Foiling Clarence Thomas

In the age of the celebrity, even Supreme Court justices are not immune from the stark glare of the spotlight.  Justice Ruth Bader Ginsburg has inspired a meme (the Notorious RBG), a Saturday Night Live send-up (“I call that a second-degree Gins-BURN!”), and even an Oscar-nominated bio-documentary.  

While it is true that few other justices enjoy Ginsburg’s outsized public profile, their interventions during oral arguments provide the public with glimpses of their voices and their personalities.  Not so with Associate Justice Clarence Thomas, who famously avoids the public jousting of oral argument.  Other than his opinions, public speeches, and what he disclosed in his 2007 autobiography, My Grandfather’s Son, we know precious little about what makes Thomas tick.  And few scholars have attempted to analyze Thomas’s ideological priors, other than to identify him as a conservative.  But, as political scientist Corey Robin explains in his recent book, The Enigma of Clarence Thomas, conservativism alone does not fully explain Thomas and his jurisprudence.  

As Robin argues, Thomas is a conservative, but his conservatism is riddled with contradictions.  While Thomas has evinced an interest in deregulation and limited government, he does not subscribe wholly to the notion of rugged individualism that underpin these conservative tenets, nor does he embrace the conservative vision of racial colorblindness.  Indeed, as Robin explain, Thomas eschews colorblindness in favor of a deep preoccupation with race, and, meaningfully, his thinking on race has a communitarian, rather than an individualistic, bent.

On Robin’s telling, this preoccupation with race and the uplift of the black community is the defining feature of Thomas’s conservatism.  If Thomas is sympathetic to the prospect of smaller government, deregulation, and the diminution of government largesse, it is because he views the welfare state and the regulatory state as impediments to the success of the black community.  And while Thomas does not entertain a rosy, nostalgic affinity for Jim Crow and de jure segregation, as Robin explains, he views the conditions of American apartheid as those under which the black community banded together, sequestered themselves from whites, and flourished in the face of government-imposed degradation.  On this account, the liberal state that dismantled Jim Crow and replaced it with affirmative action and a welfare state does not furnish the conditions for blacks to survive and thrive as a group. Rather, it cultivates a crippling dependence that hobbles the individual and precludes the uplift of the entire community.  

In this regard, Thomas’s conservativism is, perhaps paradoxically, shot through with elements of black nationalist thought.  Black nationalism, Robin concedes, has a strong leftist orientation, but it also has a strain of conservatism to it, including an emphasis on self-help, community uplift, and discipline, all of which are emphasized in Thomas’s conservatism.  At the center of Thomas’s conservatism is the black patriarch, who has withstood the degradation of slavery and segregation to forge his own path—one in which he is able to provide for and protect his family without the intervention of the state.  The black patriarch, in all of his self-sufficiency, is critical to the uplift of the black community.  He is the stalwart foundation of the family and a model for those in the community.  Indeed, it is only through the collective efforts of black men, doggedly hewing to the path of economic and social independence, that the black community itself can move forward, unbossed and unhobbled by dependence on whites and their benevolent largesse.  

Although Robin makes much of Thomas’s interest in the black patriarch, there is little discussion of the black matriarch—or black women as part of the black community.  Black women appear only intermittently and implicitly in Robin’s account—as objects of patriarchal protection or as examples (in the form of Thomas’s sister and mother) of those who failed to achieve the independence and self-sufficiency that Thomas favors.  Robin cannot be faulted for the oversight—he is working with the material he has been given.  But as I suggest below, Thomas’s views of black women and their rights, as much as his views of black men and theirs, is crucial to the broader project of understanding Thomas’s worldview.  

If the black patriarch is at the center of Thomas’s conservatism, then gun rights are central to Thomas’s understanding of black patriarchy.  Thomas, perhaps more than any other justice, has been steadfast and unwavering in his defense of gun rights.  And importantly, he has specifically linked the right to bear arms to the question of black citizenship.  In his concurrence in McDonald v. City of Chicago,1 Thomas agreed that the Second Amendment’s protections for gun owners could be applied as against state governments.  In so doing, he specifically repudiated the logic of United States v. Cruikshank,2 an 1876 case in which the Supreme Court held that, despite the ratification of the Fourteenth Amendment, the Bill of Rights, including Second Amendment protections for the right to keep and bear arms, did not apply to private actors or to state governments.  Meaningfully, Cruikshank arose from the infamous Colfax Massacre of 1873, in which an armed mob of white militiamen slaughtered dozens of unarmed newly-freed African Americans.  

Black patriarchs did not feature in the Court’s disposition of Cruikshank, but they are deeply interwoven into Thomas’s repudiation of the case.  In his McDonald concurrence, Thomas draws a straight line that connects Cruikshank and gun rights to the terror that African Americans experienced in the South during the waning days of Reconstruction and Redemption.  As Thomas explains, Cruikshank, which made clear that the right to bear arms was not a privilege or immunity of national citizenship, “enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery.”  Without federal enforcement of Second Amendment rights, white Southerners were “were tragically successful in waging a campaign of terror” against newly freed blacks.  Indeed, Cruikshank cultivated a climate in which “[m]ilitias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the ’76 Association” flourished.  Because “[t]he use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence,” freedmen were uniquely vulnerable to this campaign of intimidation and terror in the postbellum era and well into the twentieth century.  

To further underscore Cruikshank’s impact on freed blacks, Thomas’s concurrence details the violent lynchings and deaths of numerous black men, including Emmett Till, the boy whose brutal Mississippi lynching inspired civil rights activism in the 1950s.  As Thomas emphasizes in McDonald, victims of lynching and other forms of racial violence often were unarmed.  To the extent that some African Americans were able to stand up to white violence, doing so depended largely on their ability to bear arms.  As Thomas explains, “the use of firearms allowed targets of mob violence to survive.”  And indeed, to do more than simply survive—to retain some shards of the dignity of citizenship and manhood that Jim Crow sought to strip away.  

Not surprisingly, Thomas’s McDonald concurrence closes with the vivid scene of a black father standing “armed at a jail until morning to ward off lynchers.”  The scene is strikingly powerful.  Indeed, the man’s son recounts that, watching his father armed at the entry to the jail, he was left “with a sense, ‘not of powerlessness, but of the possibilities of salvation’ that came from standing up to intimidation.”  On this telling, the salvation and dignity—the uplift—of the black community rests on the sturdy shoulders of the black patriarch, who, if armed, is capable of standing up to—and defending his family and the community against—unspeakable violence.  

If Thomas’s vision of black uplift depends on a black patriarch exercising his Second Amendment rights, what is its foil?  The foil for the black patriarch is the black matriarch, and the most obvious juxtaposition to Thomas’s embrace of Second Amendment rights is his utter disavowal of reproductive rights.  As noted earlier, black women do not receive much coverage in Robin’s account of Thomas’s conservativism.  Reproductive rights receive even less.  Black women are consigned to the limited discussion of Thomas’s mother and his sister, of whom Thomas has been sharply critical.  Thomas’s views on reproductive rights also get short shrift—abortion is mentioned only in passing.  These oversights are unfortunate, though not necessarily surprising.  Any inquiry into Thomas and black women necessarily yields to a broader discussion of his confirmation battle and Anita Hill’s claims of sexual harassment—issues that are unlikely to shed new light on Thomas’s conservative priors.  Likewise, in cases involving reproductive rights, Thomas has stuck to familiar conservative talking points on the issue—deference to states, health and safety, and the lack of textual support for constitutional recognition of reproductive rights.  He has rarely identified his own particular objections to reproductive rights.

That is, until recently.  In June 2019, Thomas filed a separate concurrence in Box v. Planned Parenthood,3 a challenge to two Indiana laws regulating abortion.  There, in terms reminiscent of his concurrence in McDonald, he drew a connection between reproductive rights, eugenics, and the black community. At issue were Indiana’s Sex Selective and Disability Abortion Ban, which prohibited abortions performed solely on the basis of the fetus’s gender, race, ethnicity, or disabilities, and a second law that required abortion providers to use funereal methods for disposing of fetal remains.  The Court denied certiorari as to the first law, while upholding the second without even requiring full briefing and argument.  

In his concurrence, Justice Thomas chided the Court for declining to review the Sex Selective and Disability Abortion Ban.  The challenged law, in his view, was a modest attempt to prevent abortion “from becoming a tool of modern-day eugenics.”  In making this claim, Thomas invoked a selective history of reproductive rights.  As he explained, the modern birth control movement “developed alongside the American eugenics movement,” which was preoccupied with both “inhibiting reproduction of the unfit” and preventing the white race from being “overtaken by inferior races.”  Although Thomas conceded that the birth control movement was distinct from the movement to legalize abortion, he maintained that the arguments lodged in favor of expanding access to contraception “apply with even greater force to abortion, making it significantly more effective as a tool of eugenics.”

Throughout the opinion, Thomas invoked Margaret Sanger, the founder of what is now known as Planned Parenthood and the modern birth control movement.  Sanger, Thomas recounts, was an unrepentant eugenicist whose interest in eugenics often tilted toward the elimination of the “unfit,” a group that often included non-whites.  As an example of this, Thomas cites Sanger’s campaign for birth control in communities of color, including Harlem, her work in the “Negro Project,” which sought to popularize the use of birth control among Southern blacks, and her co-authorship of a report titled “Birth Control and the Negro,” which identified blacks as “‘the great problem of the South’”—“the group with ‘the greatest economic, health, and social problems.’”  

To be sure, contemporary historians have been forthright about Sanger’s ties to eugenics and its troubling racial implications.  But it is worth noting that the effort to criminalize abortion, which was roughly contemporaneous with Sanger’s movement to widen access to contraception, also shared similar roots, trading on many of the nativist fears that Thomas selectively invokes in his history of the birth control movement.  Concerned that the birth rate among immigrants and freedpersons was outpacing the birth rate among native-born white women, early abortion opponents pushed to criminalize abortion in order to deter native-born white women from terminating pregnancies and thereby allowing the white birth rate to be overwhelmed by immigrant and non-white births.  Reva Siegel and Duncan Tosie put it more succinctly: the interest in regulating, and indeed criminalizing, abortion was (and continues to be) hand in glove with the effort to ensure that America remained a white nation.4

In his zeal to paint reproductive rights as tools of deracination, Thomas overlooks this critical history—and the degree to which impositions on reproductive rights, like the suppression of gun rights, have been used to bolster white supremacy and suppress the rise of communities of color.  This is all to say that the politics of birth control, abortion, and eugenics were complicated and multi-faceted—a point that Thomas elides in the Box concurrence.

But is not simply that the Box concurrence makes clear the shallow history on which Thomas’s skepticism of reproductive rights rests, it is that the concurrence makes clear that women, and black women in particular, are also the subjects of Thomas’s skepticism.  And perhaps that is the point.  By charting a straight line between birth control, abortion, and eugenics, Thomas crafts, whether consciously or not, a damning indictment of black women who would terminate their pregnancies (or make use of contraception).  In stark contrast to the patriarch defiantly defending the black community from white violence is the black matriarch, who is actively conspiring with eugenicists like Margaret Sanger (a white woman) to facilitate the community’s destruction.  Unlike the sturdy patriarch whose exercise of Second Amendment rights contributes to the greater good of the black community, the black matriarch, in the name of individual rights and choice, has blithely invited the (white) eugenicist into the part of the black community that is absolutely vital to its future: the womb.  On this account, the invocation of the right to choose is, like affirmative action and the welfare state, part of a white conspiracy to hobble—and indeed, deracinate—the black community.  And black women are on the front lines, enabling rather than combatting this assault.  Their pursuit of their individual interests is not mere selfishness, but rather, a complete denunciation of the community’s collective interests.  

This year marks Justice Thomas’s twenty-ninth year on the Court, making him the Court’s longest-serving justice.  It will also be the year in which the Court yet again considers whether, and to what degree, the Constitution protects a woman’s right to access abortion.  As the senior conservative on the Court, Thomas may wield more influence than ever as the Court drifts rightward on issues of reproductive rights and everything else.  With all of this in mind, it is worth contemplating the many ways in which Thomas’s view of race, patriarchy, and conservatism converge in his understanding of reproductive rights.  Far from being enigmatic, Thomas himself is publicly peeling back the layers of his own jurisprudence, making clear the ways in which his own vision of conservatism supports the broader effort to elevate certain rights (and those who would claim them) while stifling the expansion of others.   

Melissa Murray, Frederick I. and Grace Stokes Professor of Law, NYU



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