Academic journal article Texas Journal on Civil Liberties & Civil Rights

Write Separately: Justice Clarence Thomas's "Race Opinions" on the Supreme Court

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Write Separately: Justice Clarence Thomas's "Race Opinions" on the Supreme Court

Article excerpt

"Law is something more than merely the preferences of the power elites writ large. The law is a distinct, independent discipline, with certain principles and modes of analysis that yield what we can discern to be correct and incorrect answers to certain problems. "

-Justice Clarence Thomas in a speech at the University of Kansas School of Law (1996)1

"My dad told me way back . . . that there's no difference between a white snake and a black snake. They'll both bite."

-Justice Thurgood Marshall responding to a reporter's question of concerning whether an African-American candidate should be appointed to his seat on the Court once it became clear Clarence Thomas was the frontrunner.2

I. INTRODUCTION: BUCKING TRENDS

Justice Clarence Thomas is a maverick. No matter what one thinks of him-and he has inspired the strongest of partisan rhetoric from those on both sides of the aisle-less than a decade-and-a-half into his tenure on the Supreme Court, he has staked out some strong positions on controversial areas and called into question law longthought settled. For example, Justice Thomas's concurring opinion in United States v. Lopez expressed his disappointment with the entirety of the Court's modern commerce clause jurisprudence (postNew Deal era) and stated that, given the appropriate case, he would be willing to re-examine the so-called "substantial effects" test, which he regarded as a wrong-headed judicial creation of the Twentieth Century.3

Other examples further reinforce his willingness to defy the profession's professed respect for stare decisis: his continued call for an end to the Court's classification of commercial speech as worthy of only second-class First Amendment status;4 his concern voiced in Saenz v. Roe that the Court-which in that very case had given the long-thought dead Privileges or Immunities Clause of the Fourteenth Amendment a new lease on life-had created "yet another convenient tool for creating new rights;"5 and his lengthy Stenberg v. Carhart dissent in which he decried the extension of abortion rights originally given in Roe v. Wade and called the dilation and extraction6 (D&X) procedure at issue there "gruesome," describing it in relatively graphic terms.7 And this is to say nothing of his nearly unbelievable statement in his concurring opinion in Eastern Enterprises v. Apel in which he stated that, given the chance, he would overrule Colder v. Bull, a case decided in 1798.8

In addition to his clear willingness to push the judicial envelope, another inescapable fact about Justice Thomas is that he is an African-American. Given this, the next logical question is whether Justice Thomas's maverick jurisprudential attitude translates to those cases where the issue before the Court has an integral racial component. This is a question that has not been examined by scholars since the mid-1990s9 and Justice Thomas has certainly penned some important "race" opinions since then (the University of Michigan affirmative action cases being glaring examples). A fresh look at this question then is long overdue.

This article is organized as follows: Part II examines the intersection of Justice Thomas and affirmative action; Part III reviews two of his opinions dealing with prison gangs and race; Part IV looks at opinions in the Batson area and the First Amendment; and Part V synthesizes these opinions and argues that Justice Thomas's race opinions paint, not surprisingly, a picture of more complex jurisprudence than partisan commentators would lead one to believe, and that this area of his jurisprudence is deeply informed by his own unique brand of thinking as to the role of race, racism, and ameliorative racial policies in contemporary society.

II. THE COLOR-BLIND CONSTITUTION & AFFIRMATIVE ACTION

Along with abortion, affirmative action is a lightning-rod political issue that inflames the passions.10 After Bakke" and Fulliloveu the Court had been content to let the lower courts struggle with affirmative action until Richmond v. …

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