The Accidental Jurist

Sometimes you can almost feel the heat of Justice Clarence Thomas' petulance. Last spring, for instance, when he performed the marriage of Rush Limbaugh. For the record--and for gossip columns around the country--the event (which took place at Thomas' Virginia home) offered a glimpse into Thomas' private, tradition-saluting side. For the zeitgeist, it was a sharp single-finger salute to anyone left of the far right.

Around that time, Thomas was more noted for his conspicuous silence on the bench. Regular courtwatchers pointed out that the justice had not asked a single question of any lawyer appearing before the tribunal throughout the entire term, choosing instead to be the assenting echo of fellow conservative Antonin Scalia. But by doing the honors for Limbaugh (and for a woman Rush called the Jacksonville Jaguar), it was as if the mute Thomas were adopting Limbaugh's big, flamboyant, bullying voice as his own.

In that intimate moment, Thomas blessed the man described by Washington Post political reporter Thomas Edsall as "the principal adversary of the president of the United States." Apparently unconcerned about presenting an appearance of impartiality, he blew off all conventions and wed himself to Limbaugh's truculent right-wing partisanship.

When you review Thomas' life, writings and court decisions, you see that his snarling exchanges with the Senate Judiciary Committee in 1991 were not isolated events. Since Thomas' boyhood, anger has been the overriding force in his life. In his words and actions as a justice and public speaker, Thomas reveals the defining role that resentment, animosity and rage have played for him. This tension is the dominant theme in a kind of oral autobiography that Thomas has offered as a justice. He focused on it in 1993, in a speech delivered at Mercer University in Macon, Georgia, and in a 1994 address to his alma mater, the College of the Holy Cross, in Worcester, Massachusetts.

"I was a brash and often angry young man," he declared in a speech in Georgia.

In the Holy Cross address, he spoke of anger repeatedly:

"I was consumed by almost uncontrolled anger and frustration.

"I arrived here predisposed to anger, confusion and frustration.

"I became increasingly consumed by a seething anger.

"My own personal anger continued to ferment well into the spring semester of my junior year.

"I had become drunk with anger."

To Thomas' admirers, the rage is transmuted into virtue. They claim that in his pique lies his moral power, a weapon for dismantling the liberal welfare state--what conservative sociologist Charles Murray calls the custodial society. They portray Thomas as a principled conservative bent on harnessing his power in order to practice old-fashioned judicial restraint. He curbs the instinct that overwhelms activists (known by the right as "judicial adventurers") who corrupt the law, the thinking goes, by reading into it their personal inclinations.

But Thomas' reactionary record as a justice leads to the conclusion that personal considerations may be the key to his rulings. While Thomas almost always reaches results favored by conservatives, his methods are radical. After his first term, one mainstream assessment was that he had "failed the test of judiciousness," as the editors of The New York Times put it. Thomas seems to enshrine in law his most personal inclinations, variants on his abiding, and now avenging, anger.

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When President George Bush announced Thomas' selection in July 1991, he called him "the best person for the position." Even people who support Thomas recognize that as a fatuous claim. Thomas was right for the job because he could plausibly fill the Court's "black seat," which had been vacated by the great civil rights advocate Thurgood Marshall. Thomas had served on the appeals court for less than two years when Bush announced his nomination, so experience wasn't his strong suit. The fact was that no other black federal judge in the country subscribed to the views of the New Right, the Reaganite coterie that assumed political power in the Eighties.

Even better, for the purposes of the Bush administration, Thomas seemed to have made these conservative views his own. He saw fit to vilify his own sister, who raised four children with money from Aid for Families with Dependent Children, as an example of welfare abuse. "She gets mad when the mailman is late with her welfare check," he told The Atlantic Monthly. "What's worse is now her kids feel entitled to that check, too." For conservatives, Thomas was the ideal successor to Thurgood Marshall because he could scold the black community--which was seen as overly dependent on a paternalistic government--without being accused of racism.

The legal revolution that Marshall launched rested on two tenets: that race should be taken into account when determining legal remedies, and that compassion has a place in our system of justice. The replacement of Marshall with Thomas called both tenets into question, and pinned the new justice with a reputation, in his words, as "an insensitive brute." But Thomas preaches a gospel of self-reliance and individual responsibility, and connects those virtues to personal freedom and national triumph. In his view the government has helped destroy the black family by making it dependent on welfare and other social programs. Thomas regards individual will as the only answer, for even benign state action can result in evil.

The conservatives' great black hope immediately made his presence felt on the Court. In February 1992, four months after his accession, Thomas wrote his first dissenting opinion, Hudson vs. McMillian, in a case about a Louisiana prisoner who had been shackled by guards and pummeled so badly that his teeth were loosened. Justice Sandra Day O'Connor wrote for a 7-2 majority that the punishment was cruel and unusual and violated the Constitution. Thomas called the Court's decision "yet another manifestation of the pervasive view that the federal Constitution must address all ills in our society."

This was the first in a series of cases during Thomas' first two years in which the Court addressed the rights of minorities. Repeatedly, Thomas voted to limit those rights. He was becoming a kind of anti-Marshall, voting consistently to weaken strong decisions his predecessor invested his life to secure. Never was this pattern clearer than in Holder vs. Hall, a narrow decision handed down on the final day of Thomas' third term, in 1994. In it, the Court ruled that the Voting Rights Act--a crucial piece of Great Society legislation intended to clear the books of discriminatory election practices--could not be used to challenge a single-member system of local government.

In addition to the Court's opinion, Thomas issued a novella-length concurrence, which Justice Scalia joined. Thomas voted with the majority, but for his own reasons. He called for "a systematic reassessment" of voting rights and labeled the 30 years of Supreme Court and other federal case law in the area a "disastrous misadventure." In a Court that reveres precedent above all gods, it was a thundering denunciation. In a denunciation of their own, four of Thomas' fellow justices judged his pronouncements "radical."

In Holder, Thomas broke all the rules that are supposed to define legal conservatism: He disregarded precedent, scorned legislative history and relied on claims of public policy rather than law. Paradoxically, it was for precisely those reasons that conservatives hailed his opinion. "This concurrence in the Voting Rights case is exactly the kind of thing he should be doing," said one rightist Court observer. "He provided intellectual and moral leadership coming out of a life experience that must have a place on the Court.

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A brief look into Thomas' life experience reveals anything but the simple, heroic story of a self-made man. As Thomas tells it, he was born poor in Pin Point, Georgia, on June 23, 1948. Soon after he started school, his brother and a cousin burned down the family's house. With his brother, Thomas moved to Savannah.

Because his mother worked and school didn't start until noon, Thomas wandered the streets in the mornings. Sometimes he didn't show up for school at all. The aimlessness ended when he and his brother were sent to live with their grandparents. In Thomas' telling, they drilled him in the virtues of self-improvement. They gave the boys castor oil and cod-liver oil to ward off illness and keep them in school, a classic bitter memory. Thomas' grandfather announced in a foreboding tone that if the boys died, he'd take their bodies to school three days in a row, "to make sure that we were not faking." (When Thomas reported this at Holy Cross, the line drew a nervous laugh, but the justice didn't crack a smile.) Education was essential business. It carried "the promise of possibilities beyond the cramped, oppressive worlds of segregation and ignorance," recalls Thomas.

Thomas lived in the social equivalent of a cell--restricted, stifled. From his grandfather, whom he labels a beloved patriarch but describes like a warden, he learned "rules of personal conduct" that supposedly allowed him "to confront difficulties constructively." The rules were meant to provide "guardrails down what is an often dangerous and precarious road of life."

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Thomas lists the perils of that dangerous road: "If you lie, you will cheat. If you cheat, you will steal. If you steal, you will kill." Sometimes he describes the rules in legal terms: "Our family laws did not permit us to wander into that gray zone of impropriety not governed by the criminal law."

As a child, Thomas learned the rewards of habit: "Church on Sunday, tend to property on Saturday--wash the car, cut the grass, polish your shoes." He mastered essentials: "If you don't work, you don't eat." And he absorbed a moralist's view of the inner life, with rigid assumptions about how to manage its anguish. The view seemed to blind him to the prospects of actually controlling his fate: "Resentment and other destructive passions were not free to breed in such an atmosphere."

After graduating from high school in 1966, Thomas obeyed his grandfather and entered the seminary in Missouri, to study for the priesthood. But when Martin Luther King Jr. was killed in April 1968, Thomas lost his "attachment" to the seminary. "How could I stay there when the world seemed to be disintegrating around me?" In response, his grandfather kicked him out. Thomas quotes the old man as saying: "If you make your bed hard, you lay in it hard."

It must have been an especially cataclysmic time for Thomas. The issues seem fundamental: the meaning of his abrupt departure from the script his grandfather wrote for him, and the lesson of the betrayal his grandfather felt as he cast out the young man. As Thomas put it, the assassination of Robert Kennedy and racial hostility in Savannah left him with no faith in his church or in his country--and he had already lost his family.

Seemingly at loose ends, Thomas accepted a scholarship to Holy Cross, arriving in Worcester by Trailways bus with no "desire to be in a predominantly white school again" yet having "no place else to go." In his view, his guardrails kept him on track. He majored in English because he had thought about becoming a journalist and he "had great difficulty with the spoken and written word."

Seeking refuge in a black crowd, he became correspondence secretary for the Black Students' Union, despite his struggle with language. For a year and a half, he dutifully did his schoolwork. But after a friend was arrested in a protest against a company that did business in South Africa--in Thomas' view, he was singled out because he was black--Thomas became convinced that blacks could "never be treated fairly on a predominantly white campus--or in a white society for that matter."

Following this reasoning to its logical conclusion, he decided to leave Holy Cross. His description of his feelings at that time, delivered in his 1994 address to his alma mater, is intense: "As I packed all my belongings that night, I teetered precariously over the abyss. No one really cared. We were doomed. College didn't matter. Indeed, life itself didn't matter. I wanted to go home. But what would I tell my grandparents, who had suffered far more indignities than I had? What would I tell my neighbors? What would I say to my friends who had always said that the Man wasn't going to let me do anything?"

Thomas presents himself as empty at the core--sorrowful, wretched, alone. Once again, he decided that he had no place else to go and he returned to college. "Something had to change and change soon," Thomas remembered. "I could not continue to let my passion rage out of control." He was "addicted to the status of an oppressed person."

To Thomas, the teachings of his grandparents about self-discipline and the power of education gave him a way out. They offered "freedom from the confining world of segregation and freedom from the destructive forces of my own passions."

Thomas was poor, black and possessed by anger, but, he says, he learned to control his destiny; others can, too. He tries to convince us that anger is a demon he has put behind him. Yet when he talks about how his anger, and that of other blacks, has been coddled and belittled by whites, his words simmer: "It has been so interesting over the years to see anger such as mine accommodated," he told the assemblage at Holy Cross. "It is said that we are an emotional people; we are expressive; we feel deeply. Often, it seems as though the cultural elite think that we are inherently unqualified to do much more than feel bad about what has happened to us in this country and follow their lead."

At Yale Law School in the early Seventies, Thomas wore an Afro, sat in the back of his classes and supported black nationalism. In those days, he and Lani Guinier, the onetime nominee to head the Civil Rights Division in President Clinton's Justice Department, explored co-writing a law review article about why blacks were flunking bar exams more often than whites. Evidently he had not yet embraced his current stern views on personal responsibility and self-reliance.

In an interview in the faculty lounge of the law school, Thomas won a job with Yale alumnus John Danforth--then attorney general of Missouri, later one of its senators. The position with Danforth promised Thomas more work and less pay than anyone in his class: For a Yalie, it was a low-status job. In his book Resurrection: The Confirmation of Clarence Thomas, Danforth tells about inviting his new legal aide to Christmas dinner in Jefferson City. Thomas twice turned Danforth down. Even when he accepted, he insisted "he does not want us to feel sorry for him. He can take care of himself." From the state attorney general's office, Thomas took a job on the staff of the general counsel for Monsanto Corp. When Danforth was elected a senator, Thomas followed him to Washington, D.C. as a legislative assistant. Danforth, again: "When he worked on my staff, first in Jefferson City and then in Washington, he delighted in speaking his mind and taking strong positions."

When Thomas was 32, he suddenly emerged in national politics. In a column written by William Raspberry, a Pulitzer Prize-winning columnist for The Washington Post, Thomas was identified as part of an emerging group of black conservatives. The column caught the attention of members of the Reagan administration, who began to look for a spot for Thomas to fill. When they asked around about him, however, they learned that his law school reputation was less than sterling. Soon after, they began considering Thomas for a civil rights job--hardly an administration priority. He didn't want that sort of position because he feared being caricatured as a black conservative in a black field. But he took the civil rights job and turned himself into a victim of racial typing.

From then on, Thomas was trapped in the role he loathed. First, he was named to oversee civil rights matters in the Department of Education. Then, he moved to head the Equal Employment Opportunity Commission, which he led from 1982 to 1990. Next, he was appointed to the U.S. Court of Appeals in Washington, D.C. And finally, at age 43, he was nominated to the Supreme Court.

The fundamental irony stuck with him. He was singled out for opportunity because of his race, and he allowed the process to repeat itself at higher and higher levels. He was the black critic of racial quotas who got a forum because of his skin color. The identity that oppressed him at Holy Cross, which he struggled to escape with a catechism of will, became his ticket to a place in history. Thomas did not use the politics of race--the politics of race used him.

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Since his elevation to the High Court, Thomas has been subject to scrutiny by admirers of Thurgood Marshall, foremost among them Leon Higginbotham, Jr., former chief judge of the U.S. Court of Appeals in Philadelphia and one of the early black appointees to the federal bench. Soon after Thomas was confirmed for the Supreme Court, he received an "open letter" from Higginbotham, urging Thomas to leave behind the criticism he had made of Marshall and the civil rights community. "You did not get there by yourself," Higginbotham reminded the new justice, while chiding him for having shown a "stunted knowledge of history and an unformed judicial philosophy."

Today, Higginbotham is even blunter in his assessment of Thomas. He now identifies the source of Thomas' extreme opinions in the justice's profound anger. Without hesitation, he describes the reason for Thomas' antiminority jurisprudence as "racial self-hatred." William Nelson, professor of political science and black studies at Ohio State University, concurs. "From the time he was chair of the EEOC," Nelson once said, "I always considered Clarence Thomas to be the worst kind of racist--a black man who hates himself."

By the mid-Eighties, a onetime friend of his surmised that Thomas' animus toward whites was replaced by wrath directed at blacks. He was angry at the prosperous, well-educated black lawyers he faced in civil rights matters, at academics whose sociological studies were used as ammunition in the victim wars, at downtrodden blacks themselves and, ultimately, at himself.

Resentment and other destructive passions, as Thomas calls his anger, seem to breed freely in him, revealing themselves in his judicial opinions and in his personal life. Acquaintances and friends say he is zealous about not being trapped in a position where he might be influenced, dominated or betrayed. He declined to be interviewed for this article, and people who know him and spoke about him were unusually careful to protect their anonymity. "I know Justice Thomas," one emphasized. "He does bear a grudge."

In public, Thomas is taut and watchful. He speaks in a soft, tired drone that seems to flatten the resonance of his bass voice. Last May, in a commencement address at Aquinas High School, in Georgia, his voice was so cold it went stiff. While at the podium, he spoke directly to a teacher he had known 28 years before: "I just wonder where the years have gone, Father. They've evaporated." He sounded like a beaten old man.

He rarely gives public signs of intellectual verve, of curiosity, of self-confidence. In one talk after another, he unconvincingly describes the civility that guides the dealings of the Supreme Court and how much he enjoys the challenges of his new job. In private, his friends report, he is an eager student of the law, inspiring loyalty and awe. They regard his age as a plus. They also say he is capable of letting go. When the Claremont Institute's president, Larry Arnn, introduced Thomas to members of the think tank in 1993, he described meeting Thomas one afternoon at the EEOC. Thomas puffed on a cigar, filled his office with his unbridled bass and rolling chortle, and voiced a fantasy about loading a truck with books and driving around the heartland, catching up on his reading.

But in stories about the family-like cocoon he creates for himself, there are also signs of distrust. He surrounds himself with law clerks whose range of views is only a matter of degree--from moderate conservative to traditional conservative to libertarian conservative. He's made a fetish of cutting himself off from a common source of feedback about the outside world, saying he doesn't follow press accounts about himself. It's an idea he is said to have taken from Judge Laurence Silberman, another Reagan alum on the Court of Appeals in Washington, D.C. But Thomas has adopted the position with his trademark vehemence.

To Thomas' friends, his anger is neither cause nor effect. It's simply a marker. In their view, it took Anita Hill's attack to make Thomas reach into himself and show who he really is. The emotion, which issued from a lacerated pride, is the justice's true, defining quality.

But what if Thomas' silence and seclusion are explained by fear instead of the residue of wounded pride? What if Thomas has something to hide--such as the possibility that Anita Hill was telling the truth?

Thomas rests his credibility as a justice on the proposition that Hill failed to prove the charges she made against him. In his statement to the Senate Judiciary Committee Thomas averred "unequivocally, uncategorically" that he denied "each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill, that I ever attempted to date her, that I ever had any personal sexual interest in her, or that I in any way ever harassed her."

In the fall of 1994, however, Jane Mayer and Jill Abramson caught the nation's attention with the book Strange Justice: The Selling of Clarence Thomas, which supports Hill's case. It is a measured, factheavy, devastating account of Thomas' journey from childhood to his swearing in on the Supreme Court. It presents no smoking guns--no tapes of Thomas in embarrassing situations. But its accumulation of other evidence about previously unchronicled struggles during his youth, about the bald opportunism of his grab for a seat on the Supreme Court and about his interest in sexually explicit material in the Seventies and Eighties have further shaken an already tremulous reputation. It takes blind faith in his denial of the charges not to revisit the 1991 contest between Hill and Thomas and wonder about the justice's assumption of a seat on the nation's highest court.

The fresh assault on Thomas' integrity is bad enough for him, but the book raises the possibility of a fundamental contradiction between the justice's philosophy and his personal life--between a condemnation of what Thomas calls the excesses of self-indulgence and his pursuit of same. The allegations of Mayer and Abramson are centrally important because, if true, they demolish the foundation for Thomas' views.

He was nominated out of cynicism and confirmed, with a lean margin of support, after an epic struggle. Now he has been exposed in the kind of inquiry that, had its fruits been available the day before the vote on his nomination, he would not have been confirmed. If Thomas were squared off against Rush Limbaugh, not aligned with him, Limbaugh would be leading a savage campaign against the justice, wielding the sword of morality.

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When Thurgood Marshall died in 1993, his funeral at the National Cathedral in Washington, D.C. commanded the attendance of people of all persuasions. The legacy of Marshall's law made him a figure of biblical achievement. Thus far, the opposite must be said of Thomas, his successor.

Even before the contretemps about Thomas sparked by the Mayer-Abramson book, which again raise the possibility that as a justice he is simply a construct of political expediency, he seemed deeply sequestered from the rest of the Court, from the black community and from American life.

What he's hiding from seems apparent. In his position as a life-tenured justice, he can't escape reminders that he ascended to the Court for reasons he despises. The reminders will be with him as long as he serves on the Court. The story of the self-hating black man is not new in American life, but it has rarely had a protagonist whose anger has been so costly to so many other blacks.