March 6, 2022

"As the only Black member of the court, Thomas’s views on race and racism may carry particular weight with his colleagues."

"After all, he — and he alone — is positioned to explain, drawing on personal experience, the impact of racism on the Black community. And his conservative bona fides make it hard to dismiss his views as 'wokeness' run amok.... Next term, the justices will hear a critical challenge to affirmative action, and, depending on what happens in the Mississippi abortion case currently pending, there may be yet more opportunities to consider the scope and substance of the right to abortion. On both of these issues, Thomas has been incredibly vocal — and his views have been presented in racialized terms. He is a stalwart critic of affirmative action, arguing that such programs 'stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are "entitled" to preferences.' He has dismissed claims about the supposed benefits of diversity in education as a product of 'faddish social theories' at odds with a constitutional commitment to equal protection of the laws. His opposition to reproductive rights is well known, though recently, his rhetoric has grown more aggressive: He has associated abortion with the eugenics movement of the 1920s and has voiced concern about the eradication through abortion of minority groups.... Serving as a counterweight to Thomas, [Ketanji Brown] Jackson would make clear, through her presence and her arguments, that the Black experience is anything but one-dimensional."

Writes NYU lawprof Melissa Murray, in "A new kind of diversity on the Supreme Court: Two formidable Black voices/It used to be said that there was a ‘Black seat’ on the Supreme Court. But Black legal perspectives are far too diverse to be represented by any single figure" (WaPo).

There are too few Justices to achieve real diversity — the kind of "critical mass" the recent affirmative action cases talk about, where no member of a minority group has to feel that they represent their group. 

But isn't 2 better than 1? With 2, we may be asking which of the 2 really represents black people. We don't ask that about the white Justices. And Professor Murray isn't blatantly asking that. What she says outright is that with 2 black Justices, it will be plain that there isn't just one black perspective. 

And yet, Clarence Thomas has never been thought of as representing the black perspective. For 30 years, he's been battered with the criticism that he doesn't count as the black perspective. I anticipate that people will be saying that Ketanji Brown Jackson represents the real black perspective — finally, after all these years of Clarence Thomas, we've got the real thing. Watch out for that.

67 comments:

Dave Begley said...

I read Clarence’s book. He was raised by his Grandfather. He worked sun up to sun down delivering heating oil and ice. One summer, he built a house with his grandfather. I think they had a big garden. Clarence was taught by the nuns. He went to the seminary for one year. His big break was a scholarship to Holy Cross where he was on the track team, Alpha Sigma Nu and was a fan of the Black Panthers. He wore camo on campus. He never knew his father. When he and his brother moved in with his grandparents, all of his belongings fit in one paper sack.

Jersey Fled said...

But if there were two Black justices, Blacks would be overrepresented on the court with 22% versus being around 14% of the population.

I propose just adding one part-time Black justice. Or maybe a half wit justice like Sotomayor.

farmgirl said...

“And yet, Clarence Thomas has never been thought of as representing the black perspective. For 30 years, he's been battered with the criticism that he doesn't count as the black perspective.”

You are so right about that, Althouse.
And those who have countered w/slurs and hatred are so very wrong.

gilbar said...

If every Justice would Just Spout the Democrat Party Line, We would have REAL diversity
Our lack of diversity comes from people thinking that they can have their own thoughts

Kai Akker said...

What an insulting comment that top headline you've put on this conveys from whoever this is.

Michael said...

In '99 I sat on an advisory board foe a nonprofit. They were organizing for Black History month with materials on notable achievers. Naturally, Clarence Thomas wasn't in the program.

When I pointed out that a sitting Supreme Court justice might be worthy of inclusion, this greying ponytailed white high school teacher looked at me and replied, "He doesn't count".

Assistant Village Idiot said...

Has anyone, especially at the WaPo, ever claimed that Clarence Thomas reflected the only black opinion? I think it has been an uninterrupted stream of the opposite, of claiming that his is not the majority black attitude, and is in fact non-black.

Is anyone there expressing anxiety that Sotomayor is only expressing the liberal Latina opinion, leaving our the rich, complicated, varied perspectives of that community? I think not. They like people who are liberal and want to see more o' that. The rest is just uncomfortable evasion.

Amadeus 48 said...

"...this greying ponytailed white high school teacher looked at me and replied, 'He doesn't count'."

The backwoods and the most exclusive suburbs are full of crackers like that teacher.

gspencer said...

Here the mantra: If you ain't liberal/progressive/leftist/woke on all matters, you ain't black.

Hey hey, ho ho
Affirmative action's the way to go

Bob Boyd said...

Black legal perspectives are far too diverse to be represented by any single figure

It would be more honest to say,
Black political perspectives are far too diverse to be represented by any single figure.

Lem Vibe Bandit said...

Thomas is going to be the least of the new justice problems. Thomas is not combative. And the real arguing between them is in writing, not in person. A written racial argument is not as forceful as the one delivered in person. Link to photo

Her monumental task will be to move a majority of six justices, with persuasive argument, to vote with her while those six justices can continue to lean on Thomas as the voice on race matters. I thought it was terrible that Thomas didn’t retire while Trump was in office, now, however, it is shaping to have been the best decision he could’ve made. The voice of reason against the likely Coates-Kendi arguments for more racial remedies.

Howard said...

Exactly right Bob. It's politics not the law or brilliance. President's look to nominate team players who know how to fall in line. The flavors: up, down, charm, strange, top, and bottom are merely distractions to entertain the punters.

Danno said...

Blogger Jersey Fled said...But if there were two Black justices, Blacks would be overrepresented on the court with 22% versus being around 14% of the population.

Maybe she would have only 5/8 vote.

Koot Katmandu said...

I guess I am missing something? Why would you need any race or group specific perspective? How about a law and constitutional perspective and leave it at that?

Koot Katmandu said...

I guess I am missing something? Why would you need any race or group specific perspective? How about a law and constitutional perspective and leave it at that?

EdwdLny said...

Democrats
Racists
Sexists
Antisemites
And fascist terrorists.
Nothing new under the sun.

Conrad said...

"His opposition to reproductive rights is well known. . . ."

If we're talking about abortion, shouldn't it be "counter-reproductive rights?"

farmgirl said...

Maybe she’ll get red-pilled…
One can hope and pray, right?

Conrad said...

The justices aren't there to "represent" whatever ethnic or or other demographic group they happen to belong to. Their job is to interpret federal statutes and the Constitution. There is no distinctive "black" method of interpreting a legal text.

robother said...

Thomas's views on abortion echo yesterday's Althouse post on Dickens, particularly the notion that England's Victorian Liberals were just Malthusians looking to get rid of England's surplus population. (By the way, hat tip to Althouse again for reminding me that there are still quality writers like Louis Menand in the New Yorker.)

Lem Vibe Bandit said...

There's also the remote possibility that the new justice will be the left's justice David Souter. Once a Supreme, she can be her own woman, if she wants to.

JK Brown said...

Justice Thomas made the terrible mistake of being a justice first and foremost. His black skin has to my view only been an issue when he was dealing with racists, such as Sen. Joe Biden. As for perspectives, isn't that what the briefs in a case are suppose give?

Big Mike said...

With 2 [Justices] we may be asking which of the 2 really represents black people. We don't ask that about the white Justices.

And we don’t ask anything at all of the Asian-American Justices, since there aren’t any, and there won’t be any because to Democrats (and Althouse) it is okay to discriminate against Asian-Americans.

Bruce Hayden said...

“And yet, Clarence Thomas has never been thought of as representing the black perspective. For 30 years, he's been battered with the criticism that he doesn't count as the black perspective.”

No. The complaint is that his perspective is not that of a pampered entitled leftist Black. Plenty of Blacks agree with him. The ones who go to work every day, work hard, and don’t get ahead by whining “woo is me”. One of his complaints about Affirmative Action is that it lessens the achievements of minorities who actually work hard to get where they got. He worked hard, probably harder than anyone else on the Court, to get where he is, and the attacks on his Black privilege, that he got there because of AA, and not his hard work, by the press, Senate Dems (like Biden), etc, permanently, I think, scarred him.

Now, we really do have an AA nominee. And if confirmed, will, I think embarrass the left, as Sotamayor does now as an AA hire. He writes eloquently about racial matters. Will she? Unlikely, because she very likely got where she got through racial and sexual preferences. And any argument that she got there through merit will just reinforce his point - that the stain on their achievements due to claims of AA advancement will color her legacy for the entirety of her career.

One of the things that has struck me about Thomas is that he is far more eloquent as a writer. He never was an inciteful and energetic questioner in oral arguments. He didn’t like the competition between the Justices to pose cute and inciteful questions of the attorneys before them. Now, without the competition, he has come into his own. CJ Roberts is well known for his propensity to count the angels on the head of a pin, and find narrow exceptions to incrementally push the law in his desired direction. Thomas cuts through the legal fluff, finds the bottom line, and paints with a broad brush. He reminds me of my next brother, who scored well below the rest of us on our Math SATs, but was the mathematical genius in the family (4,of 5 of us were math or engineering majors in college). Thomas has always seemed to me to be the slowest, most methodical, and most incitefull of the Justices on the court with him. He takes his time, and doesn’t try to be clever. And, in the end, what matters for a Justice is what they writes. Roberts will likely be remembered by how cute and clever he was, but never how incitefull. Just the opposite of Thomas.

rehajm said...

Two? Who is the second voice?

Ceciliahere said...

The Democrat leaders do not care about skin color. They care about your political persuasion. If you are a Black woman and a liberal Democrat, then you fit the profile they want. If you are a Black woman but a conservative, you do not quality because you are an Uncle Tom or maybe an Aunt Jemima, and you are the enemy.

The Democrats are the real racists because they use Black people to further their leftist ideology. But, most Black people do not benefit from this leftist ideology that the Democrats practice. This Supreme Court pick is all a phony pretense. This Black woman was chosen as a token to represent the left wing of the Democrat party and to pander to the Black vote. We know this for a fact. And, Joe Biden can brag that he was the President who put the first Black woman on the Court. I think Clarence Thomas has faced real racism in his life. Whereas, Jackson is a product of an educated, upper-middle class family who has only known preferential treatment due to her race. She has been “privileged.”

Will her presence on the Court change the life of most Black citizens for the better, probably not. How can one man’s or one woman’s experience speak for an entire race? We all have different life experiences and upholding a law or striking down a law should be based on what is constitutional. What difference is it to the constitution what your personal life story is? Does Sotomayor’s life experience represent the stories of all Hispanics in this country? Neither does Thomas’ or Jackson’s life story represent that of all Blacks in America.

Changes made at the local and city level will change the lives of the vast majority of poor, undereducated, and Black victims of crime. The cities are the place to improve the educational system, the neighborhoods are the place to make living safer. Can the Supreme Court do this? The Supreme Court is not the place to go if you want to stop Black on Black crime. I don’t know how much more the Supreme Court can do to help Blacks advance in America. Most of the people in these neighborhoods aren’t concerned about AA. They are concerned with raising a family in a safe place, where their kids can get a decent education, about getting through the day without having their kids shot or dying of an overdose. Blacks need to elect better leaders at the local level to help solve their problems.

Temujin said...

Ask Sen. Tim Scott how he is received by the Congressional Black Caucus. He's a Black voice, yet not one that passes the Narrative test. Ask Ben Carson, a world-level neurosurgeon, how much respect he received from the Narrative Carrying Left, even before he ran for President. Do you ever hear Thomas Sowell quoted or mentioned by any of our great thinkers in the media? No...instead we get Cornell West, or the sophomoric Ibram Kendi. Sowell is an American treasure, in his final years. The world should be reading him. Instead he is missing.

Justice Thomas has always been met by the most racist, self-hating comments from the Left and in particular, leftist Black Americans who somehow think that all Black Americans think alike. Sounds pretty racist, no?

When a Black American dares to leave the Leftist Plantation, they are immediately, and forever on considered a non-person and if spoken of at all, it is in a derogatory manner. Feeble press attempts to now treat Justice Thomas as one of the voices of Black America is far too little, far too late. And frankly, not to be taken seriously.

Amadeus 48 said...

Bruce Hayden-I hesitate to do this, but I think you mean to describe Justice Thomas as “insightful” rather than “inciteful”.

Bruce Hayden said...

"His opposition to reproductive rights is well known. . . ."

A Black Justice should probably be anti-abortion. Last I knew, the highest incidence of abortion, by far, in any community in our country, has been in the African-American community. And that is a big part of why their proportion of the American population continues to slide. Their community is slowly dying. Easy abortion has contributed to a sexual ethos in that community that is morally valueless. Black women who keep sex inside marriage tend to have much more successful children, and then grandchildren. Easy abortion just makes it easier for Black women to essentially fail in raising their kids, most often in fatherless families. The boys turn into gang bangers and criminals, while the girls into the next generation of ho’s. Of course, they are ho’s, since they don’t demand respect for their contributions to the family, but instead give the merchandise away free.

But a leftist female Justice won’t have a choice in this matter. Part of the deal that she has to make to get the job is a blind acceptance of rabid pro abortion. No matter how much easy abortion hurts the Black community, they won’t be able to recognize it.

Michael K said...

The Democrat leaders do not care about skin color. They care about your political pers concerns about racism by filibustering Brown and Manuel Estradauasion. If you are a Black woman and a liberal Democrat, then you fit the profile they want. If you are a Black woman but a conservative, you do not quality because you are an Uncle Tom or maybe an Aunt Jemima, and you are the enemy.

Just ask Janice Rogers Brown about that. The Democrats showed their racism by filibustering Brown and Manuel Estrada, a far more competent candidate than Sotomayor.

Bruce Hayden said...

“Bruce Hayden-I hesitate to do this, but I think you mean to describe Justice Thomas as “insightful” rather than “inciteful”.“

Good catch. Apple spellcheck was catching it, but not offering an alternative. I had a brain freeze, knew it was wrong, but was in too much of a hurry to figure it out. Turns out there actually is a word “incitefull”. Just not the one I wanted. Homonyms.

Amadeus 48 said...

Temujin—you have stated it in a nutshell. Prof. Murray’s comment is worthless. It is ridiculous to think that any of the justices even think about Justice Thomas’s experiences as a black person in America—unless they reflect on the high- tech lynching at his confirmation hearings directed by our current POTUS.

If Justice Jackson Brown chooses to interject her experiences as a black person in America into the judicial conferences, she can sing threnody duets with the Wise Latina.

Mike (MJB Wolf) said...

Ah the first notes of the old two-step: Diversity is great! Only people who think like the Party count.

You can put a Rainbow Coalition of conservatives together and the Party will declare the gathering “lacks diversity” every time.

Amadeus 48 said...

As always with Justice Thomas, I am compelled to note that he did get 11 Democrat votes for confirmation.

Different days, eh?

Bruce Hayden said...

“Thomas is going to be the least of the new justice problems. Thomas is not combative. And the real arguing between them is in writing, not in person. A written racial argument is not as forceful as the one delivered in person. Link to photo”

I very much disagree. Maybe normally, but a Supreme Court Justice’s legacy is in his writing, and as long as Thomas is on the court, he will eviscerate her in his opinions. She will appear to be the ineffective doctrinaire leftist that we know Sotamayor to be. She would be replacing one of the stronger leftist voices, and I see no way that she would be up for it.

“Her monumental task will be to move a majority of six justices, with persuasive argument, to vote with her while those six justices can continue to lean on Thomas as the voice on race matters. I thought it was terrible that Thomas didn’t retire while Trump was in office, now, however, it is shaping to have been the best decision he could’ve made. The voice of reason against the likely Coates-Kendi arguments for more racial remedies.”

That’s the thing - the Coates-Kendi argument is leftist blather. Yelling it through a megaphone doesn’t make any more persuasive.

rcocean said...

My impression is that all the Republican justices are "Woke" on the race question except for Thomas and Alioto.

Douglas B. Levene said...

Apparently, there is a substantial argument that Jackson should recuse herself from the Harvard affirmative action case because of her membership on the Harvard Board if Overseers. Let me make a prediction. Exactly none of the people who say that Thomas should recuse himself because of his wife’s political activities will insist that Jackson recuse herself because of her own involvement in one of the governing bodies of a party before the Court.

William said...

Thomas has already led a long life. Outside of maybe renting a few porn videos when younger or maybe flirting clumsily, his life seems to have been exemplary. I'd bet dollars to donuts that if you examined the life and times of someone like Clyburn with the same care and scrutiny given to that of the life of Thomas, you would find reams of National Enquirer material.... I don't think Thomas represents the mainstream of Black lives, but maybe he's in the vanguard. He seems to have found a way to mesh his gears with those of the surrounding society in a productive and useful way. Isn't that a goal worth pursuing.

Heatshield said...

The Court is not about "representatives" of race or anything else. Representatives are in the Legislative branch. And the arguments to show the impacts and feelings of various groups are to be made by the plaintiffs and defendants, etc. The Justices are supposed to listen, read and weigh the arguments against the law and the Constitution according to their interpretation. Not their feelings and "lived experience".

mccullough said...

As an Italian American born in the 30s, Scalia faced more discrimination than KBJ. As a Jewish American born in the 30s, Breyer faced more discrimination than KBJ.

Thomas faced more than all ow them.

Fernandinande said...

affirmative action... 'stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are "entitled" to preferences.'

That's true, but isn't the relevant fact that AA is racism and violates the 14th Amendment?

n.n said...

An old kind of diversity: diversity [dogma] (i.e. color judgment, class-based bigotry).

A new/classical kind of diversity: diversity of individuals, minority of one.

Lose your Pro-Choice religion. Demos-cracy, democracy is aborted in penumbras and emanations, at the Twilight Fringe, in darkness. h/t WaPo

Nancy said...

If I were a leftist Liberal, I would be devastated that Biden restricted his choice to black females. I would want to get the most powerful brilliant liberal in existence onto the Court, to argue "our" side persuasively and convincingly.

n.n said...

affirmative action... 'stamp minorities with a badge of inferiority

There is a not so fine line separating affirmative action and affirmative discrimination in progress. That said, there was a recent case where people of yellow... Asia... Chinese-Americans... Americans successfully challenged "Diversity, Inequity, and Exclusion" standards used in school admissions as Pro-Choice (i.e. ethical, selective, opportunistic, exclusive). Here's to principles and mitigation of progress.

Patrick said...

Considering that 95 percent of registered black voters are Democrat, it is only right to say C.T. does not truly represent blacks. Never before has there been such an easily predictable demographic.

realestateacct said...

She's taking the Jewish seat.

Readering said...

Thomas was scarred by his experience at Yale, getting no white shoe job offers at the nation's top law school. Unfortunately he did not deal with it as O'Connor and Ginsburg had, facing the same problem as women. They blamed prejudice, he blamed affirmative action.

Joe Bar said...

"When I pointed out that a sitting Supreme Court justice might be worthy of inclusion, this greying ponytailed white high school teacher looked at me and replied, "He doesn't count"."

What a racist thing to say, or believe.

Fernandinande said...

voiced concern about the eradication through abortion of minority groups.

That's a pretty ignorant thing to voice concern about since all the popular minorities have higher fertility rates than whites:
(fertility rate/percent population)
Black: 2.2 / 13.4 %
White: 1.9 / 60.1 %
Asian: 2.0 / 05.9 %
Mesti: 3.2 / 18.5 %

At those rates, in 20 generations the US population would be:
00.000410 % black
00.000095 % white
00.000027 % Asian
99.946326 % Mestizo

Jupiter said...

"There are too few Justices to achieve real diversity — the kind of "critical mass" the recent affirmative action cases talk about, where no member of a minority group has to feel that they represent their group."

No-no! Remember, the logic of affirmative action is petting zoo. The black kids are there so the white kids can see their funny hairdos.

Maynard said...

Thomas was scarred by his experience at Yale, getting no white shoe job offers at the nation's top law school.

I am curious as to your sources regarding his job offers and emotional "scarring".

Maynard said...

Readering,

If your source on CT was Jane Mayer, then you know its bullshit.

You might as well read a biography of Trump written by Joe Biden, if he was capable of writing or dictating a coherent paragraph or two.

Greg The Class Traitor said...

Serving as a counterweight to Thomas, [Ketanji Brown] Jackson would make clear, through her presence and her arguments, that the Black experience is anything but one-dimensional."

Say the people for whom the "black experience" is entirely one dimensional: "If you don't support Biden then you ain't black"

Greg The Class Traitor said...

Amadeus 48 said...
As always with Justice Thomas, I am compelled to note that he did get 11 Democrat votes for confirmation.

Different days, eh?


Only in that those 11 Democrat Senators were all dependent upon black Democrat voters to get re-elected, and didn't like their chances if they voted against Thomas

Now a days I don't know of ANY Democrat Senators who get 40%+ of their vote from black voters.

Now they get their votes from racist white Democrats. So today they'd all oppose Thomas

Greg The Class Traitor said...

Readering said...
Thomas was scarred by his experience at Yale, getting no white shoe job offers at the nation's top law school. Unfortunately he did not deal with it as O'Connor and Ginsburg had, facing the same problem as women. They blamed prejudice, he blamed affirmative action.

Yes, how "unfortunate" that Thomas put the blame where it belonged!

Andrew said...

I'm 3/4 German, according to my ancestry. I feel completely unrepresented. Who is there to speak for us German-Americans on the Supreme Court. Do you know how we were treated during World Wars I and II? Rampant discrimination!

Unless Breyer is German. But he doesn't speak for me. If he is, then we need two German-Americans to show the diverse opinions of our people.

I mean, the Italians had Scalia. That's hardly fair.

Narayanan said...

Turns out there actually is a word “incitefull”. Just not the one I wanted. Homonyms.
====
MOAR to the point Thomas' insights incite many

n.n said...

Thomas is the very model of Declaration and Constitution, without the pathogenic emanations from penumbras.

Narayanan said...

That’s the thing - the Coates-Kendi argument is leftist blather. Yelling it through a megaphone doesn’t make any more persuasive.
========
if it is a given that the clerks will be pre-drafting and writing opinions - why bother with KBJ skills instead of who she will be putting in her chambers?

and will she be bravely to hire non-minority clerks?

what is the spectrum on clerk population representation?

BUMBLE BEE said...

The "overturned on appeal" thing doesn't matter. Do-overs are the Dem's way of life.

stutefish said...

Ah yes, the Numinous Negro theory of jurisprudence.

effinayright said...

I have this feeling that if Blind Melon Chitlin' were a black woman, Biden would have nominated him.

Achilles said...

Isn't Jackson required to recuse herself from Affirmative Action cases for obvious reasons?

Achilles said...

Amadeus 48 said...

Bruce Hayden-I hesitate to do this, but I think you mean to describe Justice Thomas as “insightful” rather than “inciteful”.

Those two words are similar for a reason.

being inciteful isn't always a bad thing. Inciting thought is important.

Nancy Reyes said...

So a lawyer's daughter is more representative of the black community than a sharecropper's son. Got it.

mtrobertslaw said...

Correct me if I am wrong, but I believe that when Ketanji Brown was a trial judge, every one of her decisions that was appealed to the Court of Appeals was reversed by that Court. If I am right about the number of her reversals, if she is going to best Justice Thomas's arguments, she will have to do some serious work improving her legal reasoning.

Anthony said...

How come only black people can talk about black people, but anyone can talk about white people.