Clarence Thomas and the Colorblind Constitution

Last week the U.S. Supreme Court agreed to hear the case of Shelby County v. Holder. At issue is Section 5 of the Voting Rights Act of 1965, a provision requiring certain states and localities to receive approval from either the Justice Department or the federal judiciary before changing their election procedures. Originally intended as a temporary measure to defeat the voting rights abuses prevalent under Jim Crow, Section 5 has been repeatedly extended by Congress, most recently in 2006. The Supreme Court will consider whether this latest extension exceeds congressional authority and violates both the 10th Amendment and Article IV of the Constitution.

Writing at The Washington Examiner, Ohio Northern University law professor Scott Douglas Gerber argues that the outcome in this case, as well as the outcome in the recent affirmative action case Fisher v. University of Texas at Austin, is likely to be shaped in large part by the judicial philosophy of Justice Clarence Thomas. As Gerber explains, Thomas has long been critical of race-conscious government policies, including both affirmative action and the modern extensions of the Voting Rights Act, though his views have so far been been expressed primarily in dissenting and concurring opinions. In Gerber’s view, Fisher and Shelby County each offer the real possibility for Thomas to write a landmark majority opinion. “With these two cases,” Gerber argues, “the nation's highest ranking African American jurist has been provided with an unprecedented opportunity to commit the Court to the notion of color-blind constitutionalism for which he has been working for most of his professional life.” Gerber also offers this prediction:

Edgar Fiedler famously warned that "He who lives by the crystal ball soon learns to eat ground glass." But it would be naive to ignore that a very conservative Court has agreed to decide both Fisher v. University of Texas and Shelby County v. Holder during the current term. If the justices end racial preferences in admissions and scrap Section 5 (and I expect they will), and if Thomas writes one or both of the majority opinions (and I expect he will), Thomas will have cemented his legacy by ensuring that each American, no matter the color of his skin, is treated as an individual and not as a member of a racial or ethnic group.

I’m less confident we’ll see a Thomas-penned majority in either of these cases, particularly Fisher, where Justice Anthony Kennedy strikes me as the horse to bet on, but Gerber makes a strong case for why we’re at least likely to see Thomas’ approach reflected in the outcomes.

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  • R C Dean||

    a very conservative Court has agreed to decide both Fisher v. University of Texas and Shelby County v. Holder

    Which court would that be?

  • ||

    The one that approved ObamaCare. That court. Ain't they just awesome conservative?

  • DJF||

    Judge Roberts says that it is alright to discriminate if you use a tax.

  • Almanian.||

    It's not a toomah!

    It's a penaltax!

    /Ahnold

  • Big 'Orra||

    No, fuck you, cut spending?

  • Rights-Minimalist Autocrat||

    You know, the court that struck down Roe v. Wade.

  • LTC(ret) John||

    And gave us Kelo!

  • T o n y||

    There has never been a bigger beneficiary of qualification ignoring race-based affirmative action than Clarence Thomas.

  • SugarFree||

    Please don't feed the troll.

  • ||

    Drench it in kerosene and set it on fire instead.

    -_-_-_-_-

    THIS MESSAGE BROUGHT TO YOU BY CONCERNED MOTHERS OF AMERICA.

  • SugarFree||

    Even his racism is lazy.

  • ||

    Making racist comments about black justices is perfectly acceptable when a pinko's doing it. Because

    REFUCKGLICANT LIBERTARDSS 24 rfewefewf wr32!!!

  • Almanian.||

    Um, no, YOU are

  • T o n y||

    I'm against race-based affirmative action (provided other opportunities for upward mobility are in place). Clarence Thomas makes the rightwing case, as he is clearly not SC material and was promoted only because of his race. Republicans love to prove themselves right.

  • Palin's Buttplug||

    Not just his race, Tony. He is an aborto-freak too.

    Thus he is a "twofer" - GOP gold for SCOTUS.

  • DJF||

    Is this because he is not a Wise Latina?

  • ||

    If we feed the pinko trolls e-cyanide, will they e-die and e-shut the fuck up?

  • Palin's Buttplug||

    Do you make your Clarence Thomas wear a ball-gag when you mount from behind?

  • ||

    Ooh, racist AND anti-gay. You really take the cake, Santorum's Buttplug.

  • Calidissident||

    Tony, you are right in that in a sane and just world, Thomas wouldn't be SC material. But in comparison to most of the other people on the court, he looks like a pretty good choice

  • ||

    Cali, NONE of the people on the court are SC material. Singling out Thomas for being black is just because T i n y and PB are hypocrites.

  • Palin's Buttplug||

    It may surprise you to know that I concur with all the major SCOTUS decisions since 2001.

    Heller, McDonald, Kelo, Citizens United, and some others you don't like.

    My opinion of the court is very high.

  • Rights-Minimalist Autocrat||

    Gonzales v. Raich

  • Palin's Buttplug||

    Oops, I stand corrected.

    I admit my error on Gonzales.

  • Almanian.||

    Kramer v Kramer

  • Almanian.||

    Godzirra v Mothra

  • Almanian.||

    Freddy v Jason

  • Almanian.||

    Alien v Predator

  • Almanian.||

    Billy the Kid v Dracula (look it up)

  • Almanian.||

    Megashark v Crocosaurus

    I think I've made my case. The prosecution rests.

  • Calidissident||

    The fact that you hold a high opinion of the court tells us everything we need to know

  • Calidissident||

    I agree Darius

  • T o n y||

    "Herrr derpy doo trolls heh heh. I'm 12! Penis!"

    Nobody is forcing you to read anybody's posts, you ridiculous, tedious idiot. There is no reward for keeping these threads clean of dissenting opinion, except the dubious comfort of never having to think about anything. Because obviously you have it all figured out. You're a libertarian! Bwahaha. Morons.

  • Towelie||

    Herrr derpy doo trolls heh heh. I'm 12! Penis!

    I know you are, but what am I?

    I don't wanna ask you to get high. Anyone else wanna get high?

  • ||

    I'm not interested in your opinion M o n o T o n y. You actively supported and cheered for the reelection of the person who advocates indefinite detention of your countrymen, extrajudicial assasination, death by fire of brown children overseas, and torture and imprisonment of whistleblowers, not to mention the continuing persecution and destruction of principally minority familes through his misguided and personally hypocritical prosecution of the drug war.

    Nothing you have to say, ever, is going to have any useful weight given that. You supported evil. You advocated for evil.

    I don't listen to evil people.

  • PapayaSF||

    Not to mention the laughable hypocrisy of M o n o T o n y criticizing someone as a "beneficiary of qualification ignoring race-based affirmative action" when he's a lickspittle supporter of Obama, the poster child for the dangers of affirmative action.

  • T o n y||

    Obama won two presidential elections soundly. That is the opposite of affirmative action. He didn't have any help above and beyond what any prior successful presidential candidate had. Unless you want to claim that being black alone, with no institutional affirmative action, is such a leg up in this society all by itself. Calling him an affirmative action recipient is unconcealed racism.

  • PapayaSF||

    It's not racism to point out that Obama was incredibly unqualified to be president: a partial Senate term, no executive experience. If he was white nobody would have considered him a serious challenger to Hillary. Even Palin was a governor.

    Of course, if Hillary were male no one would have considered her a serious candidate in 2008, either. She got political power the same way Evita did, not through qualifications.

    To establish themselves as the party of blacks and women, Democrats push race and gender as "qualifications." You are race- and gender-obsessed, M o n o T o n y, not me.

  • T o n y||

    Poor white males.

  • PapayaSF||

    It's poor everybody, these days, and Obama's economic incompetence is actually hurting blacks more than whites. But who cares about poverty and unemployment? He's got the right skin color!

  • T o n y||

    So did you.

    Your vote or non-vote counted as a vote for one of the two principal candidates. That's just how it works in this country as a matter of mathematical reality and because of the fact that you accept the terms of your country when you don't renounce citizenship. So my supposition is that you tacitly supported Mitt Romney, someone who by any reasonable presumption would have been as bad or worse on all those issues.

    You want the drug war to stop, do whatever you can to get conservatives out of local and national governments. Your invisible, inconsequential moral high horse means nothing to me.

  • ||

    Death by fire of brown children M o n o T o n y. My "invisible, inconsequential moral high horse" at least lets me sleep at night. Have fun at the next pep rally.

  • Almanian.||

    I'm not going to hold my breath waiting for either decision to go the way "I'd like it to."

    Instead, I'll assume the court will make the bad decisions - the one NOT supportive of individual liberty and freedom - and be ecstatic if it goes the other direction.

    Low expectations - I hate 'em, but they keep me from eating a bullet.

  • ||

    Federal ammunition -- it's what's for breakfast.

  • Almanian.||

    "Federal" ammo would be too ironic.

    I would prefer Remington, Winchester, Black Hills - something else - for this task.

  • ||

    That was the joke. Lololololol.

    Take Remington. It's a good old American classic of a company. Go out in style, brother!

  • Zeb||

    If I were going to off myself, I'd go with one of those weird Russian brands. Just 'cause.

  • Almanian.||

    BUT THAT SHIT HAS CORROSIVE PRIMERS AND WILL RUST YOUR WEAPON!!!11!

    Oh, wait, I'll be dead and won't care - never mind.

  • Palin's Buttplug||

    I remember in my yuteful college days when I voted for Reagan one of the primary reasons was the Bakke case.

    Gotta go with Thomas on this one.

  • Almanian.||

    I remember in my youthful days when I voted for a young Marilyn Chambers because of the bukkake case.

  • Palin's Buttplug||

    Did Marilyn (RIP) ever do a bukkake?

    Jeebus, the 70s/80s was the pinnacle of American culture. Even country music has gone to shit since. Instead of Cash, Coe, and team we have some star-spangled Team America pro-family bullshit.

  • ||

    Jeebus, the 70s/80s was the pinnacle of American culture.

    You say things like this, then act like you should be taken seriously. I pity you.

  • Palin's Buttplug||

    It was (so far).

    Culture is my specialty. I would win this one too.

    The only broad category that was a decisive loser was poetry and that is only if you count TS Eliot as an American (which I do).

  • Rights-Minimalist Autocrat||

    1970's wins on film.

  • ||

    Do you allow yourself one good and intelligent comment per day or something?

  • Almanian.||

    You misspelled "nadir" as "pinnacle".

    I lived throught disco, leisure suits and Chrysler Cordobas. I LIVED through it, man!

  • ||

    He's right about the country music. That's what I was referring to in my post.

  • Almanian.||

    Agree on this point. My dad listened to Johnny Cash, thank goodness.

    That shit my wife listens to? Not so much.

  • Pudgeboy||

    Roberts proved he's a mental midget... and this court isn't 'very conservative'...

  • Zeb||

    Thomas definitely has his negatives, but on these cases I have some hope that he will do the right thing.

  • SugarFree||

    Are there children to be strip-searched?

  • Almanian.||

    The basketball court at Ottawa-Glandorf High School in Ottawa, Ohio is called "The Supreme Court". They have a fucking waiting list for season tickets. Like, 30 years or some shit. This is a town of 5000 people.

    THAT'S a "Supreme" Court. These pinheads (save Thomas, whom I think has a brain)? More like the Schmuckpreme Court.

  • Fluhdoten1||

    I thought Roberts justification for Obamacare was an especially nice piece of propaganda.

    He destroyed the credibility of SCOTUS, then says the reason why was to protect its credibility.

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