Clarence Thomas' moment
Updated 7:29 pm, Friday, November 16, 2012
The first Monday in October marked the beginning of Clarence Thomas's third decade on the U.S. Supreme Court. When the court accepted a challenge to the Voting Rights Act of 1965 earlier this month, the current term also became Justice Thomas's best chance for leaving a lasting legacy on the court. Thomas has stated publicly that he cares little about how history remembers him. Many court watchers care a great deal.
To date, Justice Thomas' powerful voice has been heard almost exclusively through his concurring and dissenting opinions rather than in majority opinions for the court. The issue in Shelby County v. Holder is Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act, the provision that requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or a federal judge before making changes that affect voting. Couple that with Fisher v. University of Texas, the current challenge to the use of race in college admissions decisions, and the nation's highest ranking African-American jurist has been provided with an unprecedented opportunity to commit the court to the notion of color-blind constitutionalism for which he has been arguing for most of his professional life.
Earl Warren wrote in his memoirs that the voting rights cases, not Brown v. Board of Education and its progeny, were the most important cases decided during his chief justiceship. Chief Justice Warren stressed the voting rights cases because he believed that once African-Americans were allowed to participate freely and fairly in the electoral process, they no longer would need to look to the judiciary for help.
The voting rights cases are also central to Justice Thomas' Supreme Court tenure. Indeed, Thomas' "breakthrough" opinion is often said to be his 1994 concurring opinion in Holder v. Hall, in which he called for a dramatic rethinking of the court's voting rights jurisprudence. In that case, Thomas wrote that racial groups shouldn't "be conceived of largely as political interest groups," that African-Americans 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." As far as the Voting Rights Act itself is concerned, Thomas concluded, "an 'effective' vote is merely one that has been cast and fairly counted."
Justice Thomas recent Voting Rights Act opinions and votes are consistent with his opinion in Holder v. Hall. For example, in 2009's Northwest Austin Municipal Utility District Number One v. Holder, Thomas again wrote separately, this time to explain why the court's choice to decide the case on statutory rather than constitutional grounds was inappropriate and why, in his judgment, Section 5 of the Voting Rights Act was invalid. He insisted that the "lack of current evidence of intentional discrimination with respect to voting renders (Section) 5 unconstitutional."
With respect to affirmative action, the issue with which Justice Thomas is most closely associated, it came as a surprise to many that the court agreed to review the University of Texas' undergraduate admissions program so soon after upholding a similar plan devised by the University of Michigan Law School. In fact, it seems likely that the court took the Texas case to overrule the Michigan case. If the court does overrule the Michigan case, nobody should be surprised if Thomas pens the majority opinion. After all, his separate opinions in the 2003 Michigan case and the 1995 government contracting case, Adarand Constructors v. Pena, are, in my judgment, two of his most powerful opinions. A third is his concurring opinion in the 2007 Seattle/Louisville public school student assignment case. Thomas wrote: "The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today's plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: 'Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.' "
The late economist Edgar R. Fiedler famously warned, "He who lives by the crystal ball soon learns to eat ground glass." This said, we would be naive to fail to appreciate that the nation's highest court - a very conservative court at that - agreed to decide both Fisher v. University of Texas and Shelby County v. Holder so that it could declare affirmative action and Section 5 of the Voting Rights Act, respectively, unconstitutional. If it does - and I expect it will - and if Justice Thomas writes one or both of the majority opinions - and I expect he will - he will have accomplished his "dream" (to borrow from Rev. Martin Luther King Jr.): He will have reminded the American people that each of us, no matter the color of our skin, should be treated as an individual and not as a member of a racial or ethnic group.
Gerber is a law professor at Ohio Northern University. This article first appeared in the Washington Examiner.