Clarence Thomas’ Affirmative Action Problem
As legal affairs columnist Elie Mystal wrote in The Nation on July 20, 2023: “It’s Summer Vacation. Does the Media Know Where Clarence Thomas Is?”
It was a good question for the over-heated summer of 2023. The antics of United States Supreme Court Justice Clarence Thomas have provided Mystal— one of the country’s wittiest Black political commentators—with mountains of fodder lately. Thomas’ egregious ethics breaches in 2023 include accepting private jet trips to luxury vacations from Republican billionaire donor Harlan Crow, then failing to report these gifts on his annual financial disclosure forms.
As Mystal writes, it’s difficult even to keep up with all the scandals kicking up around Thomas and his dealings with the powerful. In “extent and frequency,” an April 2023 ProPublica report said, the billionaire’s “apparent gifts” to the associate justice are without precedent across the recent history of the Supreme Court.
The problem is compounded when we add in the fact that the justice has portrayed himself as a regular guy who prefers vacationing in RV parks and “Walmart parking lots” over the luxurious beaches of Europe. Thomas said all this in the 2020 documentary on his life entitled Created Equal: Clarence Thomas in His Own Words. This no-warts-at-all feature was funded in part by—wait for it—none other than Harlan Crow, who contributed several hundred thousand dollars to its production costs.
Taking power from the people
In Created Equal, you can hear Thomas talking about his years of humiliation growing up in poverty in Georgia under segregation. He speaks of how his grandfather’s tough love instilled in him valuable lessons about responsibility and hard work. After spending his youth as a “Marxist” and supporter of the Black Panthers, he drifted toward “lazy libertarian” during his college years at Yale. He then full-on embraced the Republican Party by voting for Ronald Reagan in 1980.
Thomas was “distressed,” he says, at what he saw as the Democrats’ failed guarantees to legislate the problems faced by Black people “out of existence.” In 1991, the United States Senate confirmed him, thanks to the nomination of President George H. W. Bush, as the Court’s second African American associate justice. Today, he is the longest-serving member of the Court.
The “color-blindness” that never was
In 2023, something unusual in the history of the Supreme Court happened: Thomas read his concurring opinion from the bench. In a decision split starkly along ideological lines, the six conservative justices invalidated the affirmative action admissions programs at Harvard University and the University of North Carolina. The rationale was that the schools, by making race one of the factors in consideration, were in violation of the equal protection clause of the 14th Amendment.
This nonsensical reading of the 14th Amendment is a travesty, given that the amendment’s original intent—itself a phrase beloved by the right wing—was to remedy the ills foisted on Black Americans by their white former enslavers.
The decision effectively ends affirmative action in higher education. Many are celebrating. After all, dismantling affirmative action, and the tangible benefits it’s afforded Black students and our society, has for decades been a clearly articulated goal of ultra-conservative forces in our country.
From the bench, Thomas once again trotted out one of his famous catch-phrases: that the Constitution is “color-blind.” The phrase started with Supreme Court Justice John Marshall Harlan in 1896. In his famous dissent in Plessy v. Ferguson—the “separate but equal” case—Harlan declared that the Constitution is indeed “color-blind” because its protections cover all citizens equally. Civil rights activists over the decades took up the idea. However, in recent years, it’s been weaponized in the hands of those conservatives who protest the mere acknowledgement of the structural inequalities that racism built and still maintains in this country.
Today’s right-of-center Supreme Court justices, Thomas chief among them, aren’t “color-blind.” They’re just blind—blind to the reality of how much talented Black people have to exhaust themselves just to get their fair share, while less-talented white counterparts often coast along, knowing they’ll get the college, the job, the home they want.
Alternatively, maybe it’s the case that these conservatives aren’t blind. Maybe they simply don’t want to see.
Affirmative action for me, but not for thee
In 1968, Clarence Thomas entered the College of the Holy Cross as a transfer student. He came with glowing recommendations from the nun who’d taught him in his parochial high school, but this was also a time when many institutions in society were actively recruiting Black students to redress past inequalities—or at least to appear in-step with the Civil Rights movement.
Thomas got into Yale Law School not just because he was smart and determined. He also benefited from the school’s affirmative action program, which was designed to make sure deserving students like him weren’t overlooked. Yet now he refers to his degree, showing he passed through one of the most rigorous academic programs in the world, as carrying the “taint of racial preference.”
After law school, he was passed over for jobs in prestigious white-run law firms. He’s since said it was because he’d benefited from affirmative action—that the law firms knew this and thought he wasn’t smart enough. He’s said he felt “humiliated.” It’s curious that he thinks Yale’s affirmative action policy was the ultimate problem here, not his white employers and their deep-seated racism.
Yet in 1983, when he was serving as head of the Equal Employment Opportunity Commission (EEOC), Thomas said that without the equal opportunity employment laws that gave him the chance to earn that position in the first place, “God only knows where I would be.”
Justice Ketanji Brown Jackson, the first Black woman on the Supreme Court, issued a sharp dissent in the UNC affirmative action case. (Due to her former role on the Harvard Board of Overseers, Jackson rightly recused herself from that decision.) “History speaks,” she said. In one way or another, “it can be heard forever.” The “race-based gaps” that formed over centuries are still here, and “they are still stark.”
Jackson has also benefited from affirmative action and isn’t ashamed to say so. The difference is, she isn’t going to pull the ladder up after herself and sneer down at the people trying to climb up.
Does the media know where Clarence Thomas is? We might also ask: “Does Clarence Thomas know who he is?”