Clarence Thomas

Clarence Thomas
Associate Justice of the Supreme Court of the United States
Incumbent
Assumed office October 18, 1991
Nominated by	George H. W. Bush
Preceded by	Thurgood Marshall
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office March 12, 1990 – October 23, 1991
Nominated by	George H. W. Bush
Preceded by	Robert Bork
Succeeded by	Judith Rogers
Chair of the Equal Employment Opportunity Commission
In office May 6, 1982 – March 12, 1990
President	Ronald Reagan George H. W. Bush
Preceded by	Eleanor Holmes Norton
Succeeded by	Evan Kemp
Assistant Secretary of Education for the Office for Civil Rights
In office 1981–1982
President	Ronald Reagan
Preceded by	Cynthia Brown
Succeeded by	Harry Singleton
Personal details
Born	(1948-06-23) June 23, 1948 (age 69) Pin Point, Georgia, U.S.
Political party	Republican[1]
Spouse(s)	Kathy Ambush (m. 1971; div. 1984) Virginia Lamp (m. 1987)
Children	1
Education	Conception Seminary College College of the Holy Cross (BA) Yale University (JD)
Signature

Clarence Thomas (born June 23, 1948) is an American judge, lawyer, and government official who currently serves as an Associate Justice of the Supreme Court of the United States. Thomas succeeded Thurgood Marshall and is the second African American to serve on the court.

Thomas grew up in Savannah, Georgia, and was educated at the College of the Holy Cross and at Yale Law School; in 1974, he was appointed an Assistant Attorney General in Missouri and subsequently practiced law there in the private sector. In 1979, he became a legislative assistant to Senator John Danforth (R-MO) and in 1981 was appointed Assistant Secretary for Civil Rights at the U.S. Department of Education. In 1982, President Ronald Reagan appointed Thomas Chairman of the Equal Employment Opportunity Commission (EEOC).

In 1990, President George H. W. Bush nominated Thomas for a seat on the United States Court of Appeals for the District of Columbia Circuit. He served in that role for 16 months and on July 1, 1991, was nominated by Bush to fill Marshall's seat on the United States Supreme Court. Thomas's confirmation hearings were bitter and intensely fought, centering on an accusation that he had sexually harassed attorney Anita Hill, a subordinate at the Department of Education and subsequently at the EEOC. The U.S. Senate ultimately confirmed Thomas by a vote of 52–48.

Since joining the court, Thomas has taken a textualist approach, seeking to uphold the original meaning of the United States Constitution and statutes. He is generally viewed as the most conservative member of the court.^[2][3][4] Thomas is also known for his practice of rarely speaking during oral arguments.^[5]

Early life[edit]

Clarence Thomas was born in 1948 in Pin Point, Georgia, a small, predominantly black community near Savannah founded by freedmen after the American Civil War. He was the second of three children born to M.C. Thomas, a farm worker, and Leola Williams, a domestic worker,^[6][7] they were descendants of American slaves, and the family spoke Gullah as a first language.^[8] Thomas's earliest-known ancestors were slaves named Sandy and Peggy who were born around the end of the 18th century and owned by wealthy Liberty County, Georgia, planter Josiah Wilson.^[9] M.C. left his family when Thomas was two years old. Thomas's mother worked hard but was sometimes paid only pennies per day, she had difficulty putting food on the table and was forced to rely on charity.^[10] After a house fire left them homeless, Thomas and his younger brother Myers were taken to live with his maternal grandparents in Savannah, Georgia. Thomas was seven when the family moved in with his maternal grandfather, Myers Anderson, and Anderson's wife, Christine (née Hargrove), in Savannah.^[11]

Living with his grandparents, Thomas enjoyed amenities such as indoor plumbing and regular meals for the first time in his life,^[6] his grandfather Myers Anderson had little formal education, but had built a thriving fuel oil business that also sold ice. Thomas calls his grandfather "the greatest man I have ever known."^[11] When Thomas was 10, Anderson started taking the family to help at a farm every day from sunrise to sunset,^[11] his grandfather believed in hard work and self-reliance; he would counsel Thomas to "never let the sun catch you in bed." Thomas' grandfather also impressed upon his grandsons the importance of getting a good education.^[6]

Thomas was the only black person at his high school in Savannah, where he was an honor student,^[12] he was raised Catholic. He considered entering the priesthood at the age of 16, and became the first black student to attend St. John Vianney's Minor Seminary (Savannah) on the Isle of Hope.^[11] He also briefly attended Conception Seminary College, a Roman Catholic seminary in Missouri. No one in Thomas's family had attended college. Thomas has said that during his first year in seminary, he was one of only "three or four" blacks attending the school;^[12] in a number of interviews, Thomas stated that he left the seminary in the aftermath of the assassination of Martin Luther King, Jr. He had overheard another student say after the shooting, "Good, I hope the son of a bitch died."^[7][13] He did not think the church did enough to combat racism.^[11]

At a nun's suggestion, Thomas attended the College of the Holy Cross in Worcester, Massachusetts. While there, Thomas helped found the Black Student Union. Once he walked out after an incident in which black students were punished while white students went undisciplined for committing the same violation, and some of the priests negotiated with the protesting black students to re-enter the school.^[12]

Having spoken the Gullah language as a child, Thomas realized in college that he still sounded unpolished despite having been drilled in grammar at school, and he chose to major in English literature "to conquer the language",^[14] at Holy Cross, he was also a member of Alpha Sigma Nu and the Purple Key Society.^[15] Thomas graduated from Holy Cross in 1971 with an A.B. cum laude in English literature.^[14][15]

Thomas had a series of deferments from the military draft while in college at Holy Cross. Upon graduation, he was classified as 1-A and received a low lottery number, indicating he might be drafted to serve in Vietnam. Thomas failed his medical exam, due to curvature of the spine, and was not drafted.^[16] Thomas entered Yale Law School, from which he received a Juris Doctor (J.D.) degree in 1974, graduating towards the middle of his class.^[17]

Thomas has recollected that his Yale law degree was not taken seriously by law firms to which he applied after graduating, he said that potential employers assumed he obtained it because of affirmative action policies.^[18] (In 1969 Dean Louis Pollak wrote that the law school was expanding its program of quotas for black applicants, with up to 24 entering that year admitted under a system that deemphasized grades and LSAT scores.^[19]) According to Thomas, he was "asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated."^[20]

I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I'd made by going to Yale. I never did change my mind about its value.^[21]

Influences[edit]

In 1975, when Thomas read Race and Economics by economist Thomas Sowell, he found an intellectual foundation for his philosophy.^[10][22][23] The book criticized social reforms by government and instead argued for individual action to overcome circumstances and adversity, he was also influenced by Ayn Rand,^[24] particularly The Fountainhead, and would later require his staffers to watch the 1949 film version.^[10] Thomas later said that novelist Richard Wright had been the most influential writer in his life; Wright's books Native Son and Black Boy "capture[d] a lot of the feelings that I had inside that you learn how to repress."^[25] Thomas acknowledges having "some very strong libertarian leanings".^[26]

Career[edit]

Early career[edit]

Thomas was admitted to the Missouri bar on September 13, 1974,^[27] from 1974 to 1977, Thomas was an Assistant Attorney General of Missouri under State Attorney General John Danforth, who met Thomas at Yale Law School. Thomas was the only black member of Danforth's staff,^[28] as Assistant Attorney General, Thomas first worked at the criminal appeals division of Danforth's office and moved on to the revenue and taxation division.^[29] Retrospectively, Thomas considers Assistant Attorney General the best job he has ever had.^[30] When Danforth was elected to the U.S. Senate in 1976, Thomas left to become an attorney with the Monsanto Chemical Company in St. Louis, Missouri.^[31] He moved to Washington, D.C. and returned to work for Danforth from 1979 to 1981 as a Legislative Assistant handling energy issues for the Senate Commerce Committee.^[32] The two men shared a common bond in that they had studied to be ordained (although in different denominations). Danforth was to be instrumental in championing Thomas for the Supreme Court.

In 1981, he joined the Reagan administration, from 1981 to 1982, he served as Assistant Secretary of Education for the Office for Civil Rights in the U.S. Department of Education. From 1982 to 1990, he was Chairman of the US Equal Employment Opportunity Commission ("EEOC"). Journalist Evan Thomas characterized Thomas as "openly ambitious for higher office" during his tenure at the EEOC, as Chairman, he promoted a doctrine of self-reliance, and halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing acts of individual discrimination.^[33] He also asserted in 1984 that black leaders were "watching the destruction of our race" as they "bitch, bitch, bitch" about President Reagan instead of working with the Reagan administration to alleviate teenage pregnancy, unemployment and illiteracy.^[34]

Federal judge[edit]

On October 30, 1989, Thomas was nominated by President George H. W. Bush to a seat on the United States Court of Appeals for the District of Columbia Circuit vacated by Robert Bork,^[35] despite Thomas's initial protestations that he would not like to be a judge.^[36] Thomas gained the support of other African Americans such as former Transportation Secretary William Coleman, but said that when meeting white Democratic staffers in the United States Senate, he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights."^[36]

Thomas's confirmation hearing was uneventful,^[37] he was confirmed by the United States Senate on March 6, 1990, and received his commission the same day. He developed warm relationships during his 19 months on the federal court, including with fellow federal judge Ruth Bader Ginsburg.^[36][38]

Supreme Court nomination and confirmation[edit]

After Justice William Brennan stepped down from the Supreme Court in July 1990, Thomas was one of five candidates on President Bush's shortlist for the position and Bush's favorite of the five. Ultimately, after consulting with his advisors, Bush decided to hold off on nominating Thomas, and nominated Judge David Souter of the First Circuit instead.^[36] Justice Thurgood Marshall announced his retirement, and on July 1, 1991, President Bush nominated Clarence Thomas to replace him. Marshall had been the only African-American justice on the court;^[39] in announcing his selection, Bush called Thomas the "best qualified [nominee] at this time."^[36]

U.S. presidents of that era submitted lists of potential federal court nominees to the American Bar Association (ABA) for a confidential rating of their judicial temperament, competence and integrity on a three-level scale of well qualified, qualified or unqualified.^[40] However, as noted by Adam Liptak of the New York Times, the ABA has historically taken generally liberal positions on divisive issues, and studies suggest that candidates nominated by Democratic presidents fare better in the group’s ratings than those nominated by Republicans.^[41] Anticipating that the ABA would rate Thomas more poorly than they thought he deserved, the White House and Republican Senators pressured the ABA for at least the mid-level qualified rating, and simultaneously attempted to discredit the ABA as partisan,^[42] the ABA did rate Thomas as qualified, although with one of the lowest levels of support for a Supreme Court nominee.^{[43][44][45][46][47][48]} Ultimately, the ABA rating ended up having little impact on Thomas' nomination.^[40][42]

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. Both liberal interest groups and Republicans in the White House and Senate approached the nomination as a political campaign.^[49][50]

Attorney General Richard Thornburgh had previously warned Bush that replacing Thurgood Marshall, who was widely revered as a civil rights icon, with any candidate who was not perceived to share Marshall's views would make the confirmation process difficult.^[51] Civil rights and feminist organizations opposed the appointment based partially on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of Roe v. Wade.^[52]

Thomas's formal confirmation hearings began on September 10, 1991.^[53] Thomas was reticent when answering Senators' questions during the appointment process, recalling what had happened to Robert Bork when Bork expounded on his judicial philosophy during his confirmation hearings four years prior.^[54] Thomas's earlier writings had frequently referenced the legal theory of natural law; during his confirmation hearings Thomas limited himself to the statement that he regards natural law as a "philosophical background" to the Constitution.^[55][56][57]

Anita Hill allegations[edit]

After the conclusion of the confirmation hearings, an FBI interview with Anita Hill was leaked and the confirmation hearings were reopened.^[58] Hill, a black attorney, had worked for Thomas at the Department of Education and had subsequently moved with Thomas to the EEOC,^[59] after the leak, Hill was called to testify at Thomas's confirmation hearings. She testified that Thomas had subjected her to comments of a sexual nature, which she felt constituted sexual harassment or at least "behavior that is unbefitting an individual who will be a member of the Court."^{[60][61][62][63]} Hill's testimony included lurid details, and some Senators aggressively questioned her.^[64]

Thomas denied the allegations, saying:^[65]

This is not an opportunity to talk about difficult matters privately or in a closed environment, this is a circus. It's a national disgrace. And from my standpoint, as a black American, 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, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.^[66]

Hill was the only person to testify at the Senate hearings that there had been unsolicited sexual advances.^[67] Angela Wright, who worked under Thomas at the EEOC before he fired her,^[68] decided not to testify,^[69] but submitted a written statement alleging that Thomas had pressured her for a date and had made comments about the anatomy of women. However, she said she did not feel his behavior was intimidating nor did she feel sexually harassed, though she allowed that "Some other women might have".^[70][71][72] Also, Sukari Hardnett, a former Thomas assistant, wrote to the Senate committee that although Thomas had not harassed her, "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female."^[73][74]

Other former colleagues testified on Thomas's behalf. Nancy Altman, who shared an office with Thomas at the Department of Education, testified that she heard virtually everything Thomas said over the course of two years, and never heard any sexist or offensive comment. Altman did not find it credible that Thomas could have engaged in the conduct alleged by Hill, without any of the dozens of women he worked with noticing it.^[75] Senator Alan K. Simpson questioned why Hill met, dined, and spoke by phone with Thomas on various occasions after they no longer worked together.^[76]

According to the Oyez Project, there was a lack of convincing proof produced at the Senate hearings,^[6] after extensive debate, the Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Thomas was confirmed by a 52–48 vote on October 15, 1991, the narrowest margin for approval in more than a century,^[77] the final floor vote was: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination.

Thomas received his commission and took the two required oaths several days after the Senate vote; this process was delayed by the death of Chief Justice Rehnquist's wife, but the delay was reduced at the request of Thomas.^[78][79] He indicated that he was eager to get to work,^[79] and an additional reason for reducing the delay was to end further media inquiry into Thomas's private life.^[50][80] Reporters largely stopped such inquiries after Thomas joined the court.^[50][81] Throughout this episode, Thomas defended his right to privacy, refused to describe discussions that he may have had outside the workplace regarding his personal life, and promised that he would not allow anyone to probe his private life.^[82]

Clarence Thomas wrote an autobiography addressing Anita Hill's allegations, and she also wrote an autobiography addressing her experience in the hearings.^[83]

Public perception[edit]

Thomas is seen as having joined the conservative wing of the court.^[84] Thomas has rarely given media interviews during his time on the court, he said in 2007: "One of the reasons I don't do media interviews is, in the past, the media often has its own script."^[12] In 2007, Thomas received a $1.5 million advance for writing his memoir, My Grandfather's Son; it became a bestseller.^[85][86]

Thomas biographer Scott Douglas Gerber has opined that attacks against Thomas from critics such as Jeffrey Toobin have been unusually vitriolic. Gerber provides many reasons but the first and foremost was his skin color.

There are a number of explanations for this phenomenon, the first is grounded in race and ethnicity. We should not forget that Thurgood Marshall, Justice Thomas's predecessor on the Supreme Court, and the first African-American appointed, was also sharply criticized during his appointment process and in his early days on the Court, the fact that Justice Thomas is black has undoubtedly played a similar role in how he has been assessed, no matter how much we may hate to admit it.^[87]

— Scott Douglas Gerber, First principles: the jurisprudence of Clarence Thomas

Gerber has outlined other reasons, the second reason Gerber attributes in part to liberals' disappointment that Thomas has departed so much from the jurisprudence of the African American whom he succeeded, Thurgood Marshall.^[87] Additional possible causes for the harsh criticism of Thomas may be the inherently explosive nature of sexual misconduct accusations, the suspicion among some people that Thomas was less than forthcoming during his confirmation hearings, and the belief in some circles that Thomas has benefited from affirmative action programs like ones he has criticized as a judge.^[87]

Thomas has said he has a preference for non-Ivy League clerks, although he has hired them,^[88] he is the only one among his colleagues who sometimes chooses clerks from law schools that are not top-rated—schools like Creighton, Rutgers, George Mason, and the University of Utah.^[89]

In 2006, Thomas had a 48% favorable, 36% unfavorable rating, according to Rasmussen Reports.^[90][91]

Judicial philosophy[edit]

Conservatism and originalism[edit]

Thomas is often described as an originalist, or textualist, and a member of the conservative wing of the Supreme Court.^[6][92][93] He is also often described as the most conservative member of the Supreme Court,^[17][94][95] although others gave Justice Scalia that designation.^[96][97][98] Scalia and Thomas had similar but not identical judicial philosophies, and pundits speculate about the degree to which Scalia thought some of Thomas's views are implausible.^[99][100]

Thomas's jurisprudence has also been described as similar to that of Justice Hugo Black, who "resisted the tendency to create social policy out of 'whole cloth.'"^[101] According to the same commentator, Thomas generally declines to engage in judicial lawmaking, and instead views the constitutional role of the court as being the interpretation of law, rather than the making of law.^[101]

Voting alignment[edit]

Thomas voted most frequently with Chief Justice Rehnquist and Justice Scalia in his early tenure on the Supreme Court,^[84] on average, from 1994 to 2004, Scalia and Thomas had an 87% voting alignment, the highest on the court, followed by Ginsburg and Souter (86%).^[102] Scalia and Thomas's agreement rate peaked in 1996, at 98%.^[102] By 2004, however, other pairs of justices were observed to be more closely aligned than Scalia and Thomas.^[103]

The conventional wisdom that Thomas's votes follow Antonin Scalia's is reflected by Linda Greenhouse's observation that Thomas voted with Scalia 91 percent of the time during October Term 2006, and with Justice John Paul Stevens the least, 36% of the time.^[104] Jan Crawford asserts that to some extent, this is true in the other direction as well, that Scalia often joins Thomas instead of Thomas joining Scalia.^[105] Statistics compiled annually by Tom Goldstein of SCOTUSblog demonstrate that Greenhouse's count is methodology-specific, counting non-unanimous cases where Scalia and Thomas voted for the same litigant, regardless of whether they got there by the same reasoning.^[106] Goldstein's statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences, for example, in that same term, Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia. By the metric that produces the 91% Scalia/Thomas figure, Ginsburg and Breyer agreed 90% of the time. Roberts and Alito agreed 94% of the time.^[107]

Crawford wrote in her book on the Supreme Court that Thomas's forceful views moved "moderates like Sandra Day O'Connor further to the left"^[108] but frequently attracted votes from Rehnquist and Scalia.^[109] Mark Tushnet and Jeffrey Toobin observed that Rehnquist rarely assigned important majority opinions to Thomas because the latter's views made it difficult for him to persuade a majority of justices to join him.^[110]

Number of dissenting opinions[edit]

From 1994 to 2004, on average, Thomas was the third most frequent dissenter on the court, behind Stevens and Scalia.^[102] Four other justices dissented as frequently in 2007.^[111] Three other justices dissented as frequently in 2006.^[112] One other justice dissented as frequently in 2005.^[113]

Stare decisis[edit]

Thomas spoke favorably about the concept of stare decisis, or standing by precedent, during his confirmation hearings, stating that "stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."^[114] However, according to Antonin Scalia, Thomas "doesn't believe in stare decisis, period."^[115] This assessment is consistent with Thomas's record on the bench: factoring in length of tenure, Thomas urged overruling and joined in overruling precedents more frequently than any other justice during the Rehnquist Court.^[116]

Also according to Scalia, Thomas is more willing to overrule constitutional cases than he was: "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."^[117] Law professor Michael Gerhardt, however, says that Scalia's characterization of Thomas may be incorrect, given that Thomas has supported leaving a broad spectrum of constitutional decisions intact.^[118] Thomas's belief in originalism is strong; he has said, "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."^[119] Thomas believes that an erroneous decision can and should be overturned, no matter how old it is.^[119]

Law professor Amy Barrett maintains that Thomas supports statutory stare decisis, her cited examples include Thomas's concurring opinion in Fogerty v. Fantasy, 510 U.S. 517 (1994).^[120]

Commerce Clause[edit]

Thomas has consistently supported narrowing the court's interpretation of the constitution's Interstate Commerce Clause (which often is simply called the "Commerce Clause") to limit federal power, at the same time, Thomas has broadly interpreted states' sovereign immunity from lawsuits under the Commerce Clause.^[121]

In United States v. Lopez and United States v. Morrison, the court held that Congress lacked power under the Commerce Clause to regulate non-commercial activities. In these cases, Thomas wrote a separate concurring opinion arguing for the original meaning of the Commerce Clause. Subsequently, in Gonzales v. Raich, the court interpreted the Interstate Commerce Clause combined with the Necessary and Proper Clause to empower the federal government to arrest, prosecute, and imprison patients who used marijuana grown at home for medicinal purposes, even where the activity is legal in that particular state. Thomas dissented in Raich, again arguing for the original meaning of the Commerce Clause.

Thomas and Scalia had rejected the notion of a Dormant Commerce Clause, also known as the "Negative Commerce Clause", that doctrine bars state commercial regulation even if Congress has not yet acted on the matter.^[122]

In Lopez, Thomas expressed his view that federal regulation of either manufacturing or agriculture is unconstitutional; he sees both as outside the scope of the Commerce Clause.^[123][124] He believes federal legislators have overextended the Commerce Clause, while some of his critics argue that Thomas's position on congressional authority would invalidate much of the contemporary work of the federal government.^[124] According to Thomas, it is not the court's job to update the constitution. Proponents of broad national power such as Professor Michael Dorf deny that they are trying to update the constitution. Instead, they argue that they are merely addressing a set of economic facts that did not exist when the constitution was framed.^[125]

Executive power, federalism, and federal statutes[edit]

Executive power[edit]

Thomas has argued that the executive branch has broad authority under the constitution and federal statutes; in Hamdi v. Rumsfeld, he was the only justice who agreed with the Fourth Circuit that congress had power to authorize the president's detention of U.S. citizens who are enemy combatants. Thomas granted the federal government the "strongest presumptions" and said "due process requires nothing more than a good-faith executive determination" to justify the imprisonment of Hamdi, a U.S. citizen.^[126]

Thomas also was one of three justices who dissented in Hamdan v. Rumsfeld, which held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay required explicit congressional authorization, and held that the commissions conflicted with both the Uniform Code of Military Justice (UCMJ) and "at least" Common Article Three of the Geneva Convention.^[127] Thomas argued that Hamdan was an illegal combatant and therefore not protected by the Geneva Convention, and he agreed with Justice Scalia that the court was "patently erroneous" in its declaration of jurisdiction in this case.

Federalism[edit]

Federalism was a central part of the Rehnquist Court's constitutional agenda.^[128] Thomas consistently voted for outcomes that promoted state-governmental authority, in cases involving federalism-based limits on congress's enumerated powers.^[128] According to law professor Ann Althouse, the court has yet to move toward "the broader, more principled version of federalism propounded by Justice Thomas."^[129]

In Foucha v. Louisiana, Thomas dissented from the majority opinion that required the removal from a mental institution of a prisoner who had become sane.^[130] The court held that a Louisiana statute violated the Due Process Clause "because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness."^[131] Dissenting, Thomas cast the issue as a matter of federalism.^[130] "Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter," he concluded, "but the Due Process Clause does not require the States to conform to the policy preferences of federal judges."^[131] In United States v. Comstock, Thomas' dissent argued for the release of a former federal prisoner from civil commitment, again on the basis of federalism.^[132] In U.S. Term Limits, Inc. v. Thornton, he authored the dissent defending term limits on federal house and senate candidates as a valid exercise of state legislative power.

Federal statutes[edit]

As of 2007, Thomas was the justice most willing to exercise judicial review of federal statutes, but among the least likely to overturn state statutes.^[133] According to a New York Times editorial, "from 1994 to 2005 … Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer."^[134]

In the 2009 Northwest Austin Municipal Utility District No. 1 v. Holder case, Thomas was the sole dissenter, voting in favor of throwing out Section Five of the 1965 Voting Rights Act. Section Five requires states with a history of racial voter discrimination—mostly states from the old South—to get Justice Department clearance when revising election procedures, although congress had reauthorized Section Five in 2006 for another 25 years, Thomas said the law was no longer necessary, pointing out that the rate of black voting in seven Section Five states was higher than the national average. Thomas said "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."^[135] He again took this position in Shelby County v. Holder, voting with the majority and concurring with the reasoning which struck down Section Five.^[136]

Bill of Rights[edit]

First Amendment[edit]

Among the nine justices, Thomas was the second most likely to uphold free speech claims (tied with David Souter), as of 2002,^[137] he has voted in favor of First Amendment claims in cases involving a wide variety of issues, including pornography, campaign contributions, political leafleting, religious speech, and commercial speech.

Thomas has made public his belief, that all limits on federal campaign contributions are unconstitutional, and should be struck down.^[138] Thomas voted with the majority in Citizens United v. FEC.^[139]

On occasion, however, Thomas has disagreed with free speech claimants, for example, he dissented in Virginia v. Black, a case that struck down part of a Virginia statute that banned cross burning. Concurring in Morse v. Frederick, he argued that the free speech rights of students in public schools are limited.^[140] In Walker v. Texas Division, Sons of Confederate Veterans, he joined the majority opinion that Texas's decision to deny a request for a Confederate Battle Flag specialty license plate is constitutional.^[141]

Thomas authored the decision in Ashcroft v. ACLU, which held that the Child Online Protection Act might (or might not) be constitutional. The government was enjoined from enforcing it, pending further proceedings in the lower courts.^[142]

Thomas wrote concurrences in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)^[143] and United States v. Playboy Entertainment Group (2000).

Law professor and former clerk to Thomas, John Yoo, says Thomas supports allowing religious groups more participation in public life.^[144] Thomas says that the First Amendment Establishment Clause ("Congress shall make no law respecting an establishment of religion") "is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right."^[145]

In Elk Grove Unified School District v. Newdow^[145] and Cutter v. Wilkinson,^[146] Thomas wrote that he supported incorporation of the Free Exercise Clause, which he says "clearly protects an individual right." He said that any law that would violate the Establishment Clause might also violate the Free Exercise Clause.

Thomas says "it makes little sense to incorporate the Establishment Clause" vis-à-vis the states by the Fourteenth Amendment.^[145] And in Cutter, he wrote: "The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference."

Second Amendment[edit]

Thomas agreed with the judgment in McDonald v. Chicago (2010) that the right to keep and bear arms is applicable to state and local governments, but Thomas wrote a separate concurrence finding that an individual's right to bear arms is fundamental as a privilege of American citizenship under the Privileges or Immunities Clause rather than as a fundamental right under the due process clause. The four justices in the plurality opinion specifically rejected incorporation under the privileges or immunities clause, "declin[ing] to disturb" the holding in the Slaughter-House Cases, which, according to the plurality, had held that the clause applied only to federal matters.^[147][148]

Fourth Amendment[edit]

In cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants, for example, his opinion for the court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and he wrote again for the court in Samson v. California, permitting random searches on parolees. He dissented in the case Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the case was controlled by the court's decision in Coolidge v. New Hampshire. In Indianapolis v. Edmond, Thomas described the court's extant case law as having held that "suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops." Although he expressed doubt that those cases were decided correctly, he concluded that since the litigants in the case at bar had not briefed or argued that the earlier cases be overruled, he believed that the court should assume their validity and rule accordingly.^[149] However, he was in the majority in Kyllo v. United States, which held that the use of thermal imaging technology to probe a suspect's home, without a warrant, violated the Fourth Amendment.

In cases involving schools, Thomas has advocated greater respect for the doctrine of in loco parentis, which he defines as "parents delegat[ing] to teachers their authority to discipline and maintain order."^[150] His dissent in Safford Unified School District v. Redding illustrates his application of this postulate in the Fourth Amendment context. School officials in the Safford case had a reasonable suspicion that 13-year-old Savana Redding was illegally distributing prescription-only drugs. All the justices concurred that it was therefore reasonable for the school officials to search Redding, and the main issue before the court was only whether the search went too far by becoming a strip search or the like.^[150] All of the justices, except Thomas, concluded that this search violated the Fourth Amendment, the majority required a finding of danger or reason to believe drugs were hidden in a student's underwear in order to justify a strip search. In contrast, Thomas said, "It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not"^[151] and that "reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed." Thomas said, "[t]here can be no doubt that a parent would have had the authority to conduct the search."^[150]

Sixth Amendment[edit]

In Doggett v. United States, the defendant had technically been a fugitive from the time he was indicted in 1980 until his arrest in 1988. The court held that the delay between indictment and arrest violated Doggett's Sixth Amendment right to a speedy trial, finding that the government had been negligent in pursuing him and that he was unaware of the indictment.^[152] Thomas dissented, arguing that the purpose of the Speedy Trial Clause was to prevent "'undue and oppressive incarceration' and the 'anxiety and concern accompanying public accusation'" and that the case implicated neither,^[152] he cast the case instead as, "present[ing] the question [of] whether, independent of these core concerns, the Speedy Trial Clause protects an accused from two additional harms: (1) prejudice to his ability to defend himself caused by the passage of time; and (2) disruption of his life years after the alleged commission of his crime." Thomas dissented from the court's decision to, as he saw it, answer the former in the affirmative.^[152] Thomas wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role."^[153]

In a line of cases beginning with Crawford v. Washington, decided in 2004, Thomas has joined with Justice Scalia and several liberals on the court in reasserting the importance of the Confrontation Clause of the Sixth Amendment, by declaring testimonial statements inadmissible at trial unless the witness is unavailable and there has been ample opportunity for cross-examination; however, his decisions in these cases had not always aligned with Scalia's. In his concurring opinion in the 2011 case Michigan v. Bryant, for example, Thomas explains that in deciding whether a statement is testimonial, one must consider the formality of the circumstances in which it was given.

Eighth Amendment[edit]

Regarding capital punishment, Thomas was among the dissenters in Atkins v. Virginia and Roper v. Simmons, which held that the Eighth Amendment to the United States Constitution prohibits the application of the death penalty to certain classes of persons. In Kansas v. Marsh, his opinion for the court indicated a belief that the constitution affords states broad procedural latitude in imposing the death penalty, provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the court had reversed its 1972 ban on death sentences if states followed procedural guidelines.

In Hudson v. McMillian, a prisoner had been beaten, garnering a cracked lip, broken dental plate, loosened teeth, cuts, and bruises. Although these were not "serious injuries", the court believed, it held that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury."^[154] Dissenting, Thomas wrote that, in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment'; in concluding to the contrary, the Court today goes far beyond our precedents."^[154] Thomas's vote—in one of his first cases after joining the court—was an early example of his willingness to be the sole dissenter (Scalia later joined the opinion).^[155] Thomas's opinion was criticized by the seven-member majority of the court, which wrote that, by comparing physical assault to other prison conditions such as poor prison food, Thomas's opinion ignored "the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment".^[154] According to historian David Garrow, Thomas's dissent in Hudson was a "classic call for federal judicial restraint, reminiscent of views that were held by Felix Frankfurter and John M. Harlan II a generation earlier, but editorial criticism rained down on him".^[156] Thomas would later respond to the accusation "that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion… no honest reading can reach such a conclusion."^[156]

In United States v. Bajakajian, Thomas joined with the court's more liberal bloc to write the majority opinion declaring a fine unconstitutional under the Eighth Amendment. The fine was for failing to declare more than $300,000 in a suitcase on an international flight. Under a federal statute, 18 U.S.C. § 982(a)(1), the passenger would have had to forfeit the entire amount. Thomas noted that the case required a distinction to be made between civil forfeiture and a fine exacted with the intention of punishing the respondent, he found that the forfeiture in this case was clearly intended as a punishment at least in part, was "grossly disproportional", and was a violation of the Excessive Fines Clause.^[157]

Equal protection and affirmative action[edit]

Thomas believes that the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment; in Adarand Constructors v. Peña, for example, he wrote "there is a 'moral [and] constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. That [affirmative action] programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."^[158]

In Gratz v. Bollinger, Thomas said that, in his view, "a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause."^[159] In Parents Involved in Community Schools v. Seattle School District No. 1, Thomas joined the opinion of Chief Justice Roberts, who concluded that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."^[160] Concurring, Thomas wrote that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," and charged that the dissent carried "similarities" to the arguments of the segregationist litigants in Brown v. Board of Education.^[160] In Grutter v. Bollinger, he approvingly quoted Justice Harlan's Plessy v. Ferguson dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."^[161] In a concurrence in Missouri v. Jenkins (1995), he wrote that the Missouri District Court "has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority."^[162]

Abortion[edit]

Thomas has contended that the Constitution does not address the issue of abortion;^[144] in Planned Parenthood v. Casey (1992), the court reaffirmed Roe v. Wade. Thomas along with Justice Byron White joined the dissenting opinions of Chief Justice William Rehnquist and Justice Antonin Scalia. Rehnquist wrote that "[w]e believe Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."^[163] Scalia's opinion concluded that the right to obtain an abortion is not "a liberty protected by the Constitution of the United States."^[163] "[T]he Constitution says absolutely nothing about it," Scalia wrote, "and [ ] the longstanding traditions of American society have permitted it to be legally proscribed."^[163]

In Stenberg v. Carhart (2000), the court struck down a state ban on partial-birth abortion, concluding that it failed the "undue burden" test established in Casey. Thomas dissented, writing: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."^[164] He went on to criticize the reasoning of the Casey and Stenberg majorities: "The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States—a hostility that Casey purported to reject."

In Gonzales v. Carhart (2007), the court rejected a facial challenge to a federal ban on partial-birth abortion.^[165] Concurring, Thomas asserted that the court's abortion jurisprudence had no basis in the constitution, but that the court had accurately applied that jurisprudence in rejecting the challenge.^[165] Thomas added that the court was not deciding the question of whether congress had the power to outlaw partial birth abortions: "[W]hether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court [in this case] … the parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."^[165]

Gay rights[edit]

In Lawrence v. Texas (2003), Thomas issued a one-page dissent where he called the Texas anti-gay sodomy statute "uncommonly silly." He then said that if he were a member of the Texas legislature he would vote to repeal the law, as it was not a worthwhile use of "law enforcement resources" to police private sexual behavior. Since he was not a member of the state legislature, but instead a federal judge, and the Due Process Clause did not (in his view) touch on the subject, he could not vote to strike it down. Accordingly, Thomas saw the issue as a matter for the states to decide for themselves.^[166]

In Romer v. Evans (1996), Thomas joined Scalia's dissenting opinion arguing that Amendment Two to the Colorado State Constitution did not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, the Colorado amendment forbade any judicial, legislative, or executive action designed to protect persons from discrimination based on "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships."^[167]

Approach to oral arguments[edit]

Thomas is well known for his reticence during oral argument. Beginning when he asked a question during a death penalty case on February 22, 2006, Thomas had not asked another question from the bench for more than ten years, finally asking a question on February 29, 2016, about a response to a question regarding whether persons convicted of misdemeanor domestic violence should be barred permanently from firearm possession,^[168] he also had a nearly seven-year streak of not speaking at all in any context, finally breaking that silence on January 14, 2013, when he was understood to have joked that a law degree from Yale may be proof of incompetence.^[169][170]

Thomas has given many reasons for his silence, including self-consciousness about how he speaks, a preference for listening to those arguing the case, and difficulty getting in a word.^[169] Thomas' speaking and listening habits also may have been influenced by his Gullah upbringing, during which time his English was relatively unpolished.^[8][14][171]

In 2000, he told a group of high school students that "if you wait long enough, someone will ask your question."^[172][173] Although he rarely speaks from the bench, Thomas has acknowledged that sometimes, during oral arguments, he will pass notes to his friend and colleague Justice Stephen Breyer, who then asks questions on behalf of Thomas.^[174]

In November 2007, Thomas told an audience at Hillsdale College: "My colleagues should shut up!" He later explained, "I don't think that for judging, and for what we are doing, all those questions are necessary."^[175] According to Amber Porter of ABC News, one of the most notable examples of a rare instance in which Thomas asked a question was in 2002 during oral arguments for Virginia v. Black, when he expressed concern to Michael Dreeben, who had been speaking on behalf of the U.S. Department of Justice, that he was "actually understating the symbolism... and the effect of... the burning cross" and its use as a symbol of the "reign of terror" of "100 years of lynching and activity in the South by the Knights of Camellia... and the Ku Klux Klan".^[176]

Thomas is not the first quiet justice; in the 1970s and 1980s, William J. Brennan, Thurgood Marshall, and Harry Blackmun generally were quiet;^[177][178] however, the silence of Thomas stood out in the 1990s as the other eight justices engaged in active questioning.^[178] The New York Times' Supreme Court correspondent Adam Liptak has called it a "pity" that Thomas does not ask questions, saying that he has a "distinctive legal philosophy and a background entirely different from that of any other justice" and that those he asked in the 2001 and 2002 terms were "mostly good questions, brisk and pointed."^[169] Conversely, Jeffrey Toobin, writing in The New Yorker, calls the silence of Thomas "disgraceful" behaviour that has "gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents".^[179]

Personal life[edit]

In 1971, Thomas married his college sweetheart, Kathy Grace Ambush, they had one child, Jamal Adeen. In 1981 they separated and they divorced in 1984;^[25][180] in 1987, Thomas married Virginia Lamp, a lobbyist and aide to Republican Congressman Dick Armey.^[181] In 1997, they took in Thomas's then six-year-old great nephew, Mark Martin Jr.,^[182] who had lived with his mother in Savannah public housing.^[183]

Thomas's second wife remained active in conservative politics, serving as a consultant to the Heritage Foundation, and as founder and president of Liberty Central;^[184] in 2011, she stepped down from Liberty Central to open a conservative lobbying firm, touting her "experience and connections", meeting with newly elected Republican congressmen and describing herself as an "ambassador to the tea party".^[185][186] Also in 2011, 74 Democratic members of the House of Representatives wrote that Thomas should recuse himself on cases regarding the Affordable Care Act, due to "appearance of a conflict of interest" based on the work of his wife.^[187]

Thomas was reconciled to the Catholic Church in the mid-1990s;^[188] in his 2007 autobiography, he criticized the church for its failure to grapple with racism in the 1960s during the civil rights movement, saying it was not so "adamant about ending racism then as it is about ending abortion now".^[85] Thomas is one of thirteen Catholic justices—out of 112 justices total—in the history of the Supreme Court, and one of five currently on the court.^[189]

In January 2011, the liberal advocacy group Common Cause reported that between 2003 and 2007 Thomas failed to disclose $686,589 in income earned by his wife from the Heritage Foundation, instead reporting "none" where "spousal noninvestment income" would be reported on his Supreme Court financial disclosure forms.^[190] The following week, Thomas stated that the disclosure of his wife's income had been "inadvertently omitted due to a misunderstanding of the filing instructions".^[191] Thomas amended reports going back to 1989.^[192]

Writings[edit]

• Thomas, Clarence (2007). My Grandfather's Son: A Memoir. Harper. ISBN 0-06-056555-1. 
• Thomas, Clarence. "Why Federalism Matters," Drake Law Review, Volume 48, Issue 2, page 231 (2000).
• Thomas, Clarence. "Supreme Discomfort: The Divided Soul of Clarence Thomas".
• Thomas, Clarence. "Punishment and Personhood," City Journal, Autumn 1994.

See also[edit]

Footnotes[edit]

References[edit]

• Foskett, Ken (2004). Judging Thomas: The Life and Times of Clarence Thomas. William Morrow. ISBN 978-0-06-052721-1. 
• Greenburg, Jan Crawford (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Penguin Group. ISBN 978-1-59420-101-1. 
• Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court. Random House. ISBN 978-0-385-51640-2. 

Further reading[edit]

External links[edit]

Wikisource has original works written by or about: Clarence Thomas

• Clarence Thomas at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• Clarence Thomas at Ballotpedia
• Issue positions and quotes at OnTheIssues
• Appearances on C-SPAN
• Clarence Thomas at Goodreads
• About.com Quinn, Justin, A Profile of Clarence Thomas at About.com U.S. Conservative Politics
• Clarence Thomas at the 2007 Annual National Lawyers Convention – November 2007.
• Cornell Law School Biography of Clarence Thomas.
• Michael Ariens, Clarence Thomas.
• Outline of the Anita Hill and Clarence Thomas Controversy
• Overview of Personal Memoir
• Oyez, Official Supreme Court media, Clarence Thomas biography.
• How to Read the Constitution Excerpt from Thomas's Walter B. Wriston Lecture to the Manhattan Institute in October 2008
• Transcripts of Senate Judiciary Committee Hearing on the Nomination of Clarence Thomas to the Supreme Court
• Washington Post article about Thomas
• New Yorker Magazine: "Partners: Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan?" by Jeffrey Toobin – August 29, 2011
• Supreme Court Associate Justice Nomination Hearings on Clarence Thomas in September and October 1991 United States Government Publishing Office

Political offices
Preceded by Eleanor Holmes Norton	Chair of the Equal Employment Opportunity Commission 1982–1990	Succeeded by Evan Kemp
Legal offices
Preceded by Robert Bork	Judge of the United States Court of Appeals for the District of Columbia Circuit 1990–1991	Succeeded by Judith Rogers
Preceded by Thurgood Marshall	Associate Justice of the Supreme Court of the United States 1991–present	Incumbent
Current U.S. order of precedence (ceremonial)
Preceded by Anthony Kennedy as Associate Justice of the Supreme Court	Order of Precedence of the United States as Associate Justice of the Supreme Court	Succeeded by Ruth Bader Ginsburg as Associate Justice of the Supreme Court

Supreme Court of the United States

The Rehnquist Court Chief Justice: William Hubbs Rehnquist (1986–2005) 1991–1993: B. White H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas 1993–1994: H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg 1994–2005: J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg S. Breyer The Roberts Court Chief Justice: John Glover Roberts, Jr. (2005–present) 2005–2006: J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg S. Breyer 2006–2009: J. P. Stevens A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg S. Breyer S. Alito 2009–2010: J. P. Stevens A. Scalia A. Kennedy C. Thomas R. B. Ginsburg S. Breyer S. Alito S. Sotomayor 2010–2016: A. Scalia A. Kennedy C. Thomas R. B. Ginsburg S. Breyer S. Alito S. Sotomayor E. Kagan 2017–present: A. Kennedy C. Thomas R. B. Ginsburg S. Breyer S. Alito S. Sotomayor E. Kagan N. Gorsuch