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Why Clarence Thomas’s Rulings on Race Are so Idiosyncratic

The conservative justice this week joined the court’s four liberals in striking down two gerrymandered districts in North Carolina. How come?

Chip Somodevilla/Getty Images

On Monday, the Supreme Court held that two gerrymanders passed by the North Carolina legislature were unconstitutional. All eight justices to hear the case—which was heard before Justice Neil Gorsuch joined the Court—agreed that one of the majority-minority districts in question, District 1, was a gerrymander based on race and hence unconstitutional under the Fourteenth Amendment. With respect to District 12, however, the Court was divided 5-3. The swing vote, joining the Court’s four Democratic nominees, might seem surprising: Justice Clarence Thomas. And yet his vote was in keeping with his longstanding, idiosyncratic approach to cases involving race.

This vote, despite what some liberals might hope, is not a sign that Thomas is becoming more moderate. Referring to the leftward “evolution” of some Republican nominees, like Harry Blackmun, Thomas would tell his clerks, “I ain’t evolving.” No justice’s jurisprudence remains entirely static, of course, but in broad ideological terms Thomas hasn’t evolved, and won’t. His views on race and the Constitution are ultimately conservative ones—but they’re conservative in a distinctive way.

In part because he rarely speaks at oral argument, there was a common perception that Thomas is just a clone of the late Antonin Scalia. This assumption—which, in some cases, carried the odor of racist condescension—is profoundly wrong. “What [Thomas] has done on the Court,” wrote Mark Tushnet, now a professor at Harvard Law School, in his 2005 book A Court Divided, “is certainly more interesting and more distinctive than what Scalia has done and, I think, has a greater chance of making an enduring contribution to constitutional law.” Thomas and the recently retired Justice John Paul Stevens are the two most idiosyncratic Supreme Court justices of the last 40 years, the most likely to stake out a unique position on a particular issue.

Thomas’s approach is particularly visible in cases involving race. Typical Republican nominees like Chief Justice John Roberts and Antonin Scalia combine a belief in formal colorblindness with the view that racism is no longer a major problem in American society. This willful optimism reached the point of self-parody with Roberts’s 2013 opinion gutting a section of the Voting Rights Act that required states with a history of discrimination to get approval from federal authorities for any changes to election law. Roberts held that because the Voting Rights Act had been so effective in addressing race discrimination in voting, Congress no longer had the power to enact its most important enforcement mechanism.

Thomas also generally believes in formal colorblindness, but for very different reasons rooted in (sometimes explicit) black nationalism. Thomas believes that the state should be race-neutral not because he has any illusions that racism has ended in the United States, but because he believes that color-blindness is the best that African-Americans can reasonably expect from the state.

Thomas’s fatalism can be seen even in opinions where he ends up in the same position as his conservative colleagues. His 2003 dissent from the Court’s opinion upholding the University of Michigan Law School’s affirmative action program is a powerful argument even if, like me, you ultimately disagree with the bottom line. Beginning by quoting Frederick Douglass, he makes a subtle, complex argument with pointed discussions about the fallacious assumptions that predominantly black institutions must be inferior; the dubious necessity of the state maintaining an elite law school; the disgrace of legacy admissions preferences; and the false “merit” reflected by standardized tests. Even if one ultimately finds it unpersuasive, it’s certainly not the boilerplate defense of American “meritocracy” that underlies Republican arguments against affirmative action.

Sometimes, because of his unique perspective on race, he has ended up entirely alone on the Court. The last time Thomas substantially participated in an oral argument was the 2003 case Virginia v. Black, which involved several people who had been convicted under a Virginia statute banning cross-burning. The key constitutional question in such cases is whether the relevant statute penalizes white supremacist expression (which is speech protected by the First Amendment) or intimidation or threats (which, legally, are “conduct” not protected by the First Amendment).

Under Virginia law, the intent to intimidate could be inferred from the act of cross-burning itself, and the burden of proof was on the defense to show that the intent of the act was purely expressive. A majority of the Court found this unconstitutional, essentially holding that to be consistent with the First Amendment the burden of proof had to be on the state to show that a cross-burning was intended to be threatening.

In his dissent, however, Thomas pointed out that the statute was enacted by a segregationist legislature. Obviously, the Jim Crow legislators who voted for the law were not trying to suppress white supremacist expression, but simply realized that cross-burning was virtually always done with the intent to intimidate. And therefore, Thomas concluded, the statute “prohibits only conduct, not expression.” Thomas was right—but no other justice joined him.

Nor is yesterday’s opinion the first time Thomas has joined the Court’s liberal faction to be the swing vote on a race-related issue. In a 2015 case, Thomas provided the fifth vote to an opinion holding that Texas was not required to issue license plates with the Confederate flag as part of its option of personalized license plates. It is not terribly surprising that even a conservative African-American who grew up impoverished in the rural Jim Crow South would have a different perspective on the Confederacy and its legacy than the typical conservative.

Thomas’s votes yesterday were squarely within that tradition. His brief concurring opinion emphasized that the result comported with two of his longstanding views. First, he believes that any use of race by the government, for any purpose, triggers strict scrutiny, a high burden North Carolina could not meet. Since the state conceded that District 1 was intentionally created as a majority-minority district, this made the case easy for Thomas as well as the other conservatives.

He also explained that he joined the liberal faction with respect to District 12 in part because of his belief in deferring to the findings of the trial court unless it clearly errs. Here, Thomas was tweaking the Court for not finding the gerrymander unconstitutional in a 2001 case after a district court did. Interestingly, Thomas is the only holdover from the 2001 case who didn’t switch sides, which is both a credit to Thomas and a demonstration of how partisan views of racial gerrymanders have changed. (At issue is whether majority-minority districts facilitate the election of minority officials in those districts, or packs minorities in such a way that the overall power of their vote is lessened.)

“His race fatalism,” says Jeffrey R. Dudas, a professor of political science at the University of Connecticut and author of the new book Raised Right, “leads him to consider all governmental actions around race (even those that are intended to be ameliorative) as illegitimate and having the eventual effect of harming racial minorities.” This belief generally produces conservative results—but not always. Yesterday, Thomas put his deeply rooted beliefs about race and the Constitution above partisan self-interest.

While Thomas opposes affirmative action, his tenure on the Court is actually an object lesson in the value of diversity. He was selected in part because George H.W. Bush felt he could not realistically replace Thurgood Marshall, the only African-American in the Court’s history to that point, with a white person. But not only has he been a more than able justice (whether one substantively agrees with him or not), he has brought a unique perspective to the Court that could not have been provided by a more generic Republican nominee.