15 June, 2007Issue 6.3North AmericaPolitics & Society

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Porno, Precedent, and Pin Point

John-Paul McCarthy

Kevin Merida & Michael Fletcher
Supreme Discomfort: The Divided Soul of Clarence Thomas
Doubleday, 2007
432 pages
£26.95
ISBN 978-0385510806

Ever since Article III of the federal constitution endowed them with such enormous powers, the American federal courts have been graced by some extraordinary characters. The roll call might start with Justice Louis Brandeis, the aesthetic Jew with those piercing azure eyes who apparently was the only man in the 20th century who could silence Dean Acheson with a raised eyebrow. (Acheson clerked for him after college). He shared the bench in the 1920s with James Clark McReynolds, a jurisprudential grotesque who railed for twenty years against niggers, kikes and cripples before FDR finally got rid of him in 1941. Today, large swathes of American public policy hinge on the whims, inter alia, of a snowboarding Transylvanian emigré who reviews Nintendo games at the weekend and talks to God before deciding criminal sentences (Alex Kozinski of the 9th Circuit), a mathematical prodigy from Chicago who believes that mothers should be allowed to auction their new born babies (Richard Posner) and a gentle bachelor from lily-white New Hampshire who visits the sick in his spare time and emerged as the improbable saviour of American reproductive rights in 1992 (David Hackett Souter).

None of the above, however, has a story to rival that of the African-American jurist, Clarence Thomas, Thurgood Marshall’s brooding successor on the US Supreme Court since 1991, the subject of a haunting profile published by two journalists from the Washington Post. Though Thomas’s via dolorosa from rural, segregated Georgia to the pinnacle of power in contemporary America via the Reagan Administration and the USCourt of Appeals for the District of Columbia Circuit is well known, this book recounts his story with élan and insight. Merida and Fletcher’s analysis manages to be psychologically subtle yet scrupulously fair to arguably the most aggressively conservative associate justice of the last 50 years.

While he has chosen to invest it with different kinds of ideological meaning over the course of his life, Thomas’s story seems simple enough. At the risk of slightly manglingJohn Montague, one might say of Justice Thomas that “All roads wind backwards to it/ An unwanted child, a primal hurt”. His sad childhood in Pin Point, near Moon River in Georgia, continues to loom like a Saturn in his life and thought. Thomas was abandoned by his father as a baby and his first house burnt to the ground when he was six, traumas that bit deepest in a town where most of the inhabitants were cretinised by drugs, crime and malnutrition and where the droning idiot box was emphatically in loco parentis. Even English came late to him as Thomas grew up speaking an Afro-English creole called Gullah. Thomas is hardly the first American judge to have had it hard as a child, but his early years still seem exceptional. While Earl Warren and Bill Brennan emerged from tough working class cradles to carry American law across new thresholds of civility and grandeur in the 1950s, the conditions under which Thomas struggled in Pin Point were even worse than Warren’s Bakersfield or Brennan’s Newark. The authors elegantly evoke the squalor and despair of this nightmarish town, where Thomas’s addled mother earned a living for a few years by picking crab meat at $5 a pound, before sending him to live with his no-nonsense, bed-before-nine, don’t-talk-back-to-me grandfather, Myers Anderson in nearby Savannah. Thomas’s Georgia is half a world away from the verdant plains of Jimmy Carter’s early manhood or the sleepy bohemia evoked in Michael Stipes’s ethereal ballads. Gazing out at the assembled zombies who populated the Irish countryside in the 1940s, the great poet Patrick Kavanagh screamed”like the afterbirth of a cow stretched on a branch in the wind, Life dried in the veins of these women and men.” Thomas’s memories suggest that he could have been talking about Georgia here.

Anderson is the single biggest influence in Thomas’s life, and he regularly speaks about the way this cold, aloof, semi-literate oil merchant taught him the virtues of self-reliance, hard work and religious faith. Thomas would later intellectualise his uncle’s grim regime through Roman Catholicism and the austere economic analysis of Thomas Sowell. But perhaps the most fascinating aspect of this book is the treatment of Thomas’s conflicted attitude about his own blackness. He has nursed a lifelong grudge against what he considers to be lighter-skinned African-Americans, whom he felt always looked down on people like himselfwho were darker in complexion and had what he himself considered to be more pronounced Negroid features. He seems never to have recovered from the taunts he endured at school, where he was routinely called “ABC”: America’s Blackest Child. In integrated schools, he was taunted by the white kids, and in all-black settings he was persecuted by the lighter-skinned blacks. Judging by his extraordinarily frank and emotional public speeches since 1991, in which he has reflected openly on his Malcolm X phase and his deep sense of alienation from contemporary society as a young man, these wounds still throb. Thomas has been running from Pin Point all his life, running from NAACP-approved ideas about African-American identity, running from the culture of welfare dependence, racial quotas and self-pity which he associates with the black middle classes who did nothing for the little boy left wandering the streets of Savannah when mother was cracking crab shells. Although Thomas’s visceral hostility to all forms of race-related affirmative action programmes is as dangerous as it is incoherent, his frantic search for an authentic intellectual and personal life is by no means despicable. Anyone who has ever aspired to be more than their father’s son, or wanted something finer from life than peer approval will read this humane book and know that Thomas’s journey is universal and as such unending.

Surprises and paradoxes are scattered throughout this book like sequins. The account of Thomas’s awesome appetite for pornography, while nothing new, can still make you whistle. His favourite films appear to have been something called Long, Dong Silver and an epic high-definition masterpiece, The Adventures of Black Mama Jama. In a series of romantic overtures that can only be described as deranged, Thomas liked to talk graphically about these films in front of women who caught his eye while head of the Equal Employment Opportunity Commission. Some of his staff learned to take long dong silver in their stride, so to speak. Some, however, did not. Viewed through the prism of these tastes, Anita Hill’s allegations of sexual harassment at Thomas’s confirmation hearings in 1991 must be seen as belated punishment for a pathetic tit-man who had been skating on thin ice for years. Hill, a former employee of Thomas’s at the OEEC, testified before the US Senate that Thomas had pursued her repeatedly for dates and greeted her regularly with stories about his pubic hair and his self-professed skills in the delicate art of cunnilingus. Risking impeachment from the Court of Appeals, Thomas flatly denied the allegations and just about saved his career with an electrifying retort accusing the Kennedy Democrats of staging a

high tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.

This book hints that the complete story behind the Thomas-Hill relationship still awaits full exposure.

For all this unpleasantness, Thomas still managesto surprise his fair but exacting biographers. Thomas is the legal guardian of a biracial child whom he rescued from penury after his uncle was jailed. We also learn that he has quietly facilitated the confirmation of some very liberal black federaljudges and that his warmest friend on the Supreme Court is the genial Stephen Breyer, who admires Thomas’s skill in complex regulatory lawsuits, Breyer’s specialty while teaching at Harvard. While his tastes tend towards the lunatic fringes occupied by John Yoo (his former clerk who argues that the federal constitution does not forbid certain kinds of military torture) and Robert Bork (the malevolent Methuselah who walked brazenly into the senatorial propellers in 1987), Thomas emerges here as someone with a genuine interest in ideas. His legendary silence at oral arguments has masked the fact that he is probably more intellectually curious than political trimmers like Lewis Powell and Sandra Day O’Connor and more interested in categorical analysis than, say, Byron White, Harry Blackmun or Marshall before him. Many commentators seem genuinely amazed that Thomas is routinely polite, lucid and thoughtful when he chooses to speak up. This calls to mind the story about the house guest who astonished Coleridge by remaining sullenly silent throughout a dinner, only opening his mouth once in eulogy of a dish of potatoes to exult “them’s the jockies for me.” Even his direst critics would admit that Thomas is better than this.

Thomas is frequently confused with the diminutive, Sicilian shin-kicker Justice Antonin Scalia, in that both are aggressive proponents of “originalism”, the idea that the Constitution should be read in the light of its original meaning, or according to the original intent of its draftsmen. Originalism is often conflated with other so-called “conservative” approaches to constitutional interpretation, such as the “strict constructionist” school or the judicial minimalist stance. Originalism, however, is a singular phenomenon with a specific historical lineage. Whereas strict constructionism and the minimalist approach have their roots in a structural regard for the integrity of the broader federal system or in a pragmatic antipathy towards judicial intervention in certain sensitive policy areas, these are not quite the same as originalism as articulated by Robert Bork, Scalia, Michael McConnell or Thomas.

These judges share a common gloom about the direction of modern society which, at least in Scalia’s case, also masks a rather frightening hostility to single mothers, criminal defendants and homosexuals. While originalists trumpet their approach as an objective corrective to the hysterica passio of the Warren Court, this philosophy is just a euphemism for an old conservative agenda, embracing states’s rights, right to life, school prayer, school vouchers and jail time for pornographers (Thomas, J. dissenting from this last part). Originalism in their hands is actually a conservative policy platform, not a simple method of statutory or constitutional adjudication. Other justices have hinted as much, such as William Brennan, who declared that originalism managed to be both a travesty and an absurdity.

It is grim testament to the ferocity of the culture wars in modern America that originalism still has a pulse. But it lingers on, white-lipped and pop-eyed in its insistence that the gravest questions facing the world’s pre-eminent multiracial democracy be determined according to the prejudices of a slave-driving-serial flogger (Jefferson), a gloomy polymath who thought that criticism of the government was actually illegal (Adams), and a financial Bismarck who maintained that all good arguments should be settled with shotguns (Hamilton). Whatever virtues historians find in the lost world of the Founders cannot compensate for the damage that is inevitable when 21st -century judges apply 18th-century standards to modern problems.

Merida and Fletcher make the important point, however, that Thomas does not always agree with fellow originalists, like Scalia. Thomas is openly contemptuous of stare decisis, the idea that the court should not overrule past precedents without very good cause. His jurisprudence suggests that he is gunning not just for the idea that most of the Bill of Rights binds the states as well as the federal government (Hugo Black’s doctrine of incorporation), but also for the doctrine of un-enumerated rights, substantive due process and the so-called Everson v Board of Education standard that governs church-state separation. Scalia would probably settle for gutting Roe v Wade and then retire to his nine children. Thomas dreams bigger dreams.

The treatment here of Thomas’s record on the Supreme Court treads largely familiar ground, beginning with his Hudson v Michigan dissent, where he held that a prisoner who was badly beaten by wardens had no Eighth Amendment claim for relief, and ending with Bush v Gore. Those hankering for something more analytical would do better perhaps with Mark Tushnet’s elegant analysis of Thomas’s natural law ideas in his A Court Divided (2005), or with Edward Lazarus’s riveting memoir of his year as a Blackmun clerk, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court (2005). (If only to underscore the enormous differences between Justices Thomas and Marshall, Lazarus’s book contained the following gem. Asked by a rather pious young clerk how the races in modern America might be reconciled, the wheezing, weather-beaten titan who won Brown v Board of Education paused for a moment. His considered response was “Kill all the white people.”)

Though this book does not pursue this, perhaps the single most interesting aspect of Thomas’s jurisprudence is his free speech analysis. Thomas is the only justice on the current court who refuses to scrutinise cross-burning ordinances under First Amendment categories, that is to say, he is the only justice brave enough to say that cross-burning is not speech, but a uniquely degrading form of intimidation unworthy of the panoply of guarantees traditionally afforded core political speech. His opinion in Virginia v Black outlining this position is probably the only opinion he has ever written which Marshall might have joined. Virginia represented a reversal of sorts for Thomas because in 1992 he joined the court’s bizarre decision in R A V v City of St Paul, which held that a city could not constitutionally criminalise the burning of a cross in the back garden of a terrified black family’s home in the dead of night because of the defendant’s First Amendment rights. This was probably the nadir of the modern court’s free speech fundamentalism, a fundamentalism that Justice Breyer’s urbane Tanner Lectures in 2004 suggested may yet overpower all meaningful attempts at campaign finance regulation (money being speech in some states now apparently).

Should Clarence Thomas ever get five votes for his arguments against privacy, affirmative action or due process, modern America would take a giant step backwards towards the squalor and cruelty he saw on Moon River. Those without a paternal deus ex machina like Myers Anderson would have to sink or swim because, on Thomas’s very insistence, the vatic profundities of the federal constitution would be about as much help to them as the small print on a bill of lading. By the end of this moving portrait of a profoundly damaged man, one is reminded of the unforgivable jibe once aimed at the Marxist scholar, Raymond Williams. Asked to comment on the trajectory of Williams’s academic career, a jealous critic muttered that it was a real pity he was never appointed to the Electric Chair. Thomas would probably have been better off if he sought out that famously plush chair which Oprah reserves for her most eloquent guests rather than the one graced by Thurgood Marshall’s ample frame for over twenty years. Thomas’s career is testament to the fact that rage, resentment and outright partisanship can take you very far indeed, a melancholy conclusion that is only slightly sadder than the realisation that, for certain unlucky souls, childhood can last forever.

John-Paul McCarthy, a DPhil student in History at Exeter College, is studying W E Gladstone’s intellectual life.