Clarence Thomas’s Black Nationalist Jurisprudence

I don’t know a lot about the role of Anita Hill in Clarence Thomas’s Supreme Court confirmation hearings. I was just a bit too young to understand what was happening, and so I’m looking forward to watching the new HBO movie on that topic. Thomas himself famously called it a “high tech lynching.” My suspicion is that Thomas probably was guilty of sexual harassment, but that there was almost certainly a concerted effort to link it to his race in ways that we should find abhorrent. On the other side of the aisle, Bill Clinton certainly seems to have been guilty of similar activities.

In the spirit of preparing for that viewing, I’m revisiting an old post of mine on Clarence Thomas’s Counterrevolution wherein Corey Robin (of The Reactionary Mind fame) discusses the intellectual legacy of Justice Clarence Thomas:

“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.”

Reading Robin’s efforts to make Thomas intelligible always has me worrying about why African-Americans don’t take anti-statist positions more often (libertarianism, anarchism, localism.) After all, you can think that there is a government harm without thinking there is a government solution.

That’s basically the heart of the Black Panthers’ ideology: the white police can terrorize Black communities, but they can’t fix them. On the Black Panther view, only Black people can fix their own communities, because when white people try to do it it’s just as cover for more colonialism. Which is why their most powerful and dangerous program wasn’t the guns, it was the Free Breakfast for School Children program.

Tally up the affirmative action and racialized mass incarceration; the public housing and the brutal policing; the food stamps and the white social workers; the Black Presidency and the decades of shame and racism in every government office; integrated schools and two-hour bus rides that made accountability impossible; racial gerrymandering and the destruction of most of the neighborhood non-religious institutions in African-American communities.

Now ask yourself: did African-Americans come out ahead?

Becky Pettit did the math, and she says no. Lots of African-Americans are skeptical that a white supremacist government will ever offer solutions, simple or complex, that are actually tailored to the needs of their community. Perhaps the skeptics are wrong. Perhaps we can do better. But we haven’t so far. We’re again talking about a New Deal for whites, without ever having had a new deal for Blacks.

Many white conservatives (and more than a few white liberals) think these disparate outcomes can be explained because Blacks are inferior. A lot of movement conservatives follow either Charles Murray or Amy Wax on this: it’s either a natural inferiority (Murray) or a cultural one (Wax.) But Black conservatives like Thomas seem to think it’s something else: they think we white liberals just keep making the situation worse, and that we don’t care so long as we can assure ourselves that we’re well-intentioned.

And our treatment of Thomas is part of the problem: we ignore or disdain him, or worse, insinuate that he’s a race traitor who can’t recognize a simple self-contradiction. How could he come out against affirmative action given that he benefited from it? Consider the Parents v. Seattle concurrence and the Zelman concurrence. These are serious acts of jurisprudence: among other things, Justice Thomas points out that integration destroyed centers of Black excellence, took excellent Black teachers out of Black classrooms and put them in White classrooms, leaving majority Black classrooms with substandard instruction, frequently by whites who didn’t understand the culture and harbored unconscious racism.

On Thomas’s view, the 14th amendment isn’t race blind; it proscribes race consciousness except when responding to state discrimination. In Zelman, Thomas says that the history of poor performing minority schools DOES count as state discrimination in need of remedy; and in Seattle he says that the kinds of remedies that can be used should never include the individual racial classification of elementary school children. Lots of other remedies are still possible, but don’t go creating huge bureaucracies of racial classification, because that hasn’t tended to be a good thing in US history. Thomas’s point is that it’s not enough to say “this time it’s different,” because that’s what whites always say.

Has race-conscious hiring through affirmative action helped African-Americans? Certainly in some cases! And yet at every income level, Blacks have higher levels of educational attainment than whites, while they also have higher unemployment for their educational attainment than whites. Their unemployment rates reflect longer searches, with less success, even with equal or better qualifications. These are facts that should make us blush with shame, and panic that our worldviews and preferred remedies are inadequate.

It’s no better in universities, but here is where I begin to part ways with Thomas. We’ve gotten to such a weird place on the court’s race decisions that we’re forced to debate the benefit to white people of having African-Americans and other racial minorities in the classroom instead of remembering the serious racism that infects all of our institutions.

Cribbing from Elizabeth Anderson here, Fisher and the university-level affirmative action cases are a total muddle for advocating diversity for its own sake. The liberal justices have been backed into a corner and it seems that they know it. The real problem the court faces in cases like Fisher, Zelman, Seattle, etc. is justifying affirmative action or individual racial classification or school choice in the absence of de jure discrimination. Which is dumb, because we had a whole lot of that de jure discrimination not so long ago, and it clearly still echoes into the present.

The long history of de jure discrimination implicates every US institution, regardless of particulars, but the whole of the Supreme Court has disagreed with that reading. Thus, they’re having a pretty silly argument in cases like Fisher: instead of saying, “Hey, remember slavery, segregation, and the KKK? They’re still relevant here!” the court says, “Well, forget about slavery, segregation, and the KKK: wouldn’t it be nice if we had more skin colors and ethnic groups in Freshman composition?” The real problem is that everyone on the court accepts that “Forget about it!” rubric for thinking through racial remedies. That problem goes back to Milliken v. Bradley and the refusal to enforce interdistrict busing.

Yet Thomas is the one Justice who doesn’t forget about that history and continually brings it up. And what he says in cases like Seattle and Zelman is: as a Justice, it’s my job to keep my eye on the de jure. De jure justifications at the SCOTUS level affect national policy for centuries, and we can’t afford to make exceptions for racialized classifications just because the individuals involved think they’re doing the right thing. After all, that’s how we got segregation and internment camps in the first place.

And here’s where I think Thomas is offering a powerfully Black Nationalist perspective: he seems to me to be saying that as a matter of policy we should remember that we live in a white supremacist society, that Blacks are in the minority and the political institutions will usually be controlled by white politicians and white voters. So always be careful of the tools and remedies you make available to those white racists, because they’ll use the rubric of the white man’s burden to justify all sorts of evils. They’ll use well-meaning liberals as the tip of the spear, like colonial powers used missionaries or US neo-imperialism uses the Peace Corps.

I mean, as a white liberal, I find myself worried about the ways good intentions and reform get twisted into such terrible institutions for non-whites, as they’ve been twisted over and over and over again. We’re often told that when we tally up the costs and benefits of government we should ignore the effects of the police and prisons because they’re not justified in terms of helping African-Americans. But of course they are: law and order rhetoric is popularly justified by pointing to Black victims and support without noting that shock-and-awe policing and mass incarceration are a poor remedy that creates as many victims as it avenges.


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