Last month marked two historic occasions: the 25th anniversary of the appointment of Supreme Court Justice Clarence Thomas, and the inauguration of the National Museum of African American History and Culture on the National Mall in Washington. Ideally the two historic moments should converge in a celebration of the journey of progress of African Americans from the condition of slavery to a place among the pantheon of American life and culture. But it’s obvious that is not the case.
The Museum noticeably snubs Justice Thomas, mentioning him only briefly within the context of a reference to his accuser, another groundbreaking black lawyer, Anita Hill. Hill appeared at Thomas’ confirmation hearings in 1991 and reported allegedly lewd behavior directed towards her by the nominee who was her boss at the U.S. Equal Employment Opportunity Commission while Thomas chaired the agency. As many who were there recall, Hill’s allegations caused quite a media furor over Thomas’ fitness for the Court – a firestorm Thomas famously referred to as a ‘high tech lynching.’
The wounds of that bruising confirmation process and Thomas’ subsequent jurisprudence have apparently not healed over the intervening quarter century. In fact, when mentioning the impressive strides blacks have made since the civil rights movement, the museum covers the notable achievements of Oprah Winfrey, General Colin Powell, Secretary of State Condoleeza Rice, and of course the historic election of Barack Obama as the first black President of our land. But for some reason, there is no reference to Thomas, whose journey has undoubtedly paved the way for many blacks – including Barack Obama – who have risen to power in his wake. People are quick to laud Obama’s erudition as a constitutional law professor, while completely glossing over Thomas as a seasoned genius practitioner of constitutional jurisprudence.
Let’s be clear here: no matter what Thomas’ politics may be, his position and record of jurisprudence over the past twenty five years makes him undoubtedly one of the most important black figures of the post-civil rights era. The very fact that a black man can wield the quiet power on the court, and decide so many of the nation’s greatest and most complex legal decisions confirms that fact. While Justice Thomas has not presented himself as a ‘race’ leader per se (much like President Obama in that regard), he has positioned himself as a champion for the rights of all Americans in burnishing and upholding the Constitution.
Thomas, like him or not, has proven himself to be a revolutionary constitutionalist, perhaps even exceeding the record of former Justice Antonin Scalia (may he rest in peace). Thomas has meticulously and conscientiously striven to remove some of the barnacles that have attached themselves to American law over the years. One of the most notable examples was Thomas’ dissent in the case of Kelo vs. City of New London, in 2005, in which a corrupt local government in cahoots with private developers sought to seize and demolish homeowners’ property (indeed an entire thriving neighborhood) in order to build a corporate office complex. Greedy government officials saw an opportunity to grow the government’s tax base, and greedy developers saw an opportunity to leverage their corrupting influence to benefit their own bottom lines.
Thomas implored The Court’s majority to consider not only the constitutional, but also the societal implications of allowing private property to be taken, not for merely “public use” – as the constitution allows – but for “any public purpose or necessity whatsoever” as the liberal justices urged. He further argued that “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.” If this language had been authored by almost any jurist else besides Thomas it would have stood as one of the most powerful appeals to upholding civil rights authored since the landmark case of Brown vs. Board of Education.
Thomas has authored many other brilliant, compassionate and original opinions, but the Kelo case stands out for African Americans because it was written in dissent. Moral dissent has been a hallmark of the contribution of African Americans to the American social fabric. The African American museum serves as a testament and visible reminder of the power of the moral dissent that originated in the patriotic dissents of Patrick Henry and coursed through the dissenting voices of Paul Walker’s radical Appeal against slavery in 1829. Placed in this context, Thomas’ jurisprudence fits perfectly within the revolutionary American tradition of championing justice even in the face of overwhelming and entrenched political power.
By defacing Thomas the curators of the National Museum of African American History and Culture are doing a grave disservice, not only to the very history and culture they are trying preserve, but the very legacy of the African American experience in this country. And by denying Thomas’ rightful place among the pantheon of African American achievers and strivers, they also deny themselves the very legitimacy they are seeking by erecting a monument in the heart of the Nation’s Capital.