The oral argument over President Obama's health care law and the Supreme Court's decision to revisit its 2003 ruling upholding race-conscious university admissions have focused attention on Chief Justice John Roberts, Justice Anthony Kennedy and their willingness to disturb apparently well-settled precedents. But just as assuredly, both cases will shine a spotlight on another justice whose position on both issues seems clear: Clarence Thomas. If Justice Thomas votes, as expected, to invalidate the health care law and to strike down race-conscious university admissions, many of his fellow African Americans will condemn him — as they have in the past — for failing to represent them in an institution where they traditionally have had no voice.
Most black Americans remain strong supporters of President Obama, as well as of affirmative action in higher education. Yet Thomas, in his own way, embraces the role of representative of his race that his fellow black Americans have thrust upon him. He has embellished his judicial opinions with citations from historical black thinkers such as Frederick Douglass and has publicly confessed that it is black criticism that perhaps wounds him most deeply. The dynamics that gave rise to Thomas' particular dilemma were set in motion 50 years ago this spring, when the first black justice seemed poised to join the court.
In the spring of 1962, it seemed to perceptive insiders that the first African American to join the court might be federal Court of Appeals Judge William H. Hastie. For President John F. Kennedy and his brother Attorney General Robert F. Kennedy, the impeccably credentialed Hastie seemed like the obvious front-runner for the spot made vacant by Justice Charles Whittaker's decision to retire. Black voters had been a key element in Kennedy's razor-thin margin of victory in the 1960 presidential election. With the civil rights movement in full swing, both Kennedy brothers recognized that nothing would send a stronger message that blacks were represented in government than an African-American Supreme Court appointment.
Robert Kennedy believed that such a nomination would burnish the administration's democratic credentials around the world. An African-American nominee was bound to be controversial, but in Hastie's case, one additional problem seemed especially pressing. He did not seem black enough.
Everyone understood that a black justice should stand in for the aspirations of his entire race, but there was little consensus on what that duty would actually require. A black American who achieved unique distinction in a racist society was bound to be unlike his or her fellow African Americans in educational achievements and even social outlook. Hastie struggled with that problem for his entire career. As a young civil rights lawyer, Hastie had made a name for himself with his flawless courtroom demeanor, which enabled both Southern black communities and opposing white lawyers to believe that he represented their values — a lesson internalized by Thurgood Marshall, Hastie's former student in civil rights politics.
After taking his seat on the 3rd U.S. Circuit Court of Appeals in 1949, however, Hastie seemed to disappear from American racial politics. The nation's most visible black judge had apparently decided that to represent African Americans in the judiciary, he had to seem as much like a white judge as possible. In his early years as a judge, he rarely participated when the 3rd Circuit decided a race-relations case. In one notable case in which he did, he reversed the position he had taken as a civil rights lawyer and ruled against black plaintiffs who alleged union discrimination.
The black weekly Jet magazine called him "a forgotten man." After reviewing his judicial record, one high-level official in the Kennedy administration concluded that "the first black justice should be someone with whom blacks identified far more than they would with Hastie." For these reasons and others, Hastie would remain on the Court of Appeals.
The outcome of the behind-the-scenes events of 1962 has subtly shaped how minority Supreme Court justices are perceived up to the present day. If Hastie had received the nomination, Americans might have very different expectations of their minority justices. Instead, for the past 50 years, presidents of both political parties have used the prospect of a minority appointment to send a signal that a particular group has representation at the highest level of government.
Lyndon Johnson used some famously salty language to explain to an aide why he nominated Thurgood Marshall rather than the lesser-known A. Leon Higginbotham Jr. as the first black justice. Clarence Thomas owes his seat on the court to a similar set of political calculations. President George H.W. Bush nominated Thomas for the seat previously held by Marshall, less than a year after Bush's controversial veto of the bipartisan Civil Rights Act of 1990 brought his own commitment to racial inclusiveness into question. Only three years ago, President Obama highlighted Sonia Sotomayor's experiences as an American of Puerto Rican heritage in announcing her nomination to the court.
That process has placed significant pressure on Thomas to signal to black Americans that he represents them — pressure that will increase if the court's lone black justice votes, as expected, to invalidate the signal achievement of the first African-American president. That vote, and the affirmative-action decision, will be followed by yet another round of criticism of Thomas and more subtle signals from the justice that he does indeed take his duty of representation seriously. Only a few months ago, during an appearance at his alma mater, Yale Law School, Thomas took the time to meet with the school's black law students, and a respectful discussion reportedly ensued.
Such discussions, however, are unlikely to resolve the real issue separating Thomas from his black critics. For Thomas, representing black Americans seems to require only that he assert that his black identity has something to do with his controversial rulings. For his critics, only a justice whose rulings comport with the expectations of most black Americans will be representative of his race. Half a century after the problem arose, Americans are as confused as ever about what it means for a minority justice to represent the aspirations of an entire race.
Kenneth W. Mack is a professor of law at Harvard Law School and the author of Representing the Race: The Creation of the Civil Rights Lawyer.