The Strong, Silent Supreme Type

Clarence Thomas spoke!

The avalanche of media coverage afforded to Justice Thomas’ recent remarks in a cross-burning case before the Supreme Court demonstrates once again that Thomas fascinates the American people as few justices ever have.

Sadly, though, almost all of the coverage focused not on the substance of Thomas’ remarks but on the fact that he said anything at all.

It’s true that Thomas doesn’t ask as many questions as the other justices do, but neither did Oliver Wendell Holmes Jr., who is widely regarded as the most influential thinker in the history of American law. When Thomas has a question, he asks it. When he doesn’t, he believes that the lawyers should be allowed to argue their cases without being constantly interrupted.

More important, Thomas does say a lot, mostly in his written opinions. It’s not unreasonable to suggest that he is the most significant member of the current court, especially on matters of race. Virginia vs. Black, the cross-burning case that sparked the latest debate about his views, is only the most recent example of this.

Thomas has been shaping the debate on race since the early 1980s, when he was chairman of the Equal Employment Opportunity Commission. It was during his tenure that the EEOC shifted away from a group-based approach to civil rights enforcement to an individual-based approach. It was, of course, Thomas’ rejection of group-based relief in civil rights cases that led civil rights groups to oppose his confirmation to the Supreme Court.

Since becoming a justice, Thomas has continued to speak out on questions of race. He has written powerful opinions on desegregation, voting rights and affirmative action. In 1995’s Missouri vs. Jenkins, for example, Thomas became the first justice to directly criticize Brown vs. Board of Education. He said the court was wrong in 1954 to rely on disputable social evidence to declare segregation unconstitutional rather than invoking the “constitutional principle” that “the government must treat citizens as individuals and not as members of racial, ethnic or religious groups.”

Thomas’ conception of civil rights as an individual concern, not a group concern, also explains his approach to voting rights. In 1994, in Holder vs. Hall, Thomas wrote that racial groups shouldn’t “be conceived of largely as political interest groups,” that blacks don’t all think alike and that existing case law should be overturned to eliminate claims for “proportional allocation of political power according to race.”

And in 1995’s Adarand Constructors vs. Pena, Thomas characterized affirmative action programs as being “at war with the principle of inherent equality that underlies and infuses our Constitution.” He added that “so-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.”

Not since Thurgood Marshall, the first African American appointed to the Supreme Court and the justice whom Thomas replaced, has an African American public official spoken out so forcefully on matters of race. Both men were subjected to racism during their lives, and both men were shaped by the experience.

In Thomas’ case, his body of work provides a strong philosophical statement: Civil rights belong to each American, no matter his or her race, not to the aggregate members of one race or group.

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Scott D. Gerber, a law professor at Ohio Northern University, is author of “First Principles: The Jurisprudence of Clarence Thomas” (New York University Press, 1999; expanded edition, 2002).