Clarence Thomas vs. the Fictional Progressive Narrative

Justice Clarence Thomas served up a twofer last week: a Supreme Court decision, in Terry v. U.S., that’s noteworthy for its judicial restraint as well as for pushing back at another false racial narrative that has gained popularity in this Age of Wokeness.

Justice Thomas has done this before. His concurrence in McDonald v. Chicago, a 2010 case about handgun restrictions, offered a succinct tutorial on gun-control measures put in place after the Civil War to suppress blacks and leave them more vulnerable to domestic terror groups like the Ku Klux Klan. In Box v. Planned Parenthood, a 2019 case that concerned the legality of “selective” abortions based on race and sex, his concurring opinion included a history of the eugenics movement in the U.S. and how it made common cause with abortion-rights activists.

Liberals today are eager to highlight how the filibuster was used in the past to block civil-rights legislation. They don’t want to talk about the racist history of gun control or minimum-wage laws or abortion advocacy, let alone how this history still affects blacks today. Eight decades after Planned Parenthood founder Margaret Sanger established a birth-control clinic in Harlem, Justice Thomas wrote, “there are areas of New York City in which black children are more likely to be aborted than they are to be born alive—and are up to eight times more likely to be aborted than white children in the same area.”

Democratic opposition to the filibuster is based less on principle than on political expediency. The Senate is split evenly, and the filibuster stands in the way of a far-reaching progressive agenda. Part of that agenda involves so-called criminal-justice reform, which to liberals means defunding the police, prosecuting fewer crimes, and reducing the size of the prison population by releasing inmates early.

Activists allege that today’s “mass incarceration” resulted from policies motivated by racism. Justice Thomas’s opinion last week in Terry undercuts that claim by providing a more accurate history of sentencing laws than the fictions being peddled of late by Democrats and progressive activists. The court unanimously rejected a petition, from a convicted crack-cocaine dealer named Tarahrick Terry, to be resentenced under the First Step Act, a 2018 federal law that reduced sentences for certain drug offenders. In his opinion, Justice Thomas wrote that the text of the law made this a “straightforward” case. Mr. Terry had been sentenced as a “career criminal” for an offense that fell outside the scope of the First Step Act and thus was ineligible for a sentence reduction.

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Justice Thomas’s ruling didn’t stop there. The stiffer sentencing guidelines for crack-cocaine offenses, versus those for powder cocaine, date to the mid-1980s. The thinking in Washington at the time was that because crack was cheaper than powder, more addictive and more closely associated with violent crime, offenders should face tougher penalties. Like everything else these days, such attitudes are viewed almost exclusively through a racial lens, but as Justice Thomas points out, the sentiment at the time transcended both race and party affiliation.

“In response to these concerns, Congress quickly passed a bill with near unanimity,” Justice Thomas writes. “The new law created mandatory-minimum penalties for various drug offenses, and it set much lower trigger thresholds for crack offenses.” The 1986 bill passed the Democrat-controlled House 392-16 and the Republican Senate 97-2. “A majority of the Congressional Black Caucus cosponsored and voted for the bill,” he adds in a footnote. Many black leaders at the time were motivated by two major worries. “First, crack was fueling crime against residents of inner cities, who were predominantly black.” Second, “there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black.”

Various efforts would be made in ensuing decades to determine if Congress had overreached and how to reduce the sentencing disparity between crack and powder offenses. But what drove the initial effort was bipartisan, cross-racial concern for what was going on in poor black communities. And although today’s woke left is at pains to deny it, that effort was led by black lawmakers responding to their constituents, as Justice Thomas’s opinion reminds us.

Current efforts to reduce resources for law enforcement in the name of “social justice” for blacks ignore that blacks have long complained about underpolicing of their communities. In a 1993 Gallup poll, 75% of black respondents said they wanted more cops on the streets, and 82% said that the court system goes too easy on offenders. Blacks today continue to express overwhelming support for the presence of more police in their neighborhoods, which suggests that, unlike the progressive politicians and activists who claim to speak on their behalf, most blacks are more interested in safe communities than they are in the racial composition of the inmate population.

Main Street: In these highlights from a “Library of Congress” interview with Clarence Thomas, the Supreme Court Justice talks about victimhood, the confirmation process and why he writes so many opinions. Images: AP/Getty Images Composite: Mark Kelly

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