Posted: September 15, 2005
e can learn much from good biographies, not just about the subject of the biography, but about the times in which he lived and, more broadly, about human nature itself. Ken Foskett's biography of Justice Clarence Thomas is such a book, and we should learn from it: about the boy who grew up in rural, segregated Georgia to become a Justice of the Supreme Court of the United States; about the prominent African-American leaders who denigrate rather than praise his Horatio Alger story; and about the character of a great man in the face of unjust adversity. But we can also use the biography to move beyond Foskett's own account of Thomas's judicial philosophy to the more nuanced jurisprudence actually embraced by Justice Thomas.
This is not the first biography of our nation's youngest justice, but the added distance from the controversy over his nomination arguably makes it the most objective yet. And Foskett, a journalist for the Atlanta Journal-Constitution, draws some insightful connections between the Justice's character and the national struggle over race that has paralleled his life.
I have always been impressed, for example, by Justice Thomas's photographic memory and encyclopedic attention to detail. Foskett connects this uncanny ability to our nation's racial past. As is widely known, Justice Thomas was raised by his grandfather, Myers Anderson, whose "almost fanatical devotion to work" gave him, writes Foskett, a "sense of accomplishment and dignity as well as freedom" in a world that tried to deny those things to him. Yet Anderson was a product of Jim Crow, and never learned to read. Instead, he would memorize everything—truck and tractor repair instructions, construction techniques, and planting seasons—and he drilled the same attention to facts and details into his young charge.
Anderson also "had very little tolerance for troublemakers and individuals who did not want to work." He succeeded in segregated Savannah even during the Great Depression. Foskett recounts how Anderson instilled his self-reliant ethos in Thomas, but he also describes Thomas's more radical college days, when he flirted with the confrontational style that would eventually lead many latter-day civil rights leaders to demand government entitlements, up to and including reparations for slavery that ended five or six generations before they had been born. Thomas would ultimately follow his grandfather's path, and that of his grandfather's great-grandfather who, as a freeman in 1872, purchased the same 40 acres that he had once farmed as a slave. Thomas adhered to that path even to the point of chastising—to a reporter! —a member of his own family for being on welfare. And portraits of Booker T. Washington and Frederick Douglass hang prominently in his chambers at the Court.
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Foskett recounts how Thomas's life experiences contributed to his political and judicial philosophy. Thomas and his grandfather, for example, grew crops on land Myers owned in Liberty County and gave the harvest to "po folk" who needed it, thus instilling in the young man an appreciation for private rather than governmental charity. Thomas's neighbors in those early days watched out for each other. If a man was sick, others tended his fields, and took in his children if he died. Any parent could discipline any child, and crime was almost non-existent as a result. These things, and his fundamental distrust of a government that embraced state-sponsored segregation, gave rise to Thomas's "libertarian" political philosophy, according to Foskett.
Yet his description of Thomas's libertarianism is too simplistic. As Foskett himself points out elsewhere, the sting of racial segregation that Thomas experienced was not of the white-versus-black variety codified in the law—Thomas had only limited interaction with whites until high school, where the nuns who taught him were white. Rather, he experienced an entirely different kind of racism, rooted in the elitism within the black community itself. Savannah, Georgia, of the 1950s and early 1960s had a brutal pecking order based on wealth and status, the latter often tied to skin color, with fair-skinned blacks at the top of the social ladder. Folks from Pin Point, like Thomas, were called "dem people" by black Savannah high society, and Thomas's nickname was "ABC," for "America's Blackest Child" —an odd nickname for someone who would later be called "the whitest man in America" by Columbia Professor Manning Marable, who despised Thomas's conservative judicial philosophy. Dark-skinned blacks weren't allowed into the better black social clubs, an oft-overlooked fact that extends back to the argument Homer Plessy made to the Supreme Court in 1896, when he contended that he should be admitted to the "white" train car because he was a fair-skinned black who could pass for white.
As a result of his experience, Thomas's political principles were not framed simply by an animus against a government that would permit (indeed, foster) segregation, but by his rejection of the inherent immorality of classifying people according to shades of color, whether done by government or by private groups. His grandfather hung a framed picture of Martin Luther King, Jr., in his home because of King's appeal to a universal human dignity tied to the content of one's character rather than the color of one's skin—a principle that doubly resonated with young Thomas. While Foskett recognizes that "King's ideal formed the kernel of a color-blind worldview that Thomas embraced the rest of his life," his characterization of Thomas's "libertarian" philosophy does not do justice to Thomas's thought, which is grounded in a morality of self-evident truths and inalienable rights.
Foskett brushes by in a couple of pages a formative part of Thomas's story, for example, in which Thomas himself sought out Claremont Institute political scientists Ken Masugi and John Marini to help him with his inquiry into the natural-law principles of the American Founding. From the book's discussion of Thomas's concurring opinion in Adarand v. Pena (1995), Foskett omits the fact that Thomas cited the Declaration of Independence—something that the more libertarian, more positive-law oriented Scalia would never do. And he overlooks a major speech Thomas delivered in 1999 at the Claremont Institute's annual dinner commemorating Lincoln's birthday, in which the Justice defended the statesmanlike prudence of the founders and the government they crafted—a defense that is hard to square with what Foskett sees as Thomas's "libertarian antipathy to governmental power."
Whether Foskett intended it or not, his omissions shine light on a critical aspect of Justice Thomas's thought—the Justice's exploration of the natural-law underpinnings of American constitutionalism. And while Foskett denigrates these as mere "musings" that were a gold mine to his opponents in the pre-Anita Hill phase of his confirmation hearings, we should not, because they are critical to understanding Justice Thomas as he understands himself. After all, no one forced the then-Chairman of the Equal Employment Opportunity Commission to put political theorists on his staff to conduct seminars with him about the principles of the American Founding. Foskett recognizes that Chairman Thomas hired Masugi and Marini "to serve as his intellectual mentors, acting almost like graduate-school teaching assistants leading a philosophy seminar." He describes how the self-selected course of study led Thomas to a profound appreciation for the natural-law principles articulated in the Declaration of Independence and in Martin Luther King, Jr.'s, "Letter from a Birmingham Jail," as well as the color-blind jurisprudence espoused most forcefully by the late 19th-century Supreme Court Justice John Harlan in his famous dissent in Plessy v. Ferguson. Yet Foskett fails to see how the principles Thomas embraced as a result of these studies are both deeper than and different from libertarianism.
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Unfortunately, no biography of Thomas would be complete without a recitation of the confirmation story that gripped the nation back in 1991. Foskett pays dutiful homage to the controversy, providing a matter-of-fact account that puts the whole controversy in a larger context. Two aspects of that context are crucial: first, Thomas's own character; and second, the all-out war that was waged against his confirmation. In context, the truth becomes relatively easy to sort out; without it, we are left with the strangest he-said/she-said dispute in American history.
For those who know him, Justice Thomas's character is impressive, and Foskett gives glimpses of it in vignettes throughout the book. We learn, for example, that Justice Thomas takes a close personal interest in his law clerks and their families. My children still fondly remember the candy jar in his chambers! We learn, too, that Thomas does not reserve his famous friendliness for society's elites. Judging Thomas recounts how he routinely takes time to acknowledge the efforts of those ordinary citizens with whom he comes into contact, proving through his own actions the truth of the Declaration's promise that all human beings are created equal. There is the story of the old janitor woman who gave him a big bear hug after he took the time to say hello, excusing himself from a group of judges to do so. There are the school groups—most often from poor, inner-city schools rather than the elite prep schools that dot the Washington, D.C., landscape—who regularly troop into the Supreme Court for private audiences with him. There is the story of the Charlottesville, Virginia, 5th-grader who challenged Justice Thomas to give up cigars in response to the Justice's challenge that the child trim back on television. And there is the heart-warming story of how Justice Thomas and his wife, Virginia, adopted his grandnephew, Mark, in order to give the boy "an opportunity to grow and learn" in the wake of his own father's imprisonment for selling crack cocaine.
One vignette is directly relevant to the incendiary allegations aired during Thomas's confirmation hearings. During his college days at Holy Cross, he insisted that his fellow Black Student Union members respect women, and control their language when women were present in the dorms, an aspect of Thomas's character that leads Foskett to conclude (correctly) that Anita Hill's allegations were "implausible" and "simply seemed unbelievable" to those who knew Thomas, because bullying a woman is not in his nature.
The second context that Foskett emphasizes is the intense battle that was being waged against Thomas's confirmation by a broad coalition of pro-abortion groups, welfare lobbies, and civil rights organizations. The National Abortion Rights Action League opened its attacks—"drew first blood" is Foskett's phrase—the day after the nomination was announced, criticizing Thomas for praising an essay on the Declaration of Independence and the right to life as a splendid example of natural-law thinking.
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But the most troubling opposition to Thomas's nomination came from the civil rights establishment. The board of the NAACP voted almost unanimously to oppose his nomination. The National Bar Association, the nation's largest organization of black lawyers, was more closely divided, but still voted to oppose. And the Leadership Conference on Civil Rights, headed at the time by Ralph Neas, launched a grassroots political campaign against Thomas's confirmation. Rather than lauding the accomplishments of this self-made man, prominent African-American leaders viewed Thomas as a threat to their policy strategies. He had opposed segregated dorm floors while a student at Holy Cross, for example, contending that Black Student Union members should eat with white students if they ever wanted to break down old racial stereotypes. Thomas opposed affirmative action because he had experienced first-hand its stigmatizing effects, despite strenuous efforts to avoid being hired for a "civil rights" job, both in the private sector immediately after graduation from Yale Law School and in the jobs he was offered in the Reagan Administration. It was this latter experience that would exacerbate Thomas's scorn for what he calls "The Presumption" —the implicit racism underlying affirmative action, which insists that blacks cannot make it without affirmative action's helping hand.
For his first decade on the Court, Thomas had to contend with "The Presumption." His judicial philosophy led him to vote quite often with Justice Scalia, for example, so word went out that he was just Scalia's clone, a charge that Foskett rightly describes as "patently absurd." It was also a charge tinged with the subtle racism that has marked attacks on Thomas throughout his entire career: no one ever accuses Justice Ruth Bader Ginsburg of being the clone of Justice Stevens, even though she votes with him at least as frequently as Justice Thomas sides with Justice Scalia. Thomas would later famously refute this particular charge, angrily stating in a speech before the National Bar Association that "the stench of racial inferiority [implied by it] still confounds my olfactory nerves."
Such charges, the lingering effects of an anti-confirmation strategy designed deliberately and falsely to raise questions about the Justice's competence, have been disproved by his own body of work on the Court. Gradually, usually grudgingly, the academic scholarship is beginning to acknowledge this. Washington University Law Professor Richard Lazarus noted in 1995, for example, that the Justice's "work goes a long way to refuting the notion that this is someone who does not have the breadth to be a Supreme Court Justice." And noted Supreme Court historian Henry J. Abraham wrote in 1999 that "Thomas has remained steadfast in his jurisprudence and has slowly gained the respect of sundry legal scholars for his written opinions."
Indeed, it is becoming clear that Thomas's own jurisprudential philosophy is more in line with the principles of our nation's founders, and hence with the Constitution they framed, than any other sitting Justice's is. And while the nation comes slowly to understand that, he will keep laying down markers, like so many bread crumbs, patiently pursuing his mission to help us all find the way back toward a constitutionalism grounded in the immutable truths of the Declaration of Independence. As the Justice himself noted in a 2002 speech at a resort on Amelia Island, Florida, a short distance but a world away from his birthplace in Pin Point, Georgia:
The longer I've had the obligation to interpret our Constitution and our laws, the more I believe in our system and in our government, the more I believe in our Constitution, the more I believe in our framers, the more faith I have in the amendments, and the more faith I have in our citizens. So, I'm probably reaching the point where I'm an apologist for the Court, for the Constitution, and for our country. And that's an odd thing for a young kid who grew up, up the road here, on Route 17, wondering where all those cars were going when they were headed south.
For a more comprehensive treatment of Justice Thomas's Jurisprudence, Dr. Eastman's law review article, "Taking Justice Thomas Seriously," available here (click "document delivery" icon in upper left corner for article download).