I was wrong about Clarence Thomas. Don't misunderstand me. I still have my
"I believe Anita Hill" button, but I'm beginning to think that all that
talk about Long Dong Silver and The Exorcist was a ploy by Senators Orrin
Hatch and Strom Thurmond to distract us from the real deal. While we
focused on his sexual conduct, Thomas's views on the Constitution are what
should have set off our alarms. Almost a decade later, Thomas is all his
backers ever hoped for: an aggressive, black new federalist who wants
Congress to stop protecting civil rights.
Thanks to his decisive vote in a series of narrow rulings, we're starting
the 21st century with our civil rights set back to before the New Deal.
On May 15, the Supreme Court voided the provision of the Violence Against
Women Act (VAWA), which permitted victims of rape, domestic violence and
other gender-motivated crimes to sue their attackers in federal court. The
case centered on plaintiff Christy Brzonkala who sued her two football-player
attackers when their Virginia College failed to discipline them. The
defendants challenged the constitutionality of the law.
When Thomas joined the Rehnquist majority to strike down federal
protections offered by VAWA, women joined state workers and the elderly in
having no guarantee to equal treatment backed up by national law. (the
disabled may be next, depending on how the Court rules in a current challenge
to the Americans with Disabilities Act.
The VAWA ruling (United States v. Morrison) was the latest victory for
so-called new federalism. New federalists claim Congress may only address
national affairs specifically enumerated in the Constitution, such as
interstate commerce and trade. An overreach by Congress, they insist,
trespasses on "states' rights."
Since FDR, the Court has leaned the other way. To combat the Depression, the
Court granted Congress the right to regulate minimum wages and working
conditions. In the '60s and 70s, it accepted that bias hurt interstate
commerce and violated the 14th Amendment's which promises a guarantee of
equal protection and gave Congress the go-ahead to defend individuals and
groups against discrimination regardless (and often because) of resistance in
Since he joined the court, Thomas has regularly supported states' rights. In
the VAWA case, he not only sided with Justices Rehnquist, Scalia, O'Conor and
Kennedy, but wrote a brief concurring opinion wishing the court had done more
to reign in Congress.
In 1995, Thomas joined the majority to throw out a federal gun law. The
landmark decision in US v. Lopez declared that Congress was constitutionally
out of line when it passed the Gun-Free Schools Act. In June 1999, the
justices deprived thousands of state workers of a federal remedy for
violations of the Fair Labor Standards Act (Alden v. Maine). This January,
the Court ruled that Congress had no right to allow individuals to sue a
state over age discrimination (Kimel v. Florida Board of Regents.) In all of
these cases, the verdict was 5 to 4.
Thomas has been a part of a team effort to limit federal authority since he
entered the Reagan Administration. First in the Justice Department, as
assistant secretary for civil rights, then as director of the Equal
Employment Opportunity Commission (EEOC), Thomas served with people who saw
it as their mission to defang agencies charged with enforcing civil rights
laws. He did his part. In the 1970s, the EEOC had extracted millions of
dollars in compensation, training and back pay for women and minorities from
big corporations like GE, AT & T and GM. Under Thomas, the EEOC found "no
cause" to prosecute in more than half of its caseload.
A man with a special mission to put a black face on the assault on civil
rights protections, Thomas was fed and watered by right-wingers who advanced
his career. Now that he's on the bench as his old colleagues, out of
government, want to finish what they left undone. Three groups are
spearheading the drive for new federalism: the Center for Individual Rights,
whose lawyers argued the VAWA case, the Center for
Equal Opportunities, a think-tank that provides amicus briefs and political
Support; and the Institute for Justice, a libertarian-right legal group.
The leaders of this assault are Thomas' old cohort. Michael McDonald,
co-founder and president of the Center for Individual Rights, worked in the
Reagan Justice Department as did Michael Carvin, a founding member of its
board; Linda Chavez, president of the Center for Equal Opportunity, was
Reagan's Civil Rights Commissioner; Clint Bolick, head of the Institute for
Justice, worked directly for Thomas at the EEOC.
These folks have enjoyed a precarious majority on the Supreme Court ever
since Thomas squeaked
Through, and they've used his vote to lay the foundations for a new
federalist revolution. Traditional environmental, labor and civil rights
groups (except for feminists) have mounted little in the way
of loud, political counterattack, yet the precedents set by this court could
invite a challenge to the Civil Rights Act of 1964, the Minimum Wage Act, and
What's next? That will be up to the next President and the Senate to decide,
to bear in mind as we slouch toward November.
"The Laura Flanders Show" can be heard Monday through Friday from 9 a.m. to
noon (mountain time) on KWAB in Boulder, Colorado or at
In These Times © 2000