Supreme Court

A History Lesson From Clarence Thomas

Correcting a liberal smear about the conservative Supreme Court justice.

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In Django Unchained, director Quentin Tarantino's bloody ode to the spaghetti western set in the pre?Civil War American South, Samuel L. Jackson portrays the despicable character of Stephen, the head house slave on a hellish Mississippi plantation. Reviewing the film for The Boston Globe, critic Wesley Morris struggled to convey the villainy of Stephen's character, turning to a present-day comparison for help. "The movie is too modern for what Jackson is doing to be limited to 1858," Morris wrote. "He's conjuring the house Negro, yes, but playing him as though he were Clarence Thomas."

It was not the first time a liberal writer had taken a cheap shot at the conservative Supreme Court justice. New York Times reporter Linda Greenhouse once described Justice Antonin Scalia as Thomas' "apparent mentor," yet we now know that Thomas has been the one quietly influencing Scalia's jurisprudence. But the comparison to the slave power system was particularly contemptible, especially because no Supreme Court justice since Thurgood Marshall has written more frequently or powerfully about American racism than Thomas.

Consider his role in the 2003 case Virginia v. Black, which involved a state law criminalizing the burning of a cross "with the intent of intimidating any person or group of persons." While most of his colleagues focused on First Amendment law, Thomas offered a different view. The law was intended to counteract "almost 100 years of lynching and activity in the South" by the Ku Klux Klan and other hate groups, he reminded the courtroom during oral argument. "This was a reign of terror, and the cross was a symbol of that reign of terror."

When the case was decided several months later, Thomas went further in a lone dissent, arguing that cross burning was part and parcel of that racist terrorism and therefore deserved no protection under the First Amendment. "Those who hate cannot terrorize and intimidate to make their point," he wrote.

It was not an opinion cheered by free speech advocates, although that does not disqualify it from the realm of civil rights. Nor would it be the last time Thomas offered a history lesson about race in America.

In 2010, after the Supreme Court struck down several campaign finance restrictions in Citizens United v. Federal Election Commission, the Court came under intense criticism for harboring an alleged pro-corporate bias. In response, Thomas reminded those critics that the cause of campaign finance regulation was not exactly squeaky clean.

"Go back and read why Tillman introduced that legislation," Thomas told an audience at Stetson University College of Law, referring to the Tillman Act of 1907, an early campaign finance law sponsored by Sen. Benjamin Tillman, a leading Southern Progressive and notorious white supremacist. "Tillman was from South Carolina," Thomas continued, "and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks, and he felt that there was a need to regulate them."

But that verbal jab was nothing compared to Thomas' contribution to the 2010 decision in McDonald v. Chicago, where the Supreme Court ruled that the Second Amendment right to keep and bear arms constrains state and local governments via the 14th Amendment. In his concurrence, Thomas once again reached for the history books, this time tracing the 14th Amendment's origins to the antislavery movement and the efforts of the Radical Republicans of the 39th Congress, who sought to force the former Confederate states to respect fundamental rights after the Civil War—including the right to keep and bear arms, a provision of particular importance to the recently freed slaves now facing the South's incipient Jim Crow regime.

That focus on black history even earned Thomas a rare compliment from liberal Washington Post columnist Courtland Milloy, who marveled, "His advocacy for black self-defense is straight from the heart of Malcolm X." Milloy's sentiment was accurate, although he should have reached further back for the comparison. Thomas' advocacy for black self-defense came straight from the heart of Frederick Douglass, whose writings Thomas repeatedly cited in his McDonald opinion. "The liberties of the American people were dependent upon the ballot-box, the jury-box, and the cartridge-box," Douglass once wrote. "Without these no class of people could live and flourish in this country."

Many of his critics may be too ignorant to know it, but Thomas' writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow. He may not be a modern liberal, but there is no question that Clarence Thomas is part of a civil rights tradition that started with Frederick Douglass.