A History Lesson From Clarence Thomas

In Django Unchained, director Quentin Tarantino’s
bloody ode to the spaghetti western set in the pre−Civil War
American South, Samuel L. Jackson portrays the despicable character
of Stephen, the head house slave on a hellish Mississippi
plantation. Reviewing the film for The Boston
Globe, critic Wesley Morris struggled to convey the villainy
of Stephen’s character, turning to a present-day comparison for
help. “The movie is too modern for what Jackson is doing to be
limited to 1858,” Morris wrote. “He’s conjuring the house Negro,
yes, but playing him as though he were Clarence Thomas.”
It was not the first time a liberal writer had taken a cheap
shot at the conservative Supreme Court justice. New York
Times reporter Linda Greenhouse once described Justice Antonin
Scalia as Thomas’ “apparent mentor,” yet we now know that Thomas
has been the one quietly influencing Scalia’s jurisprudence. But
the comparison to the slave power system was particularly
contemptible, especially because no Supreme Court justice since
Thurgood Marshall has written more frequently or powerfully about
American racism than Thomas.
Consider his role in the 2003 case Virginia v. Black,
which involved a state law criminalizing the burning of a cross
“with the intent of intimidating any person or group of persons.”
While most of his colleagues focused on First Amendment law, Thomas
offered a different view. The law was intended to counteract
“almost 100 years of lynching and activity in the South” by the Ku
Klux Klan and other hate groups, he reminded the courtroom during
oral argument. “This was a reign of terror, and the cross was a
symbol of that reign of terror.”
When the case was decided several months later, Thomas went
further in a lone dissent, arguing that cross burning was part and
parcel of that racist terrorism and therefore deserved no
protection under the First Amendment. “Those who hate cannot
terrorize and intimidate to make their point,” he wrote.
It was not an opinion cheered by free speech advocates, although
that does not disqualify it from the realm of civil rights. Nor
would it be the last time Thomas offered a history lesson about
race in America.
In 2010, after the Supreme Court struck down several campaign
finance restrictions in Citizens United v. Federal Election
Commission, the Court came under intense criticism for
harboring an alleged pro-corporate bias. In response, Thomas
reminded those critics that the cause of campaign finance
regulation was not exactly squeaky clean.
“Go back and read why Tillman introduced that legislation,”
Thomas told an audience at Stetson University College of Law,
referring to the Tillman Act of 1907, an early campaign finance law
sponsored by Sen. Benjamin Tillman, a leading Southern Progressive
and notorious white supremacist. “Tillman was from South Carolina,”
Thomas continued, “and as I hear the story he was concerned that
the corporations, Republican corporations, were favorable toward
blacks, and he felt that there was a need to regulate them.”
But that verbal jab was nothing compared to Thomas’ contribution
to the 2010 decision in McDonald v. Chicago, where the
Supreme Court ruled that the Second Amendment right to keep and
bear arms constrains state and local governments via the 14th
Amendment. In his concurrence, Thomas once again reached for the
history books, this time tracing the 14th Amendment’s origins to
the antislavery movement and the efforts of the Radical Republicans
of the 39th Congress, who sought to force the former Confederate
states to respect fundamental rights after the Civil War—including
the right to keep and bear arms, a provision of particular
importance to the recently freed slaves now facing the South’s
incipient Jim Crow regime.
That focus on black history even earned Thomas a rare compliment
from liberal Washington Post columnist Courtland Milloy,
who marveled, “His advocacy for black self-defense is straight from
the heart of Malcolm X.” Milloy’s sentiment was accurate, although
he should have reached further back for the comparison. Thomas’
advocacy for black self-defense came straight from the heart of
Frederick Douglass, whose writings Thomas repeatedly cited in his
McDonald opinion. “The liberties of the American people
were dependent upon the ballot-box, the jury-box, and the
cartridge-box,” Douglass once wrote. “Without these no class of
people could live and flourish in this country.”
Many of his critics may be too ignorant to know it, but Thomas’
writings are steeped in African-American history and grapple
repeatedly with the long shadow cast by slavery and Jim Crow. He
may not be a modern liberal, but there is no question that Clarence
Thomas is part of a civil rights tradition that started with
Frederick Douglass. ;

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A History Lesson From Clarence Thomas

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