Justice Thomas’ Opinions Cut a Deeply Conservative Swath

The Supreme Court has switched directions on matters of race, and nothing more vividly illustrates the dramatic change than the words of its lone black justice, Clarence Thomas, the man who replaced civil rights legend Thurgood Marshall.

In an opinion issued last week, Thomas complained that much of school desegregation law is “based on a theory of black inferiority,” one that insists black children can learn only if they are mixed with a proper proportion of white pupils.

Nor is there anything “affirmative” about affirmative action, he added. It is a type of “racial paternalism” that suggests minorities cannot compete without whites’ “patronizing indulgence,” said Thomas, who last week cast the fifth and deciding vote in separate cases to cut back on school desegregation and federal affirmative action programs.

“In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination based on malicious prejudice,” he wrote.

In this, his fourth term on the high court, Thomas has emerged as its most provocative writer and most assertive conservative. In one area of law after another, he has written strong, separate opinions this year that fundamentally challenge the conventional view of the law.

While many of his opinions are not likely to become law any time soon--even his fellow conservatives have shied away from his more extreme writings--academics on the right and left say Thomas has changed the debate by reviving ideas that have long been ignored.

“He has turned out to be a more active and more powerful person than anyone thought possible in 1991,” said University of Chicago law professor Richard A. Epstein, himself a legendary iconoclast who has championed the revival of individual property rights.

“He is going back to first principles . . . and writing about the most fundamental change in the structure of government,” Epstein said. “I agree with him that most of what the federal government does is mischievous and wrong.”

Said Notre Dame University law professor Douglas Kmiec, another admirer: “You can’t say he is just [Justice Antonin] Scalia’s shadow--the ‘me-too’ justice. He has emerged as a strong voice on his own.”

For their part, liberal academics and civil rights lawyers say Thomas has proven to be even worse than they had feared.

“It’s just startling. He must be a deeply embittered man,” said American University law professor Herman Schwartz. “He sees anything that tries to help blacks as a mark of inferiority. Remember, this is someone who benefited from affirmative action at every stage of his career.”

Thomas, who turns 47 on Friday, grew up in poverty in Georgia. He compiled a solid academic record as an undergraduate at Holy Cross College in Massachusetts, where he was graduated in 1971. Yale University officials say he entered law school that year through a new program that sought to recruit promising black students.

In 1981, Thomas was one of the few black conservative lawyers to join the Ronald Reagan Administration, and the next year the 33-year-old attorney was named chairman of the U.S. Equal Employment Opportunity Commission. When his appointment expired in 1990, he was appointed to the U.S. Court of Appeals. The next year, when Marshall retired, President George Bush selected Thomas for the Supreme Court.

Theodore Shaw, associate legal director for the NAACP Legal Defense and Education Fund, said Thomas often writes “in a vacuum” and “ignores the facts of the case.”

For example, in the school desegregation case, Thomas accused a federal judge in Kansas City of devising an expensive program of school improvements with the hope of attracting suburban whites. But Shaw said the new school buildings and better-paid teachers were designed mostly to help black children who attend the city schools.

“It was interesting discourse, but it was also simplistic and missed the point,” Shaw said of Thomas’ opinion. “I would think a Supreme Court justice would have a better understanding of the issue.”

African American scholars say Thomas’ views on racial issues reflect a viewpoint sometimes heard in black communities but one that is not likely to become the majority view.

“He has a conservative black nationalist position,” said Harvard University law professor Randall Kennedy. “That’s not novel in itself. Those ideas have been around for a while. But it seems strange and inconsistent coming from him.”

Usually, Thomas argues that race should be downplayed or ignored as a distinction. “But occasionally, he speaks up as a black person and seems to say: ‘I have more authority to speak on these subjects because I’m black,’ ” Kennedy said.

In a 1992 ruling calling for the further desegregation of Mississippi’s state colleges, Thomas wrote a separate opinion to say that Southern blacks want to retain historically black colleges as “a source of hope [and] a source of pride.”

He also raised questions about a ruling that barred the use of race as a basis for screening out potential jurors, saying it might have an adverse impact on black defendants in the South who might face all-white juries as a result.

In April, the court heard arguments in a key religion case that concerned whether a religious symbol such as cross can be erected on public land in front of a state office building.

In a rare comment, Thomas took issue with the premise that the cross in this case was a religious symbol because it had been erected by a member of the Ku Klux Klan. For black Americans, a “burning cross” does not symbolize Christianity, Thomas said.

While Thomas now offers a black perspective on some legal issues, his opinions are generally opposite those of Marshall, a staunch liberal and the first black member of the high court.

Marshall’s greatest victory as a lawyer practicing before the court came in 1954 when the court in the Brown vs. Board of Education ruling declared official segregation unconstitutional.

In his separate opinion in last week’s desegregation case, Missouri vs. Jenkins, Thomas said he agreed that forced segregation was a “despicable system” that should have been abolished. However, he faulted the late Chief Justice Earl Warren for writing an opinion that said segregation was wrong because it gave black children a “feeling of inferiority.” In a footnote, Warren cited a study by social psychologist Kenneth B. Clark that found black girls in segregated schools often chose to play with white dolls.

The use of that study has been roundly criticized by legal scholars, who noted other studies showed black children in integrated schools also chose white dolls. Did that mean integration was harmful?

“Psychological or social science research” has no place in constitutional law, Thomas said, nor is it needed “in order to announce the simple, yet fundamental truth that the government cannot discriminate among its citizens on the basis of race.”

Thomas stopped just short of saying he would dismantle the remaining court-ordered desegregation plans and give up on the goal of truly integrated public education.

In the affirmative action case, Thomas derided white liberals for pressing the view that blacks need special preferences to achieve equality.

“There can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination,” he wrote. “These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or adopt an attitude that they are ‘entitled’ to preferences.”

Issues of race are hardly Thomas’ main concern. Indeed, his longest and most thorough opinions this year have come in cases concerning the Constitution’s allocation of power between Congress and the states.

Last month, he issued a separate opinion suggesting the court took a “wrong turn” in 1937 when it upheld President Franklin D. Roosevelt’s New Deal and gave the Democratic Congress the power to set minimum wages and regulate the economy.

To modern ears, his view sounds quaint, even bizarre. The Constitution gives Congress the power to “regulate commerce among the states.” When that phrase was written in 1787, it referred to the “transport of goods,” not to “business generally,” Thomas concluded. He suggested that the court should use this original understanding to “modify our Commerce Clause jurisprudence.”

That prospect cheers Epstein. It would mean, he said, that federal laws on civil rights, the environment and workplace safety, along with dozens of others, would be wiped off the books because they would exceed Congress’ power to regulate commerce.

But that is hardly likely. In an apparent response to Thomas, Justices Anthony M. Kennedy and Sandra Day O’Connor, two moderate conservatives, added a short note saying they were not prepared to rewrite the past 60 years of constitutional law.

Almost assuredly, Thomas will be heard from more in the next two weeks. The court is expected to issue major rulings on “racial gerrymandering,” religion in schools and the reach of the Endangered Species Act.

“He may be swimming up the stream,” Kmiec said, “but he seems determined to say what he thinks.”