On Monday, I used the time-honored journalistic dodge of “ethically” floating a sensational but unverified allegation by stating it in the form of a question, to wit: Clarence Thomas didn’t just ‘vote black’, did he? Well, according to Mark Joseph Stern, over at Slate, he didn’t. Instead, he voted “Thomas.”
“Clarence Thomas Joins Liberals, Shocks World” is the way Stern puts it in his excellent article, which you should probably switch to right now instead of continuing with this post.
According to Stern, the trouble started way back in the day when liberals decided that it was okay to create strange, tortured, meandering gerrymanders in the name of ensuring black representation in state legislatures and Congress. The practice of explicitly creating “black” districts was held unconstitutional by the Supreme Court in Miller v. Johnson, with notorious swing justice Arthur Kennedy joining conservatives (including Thomas) in a 5-4 decision.
But liberals, rather stupidly, wouldn’t give up, and, thanks to a switch by that other notorious swing justice Sandra Day O’Connor, won a “victory” in Easley v. Cromartie that allowed discrimination on the basis of party rather than race, which, of course, could be used to “justify” strange, tortured, meandering gerrymanders that just happened to be majority black districts. That led to a strange, tortured distinction between gerrymandering on the basis of race (bad) versus gerrymandering on the basis of partisan advantage (okay, even if it resulted in grossly disproportionate racial representation across districts).
Be careful what you wish for, eh? Liberals got their black districts—a few of them, at least—but conservatives got everything else, picking up massive majorities in state legislatures and the U.S. House of Representatives. The Court’s new decision, Cooper v. Harris, should, or could, turn that around, just a little. The majority opinion, written by Justice Elena Kagan, says that “grossly disproportionate racial representation across districts” is in itself evidence—not necessarily conclusory—of racial discrimination, regardless of motive:
“So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinking that a proposed district is more “sellable” as a race-based VRA [Voting Rights Act] compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”
But to get back to Justice Thomas, whom you may have forgotten about, “good racial gerrymandering” was never a good idea in the first place, no matter how the liberals tried to package it. Easley v. Cromartie was a bad decision.1
Which clearly means that I got it wrong. Justice Thomas was right all along, and it was the “new conservatives”—Justice Alioto and Chief Justice Roberts—along with cranky old swing geezer Justice Kennedy who wanted to let conservatives continue to exploit liberal folly. Yes, Clarence Thomas, whom I so unfairly maligned, helped save liberals from themselves. And scant credit will they give them.
Afterwords
It was Thomas’ vote that made Kagan’s opinion the majority opinion, thus allowing it to serve as precedent. If he had voted the other way, the Court would have split 4-4 and Kagan’s opinion would not have precedential value, regardless of the impact of the Court’s action on the case before it.
- There were two “Cromartie” decisions. Thomas approved of “Cromartie I”, since he wrote it himself. Cromartie v. Easley was “Cromartie II”. ↩︎
