America: Clarence Thomas and the End of Racial Integration

Monday, July 2, 2007.

By Keith Boykin

I don't know why some black people ever defended Clarence Thomas when he was nominated for Supreme Court. I said then that he could not be trusted and he would become the proverbial fox guarding the chicken coop. Yesterday, my worst fears were realized when Thomas joined a bare 5-member majority to strike down public school integration plans across the nation.

After 16 years on the bench, Thomas's conservative, anti-black jurisprudence may not be a surprise to anyone who has watched him. But if you go back in history, you'll see that Thomas clearly lied to the U.S. Senate when he was asked about integration during his confirmation hearings. Back then, he said he would follow existing precedent in dealing with integration cases and had no "agenda" to overturn the law. Yesterday, however, Clarence Thomas voted with a 5-4 majority to upset decades of existing racial integration precedent.

The US Supremes Turn All-White

The court ruled yesterday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race. That ruling effectively ends decades of American integration policy and ensures that our schools will soon return to the segregated status in which they existed before Brown v. Board of Education.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Justice Roberts wrote for the majority. But Roberts, like Thomas, failed to understand the simple distinction between using race for the purpose of discriminating against a minority and using race for the purpose of helping a minority achieve equality. The latter justification was the purpose of Brown, and the new Bush-dominated court has just turned Brown on its head.

But the real tragedy was the role reversal for Clarence Thomas. Back on September 16, 1991, a very different sounding Clarence Thomas promised to be more cautious about these things (See the transcript). When asked by Senator Arlen Specter (R-PA), Thomas promised to respect precedent.

Clarence Thomas In 1991

SEN. SPECTER: ...they are two 1971 opinions by unanimous Supreme Court, with the opinions being written by Chief Justice Burger, in a very conservative thrust. One of the cases is Swann versus the School Districts, and I ask you about this case because you have written on the subject in..."Assessing the Reagan Years." And you complain about, quote, "Brown not only ended segregation but required school integration." My first question to you is if you end segregation, doesn't it necessarily mean that you are requiring school integration?

JUDGE THOMAS: Well, I guess the -- semantically, the reference that -- my own reference to those two different terms would have been that desegregation would be the ability to simply not be barred from certain activity and integration would be more positive, that is that you're required to have a certain percentage or certain number.

SEN. SPECTER: Judge Thomas, does your criticism of the Swann case signify another one of the illustrations of your advocacy from the Executive Branch or is this something you really think should be changed, something you would try to change if confirmed for the Supreme Court?

JUDGE THOMAS: Senator, the answer to the second portion of your question is -- is the same as I've said in other areas. I have no agenda to -- to change existing case law. That's not my predisposition. It's not the way that I approach my job.

The concern that a number of us raise with respect to -- just as individuals in the society, as individuals who've watched the changes in our country, was simply that if we could demonstrate that the educational opportunities were improving for minorities, then whether it is busing or any other technique, then use it. But make sure that we're helping these young kids.

That was totally out of the legal context. That would just simply be -- would have been a preference that I expressed as a citizen. I have not reviewed the -- gone back and looked at Swann or the other cases and made any determination that would undermine my ability to look at those cases impartially. And I certainly don't have a predisposition that precludes me in any way from looking at those cases in an objective manner.

Clarence Thomas Today

Back in 1991, Thomas promised a skeptical Senate that he had "no agenda to change existing case law." Yesterday he changed it. Back in 1991, he said busing and other integration techniques were acceptable if they were helping minorities. Yesterday he joined an opinion that said it was unconstitutional to help minorities.

I knew he couldn't be trusted when he claimed that he had never talked about or thought about Roe v. Wade while he was in law school at Yale. Here was a guy who wanted to be on the highest court in the land and he had never even had a conversation about the most controversial Supreme Court decision of his lifetime that happened to be decided while he was in law school? That was completely implausible.

But no more implausible than his ridiculous stretch that the questioning of his fitness for office was some sort of "high-tech lynching for uppity blacks."

So which Clarence Thomas should we believe? The one who clearly lied to us in 1991 or the one who is screwing us today?

Keith Boykin is a writer, broadcaster, journalist and political commentator. He blogs at Keithboykin.com