July 5, 2007 - Issue 236
Color of Law
My Letter to Clarence Thomas
The Man Who Desecrates the Legacy of Thurgood Marshall
By David A. Love
A Few Thoughts
Recently, in a watershed decision, Parents Involved In Community Schools v. Seattle School Dist. No. 1, the conservative majority of the Supreme Court outlawed voluntary racial integration plans in public schools. A number of school districts around the country initiated the policies to desegregate and achieve diversity in public schools, in an effort to offset racially divided housing patterns. The Court essentially said that desegregation is discriminatory, and compared white students who don't get the school of their choice to black students who lived under Jim Crow segregation in the 1954 Brown v. Board of Education case.
The ruling is a resounding victory for the White Citizens' Council, and the racist governors who once blocked the schoolhouse door. The spirit of Jim Crow lives on in the hearts and minds of this Supreme Court's regressive, segregationist majority, over 50 years after Brown. "Diversity is illegal" is the new standard, it would seem, and we must do everything in our power to resist this.
"This is a decision that the court and the nation will come to regret," said Justice Stephen G. Breyer.
Meanwhile, siding with the majority, Justice Clarence Thomas concluded that school districts have no interest in remedying segregation: "But without a history of state-enforced racial separation, a school district has no affirmative legal obligation to take race-based remedial measures to eliminate segregation and its vestiges…. As these programs demonstrate, every time the government uses racial criteria to 'bring the races together,'… someone gets excluded, and the person excluded suffers an injury solely because of his or her race…. Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact. Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations…. Some studies have even found that a deterioration in racial attitudes seems to result from racial mixing in schools."
Did he say "racial mixing"?
In light of this decision, I decided to blow the dust off a letter that I wrote to Justice Thomas back in 1995, and put it to the test. It reflected my concern over a number of troubling court decisions regarding affirmative action and voting rights, particularly the striking down of a majority-Black congressional district that was represented by then-Congresswoman Cynthia McKinney (D-GA).
Twelve years later, not much has changed, Clarence Thomas has not changed, and the Supreme Court has emerged once again as a disaster for those who care about civil rights, and one of the greatest impediments to democracy in America. This is the revival of the Dred Scott court, the Plessy court, the kind of extremist court that Bush promised he would give us. While Bush tells us to fear an "Axis of Evil," the greatest threat to America comes from within, from our government—the executive branch and the Supreme Court. The problems we are facing are not going away, they just get worse, and Thomas has a decisive role in that process.
Yet his supporters once assured us that in time, Thomas would evolve and make us proud. After all, they posited, he is African American and has experienced racism, he feels our pain. Well, his tenure on the Supreme Court has been over a decade and a half of disappointment, daunting mediocrity and misplaced priorities. Since joining the Court, he has presided over the wedding of radio talk show host Rush Limbaugh, who once told an African-American caller to "take that bone out of your nose," has called abortion rights activists "feminazis", referred to the torture and abuse of prisoners at Abu Ghraib as "blow[ing] some steam off," and declared that "what's good for Al Qaeda is good for the Democratic Party."
Thomas says that he selects only "the cream of the crop" when hiring law clerks: "I look for the math and the sciences, real classes, none of that Afro-American study stuff. If they'd taken that stuff as an undergraduate, I don't want them." Perhaps it should not be a surprise that all four of his law clerks are white males. A justice on the nation's highest court, he fails to take advantage of a golden opportunity to do some good, in the time-honored tradition of leaving a place better than you found it. Sadly, he continues to desecrate the memory of Thurgood Marshall. The late Judge A. Leon Higginbotham was right when he said "I have often pondered how it is that Justice Thomas, an African American, could be so insensitive to the plight of the powerless. Why is he no different, or probably worse, than many of the most conservative Supreme Court justices of this century? I can only think of one Supreme Court justice during this century who was worse than Justice Clarence Thomas: James McReynolds, a white supremacist who referred to blacks as 'niggers.'"
Letter to Clarence Thomas
Dear Justice Thomas:
The purpose of this letter is to discuss with you the changes that are taking place in this nation, and the ways in which these changes will harm black people. More specifically, I would like to respond to your recent court decisions on affirmative action and electoral redistricting. Please do not interpret my words as antagonistic or of ill will, as I am speaking with a sense of honesty and truth. I believe that you need to hear what I have to say. You need to hear what many African-Americans are saying as they see the ground collapsing under their feet. Any good student of history knows what is happening in this country, and what will happen in the future if present trends continue.
As a young African-American, I am proud of my achievements. I am a Harvard graduate, a former Westinghouse semi-finalist, and a former exchange student to Japan. Although I was diligent and capable, I know that I do not owe my accomplishments to myself. I was not granted access to opportunities because I am special or superior. I went to Harvard because that road had been paved with the blood of those courageous people who died for my opportunity to attend Harvard. Certainly, I was as qualified as my white classmates (and more qualified than those who were admitted because their grandfather is a wealthy Harvard alumnus). Qualified people of African descent always existed in this country, but were denied opportunity because of race. (Even Alexander Hamilton was denied admission to Princeton because his mother was a mulatto.) Significant numbers of blacks and other groups began to attend predominantly white institutions only after efforts were made to recruit and admit them. These efforts were affirmative action. Why should members of one group have all of the admissions spots, all of the jobs, all of the federal contracts and all of the congressional districts?
In many ways, history is repeating itself. One hundred years ago, blacks had made substantial gains following the Civil War, including two dozen members of Congress, governors and state legislators. Suddenly, all of that disappeared, not because of black ineptitude, but because of white racism, the tyranny of the majority. In the eyes of many, blacks were becoming too equal. Blacks did not deserve citizenship, including the right to exercise political and economic power. The result of this sentiment was states' rights, Jim Crow, the Klan, and lynchings. The Constitution, so it seems, has never applied to black people. Thus, the history of this nation has been a struggle in which we have been forced to demand that we not be treated as outcasts.
The rejection of Cynthia McKinney's district raises some questions. Why are you against the right of black people to elect their own representatives? Why are you seemingly fighting the interests of your own people? What makes a 60% black district unacceptable, but a 90% white district acceptable? Why have some southern states recently elected their first black representatives since Reconstruction? Why are there only two black representatives from majority white districts, and one black senator? If you are unaware of the pervasiveness of racism in this country, past and present, then you choose not to concern yourself with it. As Cornel West recently warned: "John Jay Chapman said it well when he said, 'White supremacy is like a serpent wrapped around the legs of the table upon which the Founding Fathers wrote the Declaration of Independence.' To talk about race in America is to take us to the very heart, the very core, of what it means to be an American."
Of course, you are entitled to your opinion. African-Americans are not monolithic. Further, as a member of the Supreme Court with a lifetime job, you have the freedom to vote as your conscience dictates. However, you do not have the moral right to vote in the spirit of Chief Justice Roger Taney in the Dred Scott decision, or the majority opinion in Plessy v. Ferguson. I do not know what is in your heart, and can only speculate about your motive. Nevertheless, I do know that many in the black community are concerned that you have drifted away, never to return. You were raised in this country as a black man, and should know better.
When I observe the state of 1995 America, I am reminded of another country in another time. The nation was suffering from economic problems and social despair. The Angry White Men of that nation had to blame someone for their misfortunes and suffering, and selected the Jews as the personification of their problems. The majority society claimed that the Jews were taking all of the jobs, and were responsible for poverty, moral degradation and social decline. Laws were enacted to isolate, oppress, and eventually dispose of the minority group. Some Jews, the Judenraten, participated in the oppression of their own people, perhaps in an attempt to immunize themselves from personal harm. Of course, these individuals soon learned that their attempt was in vain, that they were being utilized by the majority society, and they too would perish.
Justice Thomas, if I sound harsh it is because of the harsh conditions that the Supreme Court is creating. If you are still angry about the confirmation hearings, move beyond your anger. Unlike Henry Foster, you were afforded a floor vote in the Senate. If you are angry at black people for what they call you, prove that they are wrong. Concern yourself more with how historians will judge your tenure on the Court. We are approaching the twenty-first century, yet seem to be regressing back to the nineteenth. During a time of increasing diversity in the United States, we cannot afford to return to the ignorant backwater days of Jim Crow. Moreover, we cannot allow a black man to lead the way.
David A. Love
BC Columnist David A. Love is an attorney based in Philadelphia, and a contributor to the Progressive Media Project and McClatchy-Tribune News Service. He contributed to the book, States of Confinement: Policing, Detention and Prisons (St. Martin's Press, 2000). Love is a former spokesperson for the Amnesty International UK National Speakers Tour, and organized the first national police brutality conference as a staff member with the New York-based Center for Constitutional Rights. He served as a law clerk to two Black federal judges. Click here to contact Mr. Love.