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Justice Thomas a strong critic of racial discrimination claims

WASHINGTON—When the Supreme Court said last week that a Texas killer's rights were compromised when prosecutors removed all but one African-American from his jury, Clarence Thomas was one of three justices who disagreed.

The court also stopped California from making it harder for defendants to get their claims of racial bias in jury selection investigated. Thomas, the court's sole black member, was the only justice to disagree with that ruling.

The cases were reminders of Thomas' status as the court's toughest critic of racial-discrimination claims, and one of America's more enigmatic figures. Growing up in the segregated South, he's said he suffered the sting of discrimination firsthand. But as a justice, he's consistently made it harder for blacks and other minorities to get relief from bigotry.

Thomas generally doesn't talk about the issue, but his speeches and writings suggest he thinks that blacks too often use discrimination as a crutch, and should do more to advance themselves despite obstacles they encounter.

"I don't think black conservatives downplay racial discrimination, but we recognize that as long as there are human beings, there will be discrimination," said Darryn Martin, a member of the national advisory council for Project 21, which promotes black conservative thought. "Black leadership in this country embraces the culture of victimology, personal grievances and separatism. And that doesn't work."

As a young man, Thomas has said, he didn't realize he could counter the discrimination he faced—notably at a divinity school in Missouri and from prospective employers in Georgia after graduating from Yale Law School—with resolve rather than complaint.

Over time, he told University of Georgia Law School graduates in 2003, he learned to "accept life on its own terms."

He said he felt like giving up "a hundred times a day. There will be days when you believe you can't take it anymore. But those days are just part of life."

He implored graduates to be "heroes" rather than "victims," and to do their best no matter what the obstacles.

In the cases decided last week, another factor could have been at play: Thomas has little sympathy for criminal defendants who claim technical or procedural problems with their convictions.

"He doesn't seem to like the idea of criminals coming and saying they were victims of racism at their trials," said David Garrow, an Emory University law professor who's written extensively about Thomas. In both cases, the defendants had been convicted of heinous murders; one had killed a small child.

In 14 years on the court, Thomas has earned a reputation as a solid conservative: strong on asserting state authority over federal power and narrow on the individual rights the Constitution protects. He's won over some critics who claimed when he was nominated that he was unqualified for the job; his work in several areas has proved that he has a sharp legal mind and a disciplined approach to constitutional interpretation.

But his views on race transcend court politics, almost always distinguishing his voice from others and often leaving him at odds even with his conservative colleagues. In cases that define when and how the Constitution prohibits racial discrimination, Thomas frequently adopts a singularly unsympathetic stance.

That's a stark contrast with his predecessor, Thurgood Marshall, the court's first African-American member. Marshall was a civil rights lawyer who before joining the court argued Brown v. Board of Education, which ended segregation in the schools, and often led other justices to a deeper understanding of the effects of racism and bigotry in America.

Some question whether it's fair to hold Thomas to that standard, or whether it's racist to assume that by virtue of his life experience he ought to think a certain way.

"I don't think it is," Garrow said. "But I do think it's not lost on Thomas that he can say something that other justices have said and the reaction to him is different, because of who he is."

For example, Thomas was criticized for a 1992 dissent in which he said a beaten prisoner's Eighth Amendment rights weren't violated. "Scalia also dissented, but he wasn't nearly as vilified for it," Garrow said.

Last week's cases were classic examples of Thomas' take on discrimination. In one, a Texas death row inmate claimed that prosecutors had illegally eliminated black candidates from his jury. Prosecutors had eliminated all but one African-American from the jury pool and had used more than 90 percent of their juror challenges on blacks; they'd also used a training manual that suggested blacks were unfit to sit on juries in capital cases.

"The state's attempts to explain the prosecutors' questioning of particular witnesses on nonracial grounds fit the evidence less well than the racially discriminatory hypothesis," Justice David Souter wrote for the majority.

As one of three dissenters, Thomas saw it differently. He dissected the reason each black juror was dismissed and concluded that the nonracial reasons were more compelling.

"It's almost as if he's saying if there's any plausible explanation other than race, no matter how unlikely it might be, he'll accept it," said Angela Onwuachi-Willig, a University of California at Davis law professor who follows Thomas' work. "He's usually among the last on the court to accept racial discrimination as a valid reason."

In the California case, eight justices agreed that when a defendant points out to a judge that all blacks were struck from his jury, the judge must force prosecutors to offer a nonracial explanation. The ruling makes it easier for defendants to get hearings on illegal jury challenges.

Thomas dissented—alone. He said California was entitled to "broad discretion" to handle such complaints.

In a ruling in 1995 that disallowed an employment-based affirmative action program, Thomas chided two fellow justices as embracing racial paternalism.

"In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice," he wrote.

In his dissent to a 2003 ruling that upheld race preferences in college admissions, Thomas accused justices of patronizing blacks. He quoted Frederick Douglass telling white abolitionists to let blacks stand on their own to succeed or fail.

"Thomas has said that he felt being accepted to law school under an affirmative action program stigmatized him, caused a cloud of doubt to hover over him," said Project 21's Martin.

Martin said that while affirmative action might have begun as a way to open doors for qualified African-Americans, he thought it now lowered standards. "That's something a lot of professional African-Americans feel, and why we don't think affirmative action is much of a help."

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(c) 2005, Knight Ridder/Tribune Information Services.

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