Three questions for Clarence Thomas

A mystery to many, Clarence Thomas ruled against a key provision of the Voting Rights Act.

Story highlights

  • High court's lone African-American justice ruled against civil rights pillar
  • Conservative majority's decision strikes at heart of 1965 Voting Rights Act
  • Questions about Clarence Thomas persist even after two decades on the Supreme Court
  • Among them: Why does he condemn affirmative action if he benefited from it?
He wore a black beret and Army fatigues, warned people that a revolution was coming and memorized the speeches of Malcolm X.
"I now believed that the whole of American culture was irretrievably tainted by racism," he once said, describing his reaction to the assassination of the Rev. Martin Luther King Jr.
On Tuesday, that same man helped dismantle a key provision of the Voting Rights Act, one of the pillars of the civil rights movement. If he had his way, he would bury another pillar: affirmative action.
There may seem to be a contradiction between the Clarence Thomas who was the angry campus radical in the 1960s and the conservative hero who sits on the U.S. Supreme Court today. But some legal observers say Thomas sees himself as a "prophetic civil rights leader" who is still fighting for the same cause -- a colorblind America.
"A lot of people who are what I call professional Negros have ridden white guilt and socialism to very lucrative lives," says Holzer, who uses the term "Negro" because he says he doesn't classify people by skin color.
"Thomas didn't," Holzer says. "He made a very deliberate and gutsy decision to go where his intellect and his study took him, and that's heroic."
One man's hero, though, is another man's sellout. During his nearly 22 years on the nation's highest court, Thomas has been called a self-loathing "Uncle Thomas." His impact, though, cannot be ignored. His judicial opinions have transformed America. And no other contemporary Supreme Court justice has spoken with such raw emotion about race or has embodied the subject's complexities.
Yet he is still a mystery to many. There are questions about Thomas that have persisted even after two decades on the Supreme Court as its lone African-American justice.
Here are three of them:
Question 1: Why does Thomas condemn affirmative action if he benefited from it?
On Monday, the Supreme Court sidestepped a sweeping decision on the use of race in college admissions, throwing a Texas case back to the lower courts for further review. The high court had been asked to decide if the University of Texas violated the constitutional rights of some white applicants by considering race in the admissions process.
Thomas, in issuing a concurring opinion with the 7-1 majority, left no doubt as to how he would have ruled had the court not found that lower federal courts failed to apply the appropriate standards in the Texas case.
"Just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then," Thomas wrote, "the alleged educational benefits of diversity cannot justify racial discrimination today."
"The university's professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists."
Thomas has consistently voted against affirmative action policies because he says they're divisive, unconstitutional and harmful to their recipients. He cites his own experience as an example.
Thomas was born in poverty in rural Georgia but managed to gain admittance to Yale Law School. He acknowledges that he made it to Yale because of affirmative action but says the stigma of preferential treatment made it difficult for him to find a job after college.
In his memoir, "My Grandfather's Son," Thomas says he felt "tricked" by paternalistic whites at Yale who recruited black students.
"I was bitter toward the white bigots whom I held responsible for the unjust treatment of blacks," he wrote, "but even more bitter toward those ostensibly unprejudiced whites who pretended to side with black people while using them to further their own political and social ends."
Thomas with then-President George H.W. Bush after he appointed Thomas to the Supreme Court in 1991.
Some observers, though, counter with one question:
If affirmative action is so bad for its recipients, how come you've done so well?
"His entire judicial philosophy is at war with his own biography," said Michael Fletcher, co-author of "Supreme Discomfort: The Divided Soul of Clarence Thomas." "He's arguably benefited from affirmative action every step of the way."
For many blacks, affirmative action is "the contemporary equivalent of the Emancipation Proclamation," Fletcher explains in his book. It's one of the most important legacies of the civil rights movement. The expansion of the black middle class was driven by affirmative action policies, he says.
Some blacks detest Thomas not because he's conservative, Fletcher says, but because he rules against affirmative action policies, closing the door that was opened for him.
The black community has accepted conservatives as varied as Booker T. Washington, Colin Powell and Condoleezza Rice. Many members of the community dislike Thomas for another reason.
"Some say he's a traitor and hypocritical," says Fletcher, an economics correspondent with The Washington Post.
Thomas first attracted public attention in the early 1980s when President Ronald Reagan asked him to lead the Equal Employment Opportunity Commission, which enforces federal discrimination laws. Thomas' opposition to affirmative action and criticisms of civil rights leaders during his tenure made headlines.
In 1990, President George H.W. Bush appointed Thomas to the powerful U.S. Court of Appeals for the D.C. Circuit, a traditional steppingstone to the Supreme Court.
Would Thomas have risen so far so quickly had he not been black?
CNN legal analyst Jeffrey Toobin doesn't think so. In a biting 2007 New Yorker magazine review of Thomas' memoir, Toobin wrote that Thomas had never tried a case or argued an appeal in any federal court and had never produced any scholarly work when he made the D.C. appeals court.
"Yale and Reagan treated him the same way, but he hates one and reveres the other," Toobin wrote. "Thomas never acknowledges, much less explains, the contradiction."
When Bush selected Thomas in 1991 to replace Thurgood Marshall, the court's first black justice, the questions about Thomas' qualifications intensified. Bush said he picked "the best qualified" nominee, but Thomas questioned that in his memoir, saying even he had doubts about Bush's "extravagant" claim.
"There was no way I could really know what the president and his aides had been thinking when they picked me," he wrote.
Thomas' defenders say his performance on the high court has removed any doubts about his qualifications. They call him the most consistent conservative on the court, a man who won't sacrifice his principles to eke out a short-term judicial victory.
Holzer, author of "The Supreme Court Opinions of Clarence Thomas," says he doesn't think Thomas "benefited from affirmative action at all."
Thomas' legal acumen is well-known, says Holzer, a retired law professor from Brooklyn Law School. Thomas is the court's leading "originalist" -- he says he interprets the Constitution based on what the framers meant, not on any partisan policy preferences.
"This may be hard for Toobin to swallow -- Clarence Thomas would have been appointed were he white, yellow, brown, beige, even blue or green."
Scott Douglas Gerber, an Ohio Northern University law professor and author of "First Principles: The Jurisprudence of Clarence Thomas," says Thomas is on the verge of cementing his judicial legacy with the civil rights cases before the court.
Thomas' constitutional philosophy is simple, Gerber says: All Americans should be treated as individuals and not as members of a racial or ethnic group.
Gerber says Thomas has ruled against the Voting Rights Act in the past because he believes that laws based on the "proportional allocation of political powers according to race" should be overturned.
The Rev. Martin Luther King Jr. leads a 1965 voting rights march from Selma to Montgomery, Alabama.
The Voting Rights Act is considered one of the crown jewels of the civil rights movement. Its passage, which came about after King led a dramatic campaign in Selma, Alabama, is responsible for the expansion of black political power in the last 30 years.
On Tuesday, the Supreme Court's conservative majority issued a ruling that essentially strikes at the heart of the Voting Rights Act. The court voted 5-4 to limit the use of a key provision in the landmark law, in effect invalidating federal enforcement over all or parts of 15 states with a past history of voter discrimination.
Thomas isn't the only Supreme Court justice whose life has been shaped by affirmative action. One of his colleagues is grateful for the role it played in her life.
Sonia Sotomayor told "60 Minutes" that affirmative action helped her gain admittance to Princeton University. (She also graduated from Yale Law School.) She is the first Hispanic justice on the Supreme Court.
"It was a door-opener that changed the course of my life," Sotomayor said in the January interview.
Question 2: How does Thomas embrace an "originalist" view of the Constitution when the framers would have considered him a slave?
A lot of originalist judges rhapsodize about the wisdom of the Constitution's framers, but Thomas approaches the Constitution with a different racial history. Blacks were enslaved by many of the founding fathers who talked about liberty and freedom.
How does a black judge become an originalist when the "original intent" of the Constitution was to preserve slavery and classify slaves as three-fifths of a human being?
Thomas addressed that question in part in one of his most cited opinions, a 2007 school integration case, Parents Involved in Community Schools v. Seattle School District No. 1.
Thomas joined a conservative majority that ruled 5-4 that race cannot be a factor in assigning children to public schools. In a concurring opinion, Thomas cited one of the Supreme Court's greatest judges, John Marshall Harlan, known as the "great dissenter."
Harlan issued a thunderous dissent in the notorious 1896 Plessy v. Ferguson case, which sanctioned the separate but equal doctrine that provided the legal foundation for the brutal Jim Crow era. Plessy is considered one of the high court's lowest moments.
Thomas invoked another landmark Supreme Court decision, the 1954 Brown v. Board of Education ruling, which declared segregated schools and the separate-but-equal doctrine of Plessy unconstitutional.
Thomas wrote in the Seattle decision:
"My view of the Constitution is Justice Harlan's view in Plessy: 'Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.' And my view was the rallying cry for the lawyers who litigated Brown."
Thomas embraces an originalism that is rooted in the principles of the founders rather than their practices, wrote Hannah L. Weiner, author of an article in the Duke Law Journal on Thomas titled "The Next Great Dissenter."
Weiner said Thomas believes that history will hail him as a "prophetic leader of civil rights" who honored the civil rights movement by fighting for its ultimate goal: a colorblind America.
"He says the same framers who saw him as three-fifths of a man wrote the Declaration of Independence that allowed us to dream of having a President Obama in the White House," says the Post's Fletcher.
Marcia Coyle, author of the "The Roberts Court," a look at the contemporary court's battle over the Constitution, says Thomas believes that Reconstruction -- a brief period after the Civil War when the federal government strove to make full citizens of freed slaves -- purified the Constitution.
Thomas at Obama's 2013 inauguration with Justice Sonia Sotomayor, who said affirmative action changed her life.
"He believes the Reconstruction amendments purged the Constitution of the taint of slavery and rendered the Constitution colorblind," says Coyle, who provides Supreme Court analysis for the "PBS NewsHour."
The Reconstruction amendments are the 13th, 14th and 15th amendments. They abolish slavery, empower newly freed slaves and protect their right to vote.
For anyone who follows matters of race in America, the 14th Amendment is vital. The amendment, with its emphasis on equality, has become the epicenter of a fierce legal battle over what the Constitution says about race.
Thomas and other conservative judges believe the 14th Amendment bans any preferential treatment of minorities because the Constitution is colorblind. It doesn't matter if a person is white, black or green, they say, dividing people up by race is unconstitutional. They cite Harlan's "colorblind" dissent in Plessy in which he invoked the 14th Amendment.
Others say judges such as Thomas are engaging in clever semantics, commandeering language that was originally used to help racial minorities to argue for policies that now exclude them.
Doug Kendall, founder and president of the Constitutional Accountability Center in Washington, says Thomas is a "faux" originalist who ignores the "original intent" of the 14th Amendment framers who were trying to create laws to address the legacy of slavery.
"They were the first proponents of affirmative action," Kendall says of the Reconstruction amendment lawmakers. "They passed a whole series of laws that were designed to help the freed slaves realize the promise of being a full and equal citizen in the U.S."
But Gerber, the Ohio Northern University law professor, says Thomas bases his originalist vision in the Declaration