How on God’s green earth did Clarence Thomas just write an opinion on race and jury trials that was well to the right (or was it?) of Brett Kavanaugh, John Roberts, Samuel Alito, and even Neil Gorsuch?

In a 7-2 vote, the Supreme Court today overturned the conviction of Curtis Flowers for murder; he had been on death row in Mississippi for 22 years. The Court held, in Flowers v. Mississippi, that the trial court had wrongly concluded that the prosecution’s decision to strike a potential juror, who is black, was not motivated by racial discrimination. Flowers, who is also black, has been tried six times for the same murder by the same prosecutor. There is a long record of the prosecutor striking potential jurors who are black.

What’s interesting about the Court’s opinion is the line-up. Conservative Justice Brett Kavanaugh wrote the majority decision; he was joined by Chief Justice John Roberts and Justice Samuel Alito, both conservatives, as well as the Court’s four liberal justices. The only two dissenters were Justices Clarence Thomas and Neil Gorsuch.

A lot of the social media commentary I’ve seen has focused on Thomas’s dissent. How is it possible for Thomas to deny a claim of racial discrimination so overt and patent and persistent that even Kavanaugh, Roberts, and Alito were forced to acknowledge it? “The numbers speak loudly,” Kavanaugh wrote. “Over the course of the first four trials, there were 36 black prospective jurors against whom the State could have exercised a peremptory strike. The State tried to strike all 36.” That stark background reality clearly influenced the majority opinion, as Alito took pains to emphasize in his concurrence. How could Thomas pretend otherwise?

As always, it pays to read the whole of Thomas’s opinion. As is often true of a Thomas opinion, this one is long. Forty-two pages long—far longer than Kavanaugh’s majority opinion. The first 32 pages of Thomas’s opinion focus on the facts of the case and the various rules for determining whether discrimination is present, whether peremptory strikes are invalid, and so on. There Thomas gives the specific reasons why he thinks the majority is wrong in its conclusions about this particular case.

But, honestly, that’s not where the real action of Thomas’s opinion lies. It’s in the last 10 pages—the part where Gorsuch is so freaked out by Thomas’s reasoning that even he takes flight from the opinion (this often happens in a Thomas opinion; the Court’s conservatives join him in a few parts but get the hell out of there when he starts showing his hand)—that Thomas unveils his real argument, what the whole case is really about for him. As is often true of Thomas revelations, it’s of a secret that’s been hiding in plain sight for decades.

Simply put, Thomas does not believe that the Constitution should prohibit the state or the defense from striking down potential jurors on the basis of race. What’s even wilder is his reasoning for that claim. Thomas believes that the role of racism in jury trials (as well as society as a whole) is so intense—”racial prejudice exists,” Thomas writes in his dissent, “and can affect the fairness of trials”—that the only protection, or at least the main protection, a black person will have against that racism is his or her ability to strike down potential jurors who are white. Because “race matters in the courtroom,” he concludes, Thomas would “return to litigants one of the most important tools to combat prejudice in their cases.”

That “return to litigants one of the most important tools” is a reference to racially based peremptory strikes, which were declared unconstitutional by the Court in the 1986 case Batson v. Kentucky. Peremptory strikes are decisions by the defense or the prosecution to strike a potential juror without having to give a reason. In Batson, the Court held that the prosecution could not use such strikes to strike jurors on the basis of race. Later, it extended that rule to the defense. Neither side can strike potential jurors on the basis of race.

From the moment he joined the Court, Thomas has taken issue with Batson. In one of his very first cases, Georgia v. McCollum (1992), Thomas challenged the Court’s ruling that a white defendant should not be allowed to strike down potential jurors who were black. While the Court’s other conservatives focused their ire on the Court’s ruling that a defendant was a state actor and thus constrained by the Batson rule—Scalia called that claim “sheer inanity”—Thomas took the utterly novel approach of swapping out the actual white defendant in the case for a hypothetical black defendant. Suppose, he said, a black defendant was facing the prospect of a majority-white or all-white jury. Would we not want that defendant to have the power to strike down potential jurors who were white?

Even more explosively, Thomas reached back to a post-Reconstruction-era case, Strauder v. West Virginia, which struck down the state’s blanket prohibition on blacks serving on juries, to argue that the Court had once claimed, and “reasonably” so, that “all white juries might judge black defendants unfairly.” Thomas made the added critical point that such claims about all-white juries being prone to racism can be sustained, under Strauder‘s reasoning, even “without direct evidence in any particular case.” In other words, even when there is no evidence of racial bias, a court can assume that jurors or juries will be biased for reasons of race. In 1992, Thomas insisted, as did the Court in 1880, that “the racial composition of a jury may affect the outcome of a criminal case”—whether or not there was any evidence of that racial composition affecting the outcome in the particular case. “I do not think that the premise of Strauder has become obsolete,” he concluded. So patent and persistent was the significance of race.

Fast forward to 2019. In Flowers, Thomas again invokes Strauder, claiming again (he almost uses the same phrasing from Georgia v. McCollum) that “the racial composition of a jury could affect the outcome of a criminal case.” He adds: “The racial composition of a jury matters because racial biases, sympathies, and prejudices still exist. This is not a matter of ‘assumptions,’ as Batson said. It is a matter of reality.” He even cites several academic studies, in journals like Personality and Social Psychology Bulletin and the Journal of Ethnicity and Criminal Justice, that he claims confirm the role of racial bias in jury trials. “Academic studies appear to support this commonsense proposition.”

What’s more, he says, the Court knows that “race…matters.” Yet it “continues to apply a line of cases that prevents, among other things, black defendants from striking potentially hostile white jurors.” Citing his own earlier opinion, he concludes, “I remain ‘certain that black criminal defendants will rue the day that this Court ventured down this road that inexorably will lead to the elimination of peremptory strikes.'”

His big take-home point?

The more fundamental problem is Batson itself….I would return to our pre-Batson understanding—that race matters in the courtroom—and thereby return to litigants one of the most important tools to combat prejudice in their cases.

This is the heart of the opinion, as I say. And again, it’s telling that this is exactly the part of the opinion that Gorsuch refuses to join. Precisely because it’s where Thomas most distinguishes himself from other conservatives on the Court: by insisting that racism is such a pernicious and pervasive force in the courtroom that the best weapon against it is to empower black defendants to use their peremptory strikes in order to create juries that look more like them.

How this conclusion can be squared with the first 33 pages of the opinion—where Thomas repeatedly denies that racism played a role in the prosecutor’s decision to strike various jurors—or in his many other opinions where he seems not to be particularly bothered by the role of race in policing and prisons, is a complicated issue. But luckily, I’ve got a book coming out in September, The Enigma of Clarence Thomas, that seeks to make sense of these and similar puzzles. You can buy it here.

The book has gotten some great blurbs.

“Only a political diagnostician as keenly incisive as Corey Robin could render such a complex and fascinating portrait of Clarence Thomas. This meticulous analysis of the touchstones and turning points in Thomas’s life finds ideological consistency in the seemingly quirky patchwork of his thought: an odd amalgam of ultra-libertarian revanchism, patriarchal fundamentalism, black nationalism, and state-backed authoritarianism. Robin delivers a riveting guide to the multiple paradoxes that underlie Thomas’s unusually self-protective persona, and masterfully shows their resonance in the juridical rulings that govern us all.”

—Patricia Williams, author of The Alchemy of Race and Rights

“It requires the ferocious curiosity and intellectual courage of a Corey Robin to rush into the heart of one of the most vexing mysteries faced by modern Supreme Court watchers: How to reconcile Justice Clarence Thomas’ radical conservatism with his unforgiving use of race as jurisprudential lodestar? For political conservatives who have been blinkered to Thomas’ essentialism on race, and liberals who have refused to reckon with his lived experience with black marginalization and stigma, this book will be equally discomfiting. Robin steps into the grey space we have all largely ignored in assessing Justice Thomas, in order to marry the constitution of a black nationalist to the capitalism, sexism, and integration-skepticism of an ascendant movement conservative. Robin’s Clarence Thomas is less an enigma than an Invisible Man; a living jurisprudential testament to the doctrine and dogma of a jurist who utterly rejects liberal claims to a monopoly on legal racial equality, even while insisting that Trump-era political conservatism is the best engine for promoting the same. Robin’s Clarence Thomas is neither silent nor marginal. Our failure to understand why that is, how it occurred, and what it implies, comes at the peril of both conservatives and liberals alike.”

Dahlia Lithwick, Senior Editor, Slate

“Clarence Thomas is by far the Supreme Court’s most interesting and perplexing Justice, criticized by many and understood by few. Patiently working through all of Thomas’ writings, Corey Robin tells a remarkable story about a remarkable figure—a man of complex views whose austere philosophy has been hiding in plain sight. Robin shows us Thomas’s black nationalism, his deep pessimism about race relations, his fervent embrace of capitalism, and his stern demand for a severe and uncompromising system of criminal justice. What emerges is a portrait that is as fascinating as it is disturbing. You may think you know who Clarence Thomas is. But you don’t know the half. This book is a revelation.

—Jack M. Balkin, Yale Law School

“When Clarence Thomas took his seat on the Supreme Court, no one could have predicted that he would have become the silent justice and the most influential justice. Corey Robin’s elegant and insightful analysis shows how Thomas’s blend of black nationalism and conservatism helped him fashion a jurisprudence that will shape American life for years to come. This is the book Court watchers—which we all should be—have waited for.”

Annette Gordon-Reed, Pulitizer Prize-winning author of The Hemingses of Monticello



  1. Lichanos June 21, 2019 at 3:31 pm | #

    Yikes!! I think I have to read your book!

  2. robert kircher June 21, 2019 at 6:38 pm | #

    Have we learned that both conservative and liberal views when strained by reality can turn on themselves? I think we have especially in Thomas’ case. Irrationality apparently has its own logic and stands in the face of solidly better or superior judgement. It will be interesting to see how Corey handles this one.

    • jonnybutter June 23, 2019 at 9:04 am | #

      Europeans built castles in the air – castles of race and hierarchy and ‘rationalism’. Clarence Thomas and other black conservatives come along and identify them as dungeons, not castles. Then they move into them.

  3. mahood June 24, 2019 at 2:25 pm | #

    I guess I don’t understand why one wouldn’t just say that it’s okay for defendants, who have a presumption of innocence, to strike jurors for any reason at all, without being questioned about it, whereas the state — the prosecution — has to represent the people in general and shouldn’t get to strike jurors on the basis of race.

    • LFC July 2, 2019 at 4:20 pm | #

      That might be the best position, but according to the post, the Sup. Court in Georgia v. McCollum extended the Batson rule to defendants — so one would have to overrule McCollum to get there.

      Btw, one notable feature, at least to a casual observer, of Thomas’s work on the Court is that he really doesn’t believe in stare decisis (the principle that precedents should generally, in the absence of very significant reasons, be followed). If he doesn’t agree w a previous SCOTUS decision, he generally seems not to have a problem saying it was wrongly decided and shd be overruled. Scalia wasn’t a big fan of stare decisis either, I think, but he least he paid some lip service to it. I’m under the impression that Thomas hasn’t even bothered to do that.

      • LFC July 2, 2019 at 4:22 pm | #

        correction: that phrase should read “he at least paid some lip service…”

  4. lorem June 25, 2019 at 9:00 am | #

    Every time you do this it irritates me that I still can’t read your book. You tease!

  5. Dwain Zsadanyi September 16, 2019 at 3:23 pm | #

    Thank you for having read, in its entirety, Thomas’ opinion. (And yes, I have pre-ordered the book.)

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