Justice Thomas and Race: Making Life Harder for People of Color One Case at a Time

News broke last week that Justice Clarence Thomas hired as a law clerk a former fired employee of a far-right organization whose text message to a friend included these sentiments, “I HATE BLACK PEOPLE…I hate blacks. End of story.” The background to this entire sordid story can be found here.

Why Justice Thomas would go out of his way to help this woman raises challenging questions about Justice Thomas and race that have perplexed legal scholars for decades. Why would a person who grew up in the segregated south issue so many decisions that hurt people of color? Those trying to answer this question have taken it as a matter of faith that Thomas’s decisions have in fact and on the ground hurt racial minorities. But conservatives dispute that premise, so it is important to establish how truly awful Thomas’s jurisprudence has been for non-white Americans. Why he has engaged in this path of racial destruction is less important than assessing the damage his decisions and his rhetoric have caused.

Justice Thomas has called on the Court to overturn one of its landmark decisions, Gideon v. Wainwright, which gave people accused of crimes a right to a government-paid attorney if they can’t afford one. Justice Thomas would leave people accused of serious crimes, even those subject to the death penalty or life imprisonment, to their own devices without legal representation. Such a shift would disproportionately hurt racial minorities.

Justice Thomas believes that if police engage in constitutional violations leading to their possession of unlawful evidence, or if the police illegally coerce a confession, the exclusionary rule (which, absent an exception, keeps such evidence out of court) does not apply to the states. If the full Court were to adopt this position, abusive police behavior against minorities, which happens regularly in our criminal justice system, would get worse and there would be no effective remedy against such practices.

Over the course of four decades, Justice Thomas has voted to strike down every affirmative action program he has ever faced--no exceptions. As others have pointed out, the irony of this aspect of his work is that Thomas was most likely accepted at Yale Law School in part because of affirmative action.

Throughout these cases, Thomas argued that Black students at elite schools often fail because they “can’t compete in the cauldron of competition.” There is no reliable data underlying that conclusion but there is, as Justice O’Connor once pointed out, strong evidence that elite colleges and law schools produce a disproportionate number of America’s political, economic, and legal elites. Without substantial access to these schools, racial minorities will have a much harder time becoming successful leaders. Would Justice Thomas even be on the Supreme Court if he had attended a second-tier law school instead of Yale? Given that eight of the nine current justices went to Harvard or Yale, and the ninth went to Notre Dame, the answer is almost certainly no.

Reasonable people can disagree over the value of affirmative action to minorities, but Thomas’s extreme opposition based mostly on policy not legal grounds coupled with his pernicious, repeated, and unsupported rhetoric that Black students cannot compete at elite schools makes this aspect of Thomas’ agenda quite disturbing.

In 2013, the Supreme Court gutted the Voting Rights Act (after it was overwhelmingly passed by Congress and signed by President George W. Bush) by saying Congress had to re-enact a formula determining which states had to pre-clear election law changes. The four conservatives on the Court other than Thomas were content to just tell Congress it needed to update the law. Justice Thomas would have gone much further and would have held that Congress could not constitutionally enact a new law with a different formula to determine which states were the most egregious offenders of voting rights. He also has voted to unduly limit the reach of a different section of the Voting Rights Act, making it harder for plaintiffs to sue states for racial discrimination in election procedures.

Justice Thomas’s rulings on voting rights have hurt people of color to a considerable degree, and he would go further than any other justice in taking power away from Congress to ensure that racial minorities can fully participate in our political process. These votes seem much more aligned with the Republican Party’s desire to make it harder for people of color to vote than any reasonable interpretation of the United States Constitution.

There is an aspect of equal protection clause doctrine that prohibits states from conditioning the exercise of fundamental rights on payments that the poor cannot afford. For example, if a state provides appellate review for criminal cases, as all fifty states do, indigents have a right to appeal without paying the costs. This rule also applies to child termination cases and other government-required costs, such as mandatory fees to obtain a divorce. The central ideal of these cases is that the government should not be allowed to condition participation in important legal proceedings on the ability of people to pay for those services.

Justice Thomas disagrees with all of these cases because in his view the Constitution does not require the government to waive fees for important services when people are too poor to pay those fees. His complete indifference to the plight of the indigent, and thus disproportionately racial minorities, simply cannot be denied.

Justice Thomas was also the only justice in the landmark Citizens United decision to rail against laws requiring corporations to disclose who makes contributions to their political spending. One cannot help but wonder whether this aggressive stance against disclosure is based in part on Thomas’s experiences being wined and dined by wealthy billionaires who, of course, fight disclosure tooth and nail. In any event, Thomas’s desire to strike down disclosure laws, if he found four other votes, would help the rich and powerful (and mostly white) avoid responsibility for their political spending decisions.

Justice Thomas has on rare occasion come down on the side of people of color, such as when he voted with the liberals to allow Texas to refuse to issue Confederate-flag-themed specialty license plates. But such cases are extremely difficult to find and are lonely exceptions to the rule.

Justice Thomas’s legal positions are extreme and often solitary. Why he is adamantly opposed to addressing society’s race and poverty issues is less important than the fact that his record on these issues is so much worse than even the other far-right conservatives on the Court. Through his votes and opinions on affirmative action, voting rights, criminal procedure, and other important constitutional law issues, Justice Clarence Thomas has done enormous damage to laudable efforts by lawmakers and others to achieve a less racist and more just America.