Method to the Madness

The Enigma of Clarence Thomas BY Corey Robin. New York: Metropolitan Books. 320 pages. $30.

The cover of The Enigma of Clarence Thomas

TAKE A MINUTE NOW to write down the first associations that come to your mind regarding Clarence Thomas. You might note that he represents the extreme right wing of the Supreme Court and that, beginning his twenty-ninth term this fall, he is its longest-serving justice, not to mention Donald Trump’s personal favorite. No doubt you’ll think of his alleged sexual harassment of Anita Hill during his tenure at the Department of Education and when he was head of the Equal Employment Opportunity Commission under Ronald Reagan, of the ordeal she went through when forced to testify about it during his 1991 confirmation hearings, to no avail, and of his own infamous characterization of those hearings as a “high-tech lynching.” Perhaps his conspicuous quiet will come to mind, his refusal to say anything during oral arguments for years at a time—the New York Times reported somewhat breathlessly in 2016 that Thomas had just resumed speaking from the bench after keeping shtum for an entire decade. You may also recall the flurry of news coverage that ensued recently when, not content simply to go along with the majority opinion in Box v. Planned Parenthood of Indiana and Kentucky, which upheld Indiana’s right to require that aborted fetuses receive funerary rites, he added a long and fervent concurring opinion that connected abortion rights to eugenics and the US’s ugly history of forced sterilization. I’m guessing, though, that you probably wouldn’t start by describing Thomas as, in Corey Robin’s words, “a conservative black nationalist on the Supreme Court.”

Thomas’s interest in Black Power has often been dismissed, when mentioned at all, as a youthful flirtation of the 1960s, far less significant to his judicial record than his hard-right turn in the 1970s and ’80s. But Robin now joins a small minority of Thomas-watchers in emphasizing the underlying consistency of his views, particularly on race, and The Enigma of Clarence Thomas is the first book to fully tease out these strands of his thinking. The results are fascinating. Thomas emerges not as a mere pawn of the extreme Right—the so-called “Tea Party justice,” and now Trump’s lackey—making whatever wacky, contradictory arguments will serve those interests at a given moment, but as someone with a distinct politics of his own, who has long believed himself to be acting in the interests of African Americans. “It pains me . . . more deeply than any of you can imagine,” he wrote twenty years ago, “to be perceived by so many members of my race as doing them harm.” Robin’s argument here follows a logic not dissimilar to that of his previous book, The Reactionary Mind, published in 2011 and reissued last year in a substantially revised edition that covered Trump’s election. Arguably the animating spirit of that book was that the Left must resist its chronic tendency to underestimate the enemy. The Reactionary Mind urged readers to remember that its own title was not a contradiction in terms, that conservatives don’t only defend existing privilege—they have ideas, and it would be a mistake not to take them seriously.

Likewise, Robin argues that to dismiss Clarence Thomas as primarily a careerist, a partisan hack, a Scalia clone, or even, as some of his supporters would have it, simply a punctilious upholder of the Constitution would be to fundamentally misunderstand him. Robin presents a very different Thomas—a justice with an unwavering philosophy, which the author explores in three thematically organized sections, on race, capitalism, and the Constitution. It would be too cute to call Robin a Thomas originalist, but he does dispel some familiar misrepresentations by looking at what is actually there in the text, especially in the justice’s hundreds of opinions. The brilliance of Robin’s counterintuitive argument is that it relies so little on speculation. Reading the book can feel a bit like the first time you watched those last few minutes of The Usual Suspects: It all starts clicking, dreamlike, into place, and you realize what a chump you are, that they barely even had to bother writing in a plausible alternate explanation to keep you from the plainly visible truth.

Robin suggests that the misreadings of Thomas are themselves based in racism, comparing the justice to Ralph Ellison’s “invisible man,” the one people “refuse to see.” (Invisible Man is, he notes, alongside Richard Wright’s Native Son, Thomas’s favorite novel.) Introducing the common idea of Thomas as “an intellectual nonentity, a dim bulb in a brightly lit room,” Robin rehearses a host of clichés about his supposed incompetence or laziness—qualities that would, some have implied, explain why he doesn’t speak up on the bench, is rarely assigned the majority opinion in important cases, and gets his clerks to write his opinions for him (this last accusation strikes me as odd, since Thomas’s opinions hardly seem the bland, predictable stuff you’d expect to get by paying someone else to do your homework). Robin claims that the only other justice “subject to all of these kinds of insinuations” was, not coincidentally, also the Supreme Court’s only other black justice, Thurgood Marshall, whom Thomas replaced.

Robin’s Thomas is no dimwit but a man of ideas, albeit dark, furious, and terrifying ones. “His beliefs,” Robin announces in an introduction, “are disturbing, even ugly; his style is brutal.” Robin recognizes no essential contradiction or vacillation in this man who by the late ’80s, several years into his career within the Reagan administration, could still lovingly recite Malcolm X by heart. He sees a powerful continuity between Thomas’s black nationalism and his conservatism, extrapolating from his words a coherent worldview that helps explain his approach to a slew of issues, from voting rights to gun ownership, from the Commerce Clause to gender relations. In Robin’s account, Thomas sees American racism as foundational, permanent, and ineradicable, such that African Americans should never hope for justice or advancement to come through either political representation (since they will remain a loathed minority) or any strategy dependent on the generosity of white institutions.

Thomas has long been opposed to affirmative action, even going so far as to argue, in Fisher v. University of Texas at Austin, that there was “no principled distinction” to make between its proponents and segregationists. In Thomas’s own view, Robin confirms, attacking affirmative action is not about unjustly prioritizing conservative values over the interests of African Americans—it is a defense of those interests. Thomas sees affirmative action and similar programs as insidiously designed to benefit the white elite that administers them (and can whip them away at will) while humiliating the few recipients of their largesse. The very existence of affirmative action, for Thomas, casts doubt on the merits of any individual black student or employee, and allows white liberals to reaffirm their tacit assumption that black people in general will never have what it takes to succeed without help.

Robin’s interpretation is useful in accounting for some of Thomas’s seeming contradictions. Though not always a champion of individual rights, Thomas is attached to the Second Amendment because a right to bear arms is crucial for an embattled minority in an incorrigibly racist state. Since under capitalism money is the only god that can occasionally trump racial hatred and hierarchy, he wants to deregulate business and strengthen the treatment of money as speech. Better that as many determined black men as possible make their fortunes, so they can protect their families and communities; those who succeed may eventually be able to purchase political influence on a scale commensurate with their talents, a scale their individual votes will never win them.

Clarence Thomas, 2007. Steve Petteway/Collection of the Supreme Court of the United States
Clarence Thomas, 2007. Steve Petteway/Collection of the Supreme Court of the United States

It can require some mental acrobatics to discern this motivation in Thomas’s opinions. Take the case of Curtis Flowers, a man tried a staggering six times for the same crime by the same white Mississippi prosecutor between 1997 and 2010. In June, when the Court overturned Flowers’s latest conviction 7–2, Thomas wrote the dissenting opinion, appearing to side with a visibly racist state against a persecuted black defendant. But reading him through Robin’s lens, you can see the thread of his concern for the right of black defendants to a fair trial. The Court had to decide whether Doug Evans, the prosecutor, had violated the Constitution by using his peremptory strikes to get rid of black jurors solely because of their race. But Thomas takes a longer view: He thinks this decision will make it more difficult for future defense lawyers to ditch white jurors they sense may be covertly prejudiced against their black clients.

Thomas’s enthusiastic embrace of the state’s prerogative to discipline and punish is what most threatens to undo Robin’s argument. That unwillingness to interfere with its draconian powers is surprising in someone who believes the US is irredeemably racist and claims to care about what it does to African Americans. Yet, for Thomas, Robin argues, even the terrors of the Jim Crow South (which he saw for himself as a child in the 1950s) were in some ways preferable to the smile-and-smile-and-be-a-villain hypocrisies of white liberalism: It’s better to know where you stand. Thomas apparently believes that it’s those unjustly kept down who most need to understand that they can afford no mistakes and will get no second chances—and he thinks the deterrent of a harsh penal system can play a formative role in developing the grit needed to survive when faced with grotesquely stacked odds.

If any attitude of Thomas’s would seem not to require a deeper explanation, it’s his fierce reaction to Anita Hill’s 1991 testimony. Of course Thomas disliked seeing his reputation besmirched by a former employee, threatening his confirmation. Yet Robin insists there was more to it. As well as pride, shock, resentment, self-interest, partisanship, and so on—call it Brett Kavanaugh avant la lettre—Robin reads in Thomas’s response the same worldview he finds throughout:

For years, he had been constructing in his head a constitutional order founded upon the power and example of black men. There never was any room in this dreamscape for black women. At best, they were victims of black male criminals and ne’er-do-wells empowered by the rights revolution to abandon their responsibilities. At worst, they were like his mother or sister, treacherous sources of dependency and dissolution. One way or another, black women would fail to provide the firm authority that black boys needed if they were to grow up to be responsible and powerful black men, able to protect their families from a threatening white world. . . . With her white liberal allies, Hill threatened to undo the black male presence upon which, according to Thomas, the entire African American community, from slavery through Jim Crow, had depended. She was the consummation of liberalism’s half century’s assault on black male authority.

If Robin seems here to be taking liberties, over-psychologizing Thomas’s apparent daddy issues, I should note that Thomas’s preoccupation with black father figures has been known to appear prominently in his legal opinions—sometimes threatening to obscure the issue at hand. Robin offers one striking example in the 2015 case of Brumfield v. Cain, in which the Court considered whether prisoners with intellectual disabilities should be allowed to argue for an exemption from the death penalty. The defendant in question, Kevan Brumfield, had been sentenced to death for killing Betty Smothers, a Louisiana police officer, during a robbery. The Court ruled 5–4 in his favor. Thomas’s dissenting opinion characterized the case as “a study in contrasts” between two fatherless black men, Brumfield himself and the slain officer’s son, Warrick Dunn. After his mother’s murder, Dunn stepped up and raised his five younger siblings, and later distinguished himself in the NFL. Thomas juxtaposed this edifying story with that of the defendant, stating that unlike Brumfield, Dunn had refrained from using “the absence of a father figure as a justification for murder.” Robin notes that this framing was “so jarring and explosive” that Justice Samuel Alito, though he joined the dissent, made a point of distancing himself from Thomas’s remarks, which he said were not “essential to the legal analysis in this case.”

THOMAS MAY SEEM extreme, eccentric, or, let’s go ahead and take the phrase they used against Anita Hill, “a little bit nutty” (try taking a shot each time Robin describes one of his opinions as “joined by no one”). Yet it’s clear by now that he has been as influential as he is controversial. Robin quotes Akhil Reed Amar, a Yale legal scholar, as saying in 2011, long pre-Gorsuch and pre-Kavanaugh, that Thomas’s way of seeing things was “now being followed by a majority of the Court in case after case.” I heard Amar put it still more bluntly in a public radio interview this past July: “If you think that the measure of success of a justice is how many majority opinions he writes, well, then Thomas ranks somewhat lower,” he said. “But if, instead, the game is scored by how many new ideas someone gets into the conversation and eventually wins on, well, then Thomas is way high in the pecking order.” Thomas’s former clerks already litter the Trump administration, the federal courts, the courts of appeals. He has ruled out retirement and, at seventy-one, could easily stick it out for the nine more years it will take him to become the longest-serving Supreme Court justice in US history.

Still, if Robin is right about how Thomas thinks and why, does it really matter? In terms of how a reader views Thomas himself, it does not. Robin does not intend a defense of Thomas’s often indefensible ideas—he simply wants us to understand them better—and never suggests that the effects of recent partisan Supreme Court decisions on people’s lives will be anything but parlous. Where Robin’s argument really bites is in its implications for the other side, for those who hope the US can head in a more progressive direction. Robin concludes by presenting Thomas as an instructive emblem of the current American moment. What could have seemed merely the rote, almost compulsory inflation required by the publishing industry has, in this case, a frighteningly persuasive ring. I’ll admit that I shuddered at Robin’s claim that Thomas’s implicit analysis—in which “racism is permanent, the state is ineffective, and politics is feeble”—is now “widely shared” across the political spectrum, even though many vehemently disagree with him as to what should be done about it. “Perhaps that explains Thomas’s enigmatic silence on the bench,” Robin writes. “What need is there to speak when the rest of us are saying his words?”

Though he names no names, you can find the dark, defeatist logic Robin identifies running through the mainstream of the Democratic Party as well—in the assumption that gradualist reform is the best we can do, that politics can’t be allowed to interfere with the interests of big business, that there is no effective way to deal with racial polarization in economically distressed parts of the country. “When brought face-to-face with an enemy whose vision we share,” Robin writes, “we may ask ourselves not where he goes wrong, but where we did,” in other words, whether we have quietly given up on more radical possibilities for social transformation. Thomas’s proposed answers to problems of inequality in America may horrify, but it’s more important to consider why those problems have remained so vast and intractable for so long. When you follow Thomas’s jurisprudence to its logical conclusion, you reach, Robin writes, “a dystopia that looks painfully familiar: men armed to the teeth, people locked up in jails, money ruling all, and racial conflict as far as the eye can see.” Clarence Thomas, for so long firmly in the minority, didn’t bring us where we are today. It’s worth asking, though, whether we have done all we could to avoid meeting him here.

Lidija Haas is a columnist for Harper’s Magazine. She lives in New York.