Clarence Thomas Is a Big Fan of Racial Gerrymandering

Thomas argued that the federal courts once recognized greater limits on their own power to provide relief. But the Supreme Court went astray, he claimed, after its ruling in Brown. Most Americans probably think of Brown as a singular case; it actually encompasses a series of rulings. The Supreme Court delivered the famous one against segregation in public education in 1957. It then spent years trying to overcome the South’s defiance of the first ruling. Thomas argued that the court’s remedies in the latter cases went beyond what the Constitution allowed.

“In doing so, the Court took a boundless view of equitable remedies, describing equity as being ‘characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs,’” he wrote, quoting from Brown II and then later from his previous writings. “That understanding may have justified temporary measures to ‘overcome the widespread resistance to the dictates of the Constitution’ prevalent at that time, but, as a general matter, ‘such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design.’”

Expressing heterodox opinions is nothing new for Thomas. He has dissented more frequently than any of his contemporaries and has called for more of the court’s precedents to be overturned than any other justice. Thanks to the Supreme Court’s conservative supermajority, however, his disagreements with precedent tend to find their way into future majority rulings. The only question now is how many of his colleagues agree that Black voters in the South should be left to the mercy of gerrymander-happy state legislatures. The justices’ willingness to upend precedent in Thursday’s ruling gives little comfort.