The justice's dismissal of common law precedent in the context of written law is a distraction, based on a misreading of history.
Early on in Michael Pack’s gripping new documentary on Justice Clarence Thomas, Created Equal: Clarence Thomas in His Own Words—a first-person profile of the controversial justice, featuring frank interviews with Justice Thomas and his wife, Virginia—Thomas refers to a poem he studied in high school, Robert Frost’s The Road Not Taken. The line that stuck with him after all these years was “Two roads diverged in a wood, and I—/I took the one less traveled by,/And that has made all the difference.” (Emphasis added.) At critical junctures in his life, he seems to suggest, he took the unconventional route, leading to a destination that—while satisfying to him—may be difficult for others to accept. Alas, a pilgrim’s journey is his own, and Thomas has the confidence and self-awareness not to doubt his choices.
Thomas infuriates the Left because he defies all their expectations and stereotypical conventions. Appointed to the Supreme Court in 1991 to fill the seat vacated by the retirement of liberal activist and African American pioneer Thurgood Marshall, Thomas has declined to follow Marshall’s rote “living Constitution” jurisprudential path. A graduate of Yale Law School, Thomas eschews the trappings of elite culture, preferring to drive a Corvette and vacation in a motor home. His chambers reportedly display a “Yale Sucks” bumper sticker. Unlike other justices, he often hires non-Ivy League clerks. Thomas, named to the Court by “kinder and gentler” President George H.W. Bush, has become the justice most committed to uncompromising originalism. Once a youthful fan of Malcolm X, Thomas had an epiphany when exposed to the scholarship of Thomas Sowell and the writings of the Founders. He is now resolutely conservative.
Thomas thinks for himself. He famously gives short shrift to stare decisis, placing constitutional text above mistaken judicial interpretations. In contrast to Chief Justice John Roberts, Thomas cares not a whit about the reaction of the New York Times and the Washington Post. Thomas is immune to the so-called “Greenhouse Effect.” Just 43 when named to the Court, he could easily break William O. Douglas’s record of 36 years on the Court.
For all these things, the Left hates Thomas with a consuming passion, and has expressed its enmity with vile, hateful insults and epithets—“token,” “Uncle Tom,” “Uncle Clarence,” “house n*gger,” “lawn jockey for the far right,” depictions of him shining shoes, etc.—that would rightly be denounced as racist if directed at a conventional (i.e., non-conservative) black public figure. At Thomas’ 1991 Senate confirmation hearing, Alabama Sen. Howell Heflin called him an “enigma.” What Heflin may have meant, and the source of the Left’s discomfiture, is that blacks are “supposed” to be aligned with the left wing of the Democratic Party, and under no circumstances are they “allowed” to be conservative Republicans. Being black, in the Left’s judgment, is a monolithic archetype. No deviation is permitted. Thomas’ opposition to race-based affirmative action is viewed as particularly heretical by the civil rights establishment.
Thomas’ complicated life experience makes the Left’s rigid model of “authentic blackness” risible. He takes all the invective in stride, remaining good-natured, jovial, genuinely friendly, and humble. Among staff at the Court, Thomas is universally adored. On a personal level, Thomas is very likeable, which comes through in Pack’s documentary. Much of Created Equal consists of Thomas speaking directly into the camera. His warm nature is obvious from his disarming demeanor and booming laugh.
Thomas’ story is full of drama. His odyssey from an impoverished, Gullah/Geechee-speaking childhood in Pin Point, Georgia during the Jim Crow era, to studying law in New Haven; from working in the Missouri Attorney General’s office (under then-A.G. John Danforth) to chairing the U.S. Equal Employment Opportunity Commission under President Ronald Reagan; from a brief tenure on the D.C. Circuit (filling the seat vacated by Robert Bork) to becoming the 106th justice on the Supreme Court following a narrow (52–48) Senate confirmation vote, is a fascinating narrative.
Thomas’ journey is all the more remarkable when one includes his fatherless upbringing; being raised by his strict but uneducated grandparents; the sympathetic tutelage of Catholic nuns at his segregated parochial school, where he was a devoted altar boy; his teenage desire to study for the priesthood; his disillusionment as the only black student in a Catholic seminary; his radicalization while attending Holy Cross College during the tumultuous 60s (where he became active in the Black Power movement and protested in support of Angela Davis); and his eventual discovery of—and conversion to—conservative ideas.
Thomas’ journey was eventful and, at times, fraught with peril. He was, at various points in his life, devoutly religious and non-believing, angry and joyous, bitter and grateful, Democrat and Republican, living in anonymity and as a celebrity. The road Thomas has traveled contained many twists and turns, some detours, and even a few dead ends. Thomas’ life story is truly an epic tale. According to his critics, however, Thomas was obligated—solely because of his race!—to be a committed liberal, and to follow in the (to be honest, lackluster) footsteps of Thurgood Marshall.
For many, Thomas’ story is well-known. After all, he has served on the Court for 29 years, longer than any other justice now sitting. During that time, he has written over 600 opinions, which legal scholars and law students have carefully scrutinized. His televised confirmation hearings electrified the nation. He is revered in some circles; reviled in others. During much of his time on the Court, Thomas was unfairly overshadowed by his extroverted colleague, Antonin Scalia. Yet Thomas’ corps of former clerks is just as influential, and his opinions just as distinctive, as Scalia’s.
Created Equal covers no new ground, but entertainingly provides an introduction of the Court’s most conservative justice to a mass audience—a broad but not especially deep overview. The interview footage of Thomas and his wife is punctuated with archival video excerpts and photos, movie clips, and contemporaneous news reports that bring the events to life. Pack, the former President of the Claremont Institute, is a veteran filmmaker who, as founder of Manifold Productions, has written, directed, and produced many award-winning documentaries. The production quality of Created Equal is excellent.
One hopes that Created Equal will bring Thomas long-overdue popular attention, and prompt viewers to dig deeper into the background of this consequential jurist. Thomas wrote a best-selling memoir in 2007, My Grandfather’s Son, excerpts from which he reads aloud in Created Equal. (The documentary is drawn in large part from the book.) Senator John Danforth’s account of Thomas’ contentious 1991 confirmation battle, Resurrection (1994), is one of many books written about the Anita Hill charges, which were based on events that allegedly occurred 10 years earlier but that had never been raised in Thomas’ two subsequent Senate confirmation hearings (as EEOC Chair and for the D.C. Circuit), and which the FBI’s investigation concluded were baseless.
Only after Senate Democrats were unable to “bork” Thomas by discrediting his judicial philosophy (especially his interest in natural law), or eliciting Thomas’ opposition to Roe v. Wade during his five days of testimony, did they resort to the now-familiar tactic of smearing him with unsubstantiated claims of sexual misconduct. The Judiciary Committee, aware of Hill’s unconfirmed (but not publicly-disclosed) allegations, had already decided to proceed to a vote when someone—presumably a Senate staffer opposed to Thomas—leaked the confidential material to the press. (This page from the Democrats’ playbook would be repeated in 2018 when—at the last minute—Christine Blasey Ford surfaced with uncorroborated charges of decades-old sexual misconduct by Brett Kavanaugh that allegedly occurred in high school.)
The leak prompted the Judiciary Committee to re-open Thomas’ confirmation hearing, and hear directly from Hill. Thomas’ fiery denial, and indignant protests of unfair treatment in the confirmation process, tipped public opinion decisively in his favor. Twenty-nine years later, this episode remains one of the most riveting moments in Senate history.
The film’s treatment of the 1991 confirmation hearings features a lengthy (and rambling) statement by a buffoonish Joe Biden, who chaired the Senate Judiciary Committee at the time. (Ron Klain, Biden’s intended Chief of Staff, served as chief counsel to the Committee.) Created Equal also includes Thomas’ memorable remarks, made in response to Hill’s testimony alleging sexual harassment by Thomas, that
This is a circus. It is a national disgrace….[A]s far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order, this is what will happen to you, you will be lynched, destroyed….
Created Equal does not explore Thomas’ judicial philosophy in any detail and does not delve into the body of his decisions. It provides a fresh perspective in other ways. The movie is about the man. The best way to understand Thomas as a person is to watch him tell his life story, in his own words, looking directly into the camera. The viewer is impressed that Thomas is real; there is nothing phony or fake about him. He is Everyman.
Thomas’ journey is not yet over, and devotees of rigorous, unwavering originalism should rejoice that he chose the less-traveled path. His road wasn’t always easy, comfortable, or pleasant, and the trip was often arduous, but Thomas has remained courageously steadfast in his odyssey. And that has made all the difference.