Clarence Thomas comes into his own

When I was in law school in the late 1990s, we often heard an oft-repeated criticism of U.S. Supreme Court Justice Clarence Thomas. He was well known for not often asking questions during the oral arguments of cases before the court. The direct implication—usually left unstated by those who pointed out Thomas’ tendency not to engage the advocates before him—was quite clear: He wasn’t up to the job and wasn’t smart enough to ask intelligent or even relevant questions.

It should be beyond obvious, of course, that to have suggested any such thing of any non-Republican or non-conservative African American man or woman in office would have immediately been met with vast and volcanic outrage. Thomas, for the most part, silently endured the lack of respect he received from the media and other elites. He had already indicated that he took great satisfaction in having survived the savage attacks on his character during his confirmation process and, having been confirmed by the U.S. Senate, would delight in serving for decades to come. Justice Thomas has fulfilled that intention and has now served on the court for three decades.

The attacks still come. In an article on House Majority Whip Jim Clyburn of South Carolina, The Washington Post initially characterized Thomas as issuing rulings that “often resemble the thinking of white conservatives.” The Post later removed the reference, but it represented yet another blatantly racist attack on a justice who is also a man of color. For some reason, to the leftist elites, it is unfathomable that Justice Thomas could have his own mind and reach his own conclusions. In their minds, a black man who does not buy into collectivism or who resists interpretations of justice that more closely follow leftist approaches simply does not deserve respect. He is, as the logic irresistibly unfolds for the left, a puppet of white masters. One would have to think hard to come up with a worse example of racism to hold up for consideration. Certainly, Justice Thomas’ detractors could go after him on substance, but they inevitably seem to go the other direction and argue he is somehow captive to white conservative thinking.

A recent New York Times article, however, unintentionally gives Thomas his due. Though the report is written to tie him to the political activities of his wife, Ginni, it succeeds in making the case for Thomas as a justice with a serious intellectual and moral agenda. To quote the Times: “Three decades into his lifetime term, Thomas has not built his reputation by writing landmark majority rulings. Instead, he has been setting the stage for a shift in influence, writing solo opinions on issues like free speech, guns, and abortion that are now poised to become majority opinions.”

Those two sentences, included in an article that was intended to undermine Thomas and delegitimate the majority conservative court of which he is a part, took me right back to my time as a law student. Having chosen to focus primarily on constitutional law, I took class after class that included the opinions of Thurgood Marshall, who preceded Thomas as the first African American justice on the court. One of the most notable aspects of Marshall’s jurisprudence was his repeated pattern of writing, either with Justice William J. Brennan Jr. or on his own, dissents claiming the death penalty was unconstitutional. Like his successor, Justice Thomas, Justice Marshall wrote his dissents (not terribly concerned about joining a consensus of the court if it required a compromise) aimed at pricking the conscience and unsettling precedents to bring about an eventual change in the law.

While it is a certainty that Justice Marshall would disagree with Justice Thomas about the content of the opinions in question—Marshall, after all, was a man of the left—there is little doubt that his approach validates the strategy of laying foundations for a different view to prevail. The left now realizes that Justice Thomas, far from being some kind of robotic justice too ill-informed to participate in proceedings before the court, has been a strategist and a thinker willing to trailblaze a path toward what he thinks is right. His dissents have argued that the court’s abortion precedents are wrong, just as Justice Marshall’s dissents argued against the death penalty. Justice Thomas is in the right, and he consistently applies the text of the Constitution.

And by the way, Justice Thomas’ senior status means that these days he asks his questions before the other justices speak. If he is in the majority and Chief Justice John Roberts is not, Justice Thomas decides who writes the opinion. Ten of his clerks now have lifetime federal court appointments. Enough with the left’s condescension. Respect for Clarence Thomas is long overdue—and well-earned.