Document Type


Publication Date


Publication Information

4 N.Y.U. J.L. & Liberty 583 (2009)


The opinions of Justice Thomas reflect a jurisprudence that is uniquely his own. His well-known commitment to textualism and originalism combines with a weak commitment to stare decisis on constitutional questions. This often puts Thomas at odds with Justice Scalia and other Justices who are far more willing to defer to precedents with which they disagree. The most distinctive aspect of Thomas's jurisprudence, however, involves cases of particular concern to black Americans. In these cases, his originalism and textualism are powerfully supplemented by another -ism—namely, "black nationalism."

Throughout his tenure, Justice Thomas has repeatedly explored the implications of controversial rulings for black Americans. Thus, it is false to say, as many of Thomas's critics in the black community do, that Justice Thomas "thinks white" and has forgotten that he is black.

To anyone who cares to listen, Justice Thomas's opinions thunder with the strong black-nationalist voice typically associated with one of Thomas's personal heroes, Malcolm X. Like Malcolm X, Justice Thomas categorically rejects the idea that white racism remains an insurmountable obstacle to meaningful black progress in America. Although racism unquestionably exists, enormous progress has been made in American race relations -progress that was dramatically confirmed last year by the election of Barack Obama as the nation's first black president. In this climate, with legal protections against discrimination finally enshrined into law after generations of struggle and suffering, blacks need not look to race-based remedies or preferential treatment from society in order to succeed. They need only look within, to the genius, creativity, and capacity for hard work that resides in the heart and mind of every black person.

So, if we care to know who the "unknown" Justice Thomas is, the answer is as provocative as it is obvious from his opinions. He is, quite simply, Clarence X—a jurist who is not only a constitutionalist, but a black nationalist as well.


Originally published in New York University Journal of Law & Liberty. Stephen F. Smith, Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, 4 N.Y.U. J.L. & Liberty 583 (2009).



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.