The Unsettling Voice of Clarence Thomas

I. 

“Thomas’s is a voice that unsettles.”1 This is how Corey Robin introduces the subject of his book, The Enigma of Clarence Thomas, even before we hear much of Thomas’s own voice. Robin is quick to clarify that his principal purpose is not to avoid or reject the “disturbing, even ugly” views and the “brutal” style of Clarence Thomas but to lay them bare so we can see “that his vision is in some ways similar to our own.”2 In this way, Robin aims to unsettle  us too. 

And that he does to great effect. The result is a powerful, self-consciously revisionist account of Clarence Thomas as a conservative black nationalist, decisively shaped by his early intellectual and professional formation as much as his well known (and carefully crafted) personal history. Here the campuses of Holy Cross and Yale Law School are as important as the river framed roads of Pin Point, Georgia; the offices of the EEOC as formative as the living room of his grandfather’s home. Robin’s purpose is to bring fresh light to a seemingly well known yet still mysterious figure, “to make the invisible justice visible.” 3

This involves an examination of the three constitutive elements of Thomas’s jurisprudence: race, capitalism, and the Constitution. In this last element Robin finds two constitutions, the Black Constitution and the White Constitution. Whereas “[t]he Black Constitution is the story of rights gained in the struggle for emancipation and rights taken away in the counterrevolution of Jim Crow,” the “task of the White Constitution is to re-create the conditions that made for black survival, to undo the culture of rights and replace it with a state of exigency.”4

Robin’s account of Thomas is also distinctive for methodological reasons. Read against the backdrop of the copious legal scholarship that either supports or takes issue with various of Thomas’s positions, Enigma stands out. Eschewing doctrinal analysis or the navel-gazing of interpretive debates, Robin analyzes the extensive written and oral record Thomas has already left behind—not just judicial opinions, but interviews, speeches, and memoirs. Such an approach, Robin notes, requires “an act of translation,” taking the arguments expressed in Thomas’s polemics and judicial opinions and “return[ing] them to their original language.”5

It is true that this method leads to some unconventional descriptions of legal doctrines and theories; these, in turn, have become focal points on which critical reviewers have fixated at the expense of the bigger picture. That bigger picture is a bracing retelling of Thomas’s intellectual and jurisprudential commitments, one that is especially jarring for those who have become accustomed to the image of Thomas portrayed in casebooks and law reviews.

Particularly in the context of this wholistic approach, Enigma presents an account, as formidable as it is fresh, of someone whose views are too often taken for granted. It is an account that simultaneously complements and complicates the existing treatments of Clarence Thomas’s life, thought, and jurisprudence. Nonetheless, there are points when the distinctiveness of Thomas’s voice does not come through and when it unsettles for the wrong reasons. Though Robin’s work leaves us with pressing questions, they are questions best addressed from within the analytical apparatus he constructs. In this way, the questions posed by Enigma lead us to an even clearer understanding not only of Clarence Thomas but also of the stakes of his conservative black nationalism.

II. 

The description of Thomas’s voice brings to mind one of the most striking passages of his jurisprudence, which appears only briefly in Robin’s account (58-59). Writing in dissent in Obergefell v. Hodges, the 2015 case that established the constitutional right for same-sex couples to marry, Thomas focused his attention on the value at the heart of Anthony Kennedy’s opinion for the majority: human dignity. Though left uncontested until Obergefell, dignity had been a key piece of the Court’s gay rights jurisprudence. Kennedy’s opinion concluded with a direct summary. Of the petitioners he wrote, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” It was those two words—“equal dignity”—that provided the headline for the New York Times the following day. 

Thomas’s Obergefell dissent is important not just because of its vivid illustration of one especially salient feature of his style. More fundamentally, it provides as terse and comprehensive an account of Thomas’s constitutional vision as can be found in his extensive jurisprudence. And it is a vision that differs in crucial ways from the account offered in Enigma.

The final section of Thomas’s dissent, spanning just five short paragraphs, offers a counter-narrative of American constitutionalism. True dignity, he argues, is found in freedom from governmental coercion. It is that dignity that the Declaration of Independence proclaims and the Constitution, when properly interpreted, enshrines in the due process clauses of the Fifth and Fourteenth Amendments. Government action, then, is legitimate in so far as it protects the unalienable rights derived from this dignity; it is illegitimate as soon as those rights are infringed. 

Above all, Thomas claimed, human dignity is protected by limiting government; it is not enhanced through government action. To drive this point home, he wrote the following:  

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

This part of Thomas’s dissent unsurprisingly drew criticism. Most of it, though, was animated by a revulsion at the very idea that a slave or an interned person might be said to still possess dignity. (Perhaps tellingly, to my knowledge no attention was given to Thomas’s third example, the beneficiary of government assistance.) What was overlooked by Thomas’s critics was the view of the world that made sense of these claims, in particular an understanding of human dignity and freedom apart from and beyond the state. Moreover, the central figure of this understanding of freedom was the black man, the African who would not become American until the passage of the Fourteenth Amendment. 

Though this account of American constitutional foundations overlaps with the account offered by Robin, it also departs from it in significant ways. For Robin, Thomas’s Black Constitution is decisively shaped by the Reconstruction Amendments, and specifically by the Fourteenth Amendment’s privileges and immunities clause. This is why McDonald v. Chicago and the issue of gun rights take center stage.

But Thomas’s Obergefell dissent paints a quite different account of black freedom and the relationship between African Americans and the American regime. The key difference is that, in Obergefell, Thomas locates black freedom in the American constitutional tradition, precisely because it was not something that could have been deprived in the first place. Moreover, the relationship between the regime and black Americans—“the government allowed them to be enslaved”—is rather different from the historical background of the Black Constitution. It is this past worth reclaiming that gives Thomas’s constitutional epic its narrative tension—the promise of the Declaration, the betrayal of slavery, the restoration promised by Reconstruction, and betrayal once again by the evisceration of the privileges and immunities clause and the rise of the “liberal state.” 

With its emphasis on the later chapters of this story, the Black Constitution obscures the foundations of Thomas’s constitutional theory. This is why, one imagines, the oft-identified ground of Thomas’s constitutional universe, the Declaration of Independence, is virtually absent from Enigma (but see 148-9). It is Thomas’s emphasis on natural rights, located in the Declaration, that has facilitated his tight embrace by intellectually oriented conservatives. He tells a story congenial to an account of the American regime dedicated to limited government, rooted in property rights, and supportive of free market capitalism. Though marginalizing the Declaration could be part of a provocative (further) revision to the received understanding of Thomas, Robin does not address it. Accordingly, we are left to wonder how Thomas’s frequently expressed commitment to the beginning of the American constitutional story bears on the Black Constitution’s reorientation around its middle. 

When confronted by these complications, we might be tempted to find some resolution—to find an underlying commitment that reconciles the divergent strands or an overarching theory that synthesizes them. But I think that would be a mistake. Doing so would be to deny the complications that exist in Thomas’s various accounts of American constitutionalism. As Robin shows, the same Thomas who penned Obergefell described the historical context of African Americans as existing within “a system designed to keep a race ignorant—a system bent on establishing racial dominance.” In this system, the government was far from neutral: African Americans, Thomas has written, existed under “the dark oppressive cloud of governmentally sanctioned bigotry.”6 A similar contradiction appears to exist between Thomas’s rejection of the use of race as equivalent to social inferiority, while he himself has made a similar equivalence in the context of capitalism.7

What the Black Constitution and the broader revision of which it is a part attempt to streamline is better left unresolved, its jagged edges witness to the irresolution and inconsistency of Thomas’s views. These discordant notes are necessary features of Thomas’s distinctive voice, and they stem from the conjunction of conservatism and black nationalism that Robin so ably limns. Even so, it is in the domain of Thomas’s black nationalism—Robin’s most provocative claim—that we encounter a further wrinkle.

III. 

William Van Deburg begins the introduction to his volume of modern black nationalist writings with an observation about the challenge posed by his topic: “Attempting to gain a clear understanding of twentieth-century black nationalism is a bit like trying to eat Jell-O with chopsticks.”8 One response to this challenge is to treat black nationalism as more tractable than its figures and sources might otherwise allow—to argue that what appears to be Jell-O is actually something easier to work with. This seems to be the approach Robin takes, a decision he forthrightly admits at the outset. Denying that black nationalism requires a “strict adherence” to the principles of “black territorial self-determination or a unified black culture,” Robin, citing Tommie Shelby, conceives of black nationalism as including “a looser, more pragmatic ‘program of black solidarity and group self-organization’ rather than an insistent demand for a black state.’”9

This move certainly makes it easier to work with the tradition of black nationalism, just as it enable us to more easily identify continuity between Thomas and that tradition. But relaxing the boundaries that define black nationalism also makes it harder to locate Thomas within both the black nationalist tradition and the broader universe of African American political thought. If our aim is to understand and place Thomas in a political-intellectual context, this is significant.To take just one example, Robin convincingly shows that Thomas’s writings in the area of affirmative action are animated by the belief that “what unites Jim Crow and affirmative action is that both regimes are premised on ‘racial paternalism’ toward African Americans.”10 Such paternalism “reproduces white supremacy” because it “reinforces the stigma of inferiority” and “elevat[es] whites to the status of benefactors[.]” 11 While such views evoke Stokley Carmichael’s critique of civil rights legislation, they are also consonant with James Baldwin’s declaration that he was not “an object of missionary charity.” Similar comparisons could be made with (Robin’s account of) Thomas’s views on capitalism, gender hierarchy, and, more broadly, his skepticism about the prospects for integration.

My point here is that where we draw the line around the black nationalist tradition bears not only on what we make of Clarence Thomas but also on the enduring relevance of that tradition for contemporary American politics. Thus, it is worth returning to the central point of contact between Thomas and black nationalism: the intractability of the color line and the persistence of racial stigma. As Robin persuasively shows, Thomas’s views cannot be accurately understood unless these beliefs are given their due. But in the course of doing so, the radical nature of Thomas’s views—their truly enigmatic character—is transformed into something much more conventional, though no less unsettling. Thomas is made a political actor fully intelligible to the contemporary moment: he opposes affirmative action, supports robust subnational power in the areas of criminal and penal policy, opposes the constitutional justification for the “liberal state,” and much else that fits comfortably within the confines of the Republican Party platform. 

By the end of the book’s penultimate chapter, Thomas’s voice is still disconcerting, but for a quite different reason than it was at the outset. Whereas the beginning of the book brings us face-to-face with the black nationalist roots of Thomas’s views, at the end of the book our reaction to Thomas is keyed more to his seemingly callous responses to prison brutality or his dismissal of political possibility in favor of economic independence. Much like the response to Thomas’s Obergefell dissent, the Clarence Thomas described by Robin is, in the end, unsettling more because of the consequences of his fundamental commitments than because of the commitments themselves. Put differently, his conservative black nationalism unsettles us because of his conservatism. In this way, and particularly to the extent that we disagree with his positions, Thomas might offend or repulse us. That, however, is rather different than being disquieted—as we must still be—by his black nationalism.

IV.

Robin’s account of Clarence Thomas succeeds masterfully in first complicating and then enriching our understanding of the Justice. I fear, though, that precisely because it succeeds in this, it also threatens to render him too legible and, in so doing, to obscure the stakes of the political debate in which Thomas is both actor and medium. We can see this most clearly in what is perhaps the most important consequence of Thomas’s black nationalism, which is found at the intersection of race and capitalism. Braiding together his treatments of these two elements of Thomas’s thought, Robin argues that Thomas is devoted to a kind of anti-politics: “The goal of Thomas’s conservative black nationalist jurisprudence is to limit the involvement of black people with the white state, to persuade black people to give up their illusion that politics can positively affect their condition and perhaps to abandon politics altogether.”12 This, it seems, is what unsettles Robin most. It makes sense, then, that Enigma ends by returning briefly to this theme. This time, though, Robin steps back into frame, offering in his own voice a brief reflection on how readers might respond to Thomas.

He begins by observing that the current state of American politics, mired as it is in both polarization and partisan division, stems in part from the fact that Thomas’s “underlying vision…is so widely shared.”13 After identifying a menu of responses that acknowledge but also transcend those identified by Thomas, Robin comes to a further response. This final response depends on a realization, which serves as the concluding sentence of the book: “that the task at hand is not to retrace and rebut [Thomas’s] moves from premise to conclusion, but to go back and start again with different premises.”14

If we are to get there—to a place where we can find and build a politics from different premises—it cannot be simply because we disagree with the consequences of a black nationalism that became alloyed with conservatism. It must come through engagement with the central conviction that underwrites black solidarity and the different forms of separatism it informs: that mass politics in this multiracial polity will always leave black Americans on the outside looking in. “The goodwill of whites can always be revoked,” Robin writes, describing Thomas’s posture towards politics. “That is what it means to be a powerless and despised minority.”15 The possibility that this might, in fact, be true is the enduring challenge to the American regime posed by black nationalism and, as a result, by Clarence Thomas. 

It is necessary to be unsettled by Clarence Thomas’s voice, if only because it means that we still recognize the echo of voices like Martin Delany, Marcus Garvey, and Malcolm X, and that we finally acknowledge the deep reservoirs of black nationalism that exist within the full sweep of American political thought. Preserving the distinctive challenge of black nationalism, particularly in its modern manifestations, is so important because it keeps alive the question it points up: what shape can politics take in the United States given its racial past and the present consequences of that history? In its treatment of Thomas, Robin’s Enigma reveals the infrastructure of black nationalism around which Thomas’s conservatism took shape. Fully acknowledging the import of this fact requires that we not allow Thomas’s voice to lose its fundamental rebuke of American politics.

Connor M. Ewing is Assistant Professor in the Department of Political Science and Associate of Trinity College at the University of Toronto. 

Footnotes

  1. 15.
  2. 16.
  3. 11.
  4. 189, 191.
  5. 13.
  6. 209 (emphasis in original).
  7. Compare, e.g., 55 and 103.
  8. Modern Black Nationalism: From Marcus Garvey to Louis Farrakhan (NYU Press, 1996), 1.
  9. 6. See also 31. 
  10. 63.
  11. 65, 67.
  12. 105.
  13. 221.
  14. 221
  15. 110.

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