The Atlantic – September 2019

THE ATLANTIC SEPTEMBER 2019 41

This magical thinking informs Thomas’s jurid-

ical approach, too. As even his admirers acknowl-

edge, Thomas stands alone in making his argument.

In his recent and admiring book, Clarence Thomas

and the Lost Constitution, the journalist and histo-

rian Myron Magnet devotes a chapter to what he

considers Thomas’s best opinions as a justice. They

are all dissents or concurrences, because Thomas

rarely has the chance to write for the Court in polit-

ically sensitive cases. Partly this has to do with his

exceptionally conservative views, but above all his

isolation reflects his disregard for the Court’s prec-

edents. He is willing to abandon whole lines of case

law, many of them generations old, and start fresh.

Though Thomas’s supporters see him as a con-

stitutional purist writing for the ages, his method

reflects a level of antipragmatism that approach es

self-sabotage. Adherence to precedent, or stare

decisis, is one of the foundational principles of our

legal system, promoting stability and order. It is

also the way of the world, as elemental to the judi-

ciary as the fact that judges wear robes.

T

HE LONELINESS OF Thomas’s constitu-

tional approach made headlines in another

context this past spring, when he filed a

concurring opinion in Box v. Planned Parenthood

linking early birth- control advocates to the eugenics

movement. Multiple scholars highlighted the flaws

of his armchair history. Thomas dispensed with

any pretense of dispassionately analyzing the Indi-

ana abortion law under review, describing women

who seek abortions as “mothers” and drawing a

rebuke from Justice Ruth Bader Ginsburg. Once

again he wrote only for himself. The opinion dis-

played Thomas’s long-evident disdain for women,

from his legal career back to his origin story as

the scion of Anderson, a powerfully self- sufficient

patri arch. Thomas has spoken disparagingly of his

sister, whom Anderson did not take in, and who

was instead raised by an aunt and deprived of the

middle-class upbringing and private education that

Thomas enjoyed. In the justice’s worldview, Robin

writes, “the effects of being raised by a woman ver-

sus a man were devastating.” Racial progress cru-

cially depends on “the saving power of black men,”

as Robin puts it.

Which leads, inevitably, to Anita Hill. No dis-

cussion of Clarence Thomas, least of all in the era

of Justice Brett Kavanaugh and the #MeToo move-

ment, can overlook her. Robin devotes only three

pages to Hill, citing the reporting of Jill Abramson

in Ne w York magazine and Marcia Coyle in The

Nation al Law Journal and stating, “If it wasn’t clear

to everyone at the time, it’s since become clear that

Thomas lied to the Judiciary Committee when he

stated that he never sexually harassed Anita Hill.

The evidence amassed by investigative journalists

over the years is simply too great to claim otherwise.”

This is absolutely correct, but the evidence bears

repeat ing. Abramson and Jane Mayer established in

their indispensable 1994 book, Strange Justice: The

Selling of Clarence Thomas, that Thomas’s behavior

toward Hill was part of a pattern, that despite his

denials before the Senate he was obsessed with

pornog raphy, and that his penchant for extreme,

vulgar sex talk was well known among his friends.

Strange Justice also reminds us that Hill passed a

lie-detector test, while Thomas refused to take one.

When it comes to race, Thomas’s ideas deserve

a substantive hearing. But on the topic of sex he

has earned no such deference, having forfeited the

lectern through misconduct and deceit. The good

intentions that underlie his stark vision for African

Americans do not extend to his views on women,

leaving only a voting record that is consistently

hostile to their interests. Presumably the Founders

would not object, gender equality having been far

from their minds at the Constitutional Convention.

That’s good enough for an originalist. The hundreds

of millions of women who have lived in the United

States in the intervening centuries understandably

demand more. Thomas may be an enigma in his

approach to racism. On America’s other original sin,

sexism, he is just wrong.

Michael O’Donnell is a lawyer in the Chicago area.

His writing also appears in The New York Times,

The Wall Street Journal, and The Nation.

MEMORY SONG

Day after.

Remembered laughter.

Day before.

Even score.

Day of.

Hand in glove.

Day for night.

Tw i l i g h t.

Night for day.

Star spray.

Day in. Day out.

Whisper. Shout.

— Mark Jarman

Mark Jarman’s most

recent collection is

The Heronry (2017).

Illustration by MELINDA JOSIE

THE ENIGMA OF

CLARENCE THOMAS

COREY ROBIN

Metropolitan

CLARENCE THOMAS

AND THE LOST

CONSTITUTION

MYRON MAGNET

Encounter