Pessimism collapses into conservatism, their “no progress” claims are as much the result of epistemic closure as conservative claims “there is no alternative”. History denies structural accounts, we should map points of vulnerability and discontinuity rather than the continuity of failure

(Corey, PoliSci@Brooklyn, 9-24)

JC: I found one aspect of this attenuated black nationalist sensibility especially bracing and puzzling: your discussion of what you call the “white Constitution” and the carceral state. On the surface, Thomas’s embrace of the carceral state doesn’t feel like black nationalism. But you think if you scratch the surface, you can see that it is of a piece with his black nationalism. Can you say a little more about that? CR: There’s a wonderful book by James Forman, Jr., called Locking Up Our Own: Crime and Punishment in Black America (2017), which is about the building of the carceral state, particularly in Washington, D.C. Foreman argues that there was a real effort at decriminalization and liberalization of the criminal justice system in D.C. in the 1970s. It was perceived by many African American activists and leaders in D.C. as a white, liberal project, which, coming on the heels of the heroin epidemic that had ravaged so many communities, seemed like it might simply introduce more drugs into D.C. And so that decriminalization was strongly, strongly resisted in many parts of the black community in D.C., including the more nationalistically inclined leaders and activists. They essentially viewed decriminalization—and I’m going to put this very crudely—as a threat to black independence and autonomy. I think people often flinch, for understandable reasons, at some of Thomas’s writings on the carceral state. They think, “Well, this seems very different because black nationalists oppose the state.” But, historically and contingently, that’s not always the case. I think for many people on the left, Clarence Thomas is just a monster, and that’s the beginning and the end of it. The book, I think, ends up showing that there’s a much more disturbing and unsettling monstrosity at the heart of his jurisprudence that you can’t understand unless you begin with some of these questions about black nationalism and racial pessimism; that is, because his monstrosity initially began from a place that, I think, many of us on the left can at least understand and imagine. The news ends up being worse than if you were to focus just on the familiar Clarence Thomas that people know. But by the end of the book you begin to see that at the heart of Thomas’s jurisprudence is this belief that, in some ways, Jim Crow was a golden age for the development of black self-organization and black virtues. A word that recurs throughout Thomas’s writings is “survival,” which is a word that also features quite prominently in a lot of Afro-pessimist writing. He thinks that under Jim Crow, black people developed the habits, organizations, independence, and self-sufficiency to survive against all the odds; they managed to build up a thriving civilization and culture. And here is where I would say his thinking moves more into the territory of traditional conservative thinking. It’s really a notion that, under conditions of the most abject adversity, there will be a summoning of more heroic spirits. For Thomas, those heroic spirits are found in black patriarchs; his is a very patriarchal vision. He thinks that the liberal rights revolution—whether it was on questions of criminal justice or the sexual revolution or economic rights— undid these conditions of adversity, thus creating generations of black men who not only cannot take care of women and children and their communities, but who cannot take care of themselves. What the white carceral state does is to recreate these conditions of adversity from decades and centuries past. And, for Thomas, there’s a horrible hope at the heart of that, which is that a new generation of black patriarchs will emerge under these conditions of adversity and will shepherd their people to safety and survival. Not to emancipation, not to the promised land, but to something like survival. JC: Of course, there is a condition of adversity greater than Jim Crow: the condition of slavery. And there’s a similar argument that people have made about the exercise of agency under those conditions—that plantation life was not like concentration camps, but a place where people built community. I feel like I’m in danger of shooting the messenger here, but I’m wondering whether the logic of Thomas’s position is that maybe slavery wasn’t so bad. CR: That’s an interesting question. Thomas will sometimes throw slavery in with Jim Crow, but I think the overwhelming reason why he doesn’t go there is that Jim Crow, in his mind, allowed for the creation of separate black institutions. JC: I found it helpful in reading the stuff about the white Constitution and the carceral state to distinguish two themes. One is that the carceral state provided protection for the innocent victims of crime and violence in inner city neighborhoods. And the other, and this is the more bracing theme, is pedagogical: that the carceral state also provides lessons in self-discipline through its conditions of adversity—through its threats and through the fear it imposes. CR: Absolutely. And that moral pedagogy has multiple dimensions. I don’t know if I called it this in the book, but one strand of Thomas’s jurisprudence I was really struck by is this kind of carceral capitalism—that part of the pedagogy is to create market actors and market selves. The most repellent figure for Thomas, aside from the rapist, is the beggar, the vagrant, the person who has no property or money. Part of what he hopes to see in the white, carceral state is the creation of capable market actors. Because it’s going to be through the market that black men accumulate the resources to create havens of protection for the black community. JC: Sounds like Foucault, but with a different political valence. Let’s shift now to the second theme, which is that Thomas’s conservative black nationalism structures and informs his legal reasoning. Maybe you could illustrate the point by sketching the argument you make about Kelo (2005)? CR: Sure. So, Kelo v. the City of New London was a case about eminent domain, the use of public power to take possession of private property for the sake of public use. This case didn’t involve any racial dimension. But Thomas uses the case as a window into decades of liberal urban planning, which often used the power of eminent domain in order to restructure downtowns, clear slums, and revitalize urban spaces. In the 1950s and 1960s, urban renewal became a focus of political contestation throughout the country, particularly among African-Americans. James Baldwin captured the concern when he said “urban renewal means Negro removal.” In other words, programs to revitalize urban spaces came at the expense of African Americans. Thomas’s opinion in Kelo actually includes that Baldwin quote, and he proceeds to list statistic after statistic showing that urban renewal is a form of racial dispossession, really a kind of ethnic cleansing—that it’s a way of eliminating black worlds from white spaces. Furthermore, he invokes the famous “footnote four” from Justice Stone’s opinion in the 1938 case of United States v. Carolene Products Company. Part of the New Deal jurisprudential project was for the Supreme Court to be deferential to legislators and to get the courts out of the business of overruling democratically elected legislators. In his footnote four, Justice Stone discusses when the judiciary has to intervene. The court needs to step in to protect a “discrete and insular minority” that lacks access to the political process and can’t count on democratic procedures and institutions to protect their interests. Thomas is entirely out of sympathy with this liberal jurisprudential project. But he does an amazing thing in Kelo. He summons footnote four, and says, essentially, “if ever there were a case when the court should be stepping in on behalf of a discrete and insular minority, it is when the government uses the power of eminent domain for the sake of public use.” He says the value of poor people’s land and property, such as they have it, will always be less than whatever it is the state can do in its alliance with private business interest. They will always be vulnerable. He often he speaks explicitly about African Americans and sometimes it’s a little bit more implicit, but by the end, he’s completely turned liberal jurisprudence on its head and is now saying that the courts need to be looking at the Takings Clause of the Fifth Amendment—which is this part of the Constitution that’s very important to conservatives—and using it to defend the interests of African Americans. So, race is referenced throughout this opinion and underlies the entire way Thomas conceives of this problem. This kind of race-conscious detour happens a lot with Thomas. At some moments, you feel like Thomas is just being trollish and tweaking liberals by invoking race in a really crude way. But more often, it’s like what I’ve just described, and you have to ask yourself why. Other conservatives reach the same result without the “detour.” But with Thomas, there is a pattern. It is a much more systemic project that he’s trying to develop. JC: To continue this thread about how conservative black nationalism shapes Thomas’s jurisprudence, let’s talk about affirmative action. The standard conservative objections to affirmative action policies take two forms. One is that white candidates, say, in college admissions, would have gotten in had it not been for the use of racial classifications: so affirmative action is unfair to those candidates. The second is that we’re aiming to be a colorblind society, and the best way to get to colorblindness is to start being colorblind now. Thomas has neither of those. CR: Yes, this is another area where he really distinguishes himself from other conservative accounts. What’s so striking in Thomas’s opinion in Grutter v. Bollinger (2003)—a case concerning an affirmative action program at the University of Michigan Law School—is how much he focuses on white people. But it’s not the white people who, as you just said, are allegedly the victims of affirmative action. It’s the white people who are the perpetrators of affirmative action. For him, all these institutions that are run by white people, their first commitment, before anything about race, is elitism and selectivity. There are all kinds of ways you could create more diverse institutions if you wanted to. You could eliminate the LSAT, which Thomas—and the University of Michigan—says is racially skewed. But Thomas thinks these institutions will never do anything like give up the LSAT because they refuse to give up their selectivity and elitism. And yet, they also want diversity—not because it has an educational benefit, as they claim; if that were the case they would be making diversity much more of a priority than they do. And it’s not because they really think that understanding a diverse society is important for the nation’s ruling class. What he thinks they really care about is what he calls “racial aesthetics.” These are words that you see over and over again with Thomas: “aesthetics” and “racial aesthetics.” White people want a kind of patina. They want the class to look right, because white people—and he’s thinking of the professional managerial class—want to think of themselves as cosmopolitan and multicultural. Openness and comfort in multicultural spaces is part of the self-understanding of the American ruling class. So, the combination of elitist exclusivity and a racial aesthetic, he says, leads to affirmative action. What affirmative action perversely does, according to him, is to elevate whites not only to be paternalistic, but to have discretionary power over questions of race. They get to select that perfect black person who they think will fit in. Were you to change your admission standards—for instance, as I said, getting rid of the LSAT or simply requiring graduation from a certified institution or passing a test demonstrating knowledge of the subject—you would have a much more automatic system of admission. But the University of Michigan, like so many elite schools, wants to preserve the element of discretionary power. What affirmative action does, Thomas says, is to consolidate the paternalistic power of white people. And for black people, whether they got in under affirmative action or not, the ultimate consequence is that they are stigmatized as affirmative action candidates. Affirmative action, for Thomas, functions in the same way that enslavement stigmatized all African Americans—whether they were free or slave—as inferior. It’s an extraordinarily different analysis from the type that you’re going to get in a figure like Rehnquist, or Roberts, or Alito. JC: But much like Stephen Carter’s analysis in Reflections of An Affirmative Action Baby (1992). How do you think Thomas reconciles these concerns about the stigmatizing, patronizing qualities of affirmative action with the argument about the pedagogical benefits of the carceral state? Affirmative action is demeaning; the carceral state is morally instructive. How does that work? CR: This is something I really wrestled with. And there are even more dramatic contradictions than that one. For instance, his dissent against the gay marriage decision. When people say that prohibiting gay marriage is an assault on the dignity of gay people, Thomas says, “How can you say the state is taking away the dignity of gay people? The state can never take the dignity away from anyone. Slavery didn’t take away the dignity of African Americans.” So, he has this notion of dignity in certain instances that is absolutely impervious to what the state is doing. And then he turns around and says affirmative action not only stigmatizes but demeans and takes away the dignity of black people. There appears to be a stark contradiction. The best version of the argument that I can give—and it again points to some very dark and unsettling elements in his jurisprudence—is that he thinks that certain kinds of beneficial state action, such as the pedagogy he sees in the carceral state, are not intended by white people to help black people. It’s not that state officials think they’re doing something for African Americans. If anything, he accepts that these are pretty brutal people. If black people develop virtues, skills, and talents in the face of those brutal practices, those virtues, skills, and talents are attributable to black people. They’re not attributable to the intentionality of the state. So, when state action is constraining, coercive, and authoritarian, Thomas sees the black progress that happens in spite of that action as something like plants squeezing up through the cement: the plants reveal their strength. But when that action is designed to help, it reaffirms white paternalism—and then that sense of collective self-ownership over your achievements is lost. JC: Can you think of either an individual case or an area of Thomas’s jurisprudence where, because of his conservative black nationalism, he ends up on a different side of the issue from other conservatives? I ask because I want to see how exactly his conservative black nationalism is genuinely structuring his jurisprudence, not simply leading him to offer some glosses about race in the course of opinions that are otherwise the same as his conservative allies—putting lipstick on a pig, so to speak. CR: The recent case of Flowers v. Mississippi (2019) is a good example. This was a horrible case coming out of Mississippi, where a man was repeatedly brought up on criminal charges with a trial, and the prosecutor, who was white, was systemically keeping black people off juries. Thomas’s position on this, which goes back to his first term on the Court, is that you should be allowed to strike down jurors based on race. And his reasoning is white racism is a pervasive feature of jury trials and that juror preemption—simply because a potential juror is white—is the most important tool a black defendant will have in order to create more racially balanced juries. Notice that Thomas does not take the obvious liberal path of relying on the higher courts and the state to head off racial imbalances; instead, he wants to leave that task in the hands of African Americans through their power to strike potential jurors, again, merely because those jurors are white. Gorsuch joined him for part of the Flowers dissent—the part that had to do strictly with the facts of the case. But when Thomas then starts going off in the direction I just described, Gorsuch leaves, and Thomas is all by himself. In another example, he was the lone dissenter in Virginia v. Black (2003), which was a case about cross burning in Virginia. And what really divided the Court was the question: can you ever say there’s a form of cross burning that is pure, expressive speech, and not racial intimidation? And Thomas said, “No, it’s intrinsic to the practice. It’s always a form of racial intimidation.” So, there have been a couple of cases where he does actually end up on a different side. And often people want to look for that—the moments when Thomas’s racial pessimism leads him to vote the opposite way of conservatives on the Court—but the argument of my book is not that Thomas is a black nationalist; it’s that he’s a conservative black nationalist. The interesting thing about Thomas is that he shows how, from a position of black nationalism, one could come to embrace conservative positions, even a conservative worldview. The most interesting moments are not when he’s completely breaking from the Court, but when he’s finding a way into the same positions, but with very, very different arguments. And I think Thomas has been clear about his desire to create a conservatism for black people—not in the narrow partisan sense, but in the broader sense of political philosophy or political ideology. So, when you characterize his comments about race as “lipstick on a pig”—just glosses, not really structuring his legal argument—you really have to ask why he would do that. Because it’s not necessary for him to do any of this—he doesn’t gain anything. Conservatives already have a lipstick on the pig argument: color blindness. That’s the most simple, morally attractive argument that the right has been able to come up with. And it’s one that he has often rejected. JC: You say in the book that lots of people, especially people on the left, share Thomas’s sense of racial despair, the sense of permanent racial division and animosity. Do you really think that? CR: I definitely do. And I don’t say this in an accusatory way. All of us are living in the wake of a very great defeat, and it’s something that African Americans were coming to terms with in the late 1960s and early 1970s. Some people say, “Well, African Americans have always known this. This is the eternal wisdom in the black community.” But that’s not fair to the black activists who were fighting for transformation and who actually thought they were making progress. When they stopped making progress, the shift was dramatic and noticeable. We’ve been living with the consequences of that defeat; the sense of political impotence radiates out in all kinds of directions, including climate change. So, in the book, I am genuinely raising this as a question: What do we do when we see a voice like Thomas who’s on the other side and has reached very different conclusions, but began with very similar premises? At its best, the left tries to do two things at the same time. One is to paint a picture of oppression, domination, and injustice and to say, “these are not just isolated incidents of cruelty that can be fixed with tinkering—they are systemic.” But at the same time that the left paints this systemic portrait—and Marx is the greatest example of this—it also needs to identify points of vulnerability. It needs to say that the system is not perfect, and then identify interventions and points of pressure. Albert O. Hirschman, the social theorist, wrote a wonderful book many years ago called the Rhetoric of Reaction: Perversity, Futility, Jeopardy (1991). He said that futility is the most powerful right-wing response to revolutionary reformist change. It’s not saying that the change is going to threaten something else; it’s to say that whatever you do, it’s pointless. It’s absolutely futile. And the coda to that argument is that there’s a sometimes superficial, sometimes not so superficial, resemblance between those arguments from the right for futility and arguments from the left about the deep, systemic structural nature of oppression. One can bleed into the other, particularly in moments of defeat, and you can lose that sense of political plasticity, of the vulnerability of the regime you’re opposing. My concern now is that our arguments about the systemic nature of racism are leading very close to what Hirschman warned against in his writings on the futility thesis. We need to recover that sense, from the black freedom struggle, that the institutions of racial domination in this country have been created through politics—not through neuropsychology or culture, not through personal or private attitudes, but through political institutions and political movements and political leadership. We need to recover the sense that if all the accumulation of racial domination was made by politics, then it can be unmade by politics. Our task is to find the tools of the making in order to do the work of the unmaking.