The Nine (19 page)

One reason Thomas maintained his silence may simply be because the media called so much attention to it—and he wasn’t going to give his critics the satisfaction of seeing him change his ways. Among friends, he would mock the way the liberal press described justices who moved to the left as “evolving” and “growing” on the Court. “I ain’t evolvin’,” he would say.

In public, Thomas would discuss over and over again the way anger has shaped his life. At a commencement speech in 1996 at Liberty University, which was founded by Rev. Jerry Falwell, Thomas departed from the usual pablum offered on such occasions to give an extraordinary self-portrait. He recalled his own graduation from college, at Holy Cross, twenty-five years earlier. He was something close to a radical in those days, an overall-wearing Black Power devotee with inchoate dreams of changing the world. “I thought I knew all the answers,” he said. “It was all so clear. I was just relieved to have completed my college education. I had often thought of giving up and going home. To my core, I was a swirling combination of frustration, of anger, of disappointment, of anxiety and perhaps there was a glimmer of hope, but it was well hidden. Mostly I was just confused. I had alienated my grandfather, and the dreams of my youth to become a Catholic priest had evaporated. It was indeed a dark night of my soul.” (In a lighter vein, he would sometimes recall that his Afrocentric worldview in those days inspired the name of his son. “We called him Jamal, so you can see where my head was in those days.”)

Always, when recounting the pain in his life, Thomas would return to the subject of his confirmation hearings: “And it is only by God’s grace and on his mighty shoulders that my wife and I endured the unpleasantness of my confirmation. In the end, our strategy was to rely on him, to endure the agony and then transcend the aftermath of bitterness, and we as a team, an inseparable team, are so grateful to you who lifted us up in prayer.”

Thomas appeared in public about as often as the other justices, but he picked his audiences with greater care. Only once in his first decade on the Court did he venture away from safe, sympathetic crowds where he could be guaranteed a warm reception. On that occasion, he decided to take on the most incendiary subject of all—race.

Thomas’s views on the subject were clear. Like Scalia and Rehnquist, he believed in a “color-blind Constitution,” that is, that the Constitution forbade any consideration of race. Most notably, of course, he thought any kind of affirmative action or preferential treatment for blacks should be banned under the Equal Protection Clause. He was a proud heir to the civil rights tradition of Booker T. Washington, which focused less on government assistance to blacks than on self-help and up-by-the-bootstraps individual initiative. To the extent Thomas discussed discrimination at all, it was usually in the context of the vanished South of his youth—or of contemporary bias against Thomas himself. He had an understandable sensitivity to the common (and false) notion that he functioned as Scalia’s pawn on the Court. This idea was absurd not least because the two justices’ voting records were different, with Thomas well to the right of his senior colleague. What was notable, though, was that Thomas attributed this canard to racial, not political, bias. As he put it in a speech in Louisville, “Because I’m black, it is said that Justice Scalia does my work for me. I understand how that works. But I rarely see him, so he must have a chip in my brain that tells me what to do.”

To say that Thomas opposed affirmative action is not to say that he fought all efforts to help poor people, especially blacks. He thought the traditional civil rights movement bred a culture of victimization in blacks and paternalism in whites. He believed that economics, not race, was at the root of poor people’s problems, and he opened his chambers to those who shared these views. He would read the names of striving black youngsters in the news and invite them in for pep talks. His friend Tony Welters, an African American health care entrepreneur, started a program at New York University Law School that awarded scholarships—without regard to race—to “outstanding J.D. students who are among the first in their immediate family to pursue a graduate degree.” Thomas liked the program so much that he allowed the school to conduct the final interviews each year at the Supreme Court.

As Thomas himself would acknowledge privately, he benefited from affirmative action at every step of his life—in gaining admission to Holy Cross and Yale, in being hired for civil rights jobs in the Reagan administration, and in winning appointment to the Court. But he thought that, ultimately, these kinds of efforts to help people were self-defeating. (He’d always advise young black lawyers to focus on subjects like tax or property law and escape the ghetto of civil rights specialization.) Thomas thought integration was at best a mixed blessing for blacks; he loved the all-black world of the segregated Savannah of his childhood and thought that its replacement did African Americans no favors.

Indeed, Thomas believed virtually all government efforts to help black people wound up backfiring. He liked to point out that the handful of black farmers left in South Carolina were often blocked from selling their land for the best prices by environmental regulations. His favorite quote from his idol Frederick Douglass summed up his view: “The American people have always been anxious to know what they shall do with us…. I have had but one answer from the beginning. Do nothing with us!…If the Negro cannot stand on his own legs, let him fall.”

Once, and only once, Thomas tried out this argument on a skeptical audience. In 1998, he accepted an invitation to speak at the annual meeting of the National Bar Association, the largest organization of black lawyers in the country. A month before his appearance, a group of board members of the NBA wrote to Thomas purporting to withdraw the invitation, but he decided to come anyway. The hotel ballroom was tense when Thomas took the podium in front of about two thousand lawyers and judges, many of whom disagreed with him passionately on issues of civil rights. That the meeting took place in Memphis in the thirtieth-anniversary year of the assassination of Martin Luther King Jr. gave the occasion even greater emotional weight.

Thomas began by recalling King’s death and his sense that “the whole world had gone mad.” Since that time, though, King’s supposed heirs had decided that the “racial divide was a permanent state…. Some go so far as to all but define each of us by our race and establish the range of our thinking and our opinions not by our deeds but by our color.” In other words, to be black was to share the orthodoxy of the civil rights movement. “I see this in much the same way I saw our denial of rights—as nothing short of a denial of our humanity.”

Thomas went on to describe how his despair grew when he was a law student, filling him with “anger, resentment and rage.” In time, though, he came to the revelation that “the individual approach, not the group approach, is the better, more acceptable, more supportable and less dangerous one. This approach is also consistent with the underlying principles of the country.” As a black man, he was entitled to these views. “I knew who I was and needed no gimmicks to affirm my identity. Nor, might I add, do I need anyone telling me who I am today. This is especially true of the psycho-silliness about forgetting my roots or self-hatred.”

Thomas concluded mournfully. “I have come here today not in anger or to anger, though my mere presence has been sufficient, obviously, to anger some. Nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black. I come to state that I’m a man, free to think for myself and do as I please. I’ve come to assert that I am a judge and I will not be consigned the unquestioned opinions of others.”

Thomas received a polite reception from the audience, but by this point he and his adversaries were largely talking past one another. Rather than engage his critics, Thomas chose to attack straw men. No one quarreled with Thomas’s right to his own views; no one said black people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else; Thomas’s critics, no less than he, sought “to continue diligently to search for lasting solutions.” It was the substance of Thomas’s views, not his right to hold them, that his critics attacked. Thomas’s speech was a sustained plea for his own victimhood—in support of his antivictimhood philosophy. In any event, the speech turned out to be a one-time-only attempt to talk to his ideological adversaries in public. He quickly resumed circulating in more familiar, and comfortable, territory.

On May 28, 1994, Clarence and Ginni Thomas hosted, and he performed the ceremony for, Rush Limbaugh’s third marriage, this one to Marta Fitzgerald, an aerobics instructor whom the radio host met on the Internet. (The couple soon divorced.) Thomas’s speaking engagements in Washington were almost exclusively in the world of conservative think tanks and lobbying operations. His first television appearance after his confirmation took place on National Empowerment Television, an offshoot of the Free Congress Foundation, which was run by Thomas’s old friend Paul Weyrich, a founding father of the New Right. Thomas visited Weyrich’s office several times and spoke at the group’s fifteenth anniversary in 1993. Thomas spoke at the Heritage Foundation, another prominent conservative group, and he gave the American Enterprise Institute’s Francis Boyer Lecture at the annual black-tie affair that is known around Washington as “the conservative prom.”

There, surrounded by many of the most powerful people in the country, Thomas paid tribute to himself for having the courage to agree with them. The theme of his speech was “the question of courage in American life,” as reflected in his career on the bench. “In my humble opinion,” he said, “those who come to engage in debates of consequence, and who challenge accepted wisdom, should expect to be treated badly. Nonetheless, they must stand undaunted. That is required. And that should be expected. For it is bravery that is required to secure freedom.” Rhetorically, Thomas asked whether it was “worth it” to be as courageous as he had been. “If one wants to be popular, it is counterproductive to disagree with the majority. If one just wants to tread water until the next vacation, it isn’t worth the agony. If one just wants to muddle through, it is not worth it. In my office, a little sign reads: ‘To avoid criticism, say nothing, do nothing, be nothing.’ ” Never, on these occasions, did Thomas acknowledge that he was not some lonely voice in the wilderness but a Supreme Court justice whose votes, more often than not, were in the majority.

Thomas’s status as a conservative hero had tangible, as well as psychic, rewards. Before Thomas became a justice, he was never wealthy; he was already on the Supreme Court when he finished paying off all his student loans. But Thomas made far more financially out of his status as a justice, and a folk hero, than any of his colleagues. He received a $1.5 million book advance from the publishing company owned by Rupert Murdoch, the media entrepreneur who has been a supporter of conservative causes. Rehnquist and Breyer also wrote books, but neither received anything like this kind of money. In touting the book to potential publishers, Thomas told editors that Limbaugh planned to read the book aloud on the air. Thomas said that he would not appear on television morning news shows, fearing attacks from potential interviewers, but he would agree to be interviewed in the more sympathetic environment of Fox News. (The book,
My Grandfather’s Son
, was published in the fall of 2007. Thomas promoted the book among sympathetic interviewers, and it sold well.)

Thomas received even more direct financial benefits from his job. According to the financial disclosure statements the justices are required to submit, Thomas received $42,200 in gifts over a six-year period. This was more than seven times as much as any of his colleagues, whose gifts tended to consist of crystal figurines and plaques. (Most of the justices accepted all-expenses-paid trips to destinations around the world, where they lectured at universities and met with judges; the only exception was Souter, whose gift and travel disclosure forms, year after year, said: “None.”) Most of Thomas’s gifts came from conservatives, who had come to admire his work on the bench. For example, Harlan Crow, a Texas businessman, gave Thomas a Bible once owned by Frederick Douglass that was valued at $19,000. (Crow also donated $175,000 for a new Clarence Thomas wing at the local library in Thomas’s hometown of Pin Point, Georgia.) Another executive gave Thomas $5,000 to help pay for his grandnephew’s education. A Nebraska businessman gave Thomas tires worth $1,200. Under federal law, the justices can accept unlimited gifts from individuals who do not have cases before the Court, as long as the gifts are disclosed.

Thomas’s close ties to the conservative political and business worlds were reinforced by his wife, Virginia, who was already a well-known lobbyist for the U.S. Chamber of Commerce when they married in 1987, but who came into her own in the 1990s as a senior aide to Richard Armey, the combative Texas Republican who served as House majority leader. In that role, during the 1996 campaign, she sent a memo to senior Republicans in the House asking for damaging information about President Clinton “as soon as possible.” Specifically, she sought any information that would expose “waste, fraud and abuse,” the “influence of Washington labor bosses,” or “examples of dishonesty.” Later, she became director of executive branch relations at the Heritage Foundation.

The best reflection of Thomas’s unique status in Washington, and on the Court, may have come at an unusual event in December 1999. Most of the justices attended awards dinners at places like universities and bar associations, but it seems likely that none of his colleagues ever attended an event like this one.