Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism!There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?
Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.Where is this "popular acclaim"? Stressing the importance of "reality," Lithwick invents a cartoon picture of how other people think. The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse.
And Lithwick never even mentions Clarence Thomas, who would seem to offer a second basis for comparison. How have his colleagues received the things he's written that disrupted the way they wanted to think about race? To be fair, Clarence Thomas did not write an opinion in this new case Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, which had 5 opinions, only one of which was a dissenting opinion. Thomas joined Justice Scalia's opinion, which deserves a separate post. I'm just calling attention to Thomas because Lithwick is ignoring him, even as she patronizes those who act like it's passé to acknowledge that you don’t know as much as you thought you knew about race. Those other people need to acknowledge that they don't know as much as they think, but the things not known surely don't include the things Clarence Thomas has been writing — notably in Grutter v. Bollinger, which begins with a passage from Frederick Douglass, who was born 90 years before Thurgood Marshall.