Justice Thomas, the Court, States Rights and Moving On

by Sydney Williams Clarence Thomas is perhaps the most vilified […]

John Danforth Is Sworn In as New US Ambassador to the United Nations

by Sydney Williams

Clarence Thomas is perhaps the most vilified Justice on the Supreme Court. He is also among the most underrated. Because he is an African-American conservative, he has been demeaned and trivialized by the Left. Worse, he has been skewered with meanness that reminds one of the Ku Klux Klan. The reaction of many on the Left to Justice Thomas is simply discrimination – not just against race, but against ideas.
Following the Voting Rights Act decision last Tuesday, MSNBC’s Michael Eric Dyson reported: “Clarence Thomas’s actions here today, though consistent, though tragic to me, are even more so in light of the bulk of decisions he’s rendered in the name of a judicial vote on the Supreme Court. A symbolic Jew has invited a metaphoric Hitler to commit holocaust and genocide upon his own people.” Beneath Mr. Dyson’s awkward wording lies a foundation of hatred. Ryan Winkler, a Democrat lawmaker from Minnesota’s 46 th District, tweeted after the decision: “SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas.” Mr. Winkler than said, in response to criticism: “I did not understand ‘Uncle Tom’ as a racist term.” The ‘Uncle Tom’ accusation got play in other, equally repugnant terms. One tweet referred to Justice Thomas as “the biggest cornball brother ever.” Another likened him to the Stephen character, played by Samuel L. Jackson in Django Unchained . Others were unprintable.

Two Supreme Court decisions last week brought out the attack dogs. In the first, Shelby County, Ala v. Holder , the Court struck down the Section 4 of the Voting Rights Act of 1965, but leaving the rest of the Act intact. In the second, Fisher v. University of Texas at Austin , the Court sent the affirmative action case back to a lower court. Following the first, Chris Matthews started his show “Hardball” by saying “goodbye voting rights.” The common theme from the supercilious Left was that Justice Thomas doesn’t know he’s black.

Clarence Thomas was born in the tiny coastal town of Pin Point, Georgia in 1948. Until he was seven, he lived in a one-room shack with a dirt floor and no plumbing. Who else in public life has risen from such humbling and challenging beginnings? His father had abandoned the family when he was two; so when he was seven he was sent to live with his maternal grandfather in Savannah. Myers Anderson was a devout Catholic and member of the NAACP. Thomas was sent to a Catholic school staffed by nuns. His early childhood of poverty, his blackness and the Catholic faith all played key roles in forming the man he became. They are all detailed in his 2007 memoir, My Grandfather’s Son . He proved to be a strong student. But Thomas had grown up speaking a Creole dialect, so early on he developed the habit of listening, as he had found it a struggle to speak “standard English.” And Justice Thomas doesn’t know he’s black?

Going to Holy Cross and the Yale Law School, he fully acknowledges the role affirmative action has played in his life. But, in his memoir, he shows he also understands the importance of aspiration, self-reliance, diligence, individual responsibility and native ability. On the Court, Justice Thomas has approached issues dealing with federalism in a way that limits the power of the federal government and expands that of state and local governments. This has meant he has taken a textualist, rather than activist approach, seeking to uphold the original intent of the United States Constitution, its Amendments and statutes.

The beauty of the Constitution is the simplicity of its broad outline, guaranteeing the rights of individuals and establishing a government in which power would reside first in the people, then in the states and finally in the federal government. It provided for a government comprised of laws, not men; it provided protection for its citizens and it guaranteed the rights of individuals. Through its Amendments it was able to adapt to changing ways, as people and society progressed. The Founders knew they could not cover every possible subsequent event or challenge – that it would always be subject to interpretation. But there is a moral certitude in the words of the Constitution that are timeless. Stealing, cheating, lying are wrong in all cultures, across all time periods. It is for that Constitution that Justice Thomas has reverence. And, like all Justices, Clarence Thomas feels bound to uphold his interpretation of the intent of the Founders.

A hopeful, but apparently hopelessly naïve expectation following the election of Barack Obama in 2008 was that we had entered a post-racial era. We have not. Unfortunately, there will always be those with a hatred for people different from themselves. There remains in this country vestiges of the hatred that led to the need for the Federal government and the Court to intervene in the late 1950s and early 1960s. Whether it is racial in nature, cultural or gender based, hatred is a habit which will never be totally eradicated. There are also politicians who deliberately and maliciously divide us into convenient voting blocs. And, of course, the U.S. is far from alone in terms of prejudice. Islamic fundamentalist have a hatred for those who do not adhere to their strict interpretation of their scriptures. Anti-Semitism has been a factor with which Jews have long had to deal. Once again, the world needs to be mindful. As Muslim populations rise in Europe, so is anti-Semitism.

Discrimination is always wrong, but it sometimes hides in silken shrouds. Jennifer Gratz was discriminated against when she sought admission to the University of Michigan in 1995. But not because she was a woman, but because she was a white woman. In 2007, Chief Justice John Roberts, in a comment about discrimination stated the obvious with his usual clarity: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The real reason the left has a problem with Justice Thomas and his conservative colleagues on the Court is that their philosophy challenges the inexorable drift toward centralization of power in Washington. In Friday’s New York Times there was an interesting, though disingenuous in my opinion, article on what they claim is a “slow drift to the Right” on the part of the Robert’s Court. I say disingenuous because what the conservatives on the Court are in fact trying to do is to slow what is an inevitable slide away from individual and states’ rights, toward an increased centralization of power on the part of Washington and especially the Executive. This is a subject I addressed last week in a piece entitled “The Man Without a Country.” While Abraham Lincoln centralized power during the Civil War, those powers were largely ephemeral, collapsing at the end of hostilities. But the Progressive era of the early 20 th Century began a trend that, with the exception of the Coolidge and Harding eras and to a lesser extent the Reagan years, has seen the Executive branch garner more and more influence.

It is in this light that one should view the decision by the conservative members of the Court to strike down Section 4 of the Voting Rights Act of 1965. The Act singled out nine states to be temporarily stripped of the sovereign righ
t to determine their own election laws. It has been highly successful. At the time, less than 7% of eligible Black voters were registered to vote in Mississippi. Today Black voter turnout exceeds that of Whites. In 1966, when the Court in South Carolina v. Katzenbach upheld the Voting Rights Act it made clear that the remedies provided by the Act were constitutional only because of blatant discrimination, that they were justified by “exceptional conditions.” They were to be temporary in nature, for the Constitution requires that the federal government treat all states equally. Chief Justice John Roberts, in writing for the Court, noted that history did not stop that year. By 2009 the racial voting gap was lower in preclearance states than it was in the rest of the country. In fact, Massachusetts, a bastion of Democrats, in 2012 had the lowest turnout of African-Americans relative to Whites, and it has the greatest disparity between White and Black voter registration. Mississippi had the highest turnout and the lowest disparity. As Christopher Caldwell, writing in the weekend edition of the Financial Times , put it: “Section four would penalize states in the middle of the 21 st Century for their behavior in the middle of the 20 th .The law worked. It is time to move on.

In Fisher v. University of Texas at Austin , Justice Thomas wrote for the majority in his concurring opinion. He wrote of the hypocrisy – that the worst forms of discrimination have always been accompanied by straight-faced representations that what they have done has helped minorities. He wrote of how slaveholders had argued that slavery was a “positive good,” and that a century later segregationists asserted that “segregation was not only benign, but good for black students…that separate schools protected black students from racist white students and teachers.” Justice Thomas then connected the dots. He wrote: “Following in these inauspicious footsteps the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.”

James Taranto interviewed Jennifer Gratz in the weekend edition of the Wall Street Journal . Ms. Gratz was the student who was turned down by the University of Michigan in 1995 because of a racial diversity policy. While she ultimately won her case eight years later, the victory was Pyrrhic, as it had been paired with that of a prospective law student, Barbra Grutter. The Court in Grutter v. Bollinger ruled against Ms. Grutter, giving a green light to continue practicing discrimination in the name of diversity. In the interview, Ms. Gratz noted that even in Grutter v. Bollinger the majority urged “sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary.” As for the Shelby County, Ala. V. Holder , with the Court striking down the section of the Voting Rights Act that held some states to higher standards than others, Chief Justice John Roberts noted that the most recent data on which Section Four was based is from 1972. Ms. Gratz added of the Court decision: “They’ve recognized that the landscape has changed, the dynamic in this country has changed, and it’s time to move on.” She is right.

This memorandum has been prepared as a matter of general information. The accuracy of the material submitted, though obtained from sources believed reliable, is not guaranteed by us and may not be complete. The opinions and estimates expressed in this memorandum accurately reflect the personal view(s) of the analyst(s) covering the subject securities on the original date the memorandum was issued, but are subject to change without notice. Analyst compensation at our firm is not directly related to any specific recommendation or views contained in this research. The analyst, officers and employees of this firm may at times have a position in the securities mentioned herein.

“The thought of the day” by Sydney Williams


The views expressed on austriancenter.com are not necessarily those of the Austrian Economics Center.

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