Supreme Court Justice Clarence Thomas at the U.S. Supreme Court in Washington, D.C., June 6, 2016 (Jonathan Ernst/Reuters)
The Enigma of Clarence Thomas, by Corey Robin (Metropolitan, 320 pp., $30)
Reviewing a Corey Robin book in these pages is an interesting task, for these pages have been a frequent subject of inquiry for the professor of political science at Brooklyn College. Robin’s previous book, The Reactionary Mind, argued that the conservative political tendency has since Burke been used to justify the advantage of the stronger. Many arguments made in National Review and later adopted by conservative political figures, including arguments about personal liberty, skepticism toward change, and the preservation of virtue, are in Robin’s telling camouflage for a reactionary project whose major motivation is the rejection of an “emancipatory” politics that advocates the interest of the downtrodden.
Robin’s latest offering, The Enigma of Clarence Thomas, similarly purports to translate Clarence Thomas’s legal reasoning in an effort to “make the invisible justice visible.” Like the book that came before it, it is a worthwhile read, thoroughly researched and engagingly written. And as with the book that came before it, Robin’s cynicism about the Right leads him to attribute to its intellectuals darker motives than can be supported by the record.
But let’s start with the good. Robin is the rare left-wing observer who takes Thomas’s political and legal mind seriously. That mind has long been puzzled over by ambivalent biographers who cannot understand why a onetime leftist black nationalist would profess to be faithful to a document written by slaveholders, and dismissed by liberal critics who mock Thomas for his silence during oral arguments or suggest that he cannot think for himself. It’s a criticism that, as Robin points out, carries more than a whiff of racism. It’s also one Thomas has long faced. In every step of his life, from leaving the poor black town of Pin Point, Ga., for neighboring Savannah; to moving to Worcester, Mass., to attend Holy Cross; to entering Yale Law School and then public service, Thomas, in his own telling, dealt with decreasingly overt but increasingly insidious forms of racism.
“The most important form that racism takes” for Thomas, Robin writes, “is the stigma or mark it puts on black people, designating them as less worthy or capable than white people.” That stigma has been with him throughout his public career. Thomas has always been the victim of the perception — advanced by observers such as Linda Greenhouse and Jeffrey Toobin — that he was Antonin Scalia’s lapdog, that his advancement is a function less of his achievements than of his benefiting from conservatism’s own peculiar affirmative-action regime.
One can understand, then, why Thomas, who cofounded the Black Student Union at Holy Cross, was drawn to radical politics. That’s generally been offered as a minor detail in his early life, but Robin takes it seriously. The influence of 20th-century black nationalists such as Stokely Carmichael is still apparent in Thomas’s contemporary interest in black self-reliance, though Thomas is properly identified as a black conservative in the tradition of Booker T. Washington and Thomas Sowell. He thinks building business and educational institutions is the best path upward for the black community, beliefs that perhaps flow from his reverence for his grandfather, Myers Anderson, the owner of a fuel-oil business and the man of Thomas’s childhood home.
This is where things begin to go awry. Robin is not the first to note Anderson’s probable influence on Thomas’s beliefs in capitalism and self-mastery, nor is he the first to suggest that the justice’s upbringing affects his jurisprudence. He is the first, however, to give a comprehensive account of Thomas’s underlying motivations in the form of two constitutional visions to which the justice allegedly subscribes:
The Black Constitution is the story of rights gained in the struggle for emancipation and rights taken away in the counterrevolution of Jim Crow. That conflict between rights won and rights stolen creates a space, in Thomas’s telling, for the emergence of the armed black patriarch. For such a patriarch to exist, however, society must remain in a permanent state of tension, forever suspended between promise and betrayal. . . . The task of Thomas’s 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. Thomas’s aim, therefore, is to restore the “moral authority of the state to punish.”
Specifically, the “Black Constitution” consists of the Reconstruction amendments as they apply to constraining the abrogation of individual rights by the states, while the “White Constitution” consists of the punitive powers granted to the federal and state governments. According to Robin, Thomas advances an expansive if heterodox 14th Amendment jurisprudence so that black men can arm themselves against a world of ineradicable white racism, and he advances a pro-government jurisprudence on criminal-justice issues to keep black men under the disciplinary authority of the state in a world where they would otherwise succumb to crime, drugs, and other social pathologies.
It has been pointed out before that Thomas’s approach to race-related issues sometimes differs from his approach to others. Law professor Scott Gerber has called Thomas a “liberal originalist” on civil-rights issues but a “conservative originalist” on criminal-justice issues and federalism, and a 2008 review of Thomas’s autobiography in the Harvard Law Review speculated that “Thomas’s racial experience may have driven him to craft a jurisprudence with respect to racial issues that deviates from his generally conservative originalist approach.” What sets Robin’s theory apart is its imputation to Thomas of an overarching vision that is thoroughly unnecessary to explain why he rules the way he does.
We are told that the centerpiece of the Black Constitution is Thomas’s attempt to recast the Supreme Court’s 14th Amendment jurisprudence to make it easier for black men to own guns. That amendment, ratified in 1868, was intended to prevent the states from violating individual rights — but which rights? That depended on how the courts would interpret the amendment’s many clauses. One might think that its prohibition of “any [state] law which shall abridge the privileges or immunities of citizens of the United States” would require states to, at minimum, respect those rights enshrined in the Bill of Rights, but that hope was dashed when the Supreme Court interpreted the clause so narrowly as to nearly read it out of the amendment in the 1872 Slaughter-House Cases. Instead, the heavy lifting was relocated to the amendment’s command that states not “deprive any person of life, liberty or property without due process of law” — vague text seemingly less suited to the task of guaranteeing specific individual rights and vulnerable to creative interpretation.
Figures such as Felix Frankfurter and his onetime student Stanford law professor Charles Fairman continued to argue well into the 20th century that the privileges-and-immunities clause did not guarantee the Bill of Rights’ protections, but Thomas disagrees — as, Robin notes, do many others in the legal academy. (John Bingham, a principal drafter of the amendment, said in 1871 that “the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.”) In Saenz v. Roe, a 1999 case that involved the right to travel, Thomas suggested that the long-dormant privileges-and-immunities clause was the better vehicle for forcing states to honor the individual protections of the Bill of Rights. And in McDonald v. Chicago, a 2010 gun-rights case in which the Court invalidated the city’s firearms restrictions, Thomas wrote a concurrence making that case at great length.
Robin is well aware of this history. Yet, puzzlingly, he marshals Thomas’s McDonald concurrence as evidence for his sweeping Black Constitution framework. “Why did Thomas take this route?” Robin asks. The parsimonious explanation seems to be that he believes it is correct as a matter of law. But Robin dismisses this possibility in just one sentence: “Yet Thomas is not an especially fastidious jurist; he can cut constitutional corners with the best of them.”
As a theory of Thomas’s 14th Amendment jurisprudence, Robin’s psychoanalytical “Black Constitution” explanation is extravagant. And so it is with the “White Constitution.” Robin never explains why we’re meant to discount Thomas’s legal reasoning on criminal-justice issues. Thomas allegedly rejects the exclusionary rule — which prohibits illegally obtained evidence from being used in a trial — not because he’s a textualist but because he “believes . . . a carceral state, even if it’s racist, . . . provides African Americans with every reason they need to steer clear of trouble.” This speculation about Thomas’s motivations leads to some funny moments — his apparent desire for “a world in which there is an obvious connection, tight and clear to all, between the harm that one does and the harm that is visited upon one as a result” is presented as novel — but more fatally, it undermines the utility of the entire framework. Clarence Thomas would turn out to be far less of an enigma if he simply believed in his own legal philosophy.
Robin, analyst of conservatism that he is, might reply by accusing me of innocence of the conservative legal project, of failing to consider that jurisprudence is political and that originalism has proliferated only to the extent that it advances results conservatives like. This would be of a piece with his larger thesis about American conservatism. All I can say for now is that this book is a valuable and overdue engagement with the nexus between Thomas’s early life, his black nationalism, and his political views, but I came away less convinced than Robin that Thomas uses originalism and textualism as smokescreens for his true intention of permitting black Americans to arm themselves on one hand and requiring them to submit to a carceral state on the other, so they might defend themselves in zero-sum racial warfare and be forced to behave respectably under penalty of imprisonment. But maybe I don’t have the same window into Thomas’s thoughts that Robin does.
This article appears as “Not So Enigmatic” in the September 9, 2019, print edition of National Review.