The recent spate of attacks on Justice Samuel Alito covers one of the Left’s two most hated justices as the Supreme Court issues decisions in closely watched cases. But their top target is still Justice Clarence Thomas, and the Court’s decision Thursday in Alexander v. South Carolina State Conference of the NAACP upholding South Carolina’s congressional map provided the occasion to smear the senior associate justice as attacking the Court’s landmark decision in Brown v. Board of Education (1954).
Axios ran a particularly deceptive piece about an opinion the justice had written concurring in part. Entitled “Clarence Thomas attacks Brown v. Board ruling amid 70th anniversary,” reporter Russell Contreras wrote that Thomas “issued a strong rebuke of the Brown v. Board of Education ruling” in Alexander, “suggesting the court overreached its authority in the landmark decision that banned separating schoolchildren by race.” He then represented Thomas’ view, quoting from his opinion, as follows: “The court ‘took a boundless view of equitable remedies’ in the Brown ruling.” And for good measure, Contreras added a gratuitous reference to Thomas occupying the seat previously held by Justice Thurgood Marshall, who before joining the Court had argued Brown. Commentators on the Left from Laurence Tribe to Slate’s Mark Joseph Stern have been glad to push a similar “Thomas attacks Brown” narrative.
That account misrepresents the 1954 landmark decision and what Thomas said about it. His sole reference to the case in Alexander was a passing reference to “resistance to Brown.” He made no suggestion that the Court had overreached by banning racial segregation. In fact, he has agreed with the outcome of Brown throughout his career and advanced a stronger rationale for it than the Court did in 1954. In 1987, before his judicial career had begun, Thomas advocated a reading of the Constitution that drew from the principles of liberty and equality in the Declaration of Independence, channeling arguments that had been made by Abraham Lincoln and Frederick Douglass and reflected in Justice John M. Harlan’s dissent in Plessy v. Ferguson. Like many critics of some of the reasoning of Brown, Thomas objected to the Court’s methodology of relying on debatable social science observations, of making psychology and “sensitivity the paramount issue.” Instead, he argued for a more categorical “[j]ustice and conformity to the Constitution” that would directly repudiate the segregationist holding of Plessy as Harlan did.
Over the course of his tenure on the Court, Thomas has been a champion of Harlan’s argument for the colorblind Constitution as too many of his colleagues strayed from it, tolerating increasingly strained arguments for racial discrimination when it was packaged as affirmative action. When interviewed for the 2020 documentary “Created Equal: Clarence Thomas in His Own Words,” Thomas noted his disagreement with the “thinking that there is some good discrimination and some bad discrimination.” He reiterated that in cases involving race, he has made “the same point that Harlan was making in Plessy.” He added, “Had I sat on Brown [v. Board of Education], I would have said, ‘Show me in the Constitution where you get a right to separate citizens based on race.’ The Constitution guarantees equal treatment to all citizens.”
Just last year, when the Court in Students for Fair Admissions v. President and Fellows of Harvard College ended racial preferences in education, Thomas praised Brown in his concurring opinion: “After . . . offering a judicial imprimatur to segregation and ushering in the Jim Crow era, the Court finally corrected course in Brown v. Board of Education, announcing that primary schools must either desegregate with all deliberate speed or else close their doors. [citation omitted]” There and elsewhere in his opinion, Thomas added approving citations to a sequel to the Brown decision, typically abbreviated as Brown II, a short decision that the Court issued in 1955.
The Axios story both misidentified the decision associated with Thomas’ criticism of the Court’s “boundless view of equitable remedies” and overstated the criticism. Specifically, Thomas said in his Alexander concurrence, “the Court took a boundless view of equitable remedies, describing equity as being ‘characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’” The decision Thomas was quoting was Brown II, not the landmark Brown I, and he was taking issue not with the Court’s implementation of its ruling in 1955, but with an overexpansive phrase about equitable relief in Brown II that could be abused in later cases once the exigencies of the time had passed. Thomas indicated this in the sentence that followed, which quoted from his concurring opinion in Missouri v. Jenkins (1995):
That understanding may have justified temporary measures to “overcome the widespread resistance to the dictates of the Constitution” prevalent at that time, but, as a general matter, “[s]uch extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design.”
In his longer discussion in Jenkins, Thomas elaborated on why it was
perhaps understandable that we permitted the lower courts to exercise such sweeping powers. Although we had authorized the federal courts to work toward “a system of determining admission to the public schools on a nonracial basis” in [Brown II], resistance to Brown I produced little desegregation by the time we decided Green v. School Bd. of New Kent Cty. [in 1968]. Our impatience with the pace of desegregation and with the lack of a good-faith effort on the part of school boards led us to approve such extraordinary remedial measures. But such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution. The judicial overreaching we see before us today perhaps is the price we now pay for our approval of such extraordinary remedies in the past.
Thomas retrospectively shared the widespread frustration over the extraordinary resistance to implementing desegregation. But by the time a previous question in the Jenkins case was decided by the Supreme Court in 1990, prior to Thomas’ arrival, the justices were facing a district court that “had ordered an increase in local property taxes in order to fund” the Kansas City school district (KCMSD)’s “capital improvements plan.” Although the earlier decision barred the district court from imposing the tax increase other than as a last resort as a matter of comity, Thomas expressed exasperation that the Court “also concluded that the court could order KCMSD to raise taxes, and could enjoin the state laws preventing KCMSD from doing so. With little analysis, we held that ‘a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court.’”
When Jenkins returned to the Court in 1995, Thomas was part of a majority that sensibly held that a court’s remedial power to counter a segregated district may not be extended to purposes beyond the elimination of racial discrimination in the schools. That meant the court had no power to require the state to fund salary increases for teachers and to continue to fund remedial “quality education” programs. In his concurrence, Thomas noted how the Court’s “willingness to unleash the federal equitable power” in prior cases had reached other areas of law:
Federal courts have used “structural injunctions,” as they are known, not only to supervise our Nation’s schools, but also to manage prisons, see Hutto v. Finney, 437 U. S. 678 (1978), mental hospitals, Thomas S. v. Flaherty, 902 F. 2d 250 (CA4), cert. denied, 498 U. S. 951 (1990), and public housing, Hills v. Gautreaux, 425 U. S. 284 (1976). . . . Judges have directed or managed the reconstruction of entire institutions and bureaucracies, with little regard for the inherent limitations on their authority.
These are the sorts of breaches of the judicial role that Thomas has criticized going back three decades. His concern about judicial overreach has aged well as the Court has taken additional steps to reinforce its commitment to the rule of law. But we should never lose sight of the justice’s consistent view, as stated in his documentary interview: “I’ve had the experience of segregation and integration, and I’m the one who would say, without one bit of hesitation, segregation is repulsive and wrong, and unconstitutional.” He deserves better than to be so brazenly misrepresented on a chapter of history he has actually lived, unlike his deceptive liberal critics.