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Clarence Thomas
is the longest-serving Justice on the Supreme Court. When he joined the
bench, on October 19, 1991, the Soviet Union was a country, Hillary
Clinton was Arkansas’s First Lady, and Donald Trump had recently
declared the first of his businesses’ six bankruptcies. Since then,
Thomas has written more than seven hundred opinions, staking out
controversial positions on gun rights and campaign finance that have
come to command Supreme Court majorities. “Thomas’s views,” the Yale law
professor Akhil Reed Amar
has said, “are now being followed by a majority of the Court in case
after case.” That was in 2011. Today Thomas is joined on the Court by
Neil Gorsuch, who frequently signs on to Thomas’s opinions, and Brett
Kavanaugh. Eleven of his former clerks have been nominated by Trump to
the federal bench. Four of them sit on the Court of Appeals, just one
step away from the Supreme Court.
By consensus, Thomas is the most
conservative member of the Court. So it’s surprising that the central
theme of his jurisprudence is race. When he was nearly forty years old,
just four years shy of his appointment to the Court, Thomas set out the
foundations of his vision in a profile in The Atlantic.
“There is nothing you can do to get past black skin,” he said. “I don’t
care how educated you are, how good you are at what you do—you’ll never
have the same contacts or opportunities, you’ll never be seen as equal
to whites.” This was no momentary indiscretion; it was the distillation
of a lifetime of learning, which began in the segregated precincts of
Savannah, during the nineteen-fifties, and continued through his college
years, in the sixties. On the Court, Thomas continues to believe—and to
argue, in opinion after opinion—that race matters; that racism is a
constant, ineradicable feature of American life; and that the only hope
for black people lies within themselves, not as individuals but as a
separate community with separate institutions, apart from white people.
This
vision is what sets Thomas apart from his fellow-conservatives on the
bench, who believe that racism is either defeated or being diminished.
It’s a vision that first emerged during Thomas’s early years, when he
was on the left and identified, on a profound level, with the tenets of
black nationalism. Like most ideological commitments, Thomas’s politics
are selective, but much of the program he embraced in his
youth—celebration of black self-sufficiency, support for racial
separatism—remains vital to his beliefs today. Those beliefs are coming
closer, each term, to being enshrined in the law. Thomas writes, on
average, thirty-four opinions a year—more than any other Justice.
Despite that, the only things most Americans know about him are that he
was once accused of sexual harassment and that he almost never speaks
from the bench.
Thomas
was born in 1948, in Pin Point, Georgia, an impoverished black
community that was founded by freed slaves. In his memoir “My Grandfather’s Son,”
from 2007, Thomas’s memories of Pin Point are pastoral—rolling bicycle
rims down sandy roads, catching minnows in the creek. His family’s move
to Savannah, when Thomas was six, brought this idyll to an end. In Pin
Point, Thomas fed himself directly from the land and the water, feasting
on “a lavish and steady supply of fresh food: shrimp, crab, conch,
oysters, turtles, chitterlings, pig’s feet, ham hocks, and plenty of
fresh vegetables.” In Savannah, before he moved in with his
grandparents, he spooned up “cornflakes moistened with a mixture of
water and sweetened condensed milk.”
Savannah was also where
Thomas claims he had his first experience of race—at the hands not of
whites but of blacks. Though Thomas began elementary school in 1954,
four months after the Supreme Court declared segregation
unconstitutional, he grew up, by his own report, in an “entirely black
environment.” His nickname in the schoolyard and the streets was
“ABC”—“America’s Blackest Child.” “If he were any blacker,” his
classmates jeered, “he’d be blue.” Color was code for class. The
darkness of Thomas’s skin—along with the Gullah-Geechee dialect he
retained from Pin Point—was a sign of his lowly status and origin.
“Clarence had big lips, nappy hair, and he was almost literally black,” a
schoolmate told Jane Mayer and Jill Abramson in their 1994 book “Strange Justice: The Selling of Clarence Thomas.” “Those folks were at the bottom of the pole. You just didn’t want to hang with those kids.”
For
Thomas, these cruelties are a lifelong hurt. “People love to talk about
conflicts interracially,” he told the reporter Ken Foskett, who
published a biography of Thomas, “Judging Thomas,”
in 2004. “They never talk about the conflicts and tensions
intraracially.” From a young age, the primary divide Thomas had to
confront came from the privileges associated with black wealth and light
skin. “You had the black élite, the schoolteachers, the light-skinned
people, the dentists, the doctors,” Thomas has said. “My grandfather was
down at the bottom. They would look down on him. Everybody tries to
gloss over that now, but it was the reality.” It wasn’t until 1964, when
he switched to an élite Catholic boarding school outside Savannah, that
Thomas would share a classroom with whites. Later, he would call
state-enforced segregation “as close to totalitarianism as I would like
to get.”
If the move from Pin Point to Savannah introduced Thomas to one side of the color line, his journey
north, for college, introduced him to another. Thomas spent one year at
a Catholic seminary in Missouri, then enrolled, in 1968, at the College
of the Holy Cross, one of the poorest of nineteen young black men
recruited by John Brooks, a liberal Jesuit who would become the school’s
president. Holy Cross was located in Worcester, a small city near
Boston with a black population of two per cent. At the time, the college
was even whiter than its environs. The summer before Thomas arrived,
the school contacted incoming white students to see if they would object
to having a black roommate. In a survey, between a quarter and a half
of Thomas’s classmates agreed with the following statements: that black
people “have less ambition” than whites; that black people have “looser
morals” than whites; that black people “smell different” from whites. In
a 1987 letter to the Wall Street Journal, Thomas
wrote, “A new media fad is to constantly harp on the plight of black
college students on predominantly white campuses. Believe it or not, the
problems are the same as they were 20 years ago. . . . The major
difference is that the media paid little attention to them then.”
Before
heading north, Thomas had a situation, not a story. He knew Jim Crow
and, like many African-Americans, endured the shape-shifting violence of
its demise. He had read and loved Richard Wright: “He’s an angry black
novelist, and I was an angry black man,” he said in “Judging Thomas.”
But he hadn’t yet come to a world view about race. In the North, which
he thought to be even more hostile than the South, Thomas found that
world view in the black nationalism that inspired many African-Americans
of the era.
Within months of their arrival at Holy Cross, Thomas
and his friends organized themselves into the Black Student Union, where
they tempered their aspirations for inclusion with their demands for
separation. The B.S.U.’s founding statement called for the admission of
more black students, the hiring of black faculty, courses in black
literature and history, and campus events to showcase black artists.
They prefaced their demands with a rousing affirmation of black
identity: “We, the Black students of the College of the Holy Cross, in
recognizing the necessity for strengthening a sense of racial identity
and group solidarity, being aware of a common cause with other oppressed
peoples, and desiring to expose and eradicate social inequities and
injustices, do hereby establish the Black Student Union of Holy Cross.”
Thomas typed up the document and was elected secretary-treasurer.
The B.S.U. also published an eleven-point manifesto, which included these rules:
The Black man must respect the Black woman. The Black man’s woman is the most beautiful of all women. . . . The Black man must work with his Black brother. . . . The Black man wants. . . the right to perpetuate his race. . . . The
Black man does not want or need the white woman. The Black man’s
history shows that the white woman is the cause of his failure to be the
true Black man.
The last rule caused some playful
friction in the group. After the B.S.U. learned that a member was dating
a white woman, the group convened a mock trial, found him guilty, and
broke his Afro comb as a punishment. Thomas took the rule more
seriously, particularly after meeting Kathy Ambush, a black woman, whom
he would marry in 1971 and divorce in 1984. In a poem he called “Is you
is, or is you ain’t, a brother?” he set out the obligations of black men
to black women. Even in that milieu, Kevin Merida and Michael Fletcher
reported in their 2007 biography, “Supreme Discomfort,”
Thomas’s “edgy race consciousness” stood out. When he saw an
interracial couple strolling on campus, he’d loudly demand, “Do I see a
black woman with a white man? How could that be?” Until 1986, when
Thomas met Virginia Lamp, who is white and would become his second wife,
he opposed interracial sex and marriage.
It’s not surprising that
Thomas and his classmates would affirm their solidarity in gendered
terms. “Masculinism,” as the historian Steve Estes has argued, was not
uncommon in the black freedom struggle—or, indeed, in many of the
movements of the late nineteen-sixties. Militants often framed their
demands in the idiom of black male honor, which could be met only by
recognition from white men and deference from black women. For them,
that was the measure of black freedom. “The black man never will get
anybody’s respect until he learns to respect his own women,” Malcolm X
wrote in his “Autobiography,” outlining a belief system, from his early
years in the Nation of Islam, in which respect for black women would
seem to be a means to a more important end.
Thomas read “The Autobiography of Malcolm X”
in his first year at Holy Cross. He put up a poster of Malcolm in his
dorm room, and he began collecting records of Malcolm’s speeches, which
he could still recite from memory two decades later. “I’ve been very
partial to Malcolm X,” Thomas said, in 1987. “There is a lot of good in
what he says.” On the eve of his appointment to the Supreme Court,
Thomas was still summoning Malcolm as a witness for the prosecution
against the liberal establishment. “I don’t see how the civil-rights
people today can claim Malcolm X as one
of their own,” he said. “Where does he say black people should go
begging the Labor Department for jobs? He was hell on integrationists.
Where does he say you should sacrifice your institutions to be next to
white people?”
In college, Thomas believed that the Black
Panthers, one of the many groups to claim Malcolm’s mantle, offered
“another way.” With their guidance, he helped organize a free breakfast
program in Worcester, serving daily meals out of a church to about fifty
poor children. He championed the Black Panther leader Kathleen Cleaver
and the Communist Party member Angela Davis, who were in flight from the
American government because of radical involvements and allegations of
criminal activity. When he was asked at his confirmation hearings what
he majored in, Thomas said, “English literature.” When he was asked what
he minored in, he said, “protest.” His first trip to Washington was to
march on the Pentagon and against the Vietnam War. The last rally he
attended, in Cambridge—one of the most violent in the city’s history, in
which two thousand cops assaulted three thousand protesters—was to
demand the release of the Black Panther co-founder Bobby Seale and the
Panther leader Ericka Huggins. “I was never a liberal,” he said at a
talk in 1996. “I was a radical.” Even in his memoir, Thomas refuses to
mock the cause. “The more I read about the black power movement,” he
writes, “the more I wanted to be a part of it.”
In
1971, Thomas entered Yale Law School. One of twelve black students, he
was the beneficiary of an affirmative-action program—Yale had decreed
that ten per cent of the incoming class would be students of color—of
the sort he would later come to revile. Thomas had long experience of
proving himself before a hostile audience, but now the competition was
stiffer and the stakes were higher. The scrutiny was coming not just
from fellow-students but from liberal whites who were acting as his
patrons. “You had to prove yourself every day because the presumption
was that you were dumb and didn’t deserve to be there,” he told the
Washington Post. “Every time you walked into a law
class at Yale it was like having a monkey jump down on your back from
the Gothic arches.” In the South, even at Holy Cross, Thomas thought
that he could force his way into the meritocracy by the power of his
intelligence and will. At Yale, his accomplishments felt divested of
their authorship. “As much as it had stung to be told I’d done well in
[high school] despite my race,” he later wrote, “it was far worse to
feel that I was now at Yale because of it.”
At Yale, Thomas
developed an understanding of racism that he would never shake.
Whites—Southern and Northern, liberal and conservative, rural and
urban—are racists. Racism, Thomas would tell students at Mercer
University, in 1993, “has complex and, to a certain degree,
undiscoverable roots.” Not knowing its beginnings, we can’t know its
end. The most that can be hoped for is that whites be honest about it.
Honesty is demonstrated through crude statements of personal animus or
intellectual suggestions of racial inequality. Dishonesty is
demonstrated through denial of one’s racism and sympathetic extensions
of help. Dishonesty lulls black people into a false sense of security,
assuring them that they are safe when they are not. One of Thomas’s
favorite songs is the 1971 hit “Smiling Faces Sometimes,” by the
Undisputed Truth. Its classic lyric—“Smiling faces, smiling faces tell
lies”—resonates with his experience of Northern white liberals. Among
the virtues of the Reagan Administration, he has said, was the fact that
no one there was “smiling in your face.”
In making sincerity the
litmus test of American racism, Thomas took a strand of the black
nationalism that influenced his early development and wove it into an
entire philosophy of race. In the nineteen-twenties, at an especially
acute moment of racist reaction in the United States, Marcus Garvey also
found comfort in the promise of candor. “They are better friends to my
race for telling us what they are, and what they mean, than all the
hypocrites put together,” Garvey said, of the Ku Klux Klan. “I like
honesty and fair play.”
For Thomas, dishonesty was not only about
race; it was also about class. However well intentioned white liberals
were about remedying racial inequality, their élitism was steadfast. At
Yale, some of Thomas’s classmates would query the absence of class
rankings and grades. “You do not separate cream from cream,” a professor
responded. “It is your fate as a Yale Law School student to become one
of the leaders in the legal profession. It will happen, not because of
you personally, but because you are here. That is what happens to Yale
Law School students.” But Yale’s black students were separated from the
cream; indeed, the absence of rankings was used to effect that
separation. As he approached graduation, Thomas tried to secure a
position at an élite law firm in Atlanta, which had no black associates.
One of the marks against him was that he had no grades. Even if he came
from Yale, how could his prospective employers know how good he was?
Thomas
came to believe that, for the white liberal, offering help to black
people was a way to express the combined privileges of race and class. This is a running theme of Wright’s “Native Son,”
in which Bigger Thomas, a poor black man from the slums of Chicago, is
given an opportunity to rise when a wealthy white family hires him as a
chauffeur. The idea that black people can advance only with the help of
whites is anathema to Clarence Thomas, who has identified with Wright’s
protagonist throughout his life. For him, white benevolence denies black
people the pride of achievement. By contrast, if one is black and
overcomes the barriers of Jim Crow, one can be assured that the
accomplishment is real. Thomas often invokes the example of his
grandparents, who, despite segregation, managed to acquire property and
support their family. Though they “had to work twice as hard to get half
as far,” they knew, however far they got, that the distance was theirs.
When black people succeed in the shadow of white benefactors, that
certainty is lost.
This is the loss that Thomas has suffered since
his youth: not of the color line but of its clarity. It’s a loss that
he associates with liberalism, the North, and, above all, integration.
“I never worshiped at the altar” of integration, he declared, five years
after joining the Court. As he told Juan Williams, who wrote a profile
of Thomas in The Atlantic, “The whole push to
assimilate simply does not make sense to me.” It is a loss that Thomas
has set out—from his early years as a young black nationalist on the
left to his tenure as a conservative on the Court—to reverse.
Thomas’s
rightward drift, which began in the seventies, was inflected by the
very ethos that once put him on the left: namely, disaffection with
black liberalism and the mainstream civil-rights movement. In his
memoir, Thomas notes that part of the appeal of black nationalism was
tied to his sense, in the wake of the assassinations of Martin Luther
King, Jr., and Robert F. Kennedy, that “no one was going to take care of
me or any other black person in America.” Eventually, this notion
extended to the left. “I marched. I protested. I asked the government to
help black people,” Thomas told the Washington Post,
in 1980. “I did all those things. But it hasn’t worked.” The whole
repertoire of black politics—from mainstream activism to Black Power
radicalism and beyond—now seemed pointless. By the eighties, Thomas, a
member of the Reagan Administration, believed that state action could do
nothing for African-Americans. Problems of racial inequality “cannot be
solved by the law—even civil-rights laws,” he told an audience at Clark
College, a historically black school in Atlanta, in the
nineteen-eighties.
And yet it was on the bench that Thomas began
to pursue his own particular vision of racial justice. In his first
decade on the Court, Thomas often met with high-achieving black students
from Washington’s poorer neighborhoods. One meeting—with a high-school
student named Cedric Jennings—was immortalized in a 1998 Esquire
piece. After several hours of warm conversation, Thomas asked Jennings
what his plans were for college. “I’m off to Brown,” Jennings replied.
Thomas frowned. Finally, he said, “Well, that’s fine, but I’m not sure I
would have selected an Ivy League school. You’re going to be up there
with lots of very smart white kids, and if you’re not sure about who you
are, you could get eaten alive. . . . It can happen at any of the good
colleges where a young black man who hasn’t spent much time with whites
suddenly finds himself among almost all whites.”
This concern runs
throughout Thomas’s jurisprudence. “Some people think that the solution
to all the problems of black people is integration,” he said, in 1997.
By his own admission, he is not one of them. In a lengthy 1982 research
article (published with an acknowledgment to “the invaluable assistance
of Anita F. Hill”), Thomas notes pointedly that “it must be
decided . . . whether integration per se should be a primary goal.” At
Thomas’s confirmation hearings, the Republican senator Arlen Specter
pressed him on that claim, asking, “If you end segregation, doesn’t it
necessarily mean that you are requiring school integration?”
At
the time, Thomas dodged the question, but he has since given his answer
on the Court. In the 1995 case Missouri v. Jenkins, the Court’s
conservative majority held that federal courts could not force Missouri
to adopt policies designed to entice suburban white students to
predominantly black urban schools. Thomas joined the majority. In the
Court’s private deliberations about the case, he argued, in the
paraphrase of a profile of Thomas in The New Yorker,
“I am the only one at this table who attended a segregated school. And
the problem with segregation was not that we didn’t have white people in
our class. The problem was that we didn’t have equal facilities. We
didn’t have heating, we didn’t have books, and we had rickety
chairs. . . . All my classmates and I wanted was the choice to attend a
mostly black or a mostly white school, and to have the same resources in
whatever school we chose.”
This private sentiment made its way
into Thomas’s public statement about the case. His concurrence in
Missouri v. Jenkins was “the only opinion,” legal scholar Mark Graber
argues, “that questioned whether desegregation was a constitutional
value.” If anything, Thomas believes that the state should—where it can,
within the law—support the separation of the races. Looking
back on his education, in an all-black environment, Thomas has admitted
to wanting to “turn back the clock” to a time “when we had our own
schools.” Much of his jurisprudence is devoted to undoing the “grand
experiment” of which he believes himself to be a victim. As he made
clear in 1986, “I have been the guinea pig for many social experiments
on social minorities. To all who would continue these experiments, I say
please ‘no more.’ ”
Perhaps
the most insidious of those experiments, for Thomas, is affirmative
action, which he has long opposed. His critics call him a hypocrite. “He
had all the advantages of affirmative action and went against it,” Rosa
Parks said of Thomas, in 1996. His defenders believe that Thomas is
advancing a common conservative line—that affirmative action is a form
of reverse racism, which imposes illegitimate burdens on whites. In
fact, Thomas’s arguments are considerably more unorthodox than that.
According to Thomas, affirmative action is the most recent attempt by
white people to brand and belittle black people as inferior. Affirmative
action does not formally mirror the tools of white supremacy; for
Thomas, it is the literal continuation of white supremacy.
His
argument is rooted in two beliefs, each informed by his time spent on
the left. The first is that affirmative action reinforces the stigma
that shadows African-Americans. Among many whites, blackness signals a
deficit of intellect, talent, and skill. Even Supreme Court Justices,
Thomas wrote in one opinion, “assume that anything that is predominantly
black must be inferior.” When the state and social institutions
identify African-Americans as beings in need of help, they reinforce
that stigma. It doesn’t matter if some African-Americans succeed without
affirmative action. In the same way that enslavement marked all black
people, free or slave, as inferior, affirmative action—here Thomas
borrows directly from the language of Plessy v. Ferguson—stamps all
African-Americans with “a badge of inferiority.”
The second way
affirmative action continues white supremacy is by elevating whites to
the status of benefactors, doling out scarce privileges to those black
people they deem worthy. The most remarkable element of Thomas’s
affirmative-action jurisprudence, and what makes it unlike that of any
other Justice on the Supreme Court, is how much attention he devotes to
whites, not as victims but as perpetrators, the lead actors in a racial
drama of their own imagination. Put simply, Thomas believes that
affirmative action is a white program for white people.
We see
this argument in Grutter v. Bollinger, a 2003 affirmative-action case
concerning the University of Michigan Law School. In the early
nineteen-nineties, the school adopted an affirmative-action policy in
order to create a more diverse student body. Barbara Grutter, a white
applicant who was denied admission, alleged that she was a victim of
racial discrimination and that the policy violated the Fourteenth
Amendment. In a 5–4 ruling, the Court decided that because the policy
involved “a narrowly tailored use of race,” with a candidate’s race
weighed as only one factor among many, the program was not
unconstitutional. Chief Justice William Rehnquist dissented, arguing
that there was nothing narrow or tailored about the program; it was more
like a quota, he wrote, “designed to ensure proportionate
representation . . . from selected minority groups.”
Thomas also
dissented in Grutter. But his dissent focussed, uniquely, not on Grutter
or other putative white victims but on what the law school’s
affirmative-action program revealed about its creators. The leading
interest of the school, he wrote, was to be “elite.” Affirmative action
reflected that élitism. The simplest, most effective way for the Law
School to diversify itself would be to become less selective. It could
accept anyone who completed a certified program. It could stop relying
on the LSAT, which, Thomas insisted and the Law School admitted, is an
“imperfect” diagnostic tool. But the school refused to adopt such
inclusive measures, not because it was committed to meritocracy—policies
such as “legacy preferences” proved otherwise—but because exclusivity
was its central objective.
For Thomas, affirmative action is
merely a “solution to the self-inflicted wounds of [an] elitist
admissions policy.” If a school insists upon maintaining “an
exclusionary admissions system that it knows produces racially
disproportionate results,” the only way to diversify itself is to rely
on measures that maximize its discretion regarding race. Affirmative
action, then, is not about racial equality; it’s about preserving the
prerogatives of white élites, allowing them to bestow the blessings of
society upon a few lucky African-Americans. Thomas does not believe this
to be a constitutional value, much less one the Court should honor.
Much
of Thomas’s skepticism flows from his rejection of diversity writ
large. The key argument for affirmative action—and the grounds for the
Court’s landmark 1978 decision in University of California v. Bakke,
which declared the policy constitutional—is that diversity has an
educational benefit: students will be exposed to different views and
voices, which will challenge their beliefs. Thomas doesn’t quite buy
this. If it were truly the case that diversity is a critical educational
good, he thinks, élite institutions would stop prizing selectivity. The
fact that they don’t suggests that the benefit argument is a ruse. What
these institutions really believe is that diversity “prepares . . .
students to become leaders in a diverse society.” It burnishes the
style, image, and credentials of those students, mostly white, who will
go on to run American society. Diversity, in other words, does not
benefit students academically, or
even produce diverse leadership; it just helps beautify “classroom
aesthetics,” which are critical to the self-image of the ruling class.
(“Racial aesthetics” and “aestheticists” are words that recur throughout
Thomas’s opinions.) Diversity, as a value, is how white élites signal
to other élites their sophistication, fashion, and taste. It marks black
people as victims and whites as saviors.
In keeping with his
conservative black nationalism, Thomas sees in such integration real
harm to black people. In 1995, after a lower court argued that “racial
isolation” in education—that is, continuing segregation of black and
white schools, without formal state compulsion—was a constitutional
injury to black schoolchildren, Thomas took offense. “If separation
itself is a harm,” he wrote, “and if integration therefore is the only
way that blacks can receive a proper education, then there must be
something inferior about blacks.” For Thomas, seemingly egalitarian
policies like integration thus become evidence of racial paternalism.
His argument echoes that of Stokely Carmichael and Charles Hamilton’s
“Black Power.” Integration, Carmichael and Hamilton wrote, “reinforces,
among both black and white, the idea that ‘white’ is automatically
superior and ‘black’ is by definition inferior. For this reason,
‘integration’ is a subterfuge for the maintenance of white supremacy.”
In
1992, in one of his first opinions on the Court, Thomas wrote,
“Conscious and unconscious prejudice persists in our society. Common
experience and common sense confirm this understanding.” Ten years into
his tenure, he was still affirming that idea. “If society cannot end
racial discrimination,” he wrote in a concurrence, “at least it can arm
minorities with the education to defend themselves from some of
discrimination’s effects.” That “if” flies by so quickly that the reader
may not notice what Thomas is doing. Rather than setting up a
conditional, he is presenting the inability to end racism as the
condition of American society.
In this sense, the story of
Clarence Thomas is the story of the last half-century of American
politics. It is a story of defeat, not only of the civil-rights movement
and the promise of black freedom but of a larger vision of democratic
transformation, in which men and women act collectively to alter their
estate. The citizens of the freedom struggle believed that society was
made, and could be remade, through politics. Many of their successors,
including Thomas, no longer believe that kind of change is possible. A
deep and abiding pessimism now pervades our politics, transcending the
divisions of right and left. Clarence Thomas, the most extreme Justice
on the Supreme Court, turns out also to be the most emblematic. Should
he remain on the bench for another nine years, he will be the
longest-serving Justice in American history. This piece was drawn from “The Enigma of Clarence Thomas,” which is out this month, from Metropolitan Books.
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