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Excerpted From: Angela Onwuachi-Willig, Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us about the Influence of Racial Identity, 90 Iowa Law Review 931 (March 2005) (401 Footnotes) (Full Document)


AngelaOnwuachiWilligServing as a United States Supreme Court Justice is one of the most coveted and respected jobs in the nation. Nevertheless, as with any job in the public eye, Supreme Court Justices are often subject to criticisms by many people, both within and outside of the legal profession. Justice Clarence Thomas is no exception.

From the day that Thomas was nominated to sit on the Court, he has been a subject of great interest for many and has been critiqued and opposed by individuals from all walks of life. In particular, the Justice's intellectual abilities and competence as a jurist have been repeatedly and continually challenged. For example, Justice Thomas has been rumored to select clerks from the best law schools, to lean “'especially heavily on them,”’ and to publish their draft opinions with “'little embellishment.”’ Additionally, Justice Thomas has had his independence as a voter on the bench questioned, with the suggestion that he bases his votes on those of a colleague, Justice Antonin Scalia. Indeed, Justice Thomas has been referred to as “Scalia's puppet,” “Scalia's clone,” and even “Scalia's bitch.” As a liberal black womanist, I initially ignored these comments about Justice Thomas. Ironically, a biography of the late Justice Thurgood Marshall jurisprudence could not have been more different from Justice Thomas's--would bring me to commit an act that I once thought was impossible: defend Justice Thomas. The biography included a statement made by Archibald Cox, the man whom Marshall had replaced as Solicitor General: “Marshall may not be very bright or hard-working but he deserves credit for picking the best law clerks in town.” Juan Williams made clear in his book Thurgood Marshall: American Revolutionary, like Justice Thomas, many “[w]hite lawyers in the top law firms and law schools had never been convinced that [Marshall] was a strong legal mind,” despite the fact that Marshall had won twenty-nine of the thirty-two cases he argued before the Court. much like Justice Thomas and Justice Scalia, some critics had openly wondered whether Justice Marshall was dependent on Justice Brennan in deciding how to vote in cases before the Supreme Court. In fact, as several authors have noted, Justice Marshall was privately referred to by law clerks as “Mr. Justice Brennan-Marshall.” Later, after Justice Marshall retired from the Court, one writer would assert,

Marshall worked well with Justice William J. Brennan Jr. . . . But Brennan, a great justice by any standard, was the senior man in this partnership, and when they managed to forge liberal majorities, it was usually due to Brennan's influence within the Supreme Court. It bears noting that Marshall is retiring a year after Brennan did. same writer, Terry Eastland, would also declare that Marshall was “not an intellectual force.” the question arises: What does it mean that the only two black justices to sit on the Supreme Court, two justices who could not be any more different, have routinely had their intellectual abilities and individualism questioned in the same way? Have both of these justices been targets of the age-old stereotype that Blacks are lazy and incompetent and cannot think for themselves? Or, more directly, to what extent is Justice Thomas a victim of this form of racism? A review of Justice Thomas's jurisprudence reveals that there is no basis for the claim that Justice Thomas is a “Scalia clone” or “Scalia puppet” and supports the proposition that Justice Thomas has been unfairly subjected to the stereotype of black incompetence. In fact, Justice Thomas has developed his own jurisprudence as a black conservative, directly and indirectly weaving his own “raced” ideologies into his opinions. this Article, I draw on Justice Thomas's opinions on the Supreme Court in areas concerning education and desegregation, affirmative action, and crime, and I argue that Justice Thomas's jurisprudence, while conservative, is, in certain important respects, distinct from that of his white conservative counterparts and is intrinsically linked to his identity as a Southern black man.

Part I of this Article examines and describes the development of black conservative thought in the United States and how such ideology is distinct from white conservative rhetoric and theory.

Part II provides an overview of Justice Thomas's background, highlighting pivotal experiences during his childhood, education, and career that have shaped his racial identity and his views about how racial equality should be achieved within and through the law.

Part III examines and explains the development of Justice Thomas's jurisprudence as participating in America's long history of black conservative thought (described in Part I) as seen in Supreme Court cases concerning education and desegregation, affirmative action, and crime. this Article concludes by exploring what the most commonly heard criticisms of Justice Thomas teach us about race and the impact of racial identity.

[. . .]

What does Justice Clarence Thomas's life and jurisprudence teach us about race and the impact of racial identity? The lessons are many.

First, Justice Thomas's story tells us that race is an inescapable part of a person's identity, whether one is conservative or liberal, a racial minority or a non-minority. Moreover, it demonstrates to us that race manifests itself in one's identity in different ways depending on that individual's personal biography and perceptions of reality. For example, what is evident in Justice Thomas's life and work is that he, like many of his black counterparts, is conservative precisely because he is black. Much like black liberals whose life experiences have shaped their reactions to issues such as affirmative action in a way that makes them liberal, Justice Thomas's experiences with race have led him to adopt ideologies that are strictly based on self-reliance without government interference in a way that makes him conservative.

Much of Justice Thomas's beliefs and ideologies are rooted in the philosophies of his grandfather, Myers Anderson, who raised him. It was Anderson, who, although polite, “never, ever trusted” Whites, or buckra; taught Thomas “that government, like many other things in the segregated South, was for whites only”; and instilled in Thomas a belief that he “could not depend on white people for help.” Even though some of Thomas's experiences, unlike his grandfather's, led him to accept that some Whites could be helpful and encouraging, such as the white nuns who taught Thomas in Catholic school, central to Justice Thomas's views about the route to racial equality is his belief that black people can and should depend only on themselves because the government itself is often the tool used to create two separate but unequal worlds for groups. As the Justice once declared, “I lived under two sets of books . . . . I'm not going back to two sets of books again.” a critical component of black conservatism itself is the notion that Blacks should not support programs such as affirmative action or policies that provide leniency for criminal defendants because they fail to address the problems of the black community and serve only the purpose of assuaging the guilty consciences of white liberals. In other words, black conservatives' support of colorblindness rests--oddly enough--entirely on their blackness. More specifically, these ideas rest on the belief that their blackness is the very reason they cannot rely on social welfare, government assistance, or benign policies such as affirmative action.

On that same note, Justice Thomas's life and jurisprudence reveal exactly how devastating racism can be and how an individual's thoughts, beliefs, and even jurisprudence, regardless of claims of colorblindness and neutrality, are shaped by experiences with race and racism, both subtle and obvious. Similarly, in the case of persons with white-skin privilege, either their lack of experience with racism or their relationships with people who are deeply affected by it can affect their perspectives. Regardless of how one describes Justice Thomas's jurisprudence, it is clear that he is deeply influenced by his life experiences when deciding questions that directly implicate race. For example, one scholar, Professor Scott Gerber, who argues that Justice Thomas conceives of civil rights as an individual rather than a group concern, has maintained that Thomas changes his approach in deciding “race” cases by shifting from a conservative originalist approach on civil liberties and federalism cases to one of a liberal originalist on civil rights cases. Indeed, the influence of race and racial identity was most recently and prominently witnessed during oral arguments and in Justice Thomas's dissent in Virginia v. Black, a case concerning the constitutionality of a Virginia statute that made it “unlawful for any person or persons with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.” In that case, Justice Thomas broke with his long-standing practice of remaining silent during oral arguments to speak “in a voice of color in analyzing the harm caused by cross burning.” Justice Thomas's exchange with the attorney from the Department of Justice, who was arguing in favor of the constitutionality of the Virginia statute, was as follows:

QUESTION: Mr. Dreeben, aren't you understating the--the effects of--of the burning cross? This statute was passed in what year?

MR. DREEBEN: 1952 originally.

QUESTION: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and--and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was--isn't that significantly greater than intimidation or a threat?

MR. DREEBEN: Well, I think they're coextensive, Justice Thomas, because it is --

QUESTION: Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism on--of and the effect of the cross, the burning cross. I--I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has--it was intended to have a virulent effect. And I--I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.

MR. DREEBEN: Well, I don't mean to understate it, and I entirely agree with Your Honor's description of how the cross has been used as an instrument of intimidation against minorities in this country. That has justified 14 States in treating it as a distinctive --

QUESTION: Well, it's--it's actually more than minorities. There's certain groups. And I--I just--my fear is that the--there was no other purpose to the cross. There was no communication of a particular message. It was intended to cause fear --


QUESTION: --and to terrorize a population. this colloquy demonstrates, for Justice Thomas, the burning of a cross with the intent to intimidate contained no expressive value but rather was conduct not subject to a First Amendment analysis, because its history and use in society had left it with no other cultural meaning but “lawlessness” and a “well-grounded fear of physical violence” for its victims. It was Justice Thomas's race and experiences with racism as a black man growing up in the segregated South that shaped his view of a burning cross and, in turn, helped to shape those of his colleagues on the bench. Moreover, it is this same influence of race that separates Justice Thomas's jurisprudence from that of Justice Scalia, Justice Thomas's alleged “puppeteer.” Although Justice Scalia and Justice Thomas both adhere to principles of formal equality, Justice Thomas's support of the principle clearly has a raced component to it in that it, much like his conservatism in general, stems from his blackness. In other words, Thomas's position comes from his view that Blacks can be protected only if they are treated exactly the same, as opposed to Justice Scalia's view that all individuals should be treated exactly the same for reasons of evenhandedness alone. For example, Justice Thomas's analysis of a need for colorblind admissions in his dissent in Grutter was vastly different from that of Justice Scalia. While Justice Scalia's dissent centered on what he believed to be inherent unfairness toward non-minority individuals who did not receive racial preferences and what he argued was the law school's inappropriate use of racial discrimination “to convey generic lessons in socialization and good citizenship,” Justice Thomas's dissent focused primarily on what he perceived as affirmative action's damaging effects to individual Blacks. These negative effects include what he referred to as resulting stigma by Whites who perceive affirmative action beneficiaries as inferior and affirmative action's unintended validation of traditional standards of merit, in particular the LSAT, that work to disproportionately exclude certain minorities. In fact, it was Justice Scalia who joined all parts of Justice Thomas's dissent and concurrence, specifically highlighting the part of Justice Thomas's dissent that questioned the University of Michigan's use of traditional standards of merit to maintain its elite status, an offshoot of a critique that critical race scholars have consistently made in the past. Like Justice Thomas, Justice Scalia was convinced “that the allegedly 'compelling state interest’ at issue here is not the incremental 'educational benefit’ that emanates from the fabled 'critical mass' of minority students, but rather Michigan's interest in maintaining a 'prestige’ law school whose normal admissions standards disproportionately exclude blacks and other minorities.” criticisms of Justice Thomas's jurisprudence as lacking all independent thought, even in the face of a clearly raced and distinct jurisprudence on certain issues, demonstrate the intensity of the stereotype of black incompetence and dependency. Why view Justice Thomas's voting record as evidence that he is a slave to Justice Scalia and not view Justice Ginsburg's voting record as evidence that she is a clone of Justice Souter or Justice Souter's voting record as evidence that he is a clone of Justice Stevens? Given the actual numbers regarding the voting relationships between judges, the only answer can be race, or more specifically, the stereotype of black dependency and inferiority. After all, the most recent statistics of the Justices' voting relationships indicate that the aforementioned pairs of Justices have agreed in full on a greater percentage of cases than Justices Thomas and Scalia. Thomas (or one of his black conservative counterparts) might argue that this difference in perceptions of pairs of judges is, in part, due to the ill use of affirmative action and the damaging effect that affirmative action has on Whites' views regarding the competency of minorities and women. As Justice Thomas remarked in Adarand, “[t]hese programs stamp minorities with the badge of inferiority.” Indeed, as some scholars have noted, Justice Thomas's reference to this claimed effect of affirmative action was almost personal in Grutter. Thomas's argument about the stigma caused by affirmative action, however, has less force when viewed along with similar criticisms of Justice Marshall, whose life, politics, and jurisprudence stand in stark contrast to Justice Thomas's. The manner in which Justice Marshall was regarded as “intellectually inferior” cannot be attributed to affirmative action, but instead to the stigma that often automatically attaches to Blacks in our society. Unlike Justice Thomas, there is absolutely nothing to indicate that Justice Marshall was ever a beneficiary of affirmative action. To begin with, affirmative action clearly did not exist when Marshall was applying to law school. Moreover, Justice Marshall attended a then all-black law school, Howard University School of Law, where he graduated first in his class. Additionally, Justice Marshall's record as an attorney was unlike most other Justices of the Supreme Court, having won case after case before the Court prior to his appointment. Had Justice Marshall done nothing more than win his twenty-nine cases before joining the Supreme Court, one simply could not deny that he was an intellectual force in the legal arena. Yet, he has still been the subject of the same disparaging comments regarding alleged dependency on another Justice and a lack of intellectual power. When denigrations of Justices Marshall and Thomas are viewed side by side, it becomes clear that the stigma of black incompetence and inferiority existed long before affirmative action and that this stigma is likely to attach to the story of any black justice for a long time to come.

Most of all, what Justice Thomas's story teaches us is that the black community's (or even more broadly, the liberal community's) conception of blackness or “black voice” is far too limited. The fact that a black individual holds views in stark contrast with those of the majority of the black community (or even holds views that are perceived as harmful to the black community) does not make his or her views or voice any less “black” or make his or her concern for black people any less sincere. In fact, Justice Thomas's voice is “raced” in a way that exhibits significant concern for black people. For example, his vehement support for school choice (as opposed to integration), his opposition to leniency for criminal defendants, and his stance on affirmative action are all deeply grounded in such concern--in particular, a concern that current policies are simply short-term solutions to festering problems in the black community, such as failing schools and black-on-black crime. as I was researching and learning about black conservative ideology, I found myself (surprisingly) nodding in agreement with some of its concepts and understandings about the issues facing the black community, even though I disagreed with the ultimate route proposed for addressing these problems. Perhaps this is Justice Thomas's most significant lesson for us all, with his seemingly contradictory “black nationalist” and “Reagan conservative” views: not only that the voice of the black conservative can be “raced” in a way that the voice of the white conservative is not, but that the rift between the black conservative and black liberal is not so wide after all. Perhaps black conservatives and black liberals would both benefit from listening to each other and taking the other group's concerns seriously. After all, in spite of everything, Justice Thomas appears to be just another brother on the Supreme Court.

Acting Professor of Law, University of California, Davis. aonwuachi J.D., University of Michigan Law School; B.A., Grinnell College.

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