Clarence Thomas, the Roberts Court, and the corruptions of our American Dreams (Part 1 of 2)

July 8, 2024

Dawn at Wallula Gap, on the Columbia River in southeast Washington

A Promise, For All of Us

Part I, The Betrayal

For those who haven’t met me or my thumbnail photograph I am Caucasian. In ways I’m still learning about, being born white has affected my life experience in myriad ways. My first memories derive from the tropical outpost where I went to kindergarten. It was a company town bifurcated on the basis of skin color, and the best real estate was on the white side of the line.

Given our history it’s a special challenge for white American writers to write about race. We peer through the lens of our experience to try to imagine the experiences of those who grow up without the social and economic passports of white acceptance and white privilege. We’re naive if we suggest we can somehow register or authenticate others’ experiences through our own. So we ought not pretend we can.

That said, Thurgood Marshall has been one of my heroes since I was an early teen, as I became aware of what he’d accomplished, first as the lawyer who’d successfully argued Brown v. Board of Education (1954) and then as the first African-American to be confirmed to a seat on the Supreme Court (1967). Marshall was a skillful advocate—someone who used the rigor of law, and the ideals of our promissory documents to hold us to the letter of liberty and justice for all. I couldn’t help but notice the ways in which Marshall powerfully complemented Martin Luther King, Jr.—with a passion for justice and a soul-stretching acceptance for what the pursuit of justice so often demands, personally, from those who commit their lives to it.

King’s 1963 “I have a dream” speech—delivered on the steps of the Lincoln Memorial, a century after Lincoln signed the Emancipation Proclamation—powerfully animates the core question of whether Americans are willing to keep our most important promises to each other. The dream is King’s vision for racial harmony and, as he resolved to inject, it’s a vision “deeply rooted in the American Dream,” with its soaring aspirations of equality, justice and opportunity.

For millions of American—and millions worldwide whose hopes are likewise invested—King’s dream is the American Dream. The corresponding legwork of Thurgood Marshall’s career—up to and including his tenure on the Supreme Court—was in service to a civil rights movement that would endure the “Bloody Sunday” crossing at the Edmund Pettus bridge on the road to Selma in 1965, a journey at least as awe-inspiring as John Glenn orbiting the planet in Friendship 7 three years earlier.

Thurgood Marshall (center) with NAACP co-counsel George Edward Chalmers Hayes and James Nabrit Jr., outside the U.S. Supreme Court building in 1954 (photo courtesy Wikimedia Commons)

Marshall announced his retirement, for health reasons, in the summer of 1991, and died from heart failure a year and a half later. President George H.W. Bush would select Marshall’s successor. Bush nominated Clarence Thomas, then a federal appeals court justice but with a longer history as chairman of the Equal Employment Opportunity Commission.

A political ploy, from the beginning

The mildest lesson from Thomas’s appointment to the Supreme Court is that elections have consequences. The ideological power-play embedded in Thomas’s nomination was evident from the start and is ever-clearer with the passage of time. The bristling certitude with which he espouses his “originalist” judicial philosophy is no doubt sincere. But at core Thomas’s elevation to the Supreme Court was a rebuke to Marshall’s legacy, one inspired by an overwhelmingly white, male, ideological clique. The National Association for the Advancement of Colored People (NAACP)—the organization that Marshall represented for a quarter century prior to his Supreme Court appointment—overwhelming opposed Thomas’s nomination.

Fourteen years later, the same group of ideologues who worked to get Thomas on the court worked, successfully, to derail the nomination of George W. Bush’s legal advisor, Harriet Miers. In doing so, they cleared a path for Samuel Alito, another “originalist.” It was Alito who wrote the court’s majority opinion repealing Roe v. Wade (affording a national right to abortion) two years ago.

For us baby-boomers there are a dozen or so commonly witnessed tragic events that stopped us cold. Thomas’s confirmation by the U.S. Senate is on that list. At least for me. In the end, it was tantamount to watching a cabal of white men throw an African-American woman (Anita Hill) into a volcano.

Hill wasn’t the only woman who alleged sexual misconduct by Thomas when he was at the EEOC. But she was the only one to testify. It was deeply unsettling, especially for women, but also for men who sympathized with Hill, to see how she was eviscerated-simply because she had to be.

Anita Hill testifying before the Senate Judiciary Committee in October 1991 (photo courtesy of Wikimedia Commons)

Thomas responded to Hill’s allegations by angrily playing the race card—denouncing the hearings before the Senate Judiciary Committee as a “high-tech lynching.” At that point, the already tense proceedings lurched from miserable to nearly unbearable. You could see it on the faces and body language of the senators, including the Judiciary Committee chairman, Joe Biden, and John Danforth, Thomas’s protege, an ordained Episcopal minister and sitting Republican senator from Missouri. To have prolonged the hearings and to have rejected Thomas’s nomination risked shattering the Senate’s veneer of collegiality. The nomination was sent to the full Senate but without a “favorable”recommendation. He was nevertheless confirmed with a 52-48 vote (41 Republicans and 11 Democrats), one of the narrowest margins in U.S. history.

A Southern tide of Christian Nationalism

The fiasco of Thomas’s confirmation coincided with the ascent of the Republican Party’s thinly concealed “Southern strategy,”—to exploit racial resentments in the states of the former Confederacy—and a parallel “grand bargain” with white evangelical Christian leaders. The bargain was to prosecute a culture war that included the party’s pledge to appoint judges to the Supreme Court who would be inclined to repeal Roe v. Wade and broadly interpret 2nd Amendment gun rights to resist restrictions on the sale and possession of firearms, including assault weapons. But the politics of race was at the core of it and even though several Republicans denounced former Ku Klux Klan wizard David Duke when he ran for Governor of Louisiana in 1991, it did not escape notice that, even though Duke lost, he received well over a half million votes. At least until Donald Trump came along, an implicit part of the merging agendas—to abet rather than confront racism and cater to the vision of America as a conservative Christian theocracy—was to avoid saying the quiet parts out loud.

Crowd gathering to hear Barack Obama’s victory speech from speakers at a Washington D.C. gas station on election night 2008.

Part of what’s missing from the majority opinion in Trump v. United States is any mention of the Jan. 6, 2021 insurrection, the bloodshed and property damage, the physical threats to elected officials including Trump’s vice president, for whom a noose dangled just outside the building. Those omissions, alone, betray the court majority’s bias, giving the blindfold on Lady Justice a whole new meaning. A short synopsis of what the Roberts Court majority meant in Trump v. United States is that it’s all about power. Their power, and the power of their movement to empower the powerful. They have it, and they’re quite okay flaunting it.

—tjc

To continue reading, please subscribe to and support The Daily Rhubarb at the link below.