Clarence Thomas and the Court


To make me feel even worse about my country than I’ve already been feeling, I picked up Corey Robin’s The Enigma of Clarence Thomas during my few week gap between jobs. I’ve enjoyed Robin’s writing for some time now, and I would highly recommend his book, The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump, or his essays, such as “The New Socialists”, for anyone seeking to understand how our politics got to this place (and, more optimistically, how we might get out of it).

Robin argues that Thomas is not simply another conservative voice on the Supreme Court. He is instead a distinctly black conservative voice. His thinking is informed by “his immersion in black nationalism”, including the writings of Malcolm X; his experiences as a black man navigating (all/mostly) white academic institutions of the North, like Holy Cross and Yale Law School; and his (seemingly antiquated) views about the role of the black man in black society (the “black patriarch”). Out of this unique background, says Robin, arises a jurisprudence that may coincide with that of white conservatives in its outcomes, but remains truly separate and original in its reasoning.

Robin writes,

Thomas’s jurisprudence features little of the consistency of legal high principles that his conservative admirers wish to claim for him, but neither is it the opportunistic hash that his liberal critics try to make of it. Thomas’s mind is less juristic than it is political—that is where its consistency lies—but it is not narrowly partisan. In some instances, and on certain occasions, his opinions can be read as doing little more than fulfilling the imperatives of the Republican Party or the needs of the conservative movement. Thomas, after all, is a conservative justice appointed by a Republican president. When it comes to issues like unions, war powers, and gay marriage, his opinions reflect that fact. But precisely because these opinions are mostly right-wing boilerplate, they warrant little discussion here. I will focus instead on those emblematic opinions in which Thomas develops a distinctive constitutional and political vision.

I have my doubts that Thomas’s vision is much more than “opportunistic hash”, designed to advance the interests of Republicans and conservatives, but no matter. What I found striking when reading Thomas’s opinions and writings, as relayed by Robin, is how disconnected they are from reality.

Take, as an example, Thomas’s views on black advancement, and the relationship between the government, the markets, and the black man:

As Thomas explained, politics and government were spheres “you don’t have any control over.” The economy was different. It was one of the few realms of social life in which the individual could find his freedom: “You want to be free, you want to leave your parents’ house? Then you’ve got to earn your own living, you’ve got to pay your own mortgage, pay your own rent, buy your own car, and pay for your own food. You’ve got to learn to take care of yourself, learn how to raise your kids, how to go to school and prepared for a job and take risks like everybody else.” African Americans, he felt, should abandon protest in the streets and the pursuit of political power in favor of economic visions of development. As [Juan] Williams would describe Thomas’s mature vision: “It is unlikely that whites will ever fully accept blacks as equals…so blacks should prepare to do for themselves: by making black schools into rigorous training grounds, by investing in black businesses, by working for black corporations, and by living in black neighborhoods.”

It’s worth asking, at this point: where exactly has this vision gotten any community, let alone the black community? I recently went on a “radical history” walking tour in Berkeley, California, and I was told the story of Lakireddy Bali Reddy, a Indian man who immigrated to Berkeley in 1975. Reddy was an entrepreneur, of the kind that Thomas might admire. He focused his entrepreneurship on bettering his community. He started a South Indian restaurant, used its profits to buy up real estate, and eventually developed a thriving Indian-run business that owned tens of millions in assets and generated $1 million/month in rent. With his success, Reddy needed more laborers, and he hit upon the idea of importing them from his hometown. He targeted poor, lower-caste, sometimes underaged girls, promised them American riches, and then proceeded to force them to work for a pittance (and raped and killed some of them too). (Reddy was convicted of sex trafficking, among other things, and died a few years ago.)

The real problem with “black entrepreneurship”, or, really, any identity-based entrepreneurship, is that it relies on the assumption that there is some “community interest” that supersedes capitalist imperatives. It is fine to talk about the idea of people “do[ing] for themselves” — but who are these people, and what are their incentives for supporting, as opposed to exploiting, each other? To put it differently, if it is true that white capitalists do not have the interests of white workers at heart, why would it be any different for a black or Indian or Hispanic business owner?

The other problem is that, even if we assume away the problem of goodwill, black businesses and black schools are hamstrung by the problems of inadequate resources and cultural capital. (Mehrsa Baradaran’s book, The Color of Money: Black Banks and the Racial Wealth Gap, discussed how this issue manifests in black banks. These banks fail at rates far greater than those of white banks because the businesses to which they loan are much riskier and because the customers whose deposits they take are much poorer. As a result, they tend to be woefully undercapitalized.)

For anyone paying attention to American political economy in the last 40 years, it sounds insane to suggest that unfettered capitalism, not the government, is the solution to the black community’s ills. But I think it makes more sense when you realize that Supreme Court justices, not just Thomas, are living in a bubble, not unlike that in academia, in which they are not only completely unaffected by the consequences of their decisions, but, moreover, they are also not even wholly aware of what’s happening in the real world.

Anthony Kennedy believed that his Citizens United decision, authorizing and even encouraging the massive influx of secret money into American elections, would “not give rise to corruption or the appearance of corruption”. He further claimed that “The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt”. Antonin Scalia once stated that there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.” (Of course, over 100 people have been exonerated from death row, primarily based on DNA evidence, and it is exceedingly likely that groups like the Innocence Project have not been able to save everyone in the same situation.) Thomas, according to Robin, believes that gun ownership benefits black communities by providing them the tools to fight back against their white oppressors. (Meanwhile, roughly 80-90% of the victims of black people’s using guns are themselves black — and that’s counting only homicides, not suicides.)

The Supreme Court’s conservatives inhabit a libertarian fantasyland, where corporate money improves the health of the political system, guns are used only by good people to kill bad people, the criminal justice system works without error, corporate speech operates within the “marketplace of ideas” and customers are discerning enough not to be fooled, and so on. (It reminds me of one of the most absurd libertarian claims, by Milton Friedman, that we do not need a Food and Drug Administration because corporations would never sell tainted food or a harmful drug out of fear for their reputations. “It’s in the self-interest of pharmaceutical companies not to have these bad things”, he said.) At best, these legal minds are guilty of taking high-minded principles too seriously and their consequences not seriously enough; at worst, they understand those consequences and realize that they will apply largely to the people they hate.

All of this brings me to the recent oral arguments at the Supreme Court over government vaccine mandates. There are two separate cases, one about OSHA, which forces large companies to impose a vaccine mandate with a weekly testing opt-out, the other about the Department of Health and Human Services, which forces health care workers to get vaccinated. I’ve been perusing the transcripts of the oral arguments, which took place yesterday.

I’m not sure how to state this eloquently, so I’ll simply say: these people are absolutely awful. As one of my favorite Supreme Court critics put it, “Streaming supreme court oral arguments has been great. Before if you wanted to convince someone the court was full of hacks and morons you had to walk them through years of jurisprudence. Now you just let them listen to 5 minutes of these dipshits talking.”

Some of the conservatives style themselves as amateur epidemiologists. Thomas cast doubt on “how efficacious the vaccine is”, and said he’d “heard” that “the younger workers…who are unvaccinated are actually safer than the older workers who are vaccinated” (That comparison has nothing to do with efficacy, and, furthermore, it isn’t even true!). He also asked, “Is a vaccine the only way to treat Covid?” (A vaccine is, of course, not a treatment; it is a prophylactic.) Samuel Alito asked whether the vaccines had “adverse effects”, while also trying to deny that he was contesting that they were safe. (”I don’t want to be misunderstood. I’m sure I will be misunderstood”.) And Neil Gorsuch wondered why OSHA hadn’t imposed a similar mandate for the flu, which kills “hundreds of thousands” of Americans per year (it doesn’t).

Some of the conservatives don’t want to be held accountable for their decision. Alito also whined that “if we issued a short administrative stay”, invalidating the mandate, at least temporarily, the government lawyers would “say, well, they’re causing people to die every day.” Others imagine, ludicrously, that we have a functioning government to begin with. Chief Justice John Roberts complained that “it [Covid] sounds like the sort of thing that states will be responding to or should be or…Congress should be responding to or should be rather than agency by agency, the federal government, the executive branch, acting alone, is responding to it”.

And finally, all of these dipshits spent inordinate time wrangling over legal minutiae, questions like what “necessary” means (Thomas asked whether the mandate was “super-necessary” and “absolutely necessary”); whether this case is subject to judicial review under the “Major Questions” doctrine (a piece of law that, as far as I can tell, is completely made up and appears nowhere in the “originalist” texts the Supreme Court conservatives claim to venerate); whether OSHA is actually empowered to do this because, as Alito put it, “[OSHA regulations] affect employees when they are on the job but not when they are not on the job. And this affects employees all the time.”; and so on.

The most unhinged part, to me at least, is that these arguments are taking place in a time that we have the most Covid cases and hospitalizations we’ve ever recorded. (To its credit, the Supreme Court’s saner half does note this fact, although it often feels like its members are shouting into the void.) And, meanwhile, we’re having “debates” about whether this is an “emergency” or not, or whether it constitutes the kind of thing that falls within the purview of the federal government! (As a separate point, Biden should have promulgated these mandates months ago, so that we would not be arguing about their enforcement now, but that’s mostly irrelevant to this discussion.)

I mostly enjoyed Robin’s book, but this passage rankled me: “I reject virtually all of Thomas’s views. In presenting his vision, however, I’ve opted for interpretation and analysis rather than objection and critique…As a longtime reader of the right from the left, I know how tempting it is for people on one side of the spectrum to dismiss those on the other as unthinking defenders of partisan advantage.” My main problem with Thomas is not that he’s a Republican. It is that, for him and his fellow travelers, the questions they consider and the doctrines they put forth are both factually and materially unconnected from today’s realities. I think that Robin’s book, by discussing Thomas’s jurisprudence at such an theoretical level, constitutes an interesting intellectual exercise but one devoid of much real import. It helps reinforce the idea that the law is a textual game about definitions and doctrines instead of about harms and lives. And, furthermore, if the conclusion from reading a text about Clarence Thomas is that this is a voice to be taken seriously, as a political thinker, we have clearly somewhere lost the thread.


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