Thomas’ Straight Thinking Refreshing
Washington’s establishment grinds its teeth and trembles with rage. In a year filled with humiliations, such as the ascendancy of Republicans on Capitol Hill, nothing galls the left so much as this: The most influential player in the seminal area of civil rights and race relations is Clarence Thomas.
Paleoliberals thought they had turned the youngest Supreme Court justice into road kill during a withering series of confirmation hearings in 1991. Although Thomas and his backers raised doubts about sexual-harassment charges proffered by former law professor Anita Hill, comedians and political activists caricatured him as a muscular molester - Mandingo with a diploma from Yale Law School.
But Americans learned something important about Thomas back then: He does best when he speaks for himself, as when he froze liberal senators with the charge that they had staged a “high-tech lynching” to destroy a man who held heretical ideas.
The justice’s friends encouraged him to churn out splashy opinions when he joined the court, but he refused. He told associates he planned to lay low for five years so he could acquire a fuller appreciation of the institution he plans to serve for the rest of his days.
But he couldn’t wait. In the court’s recent session, his fourth, Thomas emerged as one of the most trenchant and readable justices in the gang of nine. He saved his best work for the seminal matter of federal power to overcome discrimination.
He summarized his view in a pithy concurrence to an opinion (Adarand vs. Pena) that struck down hiring quotas. He rejected the notion that “there is a racial paternalism exception to the principle of equal protection. … Government cannot make us equal; it can only recognize, respect and protect us as equal before the law.” He added sternly, “Good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.”
Thomas fleshed out this ideal in Jenkins vs. Missouri, a case in which the justices ordered a federal district court to reconsider desegregation edicts imposed upon the Kansas City schools. Thomas warned that social-science statistics do not provide a suitable basis for constitutional findings - partly because even the finest work in economics, sociology, psychology and publicopinion research is perishable bunk. A constitution, he implied, needs a foundation constructed of sterner stuff, such as ideas.
The key tenet is freedom: People, not courts, should shape our national destiny. Thomas has invited charges of Uncle Tomism because he believes citizens should settle controversial matters through debate and compromise rather than judicial edicts. The Missouri case wiped out the foundation of recent government activism - the belief that the Constitution permits judges to try perfecting humanity, no matter what costs their decisions might impose on citizens.
Thomas’ work reveals an intellectual strength and courage his critics never anticipated. Supreme Court justices know their decisions have enormous impact on the lives and fortunes of Americans. As a result, they have begun to behave like shellshocked politicians. They embroider controversial opinions with qualifiers, exemptions, tripartite analyses, penumbras and other devices that enable them to wriggle out of positions that infuriate Washington hostesses or editors of The New York Times.
Justice Sandra Day O’Connor used the ruse when the court struck down a Georgia congressional-redistricting plan. The decision eviscerated the most common interpretation of the Voting Rights Act and confirmed Thomas’ contention that the government may not count by race. But O’Connor chafed at the harsh conclusion and so blew the losers a kiss: Most of the nation’s 435 House districts are dandy, she assured the public. This one in Georgia was an exception.
That kind of “subtlety” mars lots of recent court decrees and it betokens intellectual confusion or insecurity. But Thomas’ Constitution doesn’t include hiding places, trap doors or vast tracts of gray. His writing is crisp, clear, tough and often passionate. It conveys a message - half-Ross Perot, half-James Madison - vital to the survival of any democracy: Stop asking judges to do the nation’s business. This is your government and your country. You run it, and we’ll try to protect your rights along the way.
And best of all, it drives Thomas’ detractors bananas.
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