Clarence Thomas is a black American icon. There is no more American story, and no blacker story, than his. We should celebrate him as a living embodiment of this nation’s greatness, given his rise from the challenging circumstances of his upbringing—poverty, segregation, colorism, linguistic alienation—to holding a seat on the Supreme Court. Excluding Thomas from any history of African-descended people in this country would render it incomplete, just as ignoring his influence would leave any history of the current Court incomplete.
Justice Clarence Thomas is unquestionably a towering figure in American jurisprudence. As Scott Douglas Gerber, a leading authority on his legal theories, has noted, Thomas’s impact on constitutional law over the last quarter-century has been stunning. His long-standing views have carried the day in major cases. He has stuck to his principles in his three decades on the Court, and it has paid off. Thus, his insistence that the Commerce Clause does not empower the federal government to regulate everything under the sun is now the law. His position that federal agencies should have relatively restricted power is now the law. His view that the Second Amendment means what it says, and that individuals have a fundamental right to carry firearms, is now the law. His conviction that no constitutional right to an abortion exists is now the law. And, perhaps most poignantly, his passionately articulated view that the Fourteenth Amendment’s Equal Protection Clause forbids racial preferences in higher-education admissions decisions is now the law. Indeed, his principled stance that the Court’s job is to discern the original understanding of the constitutional provision at issue in a case has become the Court’s dominant approach. One could even plausibly hold that this is now Justice Thomas’s Supreme Court, not Chief Justice John Roberts’s. Thomas is its longest-serving sitting member, and his legacy will continue well after his time on the bench is over, as many of his former clerks are now federal judges themselves.
And yet, despite his now-undeniable skill as a jurist and judge, Thomas finds himself the target of criticism that differs in kind from that reserved for the Court’s other conservative justices. One expects public disagreement with his most controversial opinions; we should welcome intellectually rigorous dissent, for no one can test the validity of ideas without it. But too often, critics attack not Thomas’s ideas but the man himself—and this is especially true of black critics, who regard him not merely as mistaken but as a traitor who has forfeited his status as “authentically black.” For them, he is an Iago-like figure, driven by a perverse impulse to degrade African Americans. The quasi-religious conviction that Thomas’s reasoned defense of capitalism, color blindness, and individual liberty amounts to a disgust for his fellow blacks is, in my view, the outcome of a projected disgust for Thomas himself.
Why should this be? Other more or less conservative black figures have attained a status in the nation’s historical memory, and in the folklore of rank-and-file blacks, in line with their achievements. While Booker T. Washington’s program for post-emancipation uplift has fallen out of favor, no serious historian of African American history denies his significance. Ralph Ellison, while too idiosyncratic to pin down to any ideology, looks, from our historical vantage, like a more conservative figure than he may have appeared in his time. Though parts of Invisible Man can easily be read as a rejection of left-radical politics—the book rejects seemingly every conventional political position—its violation of the norms of contemporary mainstream black intellectual life has not kept it off college syllabi. One could argue that Invisible Man is too monumental a literary achievement simply to brush aside because of its purportedly errant politics. Even for those who see Ellison as a retrograde figure, his book is too important to the intellectual and social history of twentieth-century America to write out of the canon.
I would say something similar about Thomas. However controversial he may be, and however unrepentantly conservative his views, it is no longer possible to deny his stature and his influence on American life and law. He is a great man in a position of great power. Like any great man, he makes decisions whose consequences not even he can fully predict. And as with any great man, his very humanity—his virtues, flaws, personality, and persona—appear magnified, and often distorted, by the lens of the media and of history. His occasional errors in judgment and personal quirks take on symbolic significance. Thus, while recent controversies about his plane flights and vacations with friends may appear to tell deep verities about the nature of power, it is also true that his extraordinary biography has become an allegory of race in America. In fact, his identity as a black man sometimes overshadows the more basic, and yet more complex, fact that he is, first and foremost, a man—a human being.
I do not know whether Thomas’s blackness is as front-of-mind for him as it is for his detractors. I’m not a mind reader, nor do I have the kind of relationship with him that would allow for unguarded speculation about such things. I can attest that to speak as a black man often at odds with the stated consensus of his fellow blacks can be liberating. Just as often, however, race becomes a burdensome constraint on how one’s statements are received. For some, I will always be speaking, thinking, and acting “as a black man.” The specter of race always threatens to impart an undue exemplarity to whatever I—or whatever any black people—say or do, as though the firing of every synapse in our brains could be traced back to a racial origin. In that sense, race is both qualifying and disqualifying—a reason to believe a speaker’s account of himself (for, of course, blacks are always “authentic”) and, at the same time, a reason to disbelieve it (for, of course, a black person would say that).
When public scandal arises, the situation gets even more complex. My own experience with scandal makes me sensitive to the ways that Thomas’s 1991 Senate confirmation hearings have hovered like a dark cloud over his career. Back in the 1980s, a younger woman with whom I was carrying on an affair took our breakup badly. The affair was wrong, and responsibility rests squarely on my shoulders; I was violating my marriage vows and the trust of my wife. But after the affair ended, the young woman accused me of “assault with a deadly weapon.” This was untrue: I had not assaulted her, let alone with a weapon. Nevertheless, after presenting myself at a police station, I was arrested, booked, and charged.
In the following anxiety-filled weeks, the young woman came to realize that she did not want to continue the charade, and she stopped cooperating with prosecutors. The charges were dropped shortly thereafter, but not before the press had run with the story. At the time, I was a professor at Harvard’s Kennedy School of Government, and a high-profile figure, writing magazine stories and appearing on television with some frequency. And I was a vocal conservative. My name and picture were splashed across the front page of the Boston Globe, and the story became national news: “Harvard Professor Accused of Assault.” Unfortunately for me, the follow-up, while reported in the press, did not have the same reach. A black, conservative, Ivy League professor accused of a violent crime is a juicy story. A black, conservative, Ivy League professor getting exonerated is not.
While my race was not explicitly part of the story, it lingered under the surface. The stereotype of the hypersexual black brute resides deep within America’s racial unconscious. It appears in D. W. Griffith’s The Birth of a Nation and in Invisible Man, though to very different ends. It is deployed in Alice Walker’s The Color Purple and satirized in Ishmael Reed’s brilliant riposte, Reckless Eyeballing. It writhes in the primordial swamps of America’s fantasy life, and it can spring into view with little provocation. To anyone harboring this stereotype, even without being aware of it, the idea of an ostensibly sophisticated and elite black social scientist reverting to his “true nature” would seem, I feared, all too plausible.
The persistence of certain racial tropes can compromise the judgment even of those who strive to be fair-minded—even other black people. And yet a strain exists in American politics that does not hesitate to use those tropes. Since I was not really a political figure, I avoided this fate. The scandal blew over. With time and effort, I rehabilitated my reputation. Clarence Thomas was not so lucky.
When the liberal opponents of Thomas’s nomination to the Supreme Court manufactured the Anita Hill scandal—I won’t rehash the details—Thomas fell into the position that I had been in only a few years earlier. Here again was the black brute, preying upon an innocent woman who was powerless to extricate herself from his clutches. His alleged taste in pornography became a national concern. He found himself portrayed as an insatiable, would-be predator, in whose presence no woman was safe.
Whatever happened between Hill and Thomas, the response was out of proportion to the alleged offense. Thomas was angry. I understood that anger, even though I had never suffered a comparable scrutiny. I understood what it felt like to lose control over the face that you present to the public, as the press constructs an unrecognizable version of you. I understood, too, what Thomas meant when he called the ordeal “a high-tech lynching,” and I was befuddled when his black detractors denied this. For we know why white mobs once tortured and murdered black men in this country: the allegations against them were often sex-based, even if the offense amounted only to a glance or a misconstrued word. For Thomas, the imagined crime was basically the same, even if the punishment was no longer literal death. Only this time, the right-thinking, liberal “Neo-Puritans”—as the sociologist Orlando Patterson called the feminists who were Thomas’s most ardent tormentors—led the mob. That this black man, who rose from impoverished origins in the segregated South to the pinnacle of American government, was nearly brought down by such a strategy is almost unbearably ironic.
“The tendency to respond to Thomas by questioning either his honesty or his competence has been a through-line for his critics for decades.”
After all, those portraying Thomas as a sexual threat were often the same people who viewed themselves as hard-line antiracists. If one dared to suggest that they were trafficking in some of the nastiest racially coded ideas that America has ever produced, they would have taken deep offense. It’s possible that they were not consciously aware of what they were doing. If they considered how things looked from Thomas’s perspective, they might have rethought their strategy. But either they didn’t consider such things or they regarded the smear campaign as necessary to prevent a conservative from ascending to the Court. One could easily conclude that, for these progressives, opposing race-baiting was noble—until it became politically convenient to remind white America about its deep-seated suspicions regarding black men’s sexuality. The attempt failed. A New York Times survey showed that more people at the time believed Thomas’s account than Hill’s.
A psychosexual account of Thomas’s ordeal leaves unaddressed the attitude of fellow black leaders. The NAACP opposed his nomination to the Court and had previously called for his resignation from the Equal Employment Opportunity Commission. He has faced regular criticism from members of the National Bar Association, the largest African American legal network in the country. Whenever he issues a controversial opinion, a host of black commentators immediately attacks it.
Most close observers of Thomas’s place in American life are accustomed to this reaction. Nobody blinks, for example, when Ibram X. Kendi issues yet another broadside against yet another of Thomas’s perceived sins. As far back as 2013, before Kendi was crowned the arbiter of racial goodthink, he questioned how a man like Thomas could hold the opinions he does. Writing of Thomas’s concurring opinion in Fisher v. University of Texas at Austin, Kendi finds that the justice is “either being blatantly dishonest” in his comparison of affirmative action and de jure racial segregation or that he has a “blatant inability to decipher, to assess and to judge.” It could not be that Thomas is intellectually capable of coming to this conclusion and that he believes it. What black person who grew up in segregated Georgia could? (Never mind that Kendi misreads Thomas’s opinion, accusing him of questioning the sincerity of the University of Texas’s position on diversity, while believing the sincerity of segregationists’ “separate but equal” doctrine. Thomas clearly disbelieves both.)
This tendency to respond to Thomas by questioning either his honesty or his competence has been a through-line for his critics for decades. Thomas himself noted the phenomenon in his speech before the National Bar Association in 1998. At the time, he regularly heard the charge that he was merely following Antonin Scalia’s lead rather than working out his own conclusions about cases before the Court. Thomas remarked:
With respect to my following, or, more accurately, being led by other members of the Court, that is silly, but expected, since I couldn’t possibly think for myself. And what else could possibly be the explanation when I fail to follow the jurisprudential, ideological and intellectual, if not anti-intellectual, prescription assigned to blacks. Since thinking beyond this prescription is presumptively beyond my abilities, obviously someone must be putting these strange ideas into my mind and my opinions. Though being underestimated has its advantages, the stench of racial inferiority still confounds my olfactory nerves.
Thomas was right to point to the racist undercurrent that flowed through questions about his competence and independence. Only a failure of intellect, of courage, of race pride, or some deeper, unnamed corruption could account for his departure from the “common sense” of his tribe. Such an attitude ironically demonstrated the soundness of Thomas’s long-standing critique of affirmative action—that it made its beneficiaries, whatever their objective merits, appear less competent than their white peers. Here was Thomas, a beneficiary of affirmative action at Holy Cross and Yale Law School, encountering the exact questions about his abilities that he worried could haunt any black person as long as affirmative action persisted.
Who asked those questions? Some whites, yes. If we are being generous, perhaps they could be forgiven for asking—if only in their minds—the questions that affirmative action suggested. But shouldn’t blacks know better? We know that the best of us are just as good, just as smart, just as competent as the best of everyone else. So why were so many blacks eager to unleash against Thomas the very tropes about inferiority that had dogged us for centuries?
In the 1980s, I was subjected to similar criticisms. When I published my first major magazine article, “A New American Dilemma,” in The New Republic in 1984, the response was immediate. The piece called out the failure of black leadership to address persisting problems in poor communities, which the leadership continued to blame, unconvincingly, on white racism. Even before the article saw print, some of the country’s top black leaders, including Coretta Scott King and NAACP executive director Benjamin Hooks, called me into a meeting to answer for my scandalous claim that some troubles afflicting black communities—like high out-of-wedlock birthrates, violent crime, high unemployment, and lagging educational success—might have resulted from cultural maladjustment.
They were not happy with me. King shed tears after hearing me declare, “The civil rights movement is over!” After the article’s publication, the pathbreaking black political scientist Martin Kilson, a friend and colleague at Harvard, called me a “pathetic black mascot for the right.” I had uttered an unspeakable but, to my mind, obvious truth: there was a problem within black communities, and only those communities could fix it. Black leaders should help them address those problems squarely rather than deflect blame to “white racists,” who, 20 years on from the civil rights movement, were no longer the primary roadblock to black flourishing.
This pattern would repeat itself throughout the next 15 years. I would write or say something that ran afoul of the liberal official line of black leadership, and then get hit with criticism that usually had little to do with the merits of my position. It wasn’t just that what I was saying was beneath contempt—I was beneath contempt. There must be something wrong with me, a black man of modest origins, that would make me say such things. I wanted to curry favor with powerful conservative interests, perhaps, or I hated black people (and therefore myself). Few liberal black elites bothered responding to the substance of my arguments.
In an essay titled “Leadership Failure and the Loyalty Trap,” included in a book I published in the 1990s, I addressed what I thought was at work. “The time has come,” I wrote, “to break ranks with [the black leadership]. These elites are caught in a ‘loyalty trap.’ They are fearful of engaging in a candid, critical appraisal of the condition of our people because they do not want to appear to be disloyal to the race.” To escape the loyalty trap, to call out the civil rights leadership for their failures, was “to invite being called a traitor, an Uncle Tom, or even a racist.” Such a conception of loyalty was not worthy of the name. It may have helped black elites maintain their status and position, but it did nothing for ordinary, struggling African Americans.
I wasn’t the only black observer who saw and thought in this way. I met others, including Clarence Thomas, with whom I had forged a casual friendship when he was still with the EEOC. And yet I often felt alone. This is one of the most insidious effects of the loyalty trap. Falling prey to it ensures that one remains included among one’s peers; escaping it leaves one isolated and despised. The loyalty trap does not spring unexpectedly and maim you; it welcomes you in and fills you with the warmth of comradeship. That is what makes it so deadly: it feels good to be trapped.
It is not as though the tribalistic belonging that characterizes black elite consensus requires absolute ideological uniformity. If the group adopted true Soviet-style political orthodoxy, it would not be able to maintain legitimacy in its own eyes, much less those of outsiders. The rational justifications for its existence would fall away as it became clear that singularity of purpose trumped disinterested analysis. For example, as John McWhorter has observed, the brilliant liberal legal scholar Randall Kennedy remains a member in good standing of the black elite, despite the many positions he has taken that don’t jibe with mainstream race thinking. (I consider Kennedy a friend.) His heterodoxy on various issues actually strengthens the claim to legitimacy of the group as a whole. That it can accommodate thinkers like Kennedy can serve as evidence that the liberal black intelligentsia is not monolithic.
But some positions are so central to the self-conception of American blacks that anyone repudiating them will quickly find himself on the outside looking in. One such issue is race-based affirmative action; another is Clarence Thomas. For all of Kennedy’s heterodoxy, he has remained a staunch (if unusually clear-eyed) defender of the first and a staunch foe of the second. I would not impugn Kennedy’s motives for holding these positions. The more pressing question is why he and other superlative black intellectuals not only oppose Thomas’s jurisprudence and legal opinions but also seem to regard the man himself as unworthy of serious consideration.
The title of one of Kennedy’s chapters in his recent book Say It Loud!, “Why Clarence Thomas Ought to Be Ostracized,” states the matter succinctly. Thomas is “a Republican apparatchik skilled in self-promotion and the advancement of retrograde policies”; his “attentiveness to the interests of black Americans is scant”; he is “a talented con artist”; his legal thought “is little more than a distillation of reactionary sentiments, roiling resentments, and a superficial acquaintance with black political thought.” And so on.
More than a disinterested analysis appears at work here. Kennedy loathes Thomas. Not only that, but he seems to find something incomprehensible about Thomas, something that exceeds ideological and jurisprudential disagreement. Despite the vast gulf in intellectual acuity between Ibram Kendi and Randall Kennedy, both reach essentially the same conclusion: the only way to make sense of Thomas is to sweep away his arguments and search for some character defect. Kennedy does not recommend that we—and I cannot help but think that he means we African Americans—criticize, argue against, defend against, or even impeach Thomas. He recommends instead that we “ostracize” him, declare him persona non grata. What else can we do with a figure who refuses to heed the basic tenets of black affiliation, at least as construed by the black elite? Never mind that many ordinary blacks in this country have beliefs that align much more closely with Thomas’s than Kennedy’s. On the other side of the loyalty trap, in other words, we find a “disloyalty trap.” And just as the loyalty trap seduces with the warmth of camaraderie, the disloyalty trap punishes with frigid isolation and the presumption of bad faith.
And yet, it is a mistake to view Thomas as truly “disloyal.” For if Thomas does feel a deep responsibility to his people, as he has always insisted, then his dissent from the black elite party line should be understood as an expression of fealty, not treason. True loyalty is not blind affirmation of the nostrums handed down from the front office. True loyalty requires the courage to articulate criticisms that you anticipate will not be received kindly but that you nevertheless feel must be heard.
Thomas is often accused of bitterness. But what would one expect of someone regarded by so many of his people as dishonorable? I, too, have felt that bitterness. To some extent, I even gave in to it when I became something of a liberal in the 1990s and 2000s. At the time, when I “left” conservatism, I did so because I could no longer endorse its attitude toward race problems in America. But some part of me also wanted to be free of the burden of dishonor that my thought and beliefs had accorded me in the eyes of black peers. I remain proud of much of the work I did in that period, but I doubt that my political affiliations would have changed so dramatically and so publicly had I not also desired the embrace of my fellow African Americans.
For his part, Thomas seems never to have wavered. No matter how comfortable a life he has, it must require great strength and conviction to endure what he has endured in defense of the very principles that have made him an outcast. The desire for the approval of one’s peers and the tug of individual conscience are sometimes—more often than we would like to admit—at odds. In response to the leftward drift of some of his Supreme Court colleagues, Thomas has reportedly said, “I’m not evolving.” It’s a somewhat arch response to the idea that moving toward the center is a natural process that conservative justices undergo as they spend years debating with their more liberal colleagues. On the one hand, it sounds rigid. An a priori commitment to conservative jurisprudence risks closing Thomas off from arguments that, if he examined them on their merits, might persuade him to change his position. If those really are the better arguments, the more rigorous, more accurate reading of the case and the Constitution, shouldn’t he be willing to concede?
On the other hand, the idea that leftward drift is inevitable implies that something is inevitable about liberalism itself—that liberalism is the endpoint of any properly worked-through and field-tested judicial philosophy. We hear such sentiments echoed by left-liberal activists and intellectuals, who seem never to question that they are on “the right side of history,” as though the course of history were predictable, as though we had access to the judgments of the future, and as though those judgments were always unambiguous. To resist the notion of inevitable drift is to resist the idea that anything is morally and socially inevitable. We should want such sensitivity to contingency in our leaders, including our Supreme Court justices.
It may well be that Clarence Thomas is right. It may well be that, for example, race-based affirmative action harms blacks more than helps them and that, in the long term, we’ll all be better off without it. If that turns out to be true, will Thomas’s denigrators admit that he was right? This would correct a great wrong: Thomas’s unjust exclusion from a place of honor among his peers. I would like to believe that Martin Luther King’s famous aphorism—“The arc of the moral universe is long, but it bends toward justice”—could provide some assurances. I’d like to believe that it is true. But we cannot know which way the arc bends, or what kind of justice we’ll find at its end.
Top Photo: Clarence Thomas in 1991 (LEE CORKRAN/SYGMA VIA GETTY IMAGES)
