For the vast majority of cases defining modern major American legal issues, you can find decisions authored by every justice to sit on the Supreme Court in the past 20 years, with many justices having written important opinions across multiple areas of law. Every justice, that is, except for Clarence Thomas, whose legal interpretations are so different from those of his peers that he often writes his own opinions even when he votes with the Court's majority. "In just the past term, Clarence Thomas has written concurrences saying that students have, essentially, no free-speech rights when they are under school supervision and that there is no constitutional right to abortion," his biographer, Michael Fletcher, tells Gelf. "I think even many of the court's conservatives want to have more nuance than that."
"One of the justice's distinguishing traits is his stubbornness. Justice Thomas is not one to yield to criticism; in fact it seems to cause him to dig in deeper."—Clarence Thomas biographer Michael Fletcher.
Fletcher, together with fellow Washington Post writer Kevin Merida, just penned the most revealing biography of Thomas to date: Supreme Discomfort: The Divided Soul of Clarence Thomas. Their book makes clear that Thomas's lack of major legal scholarship and his frequent lone dissents are indicative of a greater sense of alienation in his life than simply the isolation of one justice aligning against a majority of the other eight. To Fletcher and Merida, the more interesting sense of separation is how Thomas's judicial philosophy has led to a sense of racial isolationand vice versa. That isolation stems not from Thomas's place as the sole African American on the Supreme Court (and only the second in history, after he replaced Thurgood Marshall), but from his status as a hardened pariah to his own race through his vehement opposition to issues important to many African Americans, especially affirmative action.
In their book, Fletcher and Merida deftly examine how this racial conflict has affected Thomas's personal life and jurisprudence. It is a biography that asks as many questions as it answers; perhaps if Thomas had agreed to be interviewed for the bookunlike pretty much everyone else in his life, Thomas declined to participatethe often maddening inconsistencies in his life and work might be better explained. But this is no fault of the authors; digging into Thomas's inconsistencies are the point of the book and what make it such a fascinating read. In the following interview, Fletcher tells Gelf how Thomas came to embody such contradictions, and how he would square his career trajectory with his stance against affirmative action and his other right-wing viewpoints. This interview has been edited for clarity.
Gelf Magazine: If you could have interviewed Justice Thomas for this book, what are the one or two most important questions you would have asked?
Michael Fletcher: We would attempt to get Justice Thomas to reconcile his judicial philosophyparticularly his opposition to affirmative actionwith his own biography. Race has been a factor throughout Thomas's professional life. We're curious about how he views and explains the role race played in his career. We also would like to examine Thomas's distrust of people he views as elites. Why is he so resentful of some light-skinned African Americans? White liberals? How can he harbor resentment against them and yet seemingly be so forgiving of people such as Jesse Helms and Strom Thurmond, who have espoused racist views in the past?GM: Court watchers say that Supreme Court justices become more liberal with age. Has Thomas' continued conservatism (by all accounts he's the most conservative on the court) surprised you?
MF: Not particularly. One of the justice's distinguishing traits is his stubbornness. That is something that even his friends accuse him of. Justice Thomas is not one to yield to criticism; in fact it seems to cause him to dig in deeper. Moreover, his judicial philosophy does not seem to allow for much wiggle room on issues. While many jurists see the law as filled with gray, Thomas once described it as yielding "right and wrong answers." And, clearly, he thinks he is right.
GM: But if Thomas believes in "right and wrong answers," you'd think he'd have to re-evaluate whether his philosophy was "right," given the number of times the other eight justices align against him. I feel like Thomas must hold a record for lone dissents.
MF: He is certainly up there when it comes to lone dissenters. Some of Justice Thomas's former clerks say that he sees himself as a purist when it comes to the law and that he believes he has courage of conviction. So he views standing alone as a sign of being principled. One of Thomas's favorite justices is Justice Harlan, the former slaveholder who was the one justice to vote against the court's ruling in Plessy v. Ferguson, which upheld the concept of "separate but equal" for more than half a century. Harlan stood alone in 1896 and he was not fully vindicated until the 1954 Brown v Board of Education decision. Thomas sees his example as a courageous one.
GM: Thomas's confirmation hearings are discussed in great length in the book, especially in terms of how they affected him personally. Do you think they also affected him professionally? Has he hardened his political (and judicial) views as a result?
MF: It seems that it has hardened him, if only in this way: He now has very little contact with people who do not share his view of the law and, presumably, his political beliefs. Also, even his friends say that he remembers who was with him and who was against him. For much of his tenure as head of the Equal Employment Opportunity Commission, Thomas would meet with and debate with civil-rights advocates and others. Now, Thomas inhabits a largely conservative world. Those are the people who fête him, invite him to speak and offer him the embrace of friendship and respect. Meanwhile, he has become estranged from many people and organizations on the left. Yes, he does some surprising things, like helping Democratic judicial nominees through the confirmation process with the occasional well-placed phone call, but mostly his friends are on the right.
GM: The book paints a picture of Thomas as the Court's most politically active justice. What do the other justices think of Thomas's making his political beliefs, as opposed to judicial beliefs, well known?
GM: So you're saying it's no coincidence Bush v. Gore was 5-4. Shouldn't more attention be paid to that decision, given its implication (as you point out) that justices still to a great extent follow the philosophies of political parties?
MF: You could probably say that, to some degree. Maybe we should have written more on Bush v. Gore. But it is not so much that justices follow the philosophies of parties. It is more that everyone knows what it means when President Bush says something like he doesn't want to appoint "activist judges." You know that he is talking about appointing conservative judges, judges who are for the power of state government over federal control, judges who see no constitutional right to abortion, judges who will uphold the death penalty and narrow the separation between church and state by supporting things such as school vouchers. Never mind that conservative judges tend to overturn more precedents and statutes than other judges these days. Similarly, we know that when Democrats talk about appointing judges who will protect rights, they will more than likely uphold affirmative-action efforts, support Roe v. Wade, uphold federal regulatory laws and abortion rights, and be more vigilant about separating church and state.
GM: You write, "Thomas once said he would never accept a race-based job, and yet he spent an entire federal career in such positions, including a stint as the longest-serving chairman of the Equal Employment Opportunity Commission in the agency's history." Thomas is the second African American in Court history, having filled the seat vacated by the first. How does heor has he ever tried toreconcile these inconsistencies?
MF: It seems that those points are irreconcilable, which we feel lies near the center of the justice's divided soul. For public consumption, Thomas disavows the role race has played in his career. His friends once said that while many people would speculate that Thomas made it to Yale Law School because he is black, Thomas would say he made it despite the fact that he is black. And while there may be something to that, there is also something to the notion that race played a role in Thomas getting many jobs, including his appointment to the high court.
"Clarence Thomas doubts the value of racial diversity, arguing that there is nothing inherently inferior about, say, an elementary school that happens to be 95 percent black."GM: Your book suggests that it's not just a "disavowal" of the role race has played, but a sense of denial.
MF: You're right. He rarely speaks directly to the point, preferring to make cryptic comments on the subject. But in effect he does deny the role of race in his career.
GM: If Thomas believes that segregation is unconstitutional, but that many of the tools of integration (busing, affirmative action) are also unconstitutional, how would he propose remedying segregation?
MF: He says segregation already has been remedied in the sense that you cannot legally separate blacks and whites anymore. But he also says that racial imbalance is not the same as segregation. He doubts the value of racial diversity, arguing that there is nothing inherently inferior about, say, an elementary school that happens to be 95 percent black.
GM: But schools and communities with overwhelmingly minority populations receive less funding, have poorer facilities, and lead to fewer educational opportunities. It may not be "inherently inferior," but there is a correlation. How would Thomas propose addressing these disparities?
MF: He would say that is a problem for state legislatures or Congress to grapple with, not the courts. He would say it is beyond his reach as a justice to deal with that. If you asked him about it in a nonjudicial context, we suspect he would say that resources do not guarantee a good education. Given his fondness for the segregated Catholic schools he attended for a while in Savannah, he would likely say it may be helpful to have more resources, but more resources are not the essential ingredient in a good education.
GM: Has Thomas ever discussed whether he would have dissented from Brown v. Board of Education?
MF: Yes. He says he would have voted to end segregation, which he sees as unconstitutional. At the same time, he saw some of the sociological evidence that accompanied that caseshowing, for example, that black girls preferred black dolls over white dollsas irrelevant. He thought the case could have stood on the bedrock of the Declaration of Independence's statement that "all men are created equal," which he says illuminates the Constitution.
"While many jurists see the law as filled with gray, Thomas once described it as yielding 'right and wrong answers.' And, clearly, he thinks he is right."GM: There will be a time in the not-so-distant future when a state like California passes a law permitting gay marriage, and a challenge to that law will reach the Supreme Court. If Thomas takes his pro-states-rights belief system to its logical endpoint (as he did in Gonzales v. Raich, the 2005 medical marijuana case), doesn't he have to rule that California may pass this law?
MF: Good question. I would think so. But originalists can also reach into the depths of American traditions or the traditions of marriage or something that could make that question more complicated.
GM: But wouldn't you have to be insane to believe that Thomas would do such a thing? It's pretty obvious to me that he, like Scalia, would wipe this law off the books.
MF: I don't know if that would make one insane. But like you, I'd be watching that case very closely to see how an originalist/federalist parses it.
GM: One of my principal complaints about originalists and strict constructionists is that, since they claim the constitution doesn't change, their reading of it should therefore be fairly consistent. But Thomas' states-as-laboratories argument in Raich seems to be the opposite of his opinion in Gonzales v. Oregon, when he voted to strike down the state's physician's assisted suicide law.
MF: We agree. But one explanation of the apparent flip-flop is that Thomas's dissenting opinion in the Oregon case made the point that it was "perplexing to say the least" to find the court interpreting federal drug law narrowly in this instance when earlier, it upheld federal authority to prevent states from authorizing the use of marijuana for medical purposes in Raich. In this case, he was going with stare decisis, which he rarely does.
GM: Until now, Thomas has not authored many of the Court's "major" decisions. Do you think this will change given the court's swing rightward with the appointment of Chief Justice Roberts and Justice Alito? Will Thomas be able to generate consensus, or is he still too far right of Kennedy to have a large influence on major constitutional issues?
MF: I think Thomas is still too far to the right and has a tendency to want decisions that are too sweeping for Kennedy, and perhaps others, to stomach. In just the past term, Thomas has written concurrences saying that students have, essentially, no free-speech rights when they are under school supervision and that there is no constitutional right to abortion to be found in the Constitution. I think even many of the court's conservatives want to have more nuance than that.
GM: You say this very matter-of-factly. Is there anything you've learned about Thomas that surprised you?
MF: Most of what has surprised us has to do with the inner man. Thomas's sense of turmoil, his resentmentshis sense of being a victim of liberal and black elitesis greater than we imagined. Also, his sense of racial solidarity is greater than we knew. He also is more of a political player than we imagined, going so far as helping Democratic appointees get through the judicial confirmation process. We would have never expected that.
GM: Thomas has been on the court for 16 years. If he retired tomorrow, what would be his legacy?
MF: He would go down as the most conservative justice on the current court, which came to symbolize the ideological divide that now characterizes the court. He also would, I think, be discussed as the second African-American justice whose jurisprudence was counter to that of Thurgood Marshall.
Related in Gelf
Gelf tries to understand why Thomas and Scalia would vote to allow an international court to determine whether an American can own a gun.
Related on the Web
Harvard sociology professor Orlando Patterson reviews Supreme Discomfort in the New York Times.