Justice Thomas celebrates 30 years on a Supreme Court that is moving in his direction
WASHINGTON – Associate Justice Clarence Thomas hasn't changed much in 30 years. The Supreme Court, on the other hand, is a very different story.
Thomas, whose 30-year anniversary on the nation's highest court is Saturday, is still the most likely justice to write a solo opinion. But the 6-3 advantage conservatives now enjoy has given the second African American justice in Supreme Court history some company, and may also offer him a chance to wield more influence in closely divided cases.
With abortion and guns on the docket in coming months, there will plenty of opportunity.
"The court, if anything, has been evolving around him," said Carrie Severino, a former Thomas clerk and president of the Judicial Crisis Network. "He seems to have a lot more colleagues who are on the same page than he did when he joined the court."
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Already one of the longest-serving justices in history, and by far the most prolific, Thomas has also become more visible recently. He abandoned his penchant for silence during oral argument when the justices switched to virtual sittings because of the pandemic last year and he has continued to speak up with probing questions after they returned to in-person arguments in the courtroom this month.
For many Americans, the 73-year-old Thomas is still best known for the explosive allegations of sexual harassment that landed during his Senate confirmation hearings in 1991 and nearly derailed his nomination. Those allegations, leveled by professor Anita Hill and denied by Thomas, came decades before the #MeToo Movement sparked a cultural reckoning between men and women in the workplace.
As he spoke last month at a University of Notre Dame event, several protesters stood up and shouted "I still believe Anita Hill" before they were escorted from the room.
But Thomas' supporters, including several former clerks, have been working to draw the public's attention to other aspects of his story, such as his journey from poverty in Pin Point, Georgia, to Yale Law School and ultimately to a court where he has become the fiercest defender of ruling based on what he sees as the Constitution's original meaning.
Thomas wrote 23 opinions in the term that ended in July, more than any of his colleagues. While he rarely writes the majority opinion in high-profile cases, his biting dissents and concurrences often influence the court's thinking years later.
Many supporters describe Thomas as a happy legal warrior, applying the law as he sees it without regard for how his opinions land with other justices, the media or the public. If that means writing dissenting opinions that no other justice embraces – as Thomas has done dozens of times, more than anyone else on the court today – so be it.
"From his very first term, he was doing things boldly," said Mark Paoletta, a former assistant White House counsel to President George H.W. Bush who helped Thomas navigate his fraught confirmation process decades ago. "He's been faithful to his principles."
'His own way'
When Thomas arrived at the Supreme Court in 1991, eight of the nine justices, including Chief Justice William Rehnquist, were nominated by Republican presidents. But many of his colleagues, including Associate Justices David Souter, Sandra Day O'Connor and John Paul Stevens, had by then widely been seen as veering to the left.
Thomas was 43 years old when he replaced Thurgood Marshall, the court's first Black justice and a legendary former civil rights attorney who reliably sided with liberals. He would prove right away how little he had in common with his predecessor.
Thomas often aligned with Associate Justice Antonin Scalia, though he quickly demonstrated a willingness to jettison precedent he saw as out of step with the Constitution – a stance that sometimes put him at odds with fellow conservatives. "I'm an originalist," Scalia quipped in comparing himself to Thomas. "I'm not a nut."
But his positions have often influenced his colleagues as well. In a 2007 book, CBS journalist Jan Crawford reported that Thomas had circulated a dissent in a criminal case during his first week on the court. Though he was prepared to go alone, Rehnquist wound up joining his dissent.
Writing alone in 1997, Thomas asserted that "a growing body of scholarly commentary" pointed to the Second Amendment right to bear arms as a "personal right," rather than one reserved for militias. More than a decade later, that argument featured prominently in a landmark ruling affirming the rights of Americans to keep guns in their homes.
This term, the court will decide whether that right extends outside the home.
After President Donald Trump placed three nominees on the high court, Thomas finds himself on perhaps the court's most right-leaning bench since the 1940s. In situations where Chief Justice John Roberts sides with the court's liberals – as he did in opposing the court’s recent decision allowing Texas' ban on most abortions to remain in place for now – it is Thomas, as the next most senior justice among the conservatives, who would get to assign the writing of the majority's opinion.
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"My sense is that people never really bothered to try to influence him because they knew he was going to go his own way," said Christopher Landau, a lawyer and former ambassador who clerked for Thomas in his first term. "Some justices are more into ... trying to influence votes. I've never thought that that's interested him in the least.
"But whether he gets that by virtue of his example is another question," Landau said.
Thomas' dissents often draw cheers from conservatives and howls from progressives. A blistering dissent in February raised the specter of election fraud at a time when Trump was claiming that shenanigans at the polls cost him the reelection. In July, Thomas questioned a precedent shielding journalists from libel lawsuits by politicians unless those public figures can demonstrate reporters acted with "actual malice."
"Justice Thomas, more than any other justice, is willing to revisit precedent," Paoletta said. "It's based on his originalist jurisprudence but also his approach to life."
Few of the justices have made their position on divisive cultural issues such as abortion as clear as Thomas. In a solo dissent last year, Thomas wrote of the court's "ill-founded abortion jurisprudence" and described its prior decisions in Roe v. Wade and Planned Parenthood v. Casey as "grievously wrong" and said they "should be overruled."
In a solo dissent in 2019, Thomas drew a connection between abortion and eugenics, defending an Indiana law that prohibited the procedure based on a fetus's sex, race or disability. Though historians pushed back on the comparison it has been widely embraced by anti-abortion groups and some lower federal courts.
Thomas had been on the court less than a year when it decided Casey, upholding the right to abortion but allowing states to ban the procedure at the point of viability, when a fetus can survive outside the womb, or roughly 24 weeks. Thomas joined two partial dissents in the case, including one written by Scalia that asserted that because the Constitution says "absolutely nothing about" abortion it cannot be a constitutional right.
In the coming months, Thomas will have the opportunity to apply those views in a case challenging a Mississippi law that bans most abortions after 15 weeks of pregnancy. The court will hear arguments in that case on Dec. 1 and will likely rule next year.
His strongly held views on abortion, LGBTQ rights, voting protections and affirmative action are precisely why many progressives are so critical of his tenure.
"He's been a part of leading an effort to turn back the clock on scores of rights, undermining our democracy, weakening protections that millions of Americans rely on," said Daniel Goldberg, legal director at the Alliance for Justice. "It's really remarkable how he has been very consistent in wanting to reverse the last century of progress."
Lightning rod or media target?
Thomas was raised by his grandparents in the Jim Crow South of the 1950s. He told Harvard Law School in 2013 that friends and neighbors were "not lettered people" but "treasured education in a way that a person who was hungry would treasure food."
He considered becoming a Catholic priest but left seminary school after the 1968 assassination of the Rev. Martin Luther King Jr. Thomas later wrote that he was disturbed by the disparaging reaction some fellow students had to King's legacy.
After working as an assistant state attorney general in Missouri in the late 1970s, Thomas moved to Washington to tackle energy issues for the Senate Commerce Committee. President Ronald Reagan appointed him to a post in the Department of Education and later as chairman of the Equal Employment Opportunity Commission.
Bush nominated Thomas to serve on the U.S. Court of Appeals for the District of Columbia Circuit in 1989, a court that often becomes a steppingstone to the Supreme Court. Less than two years later, Bush nominated him to replace Marshall.
Thomas has described himself as "quite introverted," but he hasn't shied from controversy. His wife, Virginia Thomas, a conservative activist, has come under fire repeatedly for social media posts, including a 2018 item critical of the survivors of the Parkland, Florida, school shooting. Virginia Thomas apologized to the justice's former law clerks earlier this year for social media posts that supported Trump.
But for the most part, those who have followed Thomas closely say, he operates based on his view of the law without much concern for how that's perceived.
"One of the things that's so endearing about Justice Thomas is that he doesn't read the press," said Randy Barnett, a constitutional law professor at Georgetown University Law Center. "He doesn't read what things are being said about him. He doesn't care."
But it is the controversy over Thomas' confirmation that many progressives – and conservatives, for that matter – have never gotten past. When Hill's allegations of workplace sexual harassment surfaced, Thomas fought back, calling the Senate Judiciary hearings led by then-Sen. Joe Biden a "disgrace" and a "circus."
Thomas oversaw Hill at the Department of Education and the EEOC. She accused Thomas of repeatedly asking her out and discussing sex in graphic detail.
"As far as I am concerned, it is a high-tech lynching for uppity Blacks who in any way deign to think for themselves, to do for themselves, to have different ideas," said Thomas, who was ultimately confirmed on a narrow 52-48 vote.
Hill, who published a book this fall, wrote that the committee "failed its obligation" and that the statements from senators shed "light on how the depth of politicians' denial of the problem of sexual harassment put the integrity of the Supreme Court at risk."
Thomas' supporters have been eager to highlight other stories: His personal relationships with the groundkeepers, security and staff at court. Or how for years after he joined the court, Thomas went to New Jersey to check on Sister Virgilius Reidy, his former grade school teacher who testified on his behalf during his confirmation.
They also point to a man they say has been vilified by the media – and Washington at large. Supporters said the decision by the National Museum of African American History and Culture to feature Hill's allegation but not Thomas' work on the high court when it opened on the National Mall in 2016 is emblematic of that narrative.
The museum now has a plaque honoring both Thomas and Marshall.
"The reason I became a lawyer was to make sure that minorities, individuals who did not have access to this society, gained access," the museum's plaque quotes Thomas as saying. "I may differ with others on how best to do that, but the objective has always been to include those who have been excluded.”