Comment: Of course the court needs more than one Black voice

Racial identity is not monolithic; the court will benefit from the diversity that Judge Jackson offers.

By Melissa Murray / Special To The Washington Post

It goes without saying that racial identity is not monolithic. Even as they share particular traits, individuals may harbor wildly different views on various issues. But since 1967, and Thurgood Marshall’s appointment, there has been only one Black voice at a time on the U.S. Supreme Court; first that of the civil rights hero, then that of Clarence Thomas, the staunch conservative selected in 1991 to replace Marshall.

This is why President Joe Biden’s nomination of Judge Kentanji Brown Jackson, a Black woman, to the high court is so important. A graduate of Harvard College and Harvard Law School, Jackson would bring a range of professional experiences that will diversify the court. If confirmed, she will be the first justice since Marshall to have worked in criminal defense, and she served on the U.S. Sentencing Commission, where she spoke out about the disparity in crack and powder cocaine sentences. She will be the first justice to have clerked at all three levels of the federal judiciary. And importantly, to judge from her written opinions and public statements, she’ll serve as a weighty counterpoint to Thomas, demonstrating to the country the vast diversity of Black viewpoints.

That she would provide an alternative perspective is critical. Many in the Black community are adamant that Thomas does not speak for them. That may be true, but, as the only African American on the court, Thomas has frequently surfaced issues of race in the court’s decision-making that his white colleagues have glossed over. For example, in Kelo v. City of New London, the court in 2005 upheld a city’s use of eminent domain in conjunction with an economic revitalization project. The taking of private property, the court mused, was a small price to pay for the economic growth that the project would spur; economic growth that would benefit the residents of the city’s “blighted” urban landscape. In a lone dissent, Thomas offered a stinging counterpoint to this rosy narrative of urban progress. Far from benefiting members of minority groups, the government’s use of eminent domain, he contended, resulted in the destruction of “predominantly minority communities” and the displacement of Blacks and other marginalized Americans.

Likewise, in a controversial gun rights case in which gun control advocates emphasized the impact of firearms-related violence on minority communities, Thomas wrote separately to provide a racialized account of the Second Amendment. In doing so, he drew a straight line connecting, in his view, weak protections for gun rights today to the terror that Black Americans experienced in the South during Reconstruction and beyond. Because Black citizens were routinely denied their Second Amendment rights, they were uniquely vulnerable to “a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery.” To underscore the point, Thomas detailed the violent lynchings and deaths of numerous Black men, including Emmett Till in 1955. Thomas’s message was clear: The “use of firearms allowed targets of [racial] violence to survive.”

As the only Black member of the court, Thomas’s views on race and racism may carry particular weight with his colleagues. After all, he — and he alone — is positioned to explain, drawing on personal experience, the impact of racism on the Black community. Moreover, his conservative bona fides make it hard to dismiss his views as “wokeness” run amok.

Consider the court’s decisions on burning crosses. In a 1991 free speech case involving a cross-burning, the court struck down the hate crime ordinance under which the litigants had been charged, finding it an impermissible imposition on free speech. A new addition to the court, Thomas said nothing at oral argument and in the opinions. The decision invalidating the ordinance was unanimous. A little over a decade later, the court revisited the free speech implications of cross-burning. This time, Thomas had more to say at oral argument, chiding one of the advocates for “understating” the impact of cross-burning. The burning cross, he recounted, was a well-worn symbol of white supremacy, designed to intimidate and terrorize. Thomas’s words, coming as they did from a Black man raised in the South, seemed to change the tenor of the debate. Justices and advocates alike referenced Thomas’s remarks as they acknowledged cross-burning’s associations with racialized violence and intimidation. And while the court again struck down the challenged law as impermissibly intruding upon free speech, it conceded that the cross-burning with the intent to intimidate would not be entitled to First Amendment protection.

Some may dispute whether Thomas’s intervention shaped the debate in the cross-burning case, but it is clear that his perspective as the only Black person in the room was hard to dismiss.

If Jackson is confirmed, which seems likely, Thomas’s authority on questions of race at the high court will be diminished; a healthy development. Next term, the justices will hear a critical challenge to affirmative action and, depending on what happens in the Mississippi abortion case currently pending, there may be yet more opportunities to consider the scope and substance of the right to abortion. On both of these issues, Thomas has been incredibly vocal; and his views on these issues have been presented in racialized terms. He is a stalwart critic of affirmative action, arguing that such programs “stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” He has dismissed claims about the supposed benefits of diversity in education as the product of “faddish social theories” at odds with a constitutional commitment to equal protection of the laws. His opposition to reproductive rights is well known, though recently, his rhetoric has grown more aggressive: He has associated abortion with the eugenics movement of the 1920s and has voiced concern about the eradication through abortion of minority groups.

As an African American raised in the wake of the civil rights movement, Jackson — who, at 51, is 22 years younger than Thomas — may have a markedly different view of the benefits and burdens of affirmative action. Likewise, as a Black woman and a working mother, her take on reproductive rights may stand in stark contrast to that of Thomas. She has spoken movingly (and humorously) of the “whiplash” she experienced in her dual roles as a federal judge and a mother of teenagers. As the conservatives bear down on abortion rights, Brown’s experiences navigating the joys and difficulties of working motherhood may inform her contributions to the court’s deliberations,

To be sure, Justice Sonia Sotomayor routinely has sought to elevate the perspectives of people of color — and, specifically, women of color — in the court’s debates. But the addition of a Black woman to the court’s diminished liberal wing could amplify these efforts. Serving as a counterweight to Thomas, Jackson would make clear, through her presence and her arguments, that the Black experience is anything but one-dimensional.

Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University.

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