Clarence Thomas’s Counterrevolution

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.


  1. JOANNA A. May 5, 2014 at 2:07 pm | #

    Needs correction:

    Yesterday, Nikhil Singh said that more than any other figure in the African American canon, Malcolm X is someone who everything thinks they know.

  2. John Maher May 5, 2014 at 2:09 pm | #

    I say Thomas was sympathetic to the fellow patriarch he saw in Malcolm and this transcends racial or ethnic affinity. Phillip Glass should score an opera called “Clarence Sits Aloft” and include an 18 year silent comment interlude during which the character of Thomas sits at the bench and silently questions his reasons for constructing his identity in a supposed postracial world still corrupted with structural elements of racism he is asked to enable. It would be reminiscent of John Cages “4:23”

  3. jonnybutter May 5, 2014 at 2:43 pm | #

    There is so much in this talk that is jaw-dropping – appalling pathos…but I have time for only one:

    “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?”

    Stuff like this is why I wonder about Thomas’ smarts. That is not to say he is not intelligent in an academic sense – probably very sharp in that sense. But how could any reasonably self-aware, reasonably well educated adult, not understand that living ones’ whole life in reaction is pretty much the definition – *his* definition – of un-freedom?

    Wow. It’s fascinating. I look forward to the whole paper and some of the others coming in the book (I hope).

  4. Josh Saltzman May 6, 2014 at 10:56 am | #

    I find evidence of Thomas’s beliefs about white liberals’ hidden racism in white liberals’ very attitudes toward Thomas — there is no justice who gets called “stupid” more often by liberals, while Scalia is treated as “brilliant but devious.” It’s as though Thomas’s conservatism gives liberals the excuse needed to take their pent-up racial discomfort and hatred out on a fair game target. I have always found Thomas’s opinions to be clear, well-reasoned, principled, and straightforward, and although I usually disagree with everything in them, I respect them.

    • jonnybutter May 6, 2014 at 11:53 am | #

      there is no justice who gets called “stupid” more often by liberals, while Scalia is treated as “brilliant but devious.”

      I don’t know if you are pretending to respond to my comment or not, and of course I speak only for myself if you are; clearly Prof. Robin is not only not a liberal (nor am I, btw), but has written a rather sympathetic piece.

      I am not particularly awed by the narrow ‘brilliance’ it takes to be a competent lawyer. Both Thomas and Scalia are ‘brilliant’ in the sense that they are able to rationalize fixed beliefs in a plausible and/or systematic way. So what? If that sort of intelligence was sufficient to full human life, we would live in a very different world than we do.

      I think it is stupid on the face of it, and frankly adolescent, to decry being controlled by society’s expectations of you, and to then spend your life reacting to society’s expectations of you. As I said, I’m sure Thomas is intelligent in an intellectual sense. Again, so what?

      BTW, you are behind the liberal-cliche curve: it is now much more common than not for liberals to point out that Thomas is, contrary to supposed opinion, *not* stupid. Best to keep track of your strawmen.

      • Josh Saltzman May 6, 2014 at 12:50 pm | #

        I was not responding to your comment, and I was echoing a sympathetic sentiment in the piece rather than arguing with the piece. I don’t disagree with most of what you say, and I have no data on the frequency with which liberals attack versus defend Thomas’s intelligence, only anecdotal evidence.

      • jonnybutter May 6, 2014 at 8:23 pm | #

        FYI, I was just being (truly) free above: as a whiteish leftish person who cares about civil rights for everyone, I *must* go against type – exactly 180 degrees against type – and single out the black man for moral idiocy. That’s what it means to be free.

        But seriously folks, a large chunk of contemporary American conservatism/reactionary ‘argument’ is neither any kind of positive case for, nor a convincing indictment of, social democracy. It is simply the reactionary’s exploitation of a rhetorical opening the obtuse liberal has not noticed. We shouldn’t underestimate Thomas’ wild radicalism (e.g. not believing in political or collective action), but his conception of an appropriate modus operandi about race in the US is just another version of this moronic contrarianism. It’s also kind of moving, from just a human point of view. But I don’t see much which is substantial.

      • bobdole May 8, 2014 at 6:42 pm | #

        I would point out a small put fairly significant flaw in your final paragraph which probably has larger ramifications: for Thomas it isn’t just the Constitution, it’s the declaration-constitution where the DoI embodies the foundations/original intent of the constitution. Thus the constitution isn’t just a “document w/ black people survived under in slavery” but rather the ideas of the declaration are much more hopeful

        Clarence Thomas, Toward a “Plain Reading” of the Constitution—The Declaration of Independence in Constitutional Interpretation, 30 HOW. L.J. 983, 985 (1987).

    • Let me give the readers a heads up: I am formulating a reply/observation to Prof. Robin’s examination of the thinking and sensibilties of Justice Clarence Thomas — and I take some pleasure in being able to predict one important aspect of it before Robin committed his commentary to this post: Thomas’ politics of despair. Yes, I will — a second time! — indulge in a little self-congratulation now, but I may or may not post my reply/observation as I have an unfortunate tendency to prolixity out of worry that I may appear to miss something.

      Having gotten that out of the way, I need to ask “Josh Saltzman” if he could be so kind as to post links to the writings of any “liberals” he seems to believe make Thomas the figure that is the “justice who gets called ‘stupid’ more often by liberals”. Once we read the writings that these links bring us to, we can determine if liberals’ hidden racism is what impels them to describe Scalia “brilliant but devious”, while they cruelly dismiss Thomas.

      One may suggest — as I will here — that any progressive critique of Thomas’ opinions as a species of liberal racism constitute an effort to validate the claim of the racial evil that lurks within the hearts of all White America, but is masked by the White liberal who merely pretends that he does not hate Blacks. But what of the Black progressive who types the words you are reading now? Am I one the “racist liberals” who flatter Scalia’s “devious brilliance” while calling Thomas “stupid”? You can dismiss the White liberals if you wish with an unproven and unprovable thesis — but what of us progressive Negroes? What pathology afflicts us?

      I await your diagnosis.

      • jonnybutter May 7, 2014 at 7:56 am | #

        Hey Donald – if you don’t want to post your long comment here, you can do it at my blog if you like. I just created it (the blog), so no readers – but *I’d* read it. here

  5. Joshua Holmes May 6, 2014 at 11:47 am | #

    I thought it was odd that you explained Thomas’s worldview as a search for truthfulness and authenticity but didn’t extend that explanation to his originalism. If you’re right that Thomas is pursuing authenticity, his originalism is easy to explain: the Constitution is what it is, and it’s wrong/deceptive to interpret it as something it’s not. He wants the Constitution to be its “authentic self”, just like he wants us whites to be our authentic racist selves.

  6. Thornton Hall May 6, 2014 at 1:06 pm | #

    It seems to me that the hallmark of a conservative is a belief that abstract ideas are more important than human suffering. For Thomas, a black family on vacation pulls off the highway but isn’t allowed in to the restaurant and goes hungry. Better that that racial “dishonesty”. It’s better to starve than get food from someone that would rather not provide it but for the Civil Rights Act. Only smart rich people have the luxury of being so stupid.

  7. Chris May 6, 2014 at 3:13 pm | #

    “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.”

    Of course, Thomas’s life shows that isn’t true. He’s much richer and more powerful than the vast majority of whites.

    Class matters more than race these days. A lot more.

    • Erstwhile Anthropologist May 7, 2014 at 4:22 pm | #

      “Class matters more than race”. Why always this tired fallacy, not borne out by implicit bias research and statistical data, and a false dichotomy.

      Really hope you’re not going to let this go, especially in light of last week’s Donald Sterling reprimand and the racist comments it was a response to, Tal Fortgang’s ‘I’ll never apologize for my white privilege screed’, or the Oklahoma ‘botched execution’ and the issue of racial bias in application (especially in relation to who is considered to ‘look deathworthy’; see research by Stanford’s Jennifer Eberhardt).

      • Blinkenlights der Gutenberg May 9, 2014 at 9:58 am | #

        The implicit bias research is certainly very interesting, but I’m not sure it falsifies the idea that “class matters more than race.”

        The thing about power is that, if you have it, other peoples’ biases cease to disadvantage you. If you’re black, and your boss is a racist, you have a problem. But if you’re black and _you’re_ the boss, and your employee is racist, it’s the employee who has a problem.

        There is, of course, a definite causal relationship between racism and (lack of) power. To some extent, it explains why the boss is so unlikely to be black. But the general tendency of our society is to overstate this relationship in order to better deny the more obvious (yet more unspeakable) causal relationship between power and power.

        Consider: if instead of giving the liberated slaves “nothing but freedom,” what if they got an ownership stake in the nation’s resources proportional to their population? Would racism have kept blacks down for all these years? Maybe, but it’s not obviously true. And honestly I don’t think it is true. I certainly have not seen any evidence conclusively suggesting (private) racism is the primary cause of the disparities we see today, and I’m not wholly ignorant of what evidence is out there (although I am not an actual researcher in this field).

        The greater importance of racism, I would say, is not in the private sphere at all (individuals discriminating, etc.) but in the public sphere where it has resulted in (and continues to result in) resistance to measures that would equalize wealth or guarantee access to resources. The slaves were liberated in a way that denied any crime had been done to them, or that they were in any way owed compensation — in fact, the slave _owners_ received compensation in jurisdictions where slavery was abolished by law (as opposed to war powers). That was a far more significant instance of racism than whatever personal discrimination liberated slaves suffered after the fact: it was that public racism that put them in such a disempowered situation in the first place, where private racism could affect them.

        But that’s precisely where racism and class become connected! In other words, racism is most important (and most potent) precisely where it is used to perpetuate economic inequalities. And that is not private racism of individual actors (that we hear so much about), but the public racism that defines the boundaries of acceptable policy. At least this is how I see it.

        • Your observations make an interesting note as regards trying to define the boundary line between race and class as active sites for the operations of coercive power against disadvantaged populations. No one argues that the line is often blurred. The issue is to understand it. This is where the feminist critique articulated in the idea of “intersectionality” comes in handy. All at the same time, one can be white, female and working class, and… you get the point.

          But I would consider this, and this a concrete example. Elites in the political class will sometimes betray their allegiances and motives in the public sphere in the effort to make their “private” issues a public problem for the rest of us, and they will sometimes operate at cross purposes even if those purposes all serve in their own ways to protect elite interests ever more securely. The example I have in mind the tension between the Republican Party, and President Barack Obama. I do not not find it a problamatic statement that the GOP is first and foremost motivated by racist animus against the President, but this is not the only source of their hostility. On the other hand, Obama takes actions that very much serve ruling class interests — even when appears not to do so. They both work for “The Man”, but it cannot be the case that “The Man” is unified and uncomplicated in what is supposed to be means by which “The Man’s” interests are served.

          Of course the level of complexity is greater than what I offer here. But I do offer it as an example of a contemporary situation that disinclines the effectiveness of any effort to pin down the project of power to this or that final telos.

  8. The Raven May 7, 2014 at 11:35 am | #

    There is a history of the ideas Thomas works with, and a history of their impact, and it is extra-ordinarily negative. When an ideology has been wrong about everything for 200 years, why believe? It is not like Burke, or Buckley, who saw in change the death of what they loved, but why would an African-American love racism?

    You make it sound like Thomas has adopted his judicial philosophy out of spite. Hunh. I suppose the spiteful is one sort of reactionary. Maybe that is so.

    Also, I would be interested in how Thomas’s wife’s politics relates to his, if you want to take a look at that. Were they both conservative libertarians before they met and married? Or…?

  9. NathanH May 7, 2014 at 11:46 am | #

    “Racism is…profoundly inscribed in the white soul”: What sort of race-baiting is this? I think Corey Robin needs to calm down a bit, though only some sort of mania would lead him to think Clarence Thomas is an intellectual. Pathetic.

    • jonnybutter May 7, 2014 at 12:53 pm | #

      “Racism is…profoundly inscribed in the white soul”:

      You think Thomas doesn’t believe this? If you think that, then you have to tell us why, preferably with citations.

      BTW, Thomas is definitely an intellectual – he even exemplifies a kind of intellectual, IMO.

    • cynicalatheist May 8, 2014 at 10:26 am | #

      What sort of race-baiting is this?

      Have you ever actually observed whites in their natural setting?

  10. The Raven May 7, 2014 at 2:58 pm | #

    As a footnote to this, here is Charles Pierce on Thomas’s support of states rights.

  11. Partisan May 7, 2014 at 6:02 pm | #

    To discuss a not entirely different subject, have you seen the Chronicle Review at the Chronicle of Higher Education’s recent article by Drew Maciag on how supposedly complex Burke is?

    • jonnybutter May 8, 2014 at 9:06 am | #

      As CR shows in his book and on this blog, psychologically, Burke *is* complex, subtle – quite deep. Silly rationalists (in the ordinary sense of the word) – like me, apparently – continually point out that conservatism has no – strictly speaking – rational substance. The conservative might choose to argue with you about that (or about something else – running out the clock is an important part of their strategy). But that Reaction has no rational basis is a feature not a bug, at least from the Believer’s pov. It’s anti-Enlightenment. It also tends to have a sense of humor about itself, humor which can be lacking on the other side.

  12. cynicalatheist May 8, 2014 at 9:56 am | #

    This is an utterly fascinating article. May I just ask a silly question about it: what the heck does thing #5, “Clarence Thomas resents the fact that as a black man he’s not allowed to listen to Carole King”, mean?

    • Corey Robin May 8, 2014 at 9:58 am | #

      I think it means that he dislikes the assumptions behind the notion of black authenticity, that there is one way to be black. I’m just consistently tickled that he chose Carole King as the vehicle of expressing that idea. I say that as a lover of Carole King.

      • cynicalatheist May 8, 2014 at 10:17 am | #

        Indeed, it is pretty funny. I have zero problem with Clarence Thomas listening to Carole King, or even Joan Baez! (should he so desire)

      • And I’m sure that The Shirelles (Will You Love Me Tomorrow), The Chiffons (One Fine Day), The Drifters (On The Roof), Aretha Franklin ([You Make Feel Like] A Natural Woman) and many other Black artists who made hits out of songs written for them by Ms. King feel exactly the same way as Justice Thomas!

        I am less sure that the politics of “authenticity” is his problem as is his dislike for the Black left, his embarrassment at being a Black (yes, I do smell a little self-hate there) and his tormented sense of ethnic/national identity. Black conservatism has long had an issue with Blacks – and their troubled effort to become “Americans” on their own terms – before the days of “authenticity politics” (such as how they might turn up in the various artistic/literary movements by American Blacks, for example).

        The problem, in other words, is not “us” believing him to be somehow “inauthentic” (although I know that some actually think that). Rather, it’s him and the positions he takes in opposition to the interests of his fellow African Americans, and their (our) willingness to say so and then act on that saying so. This must embarrass Justice Thomas big time. That he and other Black Conservatives (at least the ones I’ve read) will seem to take this personally is quite revealing, as your observations, I believe, most clearly demonstrate.

  13. bobdole May 8, 2014 at 6:43 pm | #

    I would point out a small put fairly significant flaw in your final paragraph which probably has larger ramifications: for Thomas it isn’t just the Constitution, it’s the declaration-constitution where the DoI embodies the foundations/original intent of the constitution. Thus the constitution isn’t just a “document w/ black people survived under in slavery” but rather the ideas of the declaration are much more hopeful

    Clarence Thomas, Toward a “Plain Reading” of the Constitution—The Declaration of Independence in Constitutional Interpretation, 30 HOW. L.J. 983, 985 (1987).

    • Corey Robin May 8, 2014 at 7:12 pm | #

      I had certainly considered this text (and several others, quite similar) in thinking about my argument. The problem is that I’ve never seen much evidence that it actually influences or structures his jurisprudence. I don’t read his opinions in the cases I’ve looked at as being informed by this natural law/DoI reading of the Constitution.

  14. cynicalatheist May 15, 2014 at 8:51 am | #

    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.

    Am I the only one who, upon hearing the conservative insistence on a “dead” constitution, is left bewildered? I don’t understand how a live nation based on a dead document could possibly be a good thing. It is as if the conservative justices decided to call themselves necromancers.

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