Books discussed in this essay:
My Grandfather's Son: A Memoir, by Clarence Thomas
Supreme Discomfort: The Divided Soul of Clarence Thomas, by Kevin Merida and Michael A. Fletcher
Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, by Jan Crawford Greenburg
The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative's Perspective, edited by Henry Mark Holzer
First Principles: The Jurisprudence of Clarence Thomas, by Scott Douglas Gerber
Justice Clarence Thomas introduces his memoir, My Grandfather's Son, as "the story of an ordinary man to whom extraordinary things happened." That's the only part he got wrong. As his autobiography makes clear, it is the man who is extraordinary, not the circumstances. "The freest black man in America," Shelby Steele calls him. "The greatest living American," says Bill Bennett. To these, we should add the essential American: the black man on the center stage of our public life who has dared to say he loves America, and loved her from her start, even when that love seemed painfully unrequited.
In the 17 years since Justice Thomas took his seat on the Supreme Court, various friends, adversaries, journalists, and scholars have tried to tell his story. But, as he explains in his memoir (quoting the late William F. Buckley, Jr.), "Only the man who makes the voyage can speak truly about it." The most recent spate of books on Thomas—some released within months of his own memoir—prove to varying degrees that he and Buckley are correct. My Grandfather's Son is beautifully written, evocative, and jarring in its candor about the lowest points in his life—the bigotry he encountered, his struggles with alcohol, finances, his first marriage and divorce, the loss and rediscovery of his faith, and of course, his Senate confirmation saga. It's the full story of Thomas's life up to the moment he joins the Supreme Court. (As a sitting Justice, he can't go further and discuss matters on the Court.)
Only Thomas can really tell the story suggested by his book's title, which centers on the man who raised and molded him: his maternal grandfather, whom he called "Daddy." Myers Anderson, the relentlessly disciplined, hard-working, Catholic convert and ultimate tough-love parent—"dark, strong, proud"—was "the one hero in my life," writes Thomas. "What I am is what he made me." Thomas's biological father merely "sired" Clarence and his two siblings; their mother divorced M.C. Thomas in 1950, two years after Clarence was born. After their shanty in Pinpoint, Georgia, burned down when Thomas was six, he moved with his mother to a tenement in Savannah, which he describes as "hell": "[o]vernight I moved from the comparative safety and cleanliness of rural poverty to the foulest kind of urban squalor." Earning ten dollars per week for housekeeping, receiving zero child support, and refusing to go on welfare, Thomas's mother decided to send her sons to live with her father and his wife, who lived in a cinder block house painted a "gleaming white."
Daddy told the boys that if they learned how to work, they could live as well as he did, and that would be their "inheritance." The boys' first job, he said, was to get a good education. "It would be too generous," Thomas writes, to call Daddy himself "semiliterate"; he "struggled mightily with the newspaper and the Bible, and once he mastered a passage of Scripture he would read it over and over again." But Daddy's self-reliance is a piece of the segregated South that liberals today like to forget. He exhorted the young Clarence to learn, keep the faith, never give up, and never mind what other people do, say, or think. His staunch refusal to view himself as a victim was summed up in his advice to Thomas to "play the hand you're dealt." The cover photograph on My Grandfather's Son shows Thomas, apparently looking at the (off camera) bust of Myers Anderson that sits in his Supreme Court chambers, bearing as its inscription one of his favorite sayings to Clarence: "Old Man Can't is dead. I helped bury him."
In Savannah, Georgia, the boys worked every day after school and all day Saturday with Daddy in his fuel-oil delivery business, and in summers, on a farm in nearby Liberty County (where they built a four-room cinder block house with their own hands), plowing, planting, cutting wood, cleaning fish, skinning animals, killing chickens, all the while fighting off heat, gnats, flies, mosquitoes, and snakes—the last of which reappear metaphorically in the book. As a boy, Thomas learned that Georgia rattlesnakes, while deadly, at least give some advance notice of their attack. He later reflects that they were like the Southerners who were "up front about their bigotry"; at least "you knew exactly where they were coming from." Worse were the water moccasins, which strike without warning. He thinks of them when he encounters "paternalistic big-city whites" who "pretended to side with black people while using them to further their own political and social ends, turning against them when it suited their purposes."
Daddy had converted to Roman Catholicism in 1949 (the year after Thomas was born), and faithfully brought the boys to the pre-Vatican II mass where they learned their Latin responses by heart and served as altar boys. The nuns at Catholic school taught them that "God made all men equal, that blacks were inherently equal to whites." Young Clarence learned—at the age when children can drink in such truth—that God loves him infinitely, that he was the equal in God's eyes of any other man, and that every man's rights flow from God, not from any earthly master. This, combined with Daddy's lessons in discipline, work habits, and self-denial, formed Thomas's soul. Still, when a restive Clarence once told Daddy that "slavery was over," he replied: "Not in my house."
Later, Thomas strayed from his grandfather's principles. In the 1960s at Holy Cross, he became an angry black radical. He left the Church. When "the beast of rage…slipped its leash," or when the mounting injustices and humiliations seemed unendurable, he was consumed with anger and despair. But the story of My Grandfather's Son is how Thomas comes full circle, returning to the roots that Daddy nurtured. It is a story of incredible triumph, always tinged with the great sadness that Thomas never fully reconciled with Daddy before his death. Thomas's poignant response to this—vowing "to live my life as a memorial" to his—suggests a path for anyone who did not fully appreciate his parents until they were gone.
The brutal honesty of the memoir is all the more remarkable because most public figures are far more guarded in writing about themselves; their memoirs are designed to further political or other ambitions. But Thomas wrote his book to "bear witness" to what Daddy and others have done for him, to tell his story accurately and not "to leave the telling to those with careless hands or malicious hearts," and to inspire those who might identify with some part of his story and need hope, as he did, to go on. And unlike most other public figures, Thomas really can write. Literature transported his young mind beyond the segregated South while at the same time helping him to understand it. He studied Latin as a teenager and English literature in college. As an adult, his "interest in Churchill kindled a love of reading for its own sake."
Of course, Thomas's most famous utterance was his statement before the United States Senate Judiciary Committee:
I think that this hearing should never occur in America…. And from my standpoint, as a black American…it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured, by a committee of the U.S. Senate rather than hung from a tree.
In My Grandfather's Son, we learn how those words came together only moments before they were delivered to the Senate and the nation, as a drained Thomas lay on a couch in the dimmed light of early evening in Senator John Danforth's office. He must have been thinking, he writes, of Atticus Finch's closing argument in To Kill a Mockingbird, about how the white mob's purpose was to keep a black man in his place, when he seized Danforth's legal pad and scrawled, "HIGH-TECH LYNCHING."
Thomas and his advisors knew any nomination that President George H.W. Bush made to the Supreme Court in 1991 was going to be highly politicized. They knew that Democratic senators, with the aid and encouragement of liberal interest groups, would try to use the confirmation hearings to "Bork" Clarence Thomas—a verb that had entered the lexicon four years earlier when the same coalition, using smears, innuendo, and outright lies, had defeated Reagan Supreme Court nominee Robert Bork. But no one knew the ferocity with which liberals would attack a black man who strayed from the ideological plantation. Thomas met with board members of the NAACP—"a waste of time," he notes—and the organization, predictably, announced its opposition to his nomination quickly thereafter, "apparently at the insistence of the AFL-CIO." The NAACP "was in effect giving a green light to the various groups that opposed my nomination, tacitly assuring them that it was now all right for them to smear a black man."
The post-nomination courtesy calls with senators revealed a similar dynamic at work. Alabama's Howell Heflin (who was commonly referred to as "courtly," but whose manner reminded Thomas of "a slave owner sitting on the porch of a plantation house") asked Thomas to return for further meetings, "but it soon became evident that his sole purpose in continuing to meet with me was to find reasons to vote against me." Bob Packwood was "direct," saying he simply could not vote for Thomas because the senator's "political career depended on support from the same women's groups that were opposing" the nomination. Al Gore said he'd vote for Thomas "if [Gore] decided not to run for President." And Fritz Hollings confessed that in order to support Thomas he'd first have to resolve "a political problem with the NAACP in his home state of South Carolina." Thomas recalls, "Strange as it may sound, I appreciated that kind of honesty" from senators who would "admit their real reasons for voting against me instead of making up some transparent excuse."
Thomas describes hauntingly the feeling he had after five days of testimony before the Senate Judiciary Committee in which Democratic senators had "pummel[ed] me with loaded questions," including attempted traps involving abortion and natural law. Everyone assumed that the hearings were over. He had been through a political meat-grinder, and "after two and a half months of constant preparation and unrelenting attacks," he and his wife Virginia promptly left Washington to try to relax in the quiet resort town of Cape May, New Jersey. But Thomas "couldn't shake the feeling that for all the intensity of their effort, my opponents were still holding something in reserve."
Having followed the humiliations and heartbreaks that had brought Thomas to this point in the book, the reader can begin to understand what it was like to be in his shoes as the events described at the beginning of the ninth chapter—aptly titled "Invitation to a Lynching"—unfolded. The same deadly farce had been played out before in the lives of others, in history and in literature, so many times, in so many ways. It had played out in smaller ways—almost rehearsals—in Thomas's own life: the childhood in the Jim Crow South, where his friends told him to let go of his "foolish dreams," because "‘[t]he man ain't goin' let you do nothin'"; the seminary, where a classmate's response to the shooting of Martin Luther King, Jr.—"[t]hat's good, I hope the son of a bitch dies"—ended both Thomas's vocation to the priesthood and his "youthful innocence about race"; the devastation, after compiling a record of high achievement at Holy Cross and Yale, of finding it impossible to get a law firm job because his Ivy League degree was "tainted" by racial preference. (Finally, a young Missouri Attorney General named John Danforth hired Thomas as a staff lawyer in St. Louis. When Danforth was elected to the U.S. Senate, Thomas followed him to Washington, where he caught the attention of the Reagan Administration.)
It seemed unthinkable, yet at the same time all too predictable. One day, two FBI agents arrived at his house, and "started asking questions before I could close the door behind them." Did he know Anita Hill? Had he made sexual advances to her? From that moment, it was clear Thomas would have to prove a negative. He recalled Franz Kafka's The Trial: "Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning." His enemies thought they had found the perfect weapon to destroy him.
Ironically, in preparing for his first round of confirmation hearings, Thomas had penciled in Anita Hill as a "liberal whom I could call as a witness on my behalf should it become necessary." Others have told pieces of the story before (some blatantly false), but to hear it finally from Thomas himself—it all makes sense. Hill was a liberal. Thomas knew this all along; in her first interview with him for a position at the Department of Education in 1981 (he was the assistant secretary for civil rights), she had told him that she "detested" Ronald Reagan. But Thomas's close friend Gil Hardy (a black buddy from Holy Cross) had asked him to "help a sister" who was leaving Hardy's law firm. Hill had told Thomas she could not get a recommendation from the firm because she had been sexually harassed there. So he found a way to hire her as a non-political appointee. Though her work was only "adequate," and though she had been "touchy and apt to overreact," he continued to help her, at Hardy's insistence, and allowed her to follow him in 1982 when President Reagan named him chairman of the Equal Employment Opportunity Commission (EEOC).
When Thomas appointed Allyson Duncan, another black woman and "a consummate professional whose work had been consistently outstanding" as his EEOC chief of staff in 1983, Hill "stormed into" his office to protest that she had not been promoted. Hardy again pleaded with Thomas "to be patient with her." Thomas soon after saw an opening to recommend Hill as a law professor in her native Oklahoma, and she accepted. But she continued to call Thomas over the years that followed, and the last time he remembered seeing her, she insisted on driving him to the airport after a speech she'd asked him to give in Tulsa.
Just days before the full Senate was scheduled for the final vote on Thomas's nomination, the supposedly confidential FBI report with Hill's wild allegations was leaked to the national media. In his memoir, Thomas describes meeting, via news reports,
for the first time an Anita Hill who bore little resemblance to the woman who had worked for me at EEOC and the Education Department. Somewhere along the line she had been transformed into a conservative, devoutly religious Reagan-administration employee…. But truth was no longer relevant: keeping me off the Supreme Court was all that mattered. These pieces of her sordid tale only needed to hold up long enough to help her establish her credibility with the public. They fell away as the rest of the story gained traction in the media, just as the fuel tank and booster rockets drop away from a space shuttle once it reaches the upper atmosphere.
Defiance of Facts
Immediately after the release of my Grandfather's Son, the national media grabbed the news hook to repeat Hill's allegations and to pronounce that the "he said, she said" remains a mystery. But a rigorous journalistic assessment of the Hill tale was nowhere to be found. A case study in this failure of critical, objective journalism is Supreme Discomfort: The Divided Soul of Clarence Thomas, released just months before Thomas's own book. Authors and Washington Post reporters Kevin Merida and Michael Fletcher fail to grapple with fundamental points about the Hill tale that don't add up. In 16 years, no one has ever offered a plausible explanation why Anita Hill, a Yale-educated lawyer and avowed liberal, would leave the equivalent of a civil service job at the Department of Education to follow Clarence Thomas to the EEOC if she were being sexually harassed. No one, including Hill, has explained why she would continue to contact Thomas, repeatedly and insistently leaving telephone messages, including her hotel room number, inviting him to her law school in Oklahoma to speak, and insisting on driving him to the airport, if her allegations were true. No one has ever cited a case of sexual harassment where the plaintiff behaved as Anita Hill did following the alleged harassment. And the Senate testimony attempting to corroborate her own testimony was full of holes. Susan Hoerchner, Hill's main witness, had a record of liberal activism and, when interviewed by Senate staffers, contradicted Hill's testimony as to when the alleged harassment took place. Hill's attorney, who was also advising Hoerchner, called for a break when the discrepancy emerged. After the break, Hoerchner had a "failure of memory" that became her storyline at the hearings. Hill gave the FBI the names of two other employees who she said would corroborate her story. Neither did.
Of the three women who provided statements supporting Hill, Thomas had fired two of them for poor job performance and had declined to reappoint the third after she failed the bar exam. The overwhelming number of professional women who worked side-by-side with Clarence Thomas over the years, including pro-choice women, Democrats, liberals, and feminists, said Hill's story was flatly inconsistent with what they knew of him. Pam Talkin, Thomas's EEOC chief of staff, testified that her boss
was adamant that the women in the office be treated with dignity and respect. And his own behavior towards women was scrupulous. There was never a hint of impropriety, and I mean a hint. Never a gesture, never a look, never a word, never body language. None of these things that we women have a sixth sense about.
Talkin and the other women who testified similarly before the Senate committee were not allowed to do so until 2 o'clock in the morning.
A Man of Principle
Merida and Fletcher try to paint Thomas as a tormented figure, "uncomfortable" in both the "white world" and the "black world." They tout the countless interviews and original research they conducted to figure out which is the "real" Clarence Thomas: the "magnetic" figure who strikes up friendships wherever he goes, the "ideological" figure who is a "hero of the conservative right," or the "despised" figure who is a traitor to his race and to liberal ideals, a sellout, an Uncle Tom.
Although the first two portraits are true to different degrees, Merida and Fletcher clearly favor the third, and they twist every opportunity to portray Thomas as an Uncle Tom who, among other things, schemed to get on the Supreme Court, even lying to civil rights groups about his views. This assertion, like so many in their book, flies in the face of fact: for more than a decade, Thomas had hidden his views from no one, and battled not only with the civil rights establishment but with his fellow Reagan Administration officials.
Supreme Discomfort's snide, breathless tone may be gathered from tabloid excesses like this: "Even in his cloistered, rarefied world as a member of the most important judicial body in existence, Thomas will always be black and he knows it." Such statements are embarrassing, not only for two black journalists, but particularly when held up against the depth and nuance expressed in My Grandfather's Son.
Because the authors of Supreme Discomfort are so wedded to their "Uncle Tom" thesis, they latch onto the liberal establishment line that although Thomas was the beneficiary of affirmative action all his life, now that he's climbed to the top of the heap he has pulled up the rope behind him, and would deny the same advantage to other blacks. Yet they acknowledge that "race did not appear to play a role in Thomas's acceptance to Holy Cross" and that "Yale officials cannot say whether Thomas would have been admitted to the prestigious law school without affirmative action" because by the time he was admitted, the university had refined its affirmative action efforts, admitting minority applicants only if it believed they could do the work and thrive at Yale. Interestingly, this goes precisely to Thomas's criticism of affirmative action as it came to be practiced more broadly in the 1970s, '80s, and '90s: that it resulted in minority students being accepted into schools and environments where they could not thrive, just in order to satisfy grand theories about minority admissions or to provide a "diverse" environment that would somehow enhance the white folks' experience, irrespective of the effect it would have on the minority students.
Merida and Fletcher also repeat the canard that Thomas is a "flunky" of Justice Antonin Scalia, even as Thurgood Marshall was dismissed as the "lackey" of Justice William Brennan. Neither Marshall nor Thomas has ever been regarded as an "intellectual force," they say—though they are careful not to make that assertion themselves (instead invoking the frequently unattributed, unfootnoted comments of others). They note that both pairs of Justices voted together 90% of the time, and smugly conclude, "no one has ever suggested that Scalia and Brennan followed the lead of their black brethren."
By lumping Thomas and Marshall together in this way, they make the truth more difficult to untangle. On the other hand, they insulate Marshall from justifiable criticism, twisting and mischaracterizing facts to obscure the claim's absurdity with respect to Thomas. The fact is, Marshall did follow Brennan, "consistently and predictably," as Supreme Court historian Henry Abraham, among others, has noted. Marshall was not the only—though probably the most reliable—Justice whom Brennan mustered to create many of the 5-4 majorities whose decisions live in the annals of judicial activism. On the other hand, Scalia, unlike the diplomat Brennan, frequently writes only for himself and, while Scalia is renowned for many things, coalition-building is not one of them. He and Thomas have come out on opposite sides of important constitutional cases, such as First Amendment protection for anonymous political speech, forfeiture of cash under the Eighth Amendment's "excessive fines" clause, and the wholly intrastate, medical use of cannabis as permitted by state law. In Hamdi v. Rumsfeld (2004), Scalia invoked Blackstone and English common law to argue that the president did not have the power to detain Yaser Esam Hamdi; Thomas instead analyzed the issue in light of the principles of executive power outlined inThe Federalist, concluding that such military decisions of the commander-in-chief can't be second-guessed by the Court.
And even when Scalia and Thomas agree on the outcome, they sometimes employ separate reasoning, writing their own dissents and concurrences, as Thomas did in United States v. Lopez (1995), in which he called into question the Court's precedents holding that Congress can legislate not only to regulate commerce "among the several States," as the Constitution prescribes, but also in areas where there is merely a "substantial effect" on interstate commerce. Another example: although both Scalia and Thomas have dissented from the misguided line of cases holding public expressions of religion to violate the Constitution, only Thomas has explained the Establishment Clause of the First Amendment as the framers understood it, as a "federalism provision" that "protects state establishments from federal interference." Overall, Thomas is more willing than Scalia to reexamine flawed precedents and return straight to the Constitution's text and principles. In the words of one legal scholar, "when it comes to enumerated federal powers," only Thomas is "willing to put the mandate of the Constitution above his…own views of either policy or what would make a better constitution than the one enacted." No one ever said that about Thurgood Marshall.
Fortunately, another journalist—one with legal training, unlike Merida and Fletcher—has taken the time to investigate the charge that Thomas merely follows Scalia. Jan Crawford Greenburg, a graduate of the University of Chicago Law School and an ABC News legal correspondent, researched the papers of the late Justice Harry Blackmun and conducted scores of interviews of the law clerks present during Thomas's early terms on the Court. Her book, Supreme Conflict: The Inside Story of the Struggle for Control of the Supreme Court, shatters the myth that Thomas follows Scalia's lead. It goes even deeper than the refutations already provided on this point by other authors, such as journalist Ken Foskett, Thomas biographer Andrew Peyton Thomas (no relation), and law professor Scott Gerber. Greenburg's research reveals that Thomas was a powerful, independent voice on the Court, with his own thoughts about the Constitution and judging that diverged in significant respects from Scalia's.
For example, Greenburg reveals that at Thomas's very first conference (the meeting where the Justices exchange views, in order of seniority, on the cases argued that day), the Justices unanimously agreed in Foucha v. Louisiana (1992) that a Louisiana law was unconstitutional in allowing the state to confine to a mental institution an inmate found not guilty by reason of insanity, after doctors concluded he was no longer insane. But the next day, Thomas went to Chief Justice William Rehnquist and said he would be the lone dissenter. When Thomas circulated his written dissent to the Court, Rehnquist and Scalia quickly switched their votes and joined him, persuaded by his argument that Foucha had no constitutional right to be released even if it made sense as a policy matter. Justice Anthony Kennedy switched his vote, too, though he wrote his own dissent. The case, which was unanimous before Thomas spoke up, was decided 5-4.
Almost immediately, Thomas again was the sole dissenter. In Hudson v. McMillian (1992), a prisoner had been beaten by guards and claimed he had been subjected to "cruel and unusual punishment" in violation of the Eighth Amendment. Blackmun's notes reflect the shock in the conference at Thomas's lone position. But when Thomas circulated his dissent, arguing that a prison guard's actions, however wrong, are not the equivalent of official punishment meted out by the state, Scalia promptly switched his vote, persuaded again by the force of Thomas's reasoning.
Thomas has often been criticized for not speaking during oral argument, when other Justices interrupt each other and pepper the lawyers with questions. Incredibly, Merida and Fletcher devote an entire chapter, "Silent Justice," to this subject, surveying at seemingly endless length everyone from high school students visiting the Supreme Court to former Reagan Solicitor General Charles Fried. Thomas has explained publicly, more than once, that there are very few questions that need to be asked once a Justice has done a thorough job reading all the briefs in the case. Almost all of the questioning is for sport among the Justices, or to put on a show for the media.
View of the Founding
In the chapter on Marshall and Thomas, Supreme Discomfort touches upon the most significant difference between the only two black Supreme Court Justices in our nation's history. Marshall believed that the Constitution "was defective from the start" because it permitted slavery and did not allow women to vote. In 1987, as America celebrated the Constitution's bicentennial, Marshall asserted that the American Founders
could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the people no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of liberty, justice, and equality, and who strived to better them.
In other words, the credit belongs not to the founders, but to Marshall and to others like him.
Thomas was "chief among the condemners" of Marshall's bicentennial speech, according to Merida and Fletcher. The authors defend Marshall, insisting that he "spent considerable time thinking his speech over" and "ran it by renowned historian John Hope Franklin, who…wrote the mega-best-selling history of African Americans, From Slavery to Freedom." But the fact that Marshall had put so much thought into the speech—that it was not an off-the-cuff statement of an aging justice—only makes clearer that Marshall detested and misunderstood the American Founding.
The condemnation of the founding as defective for its treatment of blacks and women is not unique to Marshall; perhaps its most vehement recent expressions belong to Barack Obama's pastor, Reverend Jeremiah Wright. And Obama's own campaign stump line, "We are the ones we've been waiting for," means essentially what Marshall said: the founders got it wrong, but we enlightened liberals are fixing things up.
The contrast to Clarence Thomas's view could not be more stark. Thomas describes in My Grandfather's Son how he deliberately set out, beginning in 1986 as chairman of the EEOC, to explore with Claremont Institute scholars Ken Masugi and John Marini "the natural-law philosophy with which the Declaration of Independence, America's first founding document, is permeated." Recounting the tutorials of some 20 years ago, Thomas writes,
if all men are created equal, then no man can own another man, and we can only be governed by our consent. How, then, could a country founded on those principles have permitted slavery and segregation to exist? The answer was that it couldn't—not without being untrue to its own ideals.
If Thurgood Marshall and his ilk had had their way—if the North had refused to compromise with slavery in 1787, if the Three-Fifths Clause had never been written—no United States would have existed, and slavery could never have been put, as Lincoln said, "on the course of ultimate extinction." Thomas explains:
The Founders made the political judgment that, given the circumstances at the time, the best defense of the Constitution's principles and, ironically, the most beneficial course for the slaves themselves was to compromise with slavery while, at the same time, establishing a union that, at its root, was devoted to the principle of human equality.
In his newly revised and expanded book, The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative's Perspective, Brooklyn Law School professor emeritus Henry Mark Holzer provides a sympathetic, indeed reverential, take on the Justice's official oeuvre, but unfortunately the book at times appears to reflect more of Holzer's views than Thomas's. To his credit, Holzer characterizes the Constitution as implementing the Declaration, but he makes some dubious statements that surely should not be attributed to Thomas, such as that the principles of the Declaration "were virtually unknown in the history of man." Thomas himself has discussed the natural rights of life, liberty, and property in the thought of John Locke and others upon whom the founders drew. The book does contain excerpts from many of Thomas's most constitutionally significant cases, but the choice of excerpts is narrow, and the editing diminishes them further, as does the analysis (or lack of it). The reader would be better advised simply to read Thomas's opinions for himself.
A more scholarly and complete book examining Thomas's Supreme Court opinions is Scott Gerber's First Principles: The Jurisprudence of Clarence Thomas. First published in 1999 as a review of Thomas's first five terms on the Court, it was expanded and republished in 2002. Gerber, a professor of law at Ohio Northern University, calls himself a "classical liberal" and undertakes a truly dispassionate study, taking pains to avoid weighing in either for or against Thomas's work. He avoids the term "Justice Thomas's judicial philosophy," which is fitting, because, as Thomas himself explains in his memoir, at the time of his nomination "I didn't have one."
Thomas still resists the idea that he has a "judicial philosophy." He just does his best to decide cases on the bases of the Constitution's text and principles and the laws enacted by the branches of government accountable to the "consent of the governed." Quoting Thomas's Senate testimony and speeches, Gerber takes the time to explain the Justice's stance, better labeled "judicial neutrality." Thomas articulated more fully, and several years earlier, the same posture of judicial neutrality for which John Roberts won so much acclaim at his own Senate confirmation hearings in 2005, when he described a judge as an "umpire" in a ball game. As Thomas put it,
If we are to be a nation of laws and not of men, judges must be impartial referees who are willing at times to defend constitutional principles from attempts by different groups, parties, or the people as a whole, to overwhelm them in the name of expediency…. A judge does not look to his or her sex or racial, social, or religious background when deciding a case…. [A] person must attempt to exorcise himself or herself of the passions, thoughts, and emotions that fill any frail human being…. Otherwise, he is not a judge, but a legislator, for whom it is entirely appropriate to consider personal or group interests.
Gerber's balanced, scholarly study should be reprised, and soon—taking into account not only Thomas's opinions of the past five years, but also his memoir and Greenburg's research in the meantime. It would be even better if Gerber, or someone else, would produce a compendium and analysis of Thomas's opinions based not on standard legal categories such as "federalism" and "civil rights," but on the themes that emerge from his defense of the Constitution over the last 16 years on the Court: themes such as the necessity of good education for the success of the American regime of self-government, and the idea that the right to keep the property that one has earned by the sweat of one's brow is a first and fundamental freedom.
Thomas has said that the Justice's job of protecting the Constitution and the principles that underlie it "is not a game of cute phrases and glib remarks in important documents" but rather is a "deadly serious business." Whether the American experiment in self-government endures will depend, in large part, upon whether the Constitution can be preserved against the depredations of judicial activism. And that, in turn, just might depend upon whether the principles outlined in the opinions of Justice Clarence Thomas continue to persuade members of the Supreme Court and his fellow citizens.
"I've never doubted the greatness of a country in which a person like me could travel all the way from Pinpoint to Capitol Hill," Thomas writes. My Grandfather's Son is an amazing tale that can embolden us all as we face the hardest moments in life, and give us hope for the future of our country and her principles.
This essay is part of the Taube American Values Series, made possible by the Taube Family Foundation.
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For Correspondence on this essay, click here.