The EconomistJune 27th 2020 United States 212 said in 1987. “You’ll never have the same
contacts or opportunities, you’ll never be
seen as equal to whites.”
Opportunity came in 1990 when George
H.W. Bush tapped Mr Thomas for the Cir-
cuit Court of Appeals for the District of Co-
lumbia and, 16 months later, for the seat
that Thurgood Marshall, the fist African-
American on the Supreme Court and an
icon of civil rights, would soon vacate. Mr
Bush introduced his nominee as the “best-
qualified” for the job, a claim that even Mr
Thomas saw as “extravagant”.
This experience as a wary beneficiary of
affirmative action echoes in Justice Thom-
as’s dissent from a 2003 ruling, upholding
the University of Michigan law school’s
race-conscious admissions policy. Justice
Thomas quoted Frederick Douglass: “The
American people have always been anx-
ious to know what they shall do with
us...Do nothing with us!” Well-meaning yet
“meddling” admissions officers consumed
by “a faddish slogan of the cognoscenti”—
classroom diversity—were discriminating
on the basis of race and undermining black
students. Whites should give a black appli-
cant not a leg up but, in Douglass’s words,
“a chance to stand on his own legs.”
Justice Thomas’s votes almost always
match those of his conservative col-
leagues, but they often reflect his idiosyn-
cratic views of race in America. Burning a
cross is not free expression protected by
the First Amendment, he wrote in a dissent
in 2003, as it is conduct, not speech. Gov-
ernment vouchers for religious schooling
not only square with religious liberty but
save “poor urban children otherwise con-
demned to failing public schools,” he wrote
the previous year. But de facto segregation
in those schools, he argued in 2007, cannot
be a government concern, as “racial imbal-
ance can also result from any number of in-
nocent private decisions, including volun-
tary housing choices.”
This mindfulness of race extends to dis-
parate matters. The right to bear arms, Jus-
tice Thomas contended in 2010, was often
“the only way black citizens could protect
themselves from mob violence” after the
civil war. Last year he dissented from a de-
cision overturning the conviction of a man
whose prosecutor systematically struck off
black jurors. (He thought the jurors were
struck off for race-neutral reasons, and also
believed the man was guilty.) In an abor-
tion case, he tied the pro-choice movement
to America’s history of racist eugenics.
Only one of these adventures in creative
jurisprudence attracted a second signa-
ture. Some included his frequent call to re-
consider—and overturn, if necessary—Su-
preme Court rulings that went awry.
Justices “are obligated to think things
through constantly”, Mr Thomas says, “to
re-examine ourselves, to go back over turf
we’ve already ploughed.” When a decision
is“demonstrablyerroneous”, he wrote in
2019, the doctrine of stare decisis, letting
precedents stand, must give way.
His jurisprudence may be harsh, but
Justice Thomas is gregarious and warm.
During oral arguments he jokes with liberal
Justice Stephen Breyer, and offers a hand to
even-more-liberal Justice Ruth Bader Gins-
burg as she descends the stairs. He seems
to relish his independent pen. A tally by
Adam Feldman, a Supreme Court statistics
guru, reveals he writes 24 opinions per year
compared with 15, on average, for his eight
colleagues. That prodigious output may
seem to contradict his famous reticence
during oral arguments. Until he found his
voice last month for two weeks of pandem-
ic-adapted hearings conducted by tele-
phone, Justice Thomas averaged less than a
minute of air-time per year over his nearly
three decades on the bench.
With Mr Trump’s electoral prospects
and the Republicans’ hold on the Senate
both looking shaky, Justice Thomas faces
an option Justice Ginsburg rejected be-
tween 2009 and 2014. The leader of the
court’s liberal wing could have stepped
aside and given Barack Obama a third high-
court appointment before the Senate
flipped to Republican control in 2015. Now,
at 87 and after four bouts of cancer, her
nail-biting decision to try to stick it out
seems irresponsible to some on the left.
Melissa Murray, a law professor at New
York University, thinks Justice Thomas
may be motivated to stay by the prospect of
a 6-3 conservative majority once Justice
Ginsburg goes. His former clerk Erik Jaffee
says activists on the right may try to ease
him out before November, to ensure his
seat is filled by a young conservative. But,
he says, Justice Thomas “sure as hell is not
thinking about retiring.” 7Radical conservativeF
our yearsago Donald Trump set
out a ten-point plan for reshaping a
chaotic immigration system. Beyond
building a wall and deporting foreign-
ers, he vowed America would “choose
immigrants based on merit”, while
imposing controls “to boost wages and
to ensure that open jobs are offered to
American workers first.”
To a remarkable extent he has since
found ways to choke off inflows of
foreigners. Before covid-19 hit, his
administration cut arrivals of un-
documented migrants by striking a deal
last year with Mexico’s government to
prevent Central Americans claiming
asylum at the border. It has greatly
reduced the number of official resettle-
ment opportunities for refugees, where
America had led the rest of the world
for decades. It also made it harder for
those already in America to apply for
the green cards that allow them to live
and work in the country. Now it is using
the economic slump to justify a clamp-
down on high-skilled migrants too.
A broad executive order issued on
June 22nd suspends the issuance of
four types of visa: h-1bs, widely used by
employees at tech companies; h-2bs,
for lower-skilled, often outdoor work-
ers; jvisas, for au pairs, temporary
summer workers and some academics;
and lvisas, for professionals who are
moved within companies.
The practical impact is hard to pin
down. The Migration Policy Institute
(mpi) in Washington reckons 29,000
people will see their h-1bvisas blocked
in the second half of 2020. Another
72,000 people had expected to travel on
j-1 “exchange visitor” visas, typically
used for temporary summer jobs. In
theory, therefore, the new rules could
affect hundreds of thousands.
In reality, however, few visas were
being issued, after consulates suspend-
ed work during the pandemic. It is also
impossible to know how strictly the
order will be implemented. Demetrios
Papademetriou, of the mpi, says “you
can drive a truck through” an order
with as many waivers as this one has.
Workers who are exempt include those
necessary for the secure supply of food,
for medical research or for reasons of
“economic recovery”. They could turn
out to be numerous, but statistics on
that are unlikely to arrive before the
end of the year.Another brick
ImmigrantsCHICAGO
Highly skilled migrants are not welcome