In both black conservatism and black nationalism, there is a suspicion of white liberalism and its African American allies, skepticism of the state, pessimism about integration, a focus on the family, an emphasis on traditional morality, an appreciation of black business, and a belief in the saving power of black men. While the two traditions are by no means identical, they overlap in multiple respects.24 That is why Thomas has been able to forgo the left for the right without having to give up the black nationalism that can be found on either side of the spectrum. — 11: 137-142
While Thomas insists that judging involves the impartial application of relevant principles, he’s quick to add that “reaching the correct decision itself is only half the battle. Having the courage of your convictions can be the harder part.” — 18: 247-249
I reject virtually all of Thomas’s views. In presenting his vision, however, I’ve opted for interpretation and analysis rather than objection and critique. I’ve included dissenting voices—either my own or those of other justices or analysts in the media and academe—only when they amplify lines of argument or assumption in Thomas’s jurisprudence that might otherwise be inaudible. As a longtime reader of the right from the left, I know how tempting it is for people on one side of the spectrum to dismiss those on the other as unthinking defenders of partisan advantage. Because the temptation to dismiss is even greater in Thomas’s case—perversely mimicking the dismissal of Marshall—and because it’s sufficiently difficult to get people to believe that Thomas has a jurisprudence, much less to hear it, the imperative to let him speak without the interruption of easy criticisms is that much more acute. Thomas’s is a voice that unsettles. His beliefs are disturbing, even ugly; his style is brutal. I want to make us sit with that discomfort rather than swat it away. This is not so that we adopt Thomas’s views, but so we see the world through his eyes—and realize, perhaps to our surprise, that his vision is in some ways similar to our own. Which should unsettle us even more. — 22: 308-318
words of Malcolm X, rather than as “an inherited — 34: 480-480
On the one hand, in the context of the ban on gay marriage, Thomas has argued that dignity is “innate”—so innate that no act of humiliation, degradation, or oppression by the state could deprive a person of it. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved,” Thomas wrote in one opinion. “Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”52 — 78: 1127-1132
On the other hand, Thomas also argued, in an opinion on affirmative action, that “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”55 How such an imperturbable self could be demeaned, have its dignity diminished or called into question by the actions of an unforgiving world, when the dignity of the slave remains untouched, is left unexplained. — 79: 1141-1145
EVEN IF AFRICAN Americans achieve power in the electoral realm, Thomas says, the state cannot deliver the transformation they seek. The disparity between the extent of black problems and the paucity of liberal solutions is too great. This claim of Thomas’s follows the conservative logic of what social theorist Albert Hirschman calls “the futility thesis,” which holds that any political attempt to alter a specific social condition will be “largely surface, façade, cosmetic, hence illusory, as the ‘deep’ structures of society remain wholly untouched.” As Hirschman points out, futilitarian arguments on the right often resemble structural arguments on the left. The latter are meant to portray reformist efforts as insufficiently radical, mere salves to social wounds that cannot be healed without a revolutionary transformation. It’s no surprise, then, that Thomas’s critique on the Court sounds similar to the critiques he deployed as a younger man. The difference is that the claim from the right is made not on behalf of a change that has yet to occur but against a change that already has been tried.18 The futility thesis preys upon the disappointment that so often comes in the wake of a large effort, the feeling that the change is not great enough, the transformation not deep enough, to justify all the sacrifice that went into its making. As we’ve seen, Thomas’s conservative critique also speaks to the pervasive sense that nothing much was achieved through the black freedom struggle. The disrepair was—is—too great for the state to fix. — 141: 2040-2053
THOMAS’S CLAIM THAT the state cannot do anything for African Americans seems at odds with his claim that the state will make things worse for African Americans. Such contradiction is not his alone. As Hirschman points out, conservatives often invoke two other theses, in addition to futility, against reformist or radical political action. One is the “perversity thesis,” which holds that “the attempt to push society in a certain direction will result in its moving … in the opposite direction”: “any purposive action to improve some feature of the political, social, or economic order only serves to exacerbate the condition one wishes to remedy.” The other is the “jeopardy thesis,” which holds that “the cost of the proposed change or reform is too high as it endangers some previous, precious accomplishment.” Unlike the futility thesis, the theses of perversity and jeopardy assume that state action can have an impact, albeit a negative one. Though making a simultaneous case for futility and perversity, or futility and jeopardy, seems like a challenge—affirming the state’s potency and impotence in the same breath—an agonized conscience of consistency does not seem to trouble opponents of political transformation. Whenever futilitarians are not “quite comfortable with their own argument,” says Hirschman, “they look to the perverse effect for reinforcement, adornment, and closure.”30 That is certainly the case with Thomas’s dissent in Kelo v. City of New London (2005), which used arguments of both perversity and jeopardy to oppose state projects of social reform. — 145: 2110-2123
Seeking to empower the federal government to override state regulations, to bring together the separate and discrete economies of the states into a single, integrated national economy—much the way the European Union is now doing for the separate economies of the continent’s nation-states—Marshall argued for a broad interpretation of the Commerce Clause.48 Commerce should be understood not in limited terms, he said, as only the buying and selling of goods, but as a social activity that transcends simple business transactions. “Intercourse,” Marshall called it, invoking an eighteenth-century conception, popular among the Framers, of commerce as interactions between diverse people across the globe. Commerce was a way of being social, of living with others in a single civilization; it was a dialogue among strangers. Among the definitions of commerce cited in Samuel Johnson’s Dictionary was “interchange of anything.”49 That “anything” could be commodities, texts, or opinions. Any proper reading of the term would include a great many activities beyond the buying and selling of goods. — 155: 2247-2257
The individual’s right to bear arms is what Thomas sees as the black man’s main protection against a rampaging white supremacy, the critical right that the new constitutional order provides. There are no cooperative institutions of racial equality and democratic mutuality in Thomas’s political vision. There are no Union Leagues, no Freedmen’s Bureau, no interracial politics and parties. There is only the defiant black man, reliant upon his constitutional right to arm himself and to defend his family against white marauders. For Thomas, the broadened Second Amendment, with its attendant vision of a racialized society armed to the teeth, is the keystone of the constitutional transformation that emancipation has wrought. A — 213: 3106-3112
Perhaps, then, this is the belief that underlies Thomas’s penal jurisprudence: no state, no matter how fervent its belief in the moral right to punish, would ever be willing to publicly and formally sentence a convicted criminal to the actual harms and abuses that are routinely meted out to inmates as they make their way through the nation’s prison archipelago.33 By delimiting the act of punishment to what happens in a court of law—and declaring that what happens in jail stays in jail—Thomas, so eager to rehabilitate the state’s moral right to punish, so eager to establish the “intimate connection between crime and punishment,” is able to have his cake and eat it too. — 252: 3668-3674
As an economic system, capitalism may entail restless dynamism and creative destruction, but its role in our polity is anything but creative or dynamic. The business of capitalism is to take the great questions of society—justice, equality, freedom, distribution—off the table of public deliberation. Capitalism’s most ardent proponents say that it functions best when it is untouched by democracy, when it is protected from the conscious and collective interference of citizens acting through their government. And while for a brief stretch of the twentieth century the Constitution was envisioned as a living experiment, a text to be revised and revisited through argument and amendment, its function today is the opposite. Through the Senate and the Electoral College, both of which privilege the interests of a numerical minority from mostly white states over the interests of democratic, multiracial majorities; through the elevation of the Supreme Court to the status of talisman, where the fate of the nation hinges on nine men and women educated at the most elite schools; and through the doctrine of originalism, the Constitution has reverted to what it has been throughout most of American history: a source of overwhelming, anti-democratic constraint. — 277: 4047-4056