Tag Archives: Clarence Thomas

Clarence Thomas’s Counterrevolution

5 May

What follows is the talk I gave at the University of Washington this past weekend on my paper about Clarence Thomas: “Smiling Faces Tell Lies: Pessimism, Originalism, and Capitalism in the Jurisprudence of Clarence Thomas.” The paper is still incomplete. I only managed to write about Thomas’s theories of racism and how they intersect with his philosophy of constitutional interpretation. In the coming months, I intend to expand the paper to talk about Thomas’s views on capitalism, and how they inform his jurisprudence about the Commerce Clause, the Takings Clause, and more. Ultimately, this paper will be published by the University of Chicago Press in a volume on African-American political thought, edited by Melvin Rogers and Jack Turner. Other contributors will include: Cedric Johnson on Huey Newton, Nikhil Singh on Malcolm X, Lawrie Balfour on Toni Morrison, Michael Dawson on Marcus Garvey, Naomi Murakawa on Ida B. Wells, Jason Frank on Langston Hughes, Tommie Shelby on Richard Wright, Danielle Allen on Ralph Ellison, and many many more. It’s going to be fantastic. But until then, here’s my talk on Clarence Thomas.

• • • • • 

Yesterday, Nikhil Singh said that more than any other figure in the African American canon, Malcolm X is someone who everyone thinks they know. Clarence Thomas, I’ve discovered in the past six months, is also a figure who everyone thinks they know. In the interest of dispelling that expectation, which I suspect many of you share, I’d like to present five facts about Clarence Thomas that perhaps you didn’t know.

  1. The first time Clarence Thomas went to Washington, DC, it was to protest the Vietnam War. The last time that Clarence Thomas attended a protest, as far as I can tell, it was to free Bobby Seale and Erikah Huggins.
  2. Clarence Thomas does not believe in color-blindness: “I don’t think this society has ever been color-blind,” he said in 1985, in the third year of his tenure as head of the EEOC. “I grew up in Savannah, Georgia under segregation. It wasn’t color-blind and America is not color-blind today…Code words like ‘color-blind’ aren’t all that useful.” Or, as he told Juan Williams in 1987, “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”
  3. When Clarence Thomas was in college he memorized the speeches of Malcolm X; two decades later, he could still recite them by heart. “I’ve been very partial to Malcolm X,” he told a libertarian magazine in 1987. “There is a lot of good in what he says.”
  4. There’s a law review article about Clarence Thomas that’s called “Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism.”
  5. Clarence Thomas resents the fact that as a black man he’s not allowed to listen to Carole King.

Now, the truth is that there’s nothing all that surprising about the fact that Clarence Thomas is black and conservative. There’s a long tradition of black conservatism in this country. And from Edmund Burke to Ayn Rand, conservatism always and everywhere has been the work of outsiders, men and women who hail from the peripheries or margins of the national experience.

Nor, in the end, is Clarence Thomas’s early engagement with black radicalism all that surprising. After all, one of the great clichés of the twentieth century is the young left-wing radical graduating into middle-aged conservatism. And, of course, as Cedric Johnson, Michael Dawson, and other scholars have reminded us, there’s a deep affinity between conservatism and parts of the Black Power/Black Nationalist tradition.

But here, I think, is what is surprising about Clarence Thomas: First, he’s a Supreme Court justice who has managed in his jurisprudence to incorporate rather than repudiate some of his early commitments to Black Nationalism and Black Power; I think it’s fair to say no other Supreme Court justice has ever done that. And, second, Thomas is a constitutional originalist, and a rather radical one at that. Unlike any other justice—not Scalia, not Roberts, not Alito—Thomas wants to restore the Constitution to the meaning it had in 1789.

How Thomas has been able to marry an incredibly bleak vision of the black past, a vision rooted in black nationalism, to a document that is not only the fountainhead of that past but is also, on his account, the source of an alternative black future—not, as Thurgood Marshall and other liberal constitutionalists would have it, because it is a “living Constitution,” but precisely because it is dead: that is the basic puzzle of Clarence Thomas and what makes him, I think, more interesting than many of us realized.

In my paper, I document both Thomas’s involvement as a younger man in the broad milieu of Black Nationalism and how that involvement carries over into his jurisprudence. I use the phrase “broad milieu” deliberately. I don’t want to overstate the depth or intensity of his involvement, and I don’t want to posit a specificity, a precise location, to that involvement. Reading Cedric Johnson’s paper on Huey Newton, which Cedric presented yesterday, one sees this deep texture and particularity to the different arguments within the Black Power movement. You don’t see that in Thomas. Instead you see someone who breathed in the broader atmosphere of Black Power and Black Nationalism, and never, I argue, stopped entirely breathing it. Or at least never stopped breathing part of it.

Specifically, what I think Thomas took away from that early engagement are two ideas. First, not only is racism a perdurable element of the American experience—and I want to stress that Thomas’s concern, unlike that of more internationally minded figures like Newton, Malcolm X, or Angela Davis, is with racism as an American experience—but it is also a protean and often hidden element of that experience.

Thomas believes that racism is so profoundly inscribed in the white soul that you’ll never be able to remove it. You see this belief in these quiet, throwaway lines in his opinions, which if you’re reading too fast you’ll miss. In 1992, in one of his early cases, Georgia v. McCollum, Thomas stated, “Conscious and unconscious prejudice persists in our society. Common sense and common experience confirms this understanding.” In Zelman v. Simmons-Harris (2002), he wrote, “If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.” That “if” is a conditional only in the grammatical sense – that is, it governs the phrase that comes after – but not in the historical sense. Thomas’s point is that society cannot in fact end discrimination.

Racism is so profoundly inscribed in the white soul, as I’ve said, that you also have to dig deep in order to see its full extent. The deeper you dig, the closer you get to its beating heart. The overt bigotry of the South is merely the surface; its true depths are to be found in the North. Not among the angry white faces throwing rocks in South Boston, but in the genteel white smiles of liberal institutions like Yale Law School, which Thomas attended.

In his memoir, which came out in 2007, Thomas described the difference thus:

At least southerners were up front about their bigotry; you knew exactly where they were coming from, just like the Georgia rattlesnakes that always let you know when they were ready to strike. Not so the paternalistic big-city [Northern and liberal] whites who offered you a helpful hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place. Like the water moccasin, they struck without warning.

If you’re hearing a distant echo in that comment, you should. Think back to that famous passage in Malcolm X’s “Chickens Come Home to Roost” speech:

 The white conservatives aren’t friends of the Negro either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the Negro always aware of where he stands with them. But the white liberals are foxes, who also show their teeth to the Negro but pretend that they are smiling. The white liberals are more dangerous than the conservatives; they lure the Negro, and as the Negro runs from the growling wolf, he flees into the open jaws of the “smiling” fox.

You’ve got the same animal imagery; the same emphasis on deceit and insincerity as the crucial marker.

And here we come to the second idea that Thomas develops from his early engagements. And that is that the evil of the color line lies less in the hierarchies of white privilege and the humiliations of black subordination than in the deception and deceit that racism imposes upon blacks and whites alike. Unlike many in the Black Power tradition, or even in the black conservative tradition, Thomas seems never to have developed a political or economic analysis of racism. His is primarily a moral account of racism. Racism is shape-shifting, often hidden; that is its poison. The antidote to racism, the moral answer to it, is race sincerity: being truthful with and to oneself, and seeking truth, in however malignant a form, in and from one’s enemies. The goal is not, and never can be, color-blindness. The goal is racial candor or race sincerity, achieving a congruence between inner feeling and outward form.

For black Americans, that means giving up on the idea of racial authenticity, that there’s an official way to be black: i.e., liberal, Democrat, etc. Hence, the black conservative who listens to Carole King. “How could a black man be truly free if he felt obliged to act in a certain way,” Thomas asks in his memoir, “and how was that any different from being forced to live under segregation?” Now that nod to segregation can sound pretty cheap. But I think it’s a sincere statement from Thomas of the psychological and moral terms in which he understands the harm of racism: that it imposes a false, outward self upon the true, inner self.

For white Americans, race sincerity means owning up to the racism that lurks within. Particularly among white northern liberals, who find in programs like affirmative action a more palatable way to express their racist condescension toward blacks. So many of Thomas’s opinions about affirmative action have far less to do with any commitment to state neutrality or color-blindness—or even a formalistic comparison between the use of race under Jim Crow and today—than they do with a belief that affirmative action is really just the sneaky face of contemporary racism. As he wrote most recently in the Fisher v. University of Texas decision, which was in 2013, “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

While Thomas’s two beliefs—in race pessimism, a belief in the perdurability and protean quality of racism; and race sincerity, the need to be on the outside what you are on the inside—come out of the black freedom movements, the role they assume in his political theory and jurisprudence reflect the waning power of those movements. Like many counterrevolutionary arguments, Thomas’s beliefs about race are symptomatic of a movement in recession or retreat. In three ways.

First, coming to consciousness at the end of the Black Freedom struggle, Thomas had and has difficulty seeing the achievements of that struggle as black achievements. In Thomas’s eyes, civil rights, anti-discrimination, affirmative action, integration: these were not the work of African-Americans, acting on their own behalf, wrangling power from a power structure that refused to give it to them. They are instead the poisoned apples of white liberals who prefer to give handouts rather than to cede power. Like many counterrevolutionaries (Tocqueville comes to mind), Thomas came too late to the revolution, too late to see the self-formation and self-assertion at work in movements of collective struggle. All he can see is a movement in retreat, and to his mind, the class of passive black dependents, waiting on the largesse of their white patrons of state, that the movement has left in its wake. As he said of his sister, in one of his nastier and truly vicious remarks, “She is so dependent [on the state] that she gets mad when the mailman is late with her welfare check.”

Second, Thomas doesn’t believe in political or collective action. The answer to the persistence of racism is to accept it and to figure out a way around it. A way, however, for individuals only: In Georgia v. McCollum, which I mentioned earlier, the answer to the persistence of white racism in society is to give individual black criminal defendants the right to strike down potential white jurors merely because they are white. Trying to organize collectively to defeat or even confront and call out racism is hopeless. As he told Juan Williams in 1987:

Blacks are the least favored group in this society. Suppose we did band together, group against group—which group do you think would win?…Which group always winds up with the least? Which group always seems to get the hell kicked out of it? Blacks, and maybe American Indians.

Third, the only space for African-American agency is in the market, particularly in the labor that each generation performs on behalf of the next. Where politics is a sphere “you don’t have any control over,” individual action in the market—which Thomas believes, it’s important to stress, can be performed on behalf of the black community—is a space where you can say, “I am in control of what I do today.” This is not an enlarged or particularly hopeful conception of agency; it’s radically circumscribed and contained. The political realities of race cannot be overcome; the best you can do is make your way within those constraints, and whenever or wherever possible, apart from those constraints. That “apart” explains Thomas’s willingness to indulge and support, even at the level of the state, all-black institutions.

This is not the sunny face of Reagan; it’s not morning in Clarence Thomas’s America. It’s twilight: we’re still living in the shadow of Jim Crow. The two most consistent words you’ll find in Thomas’s work are “sustain” and “survive.” The story of black America is a story of black people surviving centuries of horror, from slavery to Jim Crow, by taking care of themselves and each other, and trying to keep away as much as possible from the cruelty around them.

And this, I think, may be why Thomas has such faith in the project of originalism. Where other voices in the Black Freedom struggles either rejected the Constitution or found faith in its evolutionary openness—that is, in the interpretive distance the country has traveled since 1789—Thomas finds a glimmer of hope in the return to its original meaning. The Constitution may be the document of a slave society, but African-Americans survived slavery. By returning to the original meaning of that document, Thomas believes they may find the tools to survive slavery’s aftermath as well.

Clarence X?

30 Apr

Malcolm X:

 The white conservatives aren’t friends of the Negro either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the Negro always aware of where he stands with them. But the white liberals are foxes, who also show their teeth to the Negro but pretend that they are smiling. The white liberals are more dangerous than the conservatives; they lure the Negro, and as the Negro runs from the growling wolf, he flees into the open jaws of the “smiling” fox.

Clarence Thomas:

I was bitter toward the white bigots whom I held responsible for the unjust treatment of blacks, but even more bitter toward those ostensibly unprejudiced 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. At least southerners were up front about their bigotry; you knew exactly where they were coming from, just like the Georgia rattlesnakes that always let you know when they were ready to strike. Not so the paternalistic big-city whites who offered you a helpful hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place. Like the water moccasin, they struck without warning—and now I had stepped within striking distance.

 

Speaking on Clarence Thomas at the University of Washington

24 Apr

On Saturday, May 3, I’m going to be presenting a paper on Clarence Thomas at the University of Washington. It’s part of a conference on African-American Political Thought: Past and Present. The conference has an amazing line-up: Michael Dawson on Marcus Garvey, Nikhil Singh on Malcolm X, Cedric Johnson on Huey Newton, Lawrie Balfour on Toni Morrison, Melvin Rogers on David Walker, Naomi Murakawa on Ida B. Wells, and many more.

My paper is called “Smiling Faces Tell Lies: Pessimism, Originalism, and Capitalism in the Jurisprudence of Clarence Thomas.” Here’s the nut graf:

It’s not surprising that Clarence Thomas is black and conservative. From Burke to Ayn Rand, conservatism has been the work of outsiders and upstarts, hailing from the peripheries of the national experience. And black conservatism has an especially long, if unstoried, history in this country. Nor is it surprising that Thomas’s conservatism should draw from the Black Nationalist tradition. That confluence also has a long, if less unstoried, history in this country. What is surprising about Clarence Thomas is that he’s a Supreme Court justice who has married the bleakest vision of the black past to a document that is not only the fountainhead of that past but is also, on his account, the source of an alternative future—not, as Thurgood Marshall and other liberal constitutionalists would have it, because it is a “living Constitution,” but precisely because it is dead. That is indeed surprising, and worth puzzling over.

Come check it out. Details and schedule here.

 

Why Does the Winger Whine? What Does the Winger Want?

20 Apr

At National Review Online, Jonathan Adler writes:

Over at the progressive blog, Crooked Timber, Corey Robin lists “Eleven Things You Did Not Know About Clarence Thomas.”  The items Robin lists shouldn’t surprise avid court watchers, or others who have paid much attention to the conservative justice.  Judging from the comments, however, several of the items were quite a revelation to CT’s readership.  I can only imagine the surprise if Robin had blogged on Justice Thomas’s jurisprudence, further challenging the caricature of Clarence Thomas that continues to dominate so much liberal commentary about him.

Actually, a fair number of commenters at CT claimed not to be surprised by these revelations at all.

In any event, you’d think Adler would have been pleased that a group of progressives were having some of their misconceptions about Thomas challenged, if not dispelled. Instead, he complains about the fact that the misconceptions of a group of progressives are getting challenged, if not dispelled. Apparently the only thing worse than the left not knowing something about the right is…the left learning something about the right.

Wingers whine when we don’t pay attention to them; they whine when we do pay attention to them. Why do they whine so much? What does the winger want?

From The Reactionary Mind:

“The 1960s are rightly remembered as years of cultural dissent and political upheaval, but they are wrongly remembered as years stirred only from the left,” writes George Will in the foreword to a reissued edition of Barry Goldwater’s The Conscience of a Conservative. Several decades ago, such a claim would have elicited puzzled looks, if not catcalls and jeers. But in the years since, the publication of a slew of books, each advancing the notion that most of the political innovation of the last half-century has come from the right, has led historians to revise the conventional wisdom about postwar America, including the 1960s. The new consensus is reflected in the opening sentence of Ronald Story and Bruce Laurie’s The Rise of Conservatism in America, 1945–2000 : “The central story of American politics since World War II is the emergence of the conservative movement.” Yet for some reason Will still feels that his kinsmen are insufficiently appreciated and recognized.

Will is hardly the first conservative to believe himself an exile in his own country. A sense of exclusion has haunted the movement from the beginning, when émigrés fled the French Revolution and Edmund Burke and Joseph de Maistre took up their cause. Born in the shadow of loss—of property, standing, memory, inheritance, a place in the sun—conservatism remains a gathering of fugitives. Even when assured of his position, the conservative plays the truant. Whether instrumental or sincere, this fusion of pariah and power is one of the sources of his appeal. As William F. Buckley wrote in the founding statement of National Review, the conservative’s badge of exclusion has made him “just about the hottest thing in town.”

While David Hume and Adam Smith are often cited by the more genteel defenders of conservatism as the movement’s leading lights, their writings cannot account for, as we have seen, what is truly bizarre about conservatism: a ruling class resting its claim to power upon its sense of victimhood, arguably for the first time in history. Plato’s guardians were wise; Aquinas’s king was good; Hobbes’s sovereign was, well, sovereign. But the best defense of monarchy Maistre could muster was that his aspiring king had attended the “terrible school of misfortune” and suffered in the “hard school of adversity.” Maistre had good reason to offer this defense: playing the plebe, we now know, is a critical weapon in the conservative arsenal. Still, it’s a confusing defense. After all, if the main offering a prince brings to the table is that he’s really a pauper, why not seat the pauper instead?

Conservatives have asked us not to obey them, but to feel sorry for them—or to obey them because we feel sorry for them. Rousseau was the first to articulate a political theory of pity, and for that he has been called the “Homer of the losers.” But doesn’t Burke, with his overwrought account of Marie Antoinette that we saw in chapter 1—“this persecuted woman,” dragged “almost naked” by “the furies of hell” from her bedroom in Versailles and marched to “a Bastile for kings” in Paris—have some claim to the title, too?

Or just listen to Chet Baker…

 

Or this lovely version from Thelonious Monk…

Eleven Things You Did Not Know About Clarence Thomas

17 Apr

1. The first time Clarence Thomas went to DC, it was to protest the Vietnam War.

2. Clarence Thomas grew up a stone’s throw from the Moon River that Audrey Hepburn sang about in Breakfast at Tiffany’s.

3. In the 1970s, Clarence Thomas kept a Confederate flag on his desk. [Correction: It was the Georgia State flag, which features quite prominently the Confederate stars and bars. It was a large flag, apparently, and he hung it over his desk.]

4. There’s a law review article about Clarence Thomas called “Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism.”

5. Clarence Thomas attended antiwar rallies in Boston where he called for the release of Angela Davis and Erica Huggins.

6. Clarence Thomas told Juan Williams that “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are—you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”

7. Clarence Thomas is the only Supreme Court justice to have cited Frederick Douglass and W.E.B. DuBois in his opinions.

8. In college, Clarence Thomas hung posters of Malcolm X on his wall, memorized his speeches, and studied his writings. “I’ve been very partial to Malcolm X,” he told Reason in 1987. “There is a lot of good in what he says.”

9. Clarence Thomas does not believe in color-blindness: “I don’t think this society has ever been color-blind. I grew up in Savannah, Georgia under segregation. It wasn’t color-blind and America is not color-blind today…Code words like ‘color-blind’ aren’t all that useful.”

10. Yale Law scholar Akhil Reed Amar has compared Clarence Thomas to Hugo Black:

Both were Southerners who came to the Court young and with very little judicial experience. Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.

11. Clarence Thomas resents the fact that as a black man he is not supposed to listen to Carole King.

Silence and Segregation: On Clarence Thomas as a Lacanian Performance Artist

14 Feb

Toward the end of his life the legendary French psychoanalyst Jacques Lacan would lead his seminars in almost absolute silence. Though he suffered from some kind of aphasia, Lacan’s silences are often held to signify more than silence. In keeping with his theory, they mark a presence. Silence speaks.

I thought of Lacan when I read this statement from Clarence Thomas, which Jonathan Chait flagged the other day.

My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up. Now, name a day it doesn’t come up. Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah. Every person in this room has endured a slight. Every person. Somebody has said something that has hurt their feelings or did something to them — left them out.

Thomas’s critics see this kind of talk as either outright lies or utter foolishness. Can Thomas really believe that the segregated South of his youth was less race-conscious than today? Does he really believe that not talking about race (if southerners did in fact not talk about race) signifies the absence of race consciousness?

But the immediate pairing of these two sentences in Thomas’s talk—”I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.”—is too suggestive to leave it at that. Look carefully at what Thomas is saying: I personally desegregated a white school; we never talked about race. The juxtaposition is so jarring, it can only be read as a kind of Lacanian performance art. However unintentional or unconscious, his words signal the connection between absence and presence, silence and segregation.

If you think I’m over-reading this, remember that silence has long been a racially fraught topic for Clarence Thomas. He doesn’t ask questions during oral argument at the Supreme Court. Why? Because, he has said, he was teased when he was younger for speaking English in the Geechee/Gullah dialect of black slaves and their descendants. So he learned to keep quiet, as an undergraduate, at Yale Law School, and now on the bench. Silence was a protective mechanism against racist humiliation, a marker not of the absence of race but the presence of racism.

There’s a structural, even causal, relationship between those two sentences of Thomas. And, despite his protestations, he knows it. Somewhere, somehow.

Diva of Disdain: Justice Scalia in Three Parts

26 Jun

Thanks to his rant from the bench yesterday—about the Arizona immigration law, which the Supreme Court mostly struck down—Justice Scalia is back in the news. But where many on the left see Scalia as a partisan hack, who twists the Constitution into a pretzel to get the result he wants, I’m more impressed by the  underlying consistency of his jurisprudence. That’s not to say he’s never inconsistent, but hackery is not his main problem. But to see the problem, you have to have a better sense of the man and his vision.

In The Reactionary Mind, I devoted a chapter to that question. Last fall, I excerpted the introduction to that chapter. Given all the attention now being paid to Scalia, I thought I’d continue providing some excerpts.

So today I’m launching a three-part series. Part 1 below provides some biographical details. Part 2, which will appear tomorrow, provides a close reading of one of Scalia’s lesser known decisions. Part 3, which will appear on Thursday, steps back to assess the overall vision and its relationship to liberalism on the Court.

If you want to read the introduction to the chapter, which gives you more sense of the man and his vision, start here.

Antonin Scalia was born in Trenton, New Jersey, in March 1936, but he was conceived the previous summer in Florence, Italy. (His father, a doctoral student in romance languages at Columbia, had won a fellowship to travel there with his wife.) “I hated Trenton,” Scalia says; his heart belongs to Florence. A devotee of opera and hunting—“he loves killing unarmed animals,” observes Clarence Thomas—Scalia likes to cut a Medicean profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too “fainthearted” an originalist to uphold the eighteenth century’s acceptance of ear notching and flogging as forms of punishment. Not anymore. “I’ve gotten older and crankier,” he says, ever the diva of disdain.

When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his “little platoon.” He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington, D.C. In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy as the Outstanding American.

But Scalia comes to his ethnicity and religion with an attitude, lending his ideology a defiant edge. He claims he didn’t get into Princeton, his first choice, because “I was an Italian boy from Queens, not quite the Princeton type.” Later, after Vatican II liberalized the liturgy and practices of the Church, including his neighborhood church in suburban Washington, D.C., he insisted on driving his brood of seven children miles away to hear Sunday Mass in Latin. Later still, in Chicago, he did the same thing, only this time with nine children in tow. Commenting on how he and his wife managed to raise conservative children during the sixties and seventies—no jeans in the Scalia household—he says:

They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture . . . . The first thing you’ve got to teach your kids is what my parents used to tell me all the time, “You’re not everybody else . . . . We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.”

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

In the 1970s, while teaching at the University of Chicago, Scalia liked to end the semester with a reading from A Man for All Seasons, Robert Bolt’s play about Thomas More. While the play’s antiauthoritarianism would seem at odds with Scalia’s conservatism, its protagonist, at least as he is portrayed by Bolt, is not. Literally more Catholic than the pope, More is a true believer in the law who refuses to compromise his principles in order to accommodate the wishes of Henry VIII. He pays for his integrity with his life.

Joan Biskupic, Scalia’s biographer, introduces this biographical tidbit with a revealing setup: “Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.” That “yet” is misplaced. Scalia’s rigidity is not opposed to his idealism; it is his idealism. His ultraconservative reading of the Constitution reflects neither cynicism nor conventionalism; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is “wooden,” “unimaginative,” “pedestrian,” “dull,” “narrow,” and “hidebound.” Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.

Tomorrow: Justice Scalia vents his rage on a handicapped golfer, revealing his true inspiration is neither Catholicism nor the Constitution but Friedrich Nietzsche and Richard Rorty

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