Clarence Thomas Muses on Revisiting School Segregation

The Supreme Court’s conservative majority gave its blessing Thursday to a gerrymandered South Carolina congressional map that a lower court said was “bleaching” the district of Black voters, likely making it easier for Republicans in the future to draw up legislative maps along racial lines. Writing for the six-member majority, Samuel Alito—who has been under scrutiny this week amid revelations that he displayed pro-Trump extremist symbols outside his homes in Virginia and New Jersey—ruled that the plaintiffs had failed to establish the gerrymander was racial in nature rather than partisan, the latter of which is permitted. “None of the facts on which the District Court relied to infer a racial motive,” Alito wrote, “is sufficient to support an inference that can overcome the presumption of legislative good faith.”

It’s an outrageous decision—one seemingly designed, as Elena Kagan wrote in a withering dissent, to “scuttle gerrymandering cases” going forward and effectively make it easier for states to disenfranchise Black voters. “What a message to send to state legislators and mapmakers about racial gerrymandering,” Kagan wrote. “Those actors will often have an incentive to use race as a proxy to achieve partisan ends…And occasionally they might want to straight up suppress the electoral influence of minority voters….Go right ahead, this Court says to States today.”

But as bad as the ruling itself is, the concurring opinion authored by Clarence Thomas is even worse. The scandal-mired conservative not only agreed with Alito that the plaintiffs—and the lower court that ruled in their favor—were wrong; he argued that the high court should have “no power to decide these types of claims” in the first place, because “drawing political districts is a task for politicians, not federal judges.” To support his argument, Thomas, the second Black American to sit on the high court, took aim at the court’s landmark 1954 ruling in Brown v. Board of Education. That unanimous decision, of course, had deemed school segregation unconstitutional, but to Thomas, it was a grave judicial overreach, with the court taking a “boundless view of equitable remedies.”

“It is well past time for the Court to return these political issues where they belong—the political branches,” Thomas concluded, suggesting the court do a way with the “one person, one vote” rulings establishing that all citizens’ votes in a state should be equal.

It would be hard to overstate how extreme this argument is. Thomas—long a critic of Brown, which was argued by Thurgood Marshall, the man he replaced on the bench—would seem to give states virtually unlimited power to dilute Black voters’ ballot power, as long as they don’t explicitly deny them the vote. As Ari Berman put it Thursday evening, Thomas “literally wants to repeal the 20th century.”

Thomas’s attack on Brown came a week after the 70th anniversary of the ruling—and as segregation in American public schools creeps back toward levels not seen since the Civil Rights era, thanks in part to Republican measures weakening the landmark decision. Alito didn’t go as far as Thomas in his majority Alexander opinion Thursday. But the conservatives once again made clear that, when it comes to the John Roberts Court, there’s no such thing as settled law.