Clarence Thomas is color-blind. Granted, he’s taken that to the logical extreme of stabbing out his own eyes so he figuratively can’t see anything even when it’s staring him right in the face. But he would rather let you be racist than allow the law to acknowledge race.

It’s frustrating when this blind race-denier fumbles about preventing progress because he stubbornly refuses to acknowledge the world as it is. But occasionally, rarely, Thomas’s philosophy leads him to a place that isn’t completely wrong and unhelpful.

Such is the case in Cooper v. Harris. Justice Elena Kagan wrote a majority opinion concluding that North Carolina illegally used race in gerrymandering one of its districts. The opinion upheld a lower court ruling.

The 5 – 3 majority was made up of Kagan, Justices Ginsburg, Bryer, Sotomayor, and Clarence Thomas. Thomas signed on, in full, to Kagan’s opinion. He wrote a short concurrence to basically say “I always think this, but sometimes the libs are dumb.”

That doesn’t happen every Monday.

The whole issue of racial gerrymandering involves the Courts trying to prescribe when and how it’s okay for district map makers to be racist. The standard is that race cannot be the “predominate” factor in drawing a district. But politics can be. And so the game, regardless of whether you are trying to give minorities less electoral power or representative electoral power, is to figure out how to do it without making race “predominate.”

Whatever the hell that means.

North Carolina had a couple of districts where black candidates had a decent shot at winning, and so North Carolina got the bright idea of trying to shove as many minorities as possible into those districts, leaving the rest of their districts free of meddlesome darkies who might screw up their by-whites, for-whites election. North Carolina came up with the novel argument that the Voting Rights Act required the state to shove all the black people into a few districts, to make the state comply with fair political representation, even though the districts they were shoving people into were already balanced. Moreover, North Carolina gerrymanders didn’t really engage into any kind of inquiry into the political make-up of those districts: they just kind of noticed that there were a lot of black people in those districts and essentially tried to ghettoize them.

Kagan and the Court were unimpressed.

That’s not surprising from the liberals, but it is also NOT surprising from Thomas. Thomas doesn’t think racial gerrymandering is okay, and he doesn’t much care if you are doing it to help minorities or to hurt minorities. In his brief concurrence, he adds “In my view, §2 [of the Voting Rights Act] does not apply to redistricting and therefore cannot justify a racial gerrymander.”

Think about that, Thomas is essentially saying the doesn’t think THE VOTING RIGHTS ACT should apply to REDISTRICTING. That’s a bananas opinion. The Voting Rights Act must apply to legislative efforts to draw minorities out of a political voice. If it doesn’t then it’s a pretty piss poor attempt to give RIGHTS to minority VOTERS.

Under normal circumstances, Thomas’s view is a problem. But here, if the state is going to be so obviously racist, and then say that the law requires them to be so, well that’s exactly the kind of case where Thomas gets his back up.

The other conservatives, the three that sided with North Carolina (Gorsuch did not take part in the decision), were comfortable taking North Carolina’s word that there was no racism here. In his dissent, Justice Alito wrote ” The issue is whether District 12 was drawn predominantly because of race. The record shows that it was not.”

In a “he or she said” v. “any racist white man said” situation, you can always trust Justice Alito to take the white man’s word for it.

And usually Thomas does too. The difference is that Alito and the other conservatives accept that racial gerrymanders are going to happen (Alito calls gerrymandering “unsavory” in general), but are happy to pretend that “racism” doesn’t exist unless a white man explicitly admits to it. Thomas doesn’t accept that racial gerrymanders are going to happen, and would be totally willing to let minorities be functionally disenfranchised in order to further his view of the law.

It’s the difference between going out on a rainy day, standing under an umbrella and saying “it’s not raining to me” (which is the Alito and Roberts way), and standing buck naked in the rain and saying “I’m not wet” (which is the Thomas way.) Alito’s being willfully ignorant of his surroundings. Thomas thinks his state of mind determines his reality.

From the progressive perspective, even a wet clock is right twice a day.

Cooper v. Harris [SCOTUSblog]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.