Invisible Man: Clarence Thomas, the Avatar of Hypocrisy on Civil Rights

Steve Russell
July 24, 2013

Supreme Court Justice Clarence Thomas is an avatar of hypocrisy in civil rights law. A descendant of slaves hailing from Pin Point, Georgia, his first language was Gullah.

Thomas blames affirmative action for devaluing his degree from Yale Law School. He recognizes publicly that he was in fact an affirmative action admission, but believes that to have been a bad thing and he is a reliable vote on the Supreme Court against affirmative action, on the ground that it discriminates against white people.

His legal career reflects a different kind of affirmative action, the elevation of a black conservative within a Republican Party out to demonstrate it is not racist in spite of opposing most of the legislative agenda endorsed by racial minorities.

Appointed to head the Equal Employment Opportunity Commission, Thomas distinguished himself by failing to move any cases under the new Americans With Disabilities Act, apparently because he disagreed with it.

Famously attacked for sexual harassment by Anita Hill in his confirmation hearings, Justice Thomas has become a reliable vote against women claiming sex discrimination.

Former girlfriend Lillian McEwen gave a 2010 interview with ABC News that was known for belatedly supporting Anita Hill’s testimony about Thomas’ taste for pornography, but her assessment of his performance on the SCOTUS is more pertinent today: "Clarence is 90 percent of black people's nightmare on the bench."

Those of us who grew up wanting to be Thurgood Marshall are uniformly appalled that Thomas occupies the seat once held by Marshall, who has represented the NAACP in the fight against “separate but equal.”

Indians, of course, are all about “separate but equal,” in a sense. Our relationship to the mainstream civil rights movement is complicated. Not hostile, but complicated.

Indians claim the same rights as African-Americans when we choose to live in the dominant culture, and the hard-won laws to which Clarence Thomas is so hostile function to guarantee us those rights. Indeed, if Ward Churchill or Elizabeth Warren suffers discrimination because somebody thinks (incorrectly) they are Indian, they have legal remedies.

But Indians have a more complicated claim as indigenous peoples who, unlike African-Americans, have not been physically torn away from their tribal roots. Some Indian fighters would remove this complication by tearing us away from out tribal roots, but they have not yet prevailed.

Justice Thomas has a track record in mainstream civil rights cases of using the Fourteenth Amendment to secure the right of white people to not be disadvantaged by the terrible disability of whiteness.

In Rice v. Cayetano, Thomas read the Fifteenth Amendment to guarantee the right of white people to vote for the trustees of the Office of Hawaiian Affairs, but on White Power Day in the SCOTUS, June 25, 2013, Thomas wrote separately on the Voting Rights Act to complain that the SCOTUS should have struck down Section Five of the VRA when they struck down Section Four. In the other case on White Power Day, Thomas turned his attention to American Indians.

Thomas also wrote separately in Adoptive Couple v. Baby Girl, wherein the SCOTUS held that an unmarried Indian father of a child born to a non-Indian could be stripped of any rights under the Indian Child Welfare Act unless he paid money to the mother. Since most children covered by ICWA are born to unmarried parents where one is non-Indian, this is a big deal, but the bigger deal is that the decision strips tribal rights along with the rights of individual Indian fathers with no serious attention to what it has wrought.

Chief Justice John Roberts, writing for the majority, suggested that any other reading of ICWA would “raise equal protection concerns” by threatening the rights of white people. Justice Thomas wrote separately to make sure Indians got the point.

It is no surprise at all that Thomas would strike down any law that appears to create an advantage for Indians as Indians. In the White Power worldview, rights represent a zero sum game. To confer rights on one class of people is to take them away from everyone not in that class. Therefore, there can be no legislation to remedy harms that fall disproportionately on non-whites. The harms must stand because the remedies would allegedly disadvantage white people.

Thomas says in his concurring opinion that Indians should be grateful ICWA was only neutered. Had there been no rational reading that would merely neuter it, then it would have to be killed in the interests of equality. This is old news. Thomas has always been an equal protection for white people Indian fighter.

The news flash in the ICWA case is that Thomas believes the Indian Commerce Clause does not, repeat NOT, confer plenary power on Congress to control all facets of life on Indian land!

Every Indian and Indian-sympathetic legal scholar has always considered the “plenary power” doctrine to be fraudulent nonsense, and now we have a voice on the SCOTUS that agrees with us!

This, in Thomasland, is another reason to strike down ICWA entirely. The federal government is one of enumerated powers and there is no enumerated power over tribal family law, or any family law unless that law is meant to discriminate against homosexuals, like the Defense of Marriage Act, which Thomas voted to uphold in the absence of any enumerated power.

Before Indians break out the popcorn and root beer to celebrate the end of “plenary power,” it would be good to survey the geography of Thomasland.

I think it is safe to say that in Thomasland, federalism means the relationship between the federal government and the states. Therefore, if the feds lack plenary power over Indian families, that power is in the states. “The tribes,” Thomas has written in another case, “are not part of this constitutional order, and their sovereignty is not guaranteed by it.

Indian legal scholars attack the plenary power doctrine to suggest that Indian nations have more robust sovereignty than states if, some but not all of us admit, less sovereignty than the federal government.

In the matter of treaty abrogation, we would look to international law, not Lone Wolf v. Hitchcock.

We would hold that states have no authority to stack a severance tax on minerals on top of a tribal tax, contrary to Cotton Petroleum v. New Mexico.

Justice Thomas, given the authority, would not even recognize tribal courts as “separate sovereigns” for the purpose of criminal double jeopardy law.

The good news is that Thomas is willing to revisit the foundations of federal Indian control law and to admit that body of law is incoherent.

The bad news is that he would make it coherent by dividing all powers currently residing in tribal governments between the federal government and the states.

This is what Thomasland, White Power in the SCOTUS, would mean for American Indians.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.