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Life of a Law Student, University of Houston Law Center

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Jeffrey Toobin might forgive Justice Thomas for being black or conservative, but not both

By: Luke Gilman | Other Posts by
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Jeffrey Toobin’s recent article Unforgiven, in this week’s New Yorker, is the latest in a long line of Supreme Court pundits puzzling over the enigma of a Supreme Court Justice who is both black and conservative.

Thomas came of age at a time when broad swaths of American society thought it was time for African-Americans to be given chances that had been denied to their forebears. To be sure, all that Thomas received in these places was a leg up, and he succeeded each time based on his own skills. Thomas’s career looks like a model of how affirmative action is supposed to work. But that isn’t how Thomas sees it.

Toobin finds it clear that every job and opportunity Justice Thomas was given in his career was given to him because he was black. This is the necessary narrative folklore required to posit Justice Thomas as a hypocritical ingrate, even though it’s been noted that Thomas was in the top 1-2% of his class at Holy Cross and with a decent LSAT score should have had a shot at Yale law no matter what color he was. This oft-repeated treatment that Thomas was somehow demonstrably unqualified for the Supreme Court on his own merits seems to prove Thomas’ own point that affirmative action has just as often served to undermine his career as advance it. Comically, Toobin seems shocked and appalled that Thomas would be less than forthcoming on his jurisprudential philosophy in confirmation hearings less than four years after Bork became a verb. Toobin’s attempt at psychoanalysis boils down to a plea – equally paternalistic and pathetic – why Clarence, oh why can’t you be the reliable liberal vote you, as a black Justice, were born to be?

For a more nuanced interpretation of Justice Thomas’ views on race, see Mark Tushnet’s Clarence Thomas’s Black Nationalism.

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Category: constitutional law, supreme court

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One Response

  1. Sean John says:

    Thomas believes he has some good precedents for his beliefs:

    ”The American people have always been anxious to know what they shall do with us … I have had but one answer from the beginning. Do nothing with us! … If the Negro cannot stand on his own legs, let him fall … All I ask is, give him a chance to stand on his own legs! Let him alone! … Your interference is doing him positive injury.”

    Fredrick Douglass 1865 Boston Speech Quoted by Clarence Thomas in his dissent in Grutter v. Bollinger

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