Of Pretexts and Preferences: The Revealed Conservatism of Clarence Thomas

In his new book The Enigma of Clarence Thomas, Corey Robin advances a novel and intriguing argument that locates the origins of Clarence Thomas’s ideological behavior on the Supreme Court – itself, at once, celebrated and infamous – in what Robin terms Thomas’s “conservative black nationalism.” Namely, so the argument goes, Thomas’s conservative jurisprudence, as characterized by his preferences on everything from affirmative action and voting rights to property rights and freedom of expression, is a function of Thomas’s views on race, which occupies a position of primacy in Thomas’s politics. Drawing on a wealth of information from Justice Thomas’s background, including biographical data as well as the text of Thomas’s written opinions during his time as a Supreme Court Justice, Robin makes an internally consistent and generally persuasive case that Clarence Thomas’s (largely orthodox) revealed conservatism is rooted in a (much more unorthodox) set of beliefs – pessimistic, occasionally, to the point of cynicism – regarding the political inefficacy of the state to generate racial equity and the crass motives of those who proclaim to use its levers to do so.

At its core, Robin’s project reimagines and contextualizes the established, collective understanding of Thomas as the Court’s most conservative justice. That Thomas has anchored the Court’s right pole for most of the past three decades is hardly the stuff of controversy based on conventional quantitative measures of judicial ideology. For example, Thomas has been the most conservative justice in every term since his appointment according to prominent estimates of judicial ideology including both Judicial Common Space scores and Martin-Quinn scores. Robin argues neither that Thomas’s revealed conservatism on these existing metrics is illusory due to some previously unexplored multidimensionality, nor that the impressionistic conceptions of Thomas as a political or legal conservative are otherwise misguided; instead, Robin begins with the received wisdom of Thomas as the most conservative justice on the Court, and demands that the reader take seriously his proffered explanation of black conservative nationalism as the foundation of Thomas’s ideology. In some sense, then, Robin asks that we rethink precisely what unidimensional measures of ideology stand for, and casts a spotlight on what such metrics, for all their utility, neglect to capture.

Prior to this book, no one doubted that Clarence Thomas’s conservatism was meaningful. Indeed, scholars employing spatial measures of ideology to study policy outcomes in the judiciary would rightly note that George H. W. Bush’s choice of Clarence Thomas to replace Thurgood Marshall shifted the Court’s ideological median rightward, somewhat dramatically increasing the likelihood of a conservative holding in the average case. Likewise, Thomas’s conservatism is consequential for inter-institutional politics due to the manner in which his decisions on the Court have refracted or foreshadowed coordinate developments in political time and in other branches of government. Here, however, Robin implies – in addition to these existing and better-trod paths – that Thomas’s ideology is intrinsically worthy of examination, as well. For instance, and as Robin acknowledges, Thomas’s background is unique (if not singularly so) among recent appointments to the Supreme Court for a number of reasons, including but not limited to his race, class background, and orientation toward the overtly political. It is, in fact, the indicia of Thomas’s uniqueness with respect to these three criteria together that shape his judicial worldview. Robin’s theory of Thomas’s conservative black nationalism, then, is intended to reconcile the widely perceived disconnect between Thomas’s identity and ideology, respectively, by suggesting there is a latent motivation for Thomas’s conservativism that has manifested not despite his racial identity, but because of it.

Robin’s approach to culling an incisive and coherent distillation of Thomas’s jurisprudence is methodologically unique in that it relies not only on Thomas’s written opinions from his time on the Court – decisions in which justices are incentivized to misrepresent their sincere preferences as a matter of routine for the sake of coalition building, and particularly so when writing a majority opinion – but also on speeches, public statements, and autobiographical material supplied by Thomas over the course of the preceding decades. This likely provides a more complete picture of Thomas’s controversial preferences – and the origins of the jurisprudence that informs them – than written opinions alone for two reasons. First, statements from Thomas’s extrajudicial engagements are unlikely to be forged in the same strategic cauldron that attends the bargaining environment in a plural-executive, majority rule institution (though this does not immunize fully statements made in nontraditional venues from the incentive to misrepresent, as an unofficial setting may provide justices with a low-cost opportunity to reap personal or professional rewards through ideological posturing). Second, the inclusion of material from speeches, interviews, and autobiographical matter adds depth and nuance to the analysis by preventing Robin’s examination of Thomas’s jurisprudence from being limited to what the Court’s agenda-setting mechanisms have permitted Thomas to consider directly as a justice.

So, what purchase on incorporating the famously silent justice into the realm of the terrestrially understood does Robin’s new take ultimately give us? To be sure, the work provides a meticulously researched portrait of a justice who arrived at a profound skepticism regarding the expanse of public authority for reasons quite unlike those of any libertarian or conservative archetype. To say precisely what this is worth likely requires a degree of qualification. To the extent there is intrinsic value in understanding the microfoundations of any single justice’s revealed preferences, Robin succeeds absolutely in offering an intellectually rich tapestry of an explanation for Thomas’s conservatism. Likewise, if we are to take Robin’s theory of Thomas’s conservative black nationalism seriously, the work provides us with a new framework for engaging credible claims that political institutions have failed – and will endure in failing – to cure the ills of systemic racism in the American state. What I am still unsure of – a misgiving that is likely to remain unremedied, and through no fault of Robin’s – is how to cogently assess whether Thomas’s conservatism is a reasonable response to his understanding of the complicated relationship between political and economic representation in American life. Robin relays Thomas’s belief that greater promotion of markets as a moral good and a diminished emphasis on racial integration best serve the interests of the politically marginalized. For instance, Thomas’s pugnacious critiques of affirmative action rely on the assumptions that such programs reinforce rather than supplant white supremacy and only add a tokenistic “façade” of color to the white ruling class. These contentions and others like them are, in a vacuum, palatable to many political progressives, who nevertheless widely support regulatory institutions whose goals include achieving greater social and economic equity. Because, however, Thomas disagrees vehemently in his conception of the state’s objectives, he sees any effort expended to design and maintain such institutions as not just wasteful, but actively deleterious. Occasionally, though, it seems to strain credulity for Thomas to represent the sorts of public programs he casts aspersions on as hurting rather than helping the working class, which Robin acknowledges in characterizing Thomas’s legal thought as “a jurisprudence of the black professional class,” and it is probably no accident that successfully invalidating regulations based on paternalistic moral regard for the human subjects of government programs is functionally equivalent to invalidating regulations because they harm a firm’s bottom line. This leaves open the possibility that Thomas’s distinctly negative estimation of government intervention, shrouded in conservative black nationalism, may minimally in the economic context be a façade for the straightforward extension of corporate welfare.

Jordan Carr Peterson is an assistant professor of political science at Texas Christian University. His research focuses on American political institutions and public law. 

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