas “would dismiss Robin’s conclusion”—which Robin attributes to Thomas himself—“that the civil rights movement failed.” If it is true that the Justice would “dismiss” (i.e., reject without analyzing) this view, as Magnet obviously wishes to do, this is regrettable. For as Robin shows, Thomas has made sundry remarks indicating that he thinks this view is true. Magnet quotes Thomas as stating in a 2012 interview with Akhil Amar that whereas it may have once seemed strange to see two immigrants discussing the Constitution, “now, it’s hardly noticed.” But two years later in 2014, Thomas would give a speech in which he contended that “the worst I have been treated was by northern liberal elites”—that is, presumably, worse than the Jim Crow southerners among whom Thomas grew up. Taken together with some of his Court opinions, in which he has compared affirmative action to slavery and segregation, remarks like these lend a degree of plausibility to Robin’s interpretation which Magnet fails to acknowledge—perhaps because, sensing its dangerousness, he wishes to actively suppress it.

If anything, it is Magnet’s interpretation of Thomas that is “boiled down,” in the sense that Magnet, like Gerber, thinks it is enough to brush away all of Robin’s hard work as “fanciful,” “bizarre,” “contorted,” “wildly far-fetched,” “lost in left field” (the list goes on), without actually grappling with the substance of what Robin has to say. Like Gerber, Magnet lets adjectives, florid verbiage, and ad hominem do the heavy lifting for his argument. And like Gerber, he fails, or refuses, to provide plausible counter-interpretations of the complexities in Thomas’ thought which Robin focuses on, specifically the Justice’s views on incorporation and gun rights, voting rights, and markets. Instead, he simply rehashes the same old view of Thomas, the coherence of which Robin’s book so successfully brings into question. Indeed, unlike the conventional conservative understanding of Thomas, which whitewashes everything about the Justice that makes him enigmatic and therefore impossible to fit into the mold of traditional conservative judges, Robin’s account begins with the puzzles and complexities attending Thomas’ jurisprudence—e.g., “Why the persistent focus on racial conflict? Why the centrality of gun rights? Why the equivalences drawn between segregation and affirmative action?”—and tries to construe his philosophy as a whole in a way that makes sense of these seemingly aberrant elements.

To be sure, Gerber and Magnet are reacting the way they are because Robin has written a book that challenges many of their priors. The unfamiliar is frightening, and in a hyper-partisan age where every scholarly skirmish seems to portend the next ideological Stalingrad, we should not expect partisans to embrace a book that questions the plausibility of a partisan article of faith. Nevertheless, I suspect there is more going on than mere outrage in reviews like these. Such reactions might be illustrative of the very thought-patterns that have long sustained the erroneous narrative around Thomas that Robin is now bringing into question.

Old myths die hard. Robin’s radical interpretation of Thomas hits a nerve with conservatives because it threatens to rob them of someone they have always assumed to be a thoroughgoing devotee of conservatism—someone who, interpret their way, vindicates all their prior commitments. As Robin suggests, however, the true story of Thomas testifies not to the ultimate truth of conservatism but to its utter failure, especially in its attempts to pitch itself to non-white Americans. Indeed, Thomas’ philosophy amounts to a profound rejection of the conservative promise as hopelessly naïve and one-sided.

How, then, to explain the enduring power of the conservative narrative around Thomas that gets him so wrong? I would like to suggest that, notwithstanding his controversial brand of conservatism, Thomas has been seized upon and weaved into a political narrative that vindicates the hegemonic thought-paradigms of our current post-Reagan political regime. To borrow Vivien Schmidt’s framework in “Discursive Institutionalism: The Explanatory Power of Ideas and Discourse,” Clarence Thomas has come to serve as a coordinating discourse that bolsters and unifies the conservative outlook on minorities, and black Americans in particular. Thomas is an elite figure conservatives can point to as evidence of their own ideological success when criticized for their political movement’s lackluster approach to race.

“[E]very regime tends to produce a politics consonant with itself,” wrote Theodore Lowi in an insightful yet underappreciated 1993 APSR article; “therefore every regime tends to produce a political science consonant with itself.” Lowi’s point was that objectively describing a regime as one of its partisans is much more difficult than at first seems because regimes as such condition their partisans to view political reality through the lens of what the regime wishes to be true, but what might not be true. As I have suggested in a recent article in Critical Review, the particular partisan regime in political time that one happens to inhabit (ours being the post-Reagan regime) functions as a lens or heuristic through which one views political reality past and present. It will induce even those striving for objectivity to distort political events in ways that vindicate the aspirations of the regime one inhabits.

Following the trajectory delineated by Lowi and other groundbreaking scholars before him, much of the best work in American Political Development in recent years has sought to explain the role of narratives and other ideological constructions in bolstering partisan regimes and the political coalitions that are associated with them. Stephen Skowronek has shown how new regimes re-associate old ideas and narratives with new political objectives in order to lend the latter credibility they would not otherwise have. Recently, Jeffrey Tulis and Nicole Mellow have further developed insights like these, tracing out the ways in which ascriptive conservative movements in American political history—the Anti-Federalists, Andrew Johnson and the opponents of Reconstruction, and Barry Goldwater’s conservative movement—have seized upon and redeployed erroneous yet persuasive narratives about the American Founding and the Constitution in order to perpetuate their claim to governing authority and to strengthen the integrity and solidarity of the coalitions that make them up.

Central to each of these theories is the idea that partisan regimes both generate and consume political stories, or fictive accounts of the polity writ large that seem to vindicate their right to make their own normative commitments authoritative in that polity. In turn, these stories are thrown in stark relief as fictive when we glimpse the gulf between what they allege about reality and what reality itself discloses. I would like to suggest that Robin’s book has gone a considerable distance in exposing the gulf between the stories that conservatives have long told themselves about Clarence Thomas, on the one hand, and what Thomas’ life and writings tell us, on the other.

Since the Southern Strategy and the rise of movement conservatism in the 1970s, conservatives have maintained that honoring the nation’s moral commitments did not necessitate an adjustment in conservatism’s approach to, among other things, race. Conservatives blamed cynical Democratic Party strategies and allegedly complacent minorities for the Republican Party’s inability to attract more non-white voters, while at the same time refusing to acknowledge the kinds of conservative positions (“color blindness,” “law and order,” “history and tradition,” etc.) which minorities correctly interpreted as more-or-less overt expressions of contempt and even hostility towards non-white Americans. The short-lived Growth and Opportunity Project discussed above was an explicit attempt to acknowledge the inadequacy of these positions and to replace them with a more racially inclusive political program. But as the rise of Trumpism and related ideologies have indicated, conservatism in America would rather double down on its old wagers than cut its losses and shuffle a new deck.

Obstinate, brusque, dismissive reactions to Robin’s book by commentators who would rather deflect attention away from the complexities of Justice Thomas’ thought than engage them with an open mind vividly confirm that this tendency is alive and well. As frustrating as they might be, they should not be surprising. The idea that Thomas holds conservative positions for reasons that differ radically from those of a conventional conservative threatens to disrupt one of the Republican Party’s most enduring and edifying narratives, namely that the Party should not have to change or compromise in order to attract a more diverse base of support, that American conservatism is blameless when it comes to racial politics, and that Justice Thomas is evidence of the truth of these positions. Rethinking Thomas would mean grappling with the fact that while it purports to embody a philosophy of universal appeal, conservatism has always been overwhelmingly limited in its appeal to white Americans, whose privileged status in the American regime induces them to embrace conservative verities like “free markets” and “small government”—code words for “retain all sources of ascriptivism where they exist.” In short, it would mean reckoning with one of American conservatism’s longest-held and most deep-seated contradictions.

Charles Zug is a PhD candidate in the department of government at the University of Texas at Austin. His scholarly training is in public law, political theory, and American politics, and his dissertation is on demagoguery and American constitutionalism. His scholarly work has been published in Critical Review: A Journal of Politics and Society, Interpretation: A Journal of Political Philosophy, The Australian Journal of Politics & History, and Perspectives on Political Science. He has written commentary on political and Constitutional issues for several publications, including The Washington Post and The Austin American-Statesman.

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