By Vikram Balasubramanian
Vikram Balasubramanian is a freshman in the College of Arts and Sciences at the University of Pennsylvania studying International Relations.
There is only one black member of the US Supreme Court, of two in all of history. Clarence Thomas is one of nine members of, arguably, the world’s most powerful judicial body .
The importance of black judges cannot be overstated. Besides being a hallmark of equality, they play a role in counteracting bias in the criminal justice system. In 1974, The New York Times remarked that black judges were being a powerful force for activism and saw the law as a tool “through which equality is achieved or mandated… for social change” .
Nor can we ignore the contributions of Black Americans to activism in the United States for other minority grounds and democracy itself. Asian Americans owe enormous gains to the Civil Rights movement, especially in the cases of voting rights and immigration laws . Stonewall – the riots that started the gay rights movement in response to unfair policing and unjust laws – was pioneered by black transwomen, Marsha P. Johnson in particular, who is credited with throwing the first brick at the police . Furthermore, as Nikole Hannah-Jones explained in the New York Time’s 1619 project, America wasn’t an equitable democracy until Black Americans fought for it to become one and are working to this day to make it better. “Yet despite being violently denied the freedom and justice promised to all, black Americans believed fervently in the American creed” protesting until the nation held up its supposed fundamental beliefs . This history of black activism is directly correlated with black judges’ jurisprudence today. Judges who have lived through a history of racism (remember, the Civil Rights Act was only a few decades ago) use their experience to make decisions.
The Black Panther Party can also be shown as an example of black movements. People joined for the “free groceries, health clinics, and its school breakfast program” . It was a black power movement, and they protected their members. There was only one case in American history when the National Rifle Association supported gun control – when the Black Panthers started using guns to check police brutality .
To turn back to Thomas, Yale Law Professor Akhil Amar characterizes the justice as “a Black Panther type, a black power extremist of a certain sort” in law school . Yet today, Thomas is the most conservative justice on the Supreme Court .
Corey Robin’s new book, “The Enigma of Clarence Thomas,” explains Thomas’ decision making as skeptical of progress – a very much nihilistic point of view . In Thomas’ mind, progress is not possible under the liberal, lawmaking order, so we shouldn’t try to make things better now.
Robin characterizes this form of black nationalism as “a recognition that the destiny of African Americans cannot be accommodated by the American political system — that African Americans have a set of interests and a destiny that lies apart from the overall American experience” .
In the world that Thomas sees, the law cannot be used as a tool for racial progress. Thomas’ black nihilism is not solely a resignation of a drive to make things better. Simply put, he’s not throwing up his hands in defeat. Instead, it is an indictment of the liberal drive to advance a linear progress narrative. In the eyes of most liberals, we went from slavery to sharecropping to Jim Crow laws to current equity gaps. This shows progress, and the ultimate inevitable end is true equality. However, Thomas’ worldview subscribes to a philosophy that views the move from slavery to sharecropping as a token of damnation. Thomas believes that white supremacy is an inevitable facet of the law and the world, and liberal actions are paternalizing.
Robin characterizes Thomas’ criticism of liberal notions of welfare and progress as a guise to perpetuate “black weakness and black victimization by making black people dependent” on whites, which “destroy[s] the... habits and skills and virtues that black people depended upon and developed over centuries of subjugation and oppression” .
It is important to note that Thomas defends himself as an originalist that rejects all Supreme Court precedents except the Constitution itself, with him being the sole interpreter . This shaky originalism is the pessimism Robin describes.
Could Thomas’ view have some merit? Is progress impossible? Every metric seems to point to bleak conclusions. During the Civil Rights Era, President Johnson established the Kerner Commission to assess the state of American racism, and the conclusions were bleak: American racism is stronger than ever. In 2018, at its 50th anniversary, the Commision reinvestigated this case and found that the past half-century of Civil Rights gains have been wiped out. Child poverty has increased, schools are resegregated, housing is racialized. Income inequality is skyrocketing, and the prison industrial complex jails minorities at disproportionate rates. The Commission wrote, “There are millions more poor people today than there were then. There’s greater child poverty; poverty’s harder to get out of. More poor people are in deep poverty than was true 50 years ago, and income inequality is worse now and worsening” . While there may be some progress, under Thomas’ paradigm, these are token moves to prevent larger systemic progress.
We have less voting rights today than we had on August 6, 1965, when the Voting Rights Act was passed,” said William Barber, a NAACP Board member and the chair of its Legislative Political Action Committee .
Calvin Warren, a Professor of Women’s, Gender, and Sexuality Studies at Emory University, contextualizes black nihilism with the idea that progress is impossible in his book “Black Nihilism and the Politics of Hope.” In it, he argues that black people vote not because progress is possible but because black people feel an “indebtedness” to black civil rights struggles. The aim to realize the possibility of progress creates the “Politics of Hope,” in which “despair [is recast] as possibility, struggle as triumph, and lack as propinquity” . Here, black nihilism is a rejection of the predetermined traps the political world puts forward: Is choosing between slavery and sharecropping really positive?
All of this culminates in the most powerful black man in the world now making huge decisions based on this philosophy. We’ve seen a long pattern of Thomas rejecting seemingly good things. In a world in which the United States’ highest judicial body is in a perpetual 5-4 lock, understanding Thomas’ worldview is key to understanding modern day constitutional jurisprudence.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
 Campisi, Jessica and Brandon Griggs. “Of the 113 Supreme Court justices in US history, all but 6 have been white men.” CNN. September 5, 2018. Accessed. November 2019. https://www.cnn.com/2018/07/09/politics/supreme-court-justice-minorities-trnd/index.html
 Stevens, William K. “Black Judges Becoming A Force in U.S. Justice,” New York Times. February 19, 1974. https://www.nytimes.com/1974/02/19/archives/black-judges-becoming-a-force-in-u-s-justice-black-judges-found.html
 Kochiyama, Yuri. “The Impact of Malcolm X on Asian-American Politics and Activism.” in Blacks, Latinos and Asians in Urban America: Status and Prospects for Politics and Activism. ed. James Jennings. London: Praeger, 1994. 129-141.
 Ali, Rasha and David Oliver. “Why we owe Pride to black transgender women who threw bricks at cops,” USA Today. June 24, 2019. https://www.usatoday.com/story/opinion/voices/2019/06/24/pride-month-black-transgender-women-stonewall-marsha-p-johnson/1478200001
 Hannah-Jones, Nikole. “America Wasn’t a Democracy, Until Black Americans Made It One, “New York Times, August 14, 2019. https://www.nytimes.com/interactive/2019/08/14/magazine/black-history-american-democracy.html
 Rosenberg, Alyssa.“Fifty years later, America still can’t understand the Black Panthers.” February 16, 2016. https://www.washingtonpost.com/news/act-four/wp/2016/02/16/fifty-years-later-america-still-cant-understand-the-black-panthers
 Coleman, Arica L. “When the NRA Supported Gun Control,” Time Magazine. July 29, 2016. https://time.com/4431356/nra-gun-control-history
 Totenberg, Nina. “Clarence Thomas: From 'Black Panther Type' To Supreme Court's Conservative Beacon,” NPR. July 14, 2019.
 Egelko, Bob. “Supreme Court Justice Thomas the leading edge of conservative wing,” SFChronicle. July 21, 2019. https://www.sfchronicle.com/nation/article/Supreme-Court-Justice-Thomas-the-leading-edge-of-14112385.php
 Illing, Sean. “The racial pessimism of Clarence Thomas,” Vox. October 15, 2019. https://www.vox.com/policy-and-politics/2019/10/15/20893737/clarence-thomas-supreme-court-corey-robin
 Toobin, Jeffrey. “Clarence Thomas Has His Own Constitution.” The New Yorker. June 19, 2017. www.newyorker.com/news/daily-comment/clarence-thomas-has-his-own-constitution.
 Smith, David. “Half-century of US civil rights gains have stalled or reversed, report finds,” Guardian. February 27, 2018. https://www.theguardian.com/us-news/2018/feb/27/us-civil-rights-report-kerner-commission.
 Warren, Calvin L. Black Nihilism and the Politics of Hope. Michigan State University Press. 2015.