“Despite this, Thomas has also long acknowledged the history of racial discrimination in the United States and has never accepted the popular conservative trope that the impact of racism is merely a historical issue in the present day.“
ith the publication of The Reactionary Mind in 2011, Corey Robin made a name for himself as one of the most incisive progressive critics of conservatism. His scholarship was of a rare breed: both rigorous and thought provoking, but also addictively readable. It is very unusual for one to go through an academic book, almost helplessly turning the pages just to enjoy the sparkling prose and refreshing lack of pretension. Oddly enough, the thinker he most resembles is not anyone in the leftist canon but Isaiah Berlin, whose approach to examining a thinker’s work went well beyond hermeneutic analysis of text. Like Berlin, Robin enjoys getting under the skin of his subject matter by trying to understand the personality of the individual behind the work. When it succeeds, the results consist of uncommon insights into the subject matter.
Robin’s new book The Enigma of Clarence Thomas continues his analysis of major figures on the political right by examining one of the more unusual judges in American history. Clarence Thomas was the second African American to serve on the Supreme Court and is currently the longest serving justice. He was appointed to the bench in 1991 after a firestorm of controversy, when his former subordinate Anita Hill accused Thomas of sexual harassment, nearly putting a wrench in his nomination. Thomas is also among the most conservative justices on the court. During his tenure, Thomas has written against the legalization of same-sex marriage, has approved of extensive executive powers for the Bush administration during the War on Terror, and has favored the police and carceral authorities over defendants and criminals in cases concerning the rights of the latter’s. Despite this, Thomas has also long acknowledged the history of racial discrimination in the United States and has never accepted the popular conservative trope that the impact of racism is merely a historical issue in the present day. These myriad complexities make Thomas an unusual figure, which explains Robin’s decision to devote an entire book to him.
The Roots of Thomas’ Jurisprudence
Robin’s book is divided into three large sections, which analyze Thomas’ perspectives on race, capitalism, and the constitution. However, his analysis does not just focus on the Justice’s intellectual and legal opinions. Robin devotes a significant amount of time to biography, looking at Thomas’ personal history, having grown up in the Jim Crow South and coming of age during the Civil Rights movement. Thomas was largely abandoned by his parents and was ultimately raised by his grandparents, who operated a successful fuel oil business. His grandfather was a tough but generous man who Robin believes remained the primary inspiration for Thomas’ outlook, ultimately instilling in him the belief that if an uneducated African American could make it in the Jim Crow South, there were few excuses for anyone else. Robin generously notes the replete references to his grandfather throughout Thomas’ life and interprets them charitably but also observes that Thomas has little to say about the women who also helped raise him. This is because unlike his grandfather, Myers Anderson, there was little flashy or dramatic in their quiet efforts, which instilled Thomas with an ongoing antipathy to women’s issues. Robin also takes issue with Thomas’ unwillingness to acknowledge the significant leg up his grandfather’s comparative wealth gave him in an effort to paint himself as a purely self-made man who overcame the odds. This is an ongoing theme in Robin’s interpretation of Thomas, who comes across as a highly disadvantaged man that nevertheless refuses to acknowledge any help he received during his life, unless it came purely from the teachings of Myers Anderson. This is because such acknowledgements would problematize the dark and insular philosophy Robin associates with Thomas: that African American men like himself cannot expect help from anyone and so they need to toughen up and make something of themselves without succumbing to a victim mentality. The irony is that Thomas’ experience as a racialized victim in a largely white world—from Yale Law School to his tenure as a Supreme Court justice—might have aroused in him a greater sense of compassion and orientation towards social justice. Instead, Thomas comes across as a man driven by resentment, whose hagiographic self-understanding comes at the expense of deep feeling for others. For Thomas, the world is a tough place—and those who are victims better learn to make the best of it without looking for handouts of assistance from anyone, especially from the white ruling class.
This emphasis on the importance of race becomes crucial for interpreting Thomas’ jurisprudence. Robin acknowledges that Thomas is sometimes painted as little more than a disciple of the late Antonin Scalia’s utterly incoherent (as I have pointed pointed out) originalist approach to legal interpretation. But the reality is more complex. For Robin, we must interpret Thomas as a conservative black nationalist who is very much driven by political and even psychological motivations. As Robin puts it:
“Race is the foundational principle of Thomas’ philosophy and jurisprudence. It was his first political idea, which he comes to as a young boy growing up in the segregated South and as a politicized student in the desegregating North. It is the ground of his thinking about morals and politics, society and law.”
Robin points out that Thomas began as a radical activist during the Civil Rights era, who viewed the United States as an irrevocably racist society. He still feels that way, but the experience of becoming a wealthy and powerful Justice changed that. As Thomas aged, he became increasingly dissatisfied with political efforts to change the system, adopting the defeatist attitude that nothing could be done to alter white society’s embedded prejudice. The only thing that could be done is to try to make it yourself, come what may. This is where Thomas—going through the writings of other African American conservatives like Thomas Sowell—had his road to Damascus conversion to conservatism and a support for capitalism. The mass of African Americans may never be able to make it because of systemic racism, but Thomas believes it to be as much about an insidious culture of victimhood and idleness. However, like Myers Anderson, they can play the game and do their best to rise to the top through personal virtue, hard work, and tough-mindedness.
This outlook irrevocably frames Thomas’ reading of the law. Robin points out that—like many other conservative judges—Thomas is more than willing to fudge theoretical principles to get the result he wants. Some days he does indeed appeal to Scalian textualism. Other days he postures as a disciple of natural law theorizing. When ruling against extending rights for gays, he may even claim that homophobic discrimination by the state can in no way impugn the innate dignity of gay people, since that is beyond the reach of political authorities. The latter is an especially elliptical mode of reasoning—since on that basis the state cannot discriminate against the dignity of anyone and so there is no need to rectify injustices. Thomas’ goal is to be a conservative judge, and he often little cares for how he arrives at the ruling he desires. But Robin claims there is a deeper motivation behind such judicial opinions. This is that political efforts to improve society is futile, and it benefits no one to believe it can be changed through law or activism. This is not to say that the United States is just because it emphatically is not. For Thomas, America is a racist and bigoted country and always will be. But it is better for victims of injustice to stop thinking of themselves as victims and try to get ahead in a dog-eat-dog world by following a merciless set of rules. This especially comes out in Thomas’ unusually draconian approach to rights for prisoners. In Hudson v. McMillian (1992), a prisoner was needlessly beaten by guards who were told not to have “too much fun” by their supervisor. Thomas conceded some of the arguments and argued that such behavior may be immoral and even criminal, but Thomas still disputed that it reached the threshold of cruel and unusual punishment.
Progressives believe we live in an unjust society, which can be changed. Thomas goes further and thinks society is so deeply unjust there is no point in trying to change it.
Robin’s interpretation of Thomas is fascinating and dark, treading a very fine line between condemning Thomas and trying to understand him. This is a very necessary exercise given the man’s complex history as victimized minority who later became a powerful judge accused of abusing his subordinates. It also complicates the interpretation of conservatism given in The Reactionary Mind, which held that the conservative impulse is fundamentally towards preventing efforts to democratize social hierarchies and create a more equal society. According to Robin, conservatives do not entirely care how they justify hierarchy since their reasoning is almost always retrospective; the status quo is to be accepted as it is, and we should not spend too much time (if any) thinking of how things could be different. The point is to use whatever philosophical or theoretical tools are available to block the Left. Thomas is unusual in being a figure who has first-hand and deep experience with how unfair and unequal society can be; indeed, Thomas even believes that cheap right-wing narratives about how America is a post-racial society are naïve and display a stunning lack of insight. What makes Thomas interesting is how deeply felt this belief is; actually, he goes even further than most left-wing activists. Progressives believe we live in an unjust society, which can be changed. Thomas goes further and thinks society is so deeply unjust there is no point in trying to change it. If anything, the problem with the Left is that it thinks many white Americans may be good enough to want to improve, which, in Thomas’ view, demonstrates utopian naïveté. His conservatism is, therefore, first and foremost a kind of fatalism and even social defeatism. Some may be able to rise to the top, but most will not. The point of life is to be the man, and that means standing on everyone else, rather than being a serf at the bottom.
Robin’s story is a good one, and it makes a compelling case for why Thomas is an important figure to understand in order to grasp our complex post-modern era. The book would, nevertheless, have been stronger with an additional chapter that explored more of the legal-theoretical issues brought up. For instance, it would have been very helpful for Robin to compare Thomas’ approach to jurisprudence with other conservative philosophies. His general claim that conservative justices are often merely fishing for principles which allow them to get the result they want may be true, but it would require a lot more scholarly exegesis to prove. It may be that originalism, natural law theorizing, and Burkeanism are ultimately self-serving and thin ways to approach the law. But it is by no means obvious, and further work would be required to make that point. Contrasting Thomas’ fatalistic reading of law with others would have been helpful in this regard, and Robin brushes too quickly over some important issues. Judges may be individuals with personalities and private outlooks, but they are also judges. Treating them as such may be dryer than Robin’s analysis, but it remains important when trying to convince legal scholars and analysts.
Nevertheless, his book is an intelligent and timely read, full of the wit and extraordinary intelligence that are Robin’s hallmarks. It builds on the promise of The Reactionary Mind and—more subtly—Robin’s first book Fear: The History of a Political Idea. To Robin, fear is a primary political emotion whose significance is often underestimated. It is key to understand fear if one is to grasp the reactionary idolization of order, power, and social hierarchy. Thomas comes across as a very complicated person; however, in Robin’s telling, he is, first and foremost, a frightened one. His reaction to an unjust world is not to fix it but to shield himself in wealth and power and insist that everyone else do the same.
Matt McManus is Professor of Politics and International Relations at Tec de Monterrey, and the author of Making Human Dignity Central to International Human Rights Law and The Rise of Post-Modern Conservatism. His new projects include co-authoring a critical monograph on Jordan Peterson and a book on liberal rights for Palgrave MacMillan. Matt can be reached at email@example.com or added on twitter vie @mattpolprof