Paper on Justice Thomas

Via Larry Solum, Angela Onwuachi-Willig of UC Davis Law School has posted this paper: Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity. From the abstract:

This Article argues that, although Justice Thomas's ideology differs from the liberalism that is more widely held by Blacks in the United States, such ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. In so doing, this Article examines the development of black conservative thought in the United States; highlights pivotal experiences in Justice Thomas's life that have shaped his racial identity; and explicates the development of Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.

What most interested me was footnote 12. After pointing out that some of the derogatory comments made about Justice Thomas echo the derogatory comments made about Justice Marshall, the author drops this footnote:

In fact, I was reluctant to write this Article because of the reactions I thought it would elicit. Many of my friends think it blasphemous to suggest that something about the late Justice Marshall reminds me of Justice Thomas. . . . As I worked on this article, I became more terrified of being called, much like Justice Thomas has been called, a traitor to my race. See Randall Kennedy, “Sellout”: The Problem of Betrayal in African American History (manuscript at 15, on file with author) (maintaining that “the problem with blacks deploying a rhetoric that accuses other blacks of being enemies engaged in racial betrayal is that such attacks are too powerful, too intimidating, too silencing” and that it “causes black thinkers and policymakers to censor themselves out of fear of suffering racial excommunication”); also Jacquelyn L. Bridgeman, Defining Ourselves for Ourselves, 35 SETON HALL L. REV. (forthcoming 2005) (manuscript at 6-10, on file with author) (same). . . .

Blasphemous? Traitor?

It reminds me of the introduction to Scott Gerber's book First Principles: The Jurisprudence of Clarence Thomas.

I would like to close this Introduction with a personal note about some of the reaction I already have received concerning this book. Inevitably, most of the reaction has been political. Some of the politics were fairly innocuous. What springs most quickly to mind in this regard is an e-mail I received from a law student who was scheduled to introduce me at a talk I was asked to give about my then work-in-progress. The law student wrote: "I have been asked to introduce you next week. Please provide me information regarding the substance of your discussion. Are you supporting Clarence Thomas? Are you against him?"

Conspicuously absent from this law student's way of thinking was a willingness to believe that someone might be writing a book about Justice Thomas because he finds him interesting -- nothing more, nothing less (more on this in Part III). Indeed, the law student's e-mail is a perfect illustration of the theme of this book: that almost everything about Justice Thomas, including how people view the debate surrounding him, is political.

More troubling is an e-mail I received from a colleague who has shown a friend's interest over the years in the progress of my career. Upon learning of my then work-in-progress, my friend wrote: "I think it is a very worthwhile venture, but one fraught with potential problems." What "potential problems" could there be? I asked myself upon reading this. After all, I had managed to secure a publishing contract with a top-tier university press and two sizable research grants on the basis of a brief prospectus. The "potential problems," my friend informed me, were that unless I write a "very, very critical" book about Justice Thomas, my "own career may be damaged by the Thomas curse!"

Has academe really come to this? Have academics become so political that we are now required to write partisan pamphlets rather than scholarly treatises? I surely hope not. Note that this does not mean that I am "supporting Clarence Thomas." It does mean, however, that I am not "against him."

If these scholars thought that the rest of academia was open-minded, intellectually curious, willing to debate the issues on their merits, etc., I wonder why they felt it necessary to include such earnest disclaimers. Obviously, I haven't read every bit of legal scholarship ever written, but I've never seen an analysis of Justice Douglas's work (or Brennan or Souter or whoever) that begins with an elaborate apologia explaining that the author does not necessarily agree with or "support[]" that Justice, much less expressing the hope that the author won't be considered a "traitor" or "blasphemous" merely for taking the Justice's jurisprudence seriously.


UPDATE: Onwuachi-Willig's conclusion is interesting in light of her disclaimer:

Most of all, what Justice Thomas’s story may teaches us is that the black community’s (or even more broadly, the liberal community’s) conception of blackness or “black voice” is far too limited. The fact that a black individual holds views in stark contrast with those of the majority of black community (or even those that are perceived as harmful to the black community) does not make his or her views or voice any less “black” (so long as there is expressed concern for the black community) or make his or her concern for black people any less sincere. * * *

Indeed, as I was researching and learning about black conservative ideology, I found myself (surprisingly) nodding in agreement with some of its concepts and understandings about the issues facing the black community, even though I disagreed with the ultimate route proposed for addressing these problems. Perhaps, this is Justice Thomas’s most significant lesson for us all, with his seemingly contradictory “black nationalist” and “Reagan conservative” views: not only that the voice of the black conservative can be “raced” in a way that the voice of the white conservative is not, but that the rift between the black conservative and black liberal is not so wide after all. Perhaps, black conservatives and black liberals would both benefit from listening to each other and taking the other group’s concerns seriously. After all, in spite of everything, Justice Thomas appears to be just another brother on the Supreme Court.

Stuart Buck