During a recent law school lecture, U.S. Supreme Court Justice Antonin Scalia helped to dispel the damaging stereotype of black incompetence. Specifically, Scalia refuted the widely held belief that Justice Clarence Thomas is his puppet when he indicated that it was Thomas who had led him further to the right over the past two decades, rather than the other way around. As I wrote in an article nearly 10 years ago, Thomas is anything but Scalia’s flunky, and claims to the contrary, even when made by other blacks, are often rooted in the myth that blacks cannot think for themselves.
Scalia’s comment about Thomas’ impact on his jurisprudence made me think more deeply about the powerful influence that Thomas, the only black person on the court, may have on his colleagues during their deliberations on the Fisher v. University of Texas-Austin affirmative action case. Indeed, Thomas’ arguments about the stigma of race-based affirmative action have been appealing to many well-intentioned individuals who question affirmative action, not because they believe that racial disadvantage and bias no longer exist, but instead because of the harms that they believe affirmative action may present to its beneficiaries. Even I, a black Democrat who supports affirmative action, was moved by parts of Thomas’ dissent in Grutter v. Bollinger, such as his questions about law schools’ use of the LSAT in their admissions processes. This time, Justice Sandra Day O’Connor’s narrative of how "affirmative action" created a space for her on the court will not be present as a counterweight to Thomas’ arguments. However, Justice Sonia Soto­mayor’s compelling account of how affirmative action can transform the lives of real people will be highly visible.
That said, as our Supreme Court justices deliberate on the Fisher case, I hope that they also consider the critical ways in which Thomas’ life offers yet another example of affirmative action working in the right way. After all, some might argue that Thomas is a beneficiary of affirmative action (whether or not he directly was) because he had not accrued, before his appointment, the conventional achievements that seem to be near-requirements for a seat on the court. For example, unlike justices Stephen Breyer, Elena Kagan and John Roberts, Thomas did not clerk for a Supreme Court justice, or like justices Samuel Alito and Scalia, for a federal appellate judge. Additionally, Thomas served for a shorter period of time as a federal court of appeals judge than many of his peers on the court, except for Roberts, who served for a similar period, and Kagan, who never served on the court of appeals.
Yet, what President George H.W. Bush may have recognized when he appointed Thomas to the court is that these traditional conceptions of "merit" are not only unnecessary for distinguished service on the court, but also are, in many ways, "raced" and exclusionary. After all, like many beneficiaries of affirmative action today, Thomas encountered major barriers that made it extremely difficult, if not impossible, for him to achieve the usual credentials before his appointment.
For instance, when Thomas graduated from law school, there were very few black federal judges who could hire law clerks, and even fewer white judges who hired black clerks at all. Indeed, prior to Justice Thurgood Marshall’s service on the court, only one African-American had ever served as a U.S. Supreme Court law clerk for any justice. Even today, black judges hire the vast majority of African-American law clerks at the federal level. Additionally, although Thomas had graduated from Yale Law School, he faced severe discrimination on the job market that excluded him from the top-flight law firm jobs and legal positions that tend to set young attorneys down the path toward the type of credentials that justices today tend to possess.
Yet, regardless of any disagreements that one may have with Thomas’ votes or positions, it is difficult to say that he has not performed his job as a justice well, demonstrating an intellectual firepower that has made an acknowledged impact on Scalia, who is known for his independence.
Moreover, Thomas has repeatedly demonstrated the many benefits of diversity through his performance on the bench. His jurisprudence on education, desegregation and criminal cases all reveal not just a conservative bent, but uniquely raced, conservative positions that have altered his peers’ and our understanding on a number of legal issues.
Who can forget the impact of Thomas’ question about whether a burning cross could hold any other meaning than to invoke fear and terrorize a population in the First Amendment case Virginia v. Black? Likewise, Thomas’ opinions — many of which detail legal conclusions and analyses that stand in stark contrast with the perspectives of many African-Americans — further in some ways Grutter‘s declaration that meaningful intragroup diversity is needed to combat stereotypes about a monolithic minority viewpoint.
In the end, when Scalia and other justices engage in their deliberations on Fisher, I hope that they pause to reflect on the many contributions that Thomas has made to the court and their own thinking and jurisprudence. I hope they ask themselves what would have been lost without his voice on the bench. And I hope they consider the contributions that will be lost at institutions across the nation if they choose to render a decision that will deprive those schools’ students of minority voices, much like Thomas’, as part of their own education.
Angela Onwuachi-Willig is the Charles and Marion Kierscht Professor at the University of Iowa College of Law. She teaches and writes in the fields of anti-discrimination law and critical race theory and is the author of the forthcoming book According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family (Yale University Press).