Justice Clarence Thomas: 25 Years Later

Justice Clarence Thomas: 25 Years Later
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Twenty-five years ago, President George H.W. Bush nominated Clarence Thomas to the Supreme Court.  Many on the Left complained that Justice Thomas lacked the requisite intellect, temperament, and experience.  How wrong they were!  From the outset, Justice Thomas has been principled, careful, courageous, and consequential. 

By now, Justice Thomas’s jurisprudence is apparent.  He favors text over policy, original meaning over evolving standards, history over legislative history, rules over standards, and getting it right over following precedent.  He understands that the Constitution limits the government in order to secure individual liberty.  He further understands that maintaining our basic constitutional structure—the separation of powers and federalism—is critical to preserving that liberty.  He broadly enforces the Bill of Rights, but recognizes that it does not invariably favor the interests of criminals over victims.  In areas related to race, he worries about the laws of unintended consequences, and his views are informed by his own remarkable experiences growing up in the segregated South.

I clerked for Justice Thomas during his first year on the Supreme Court, when much of this was already becoming apparent.  During his very first sitting, he was the sole dissenter in three different cases during the justices’ initial voting.  (I can tell this story because all of the pertinent information has already been disclosed.)  Despite being a brand-new, 43-year-old justice, he never flinched at going it alone, and it never occurred to him to do anything other than call the balls and strikes exactly as he saw them.  His positions in the cases were eminently sensible: (1) if a capital defendant puts on mitigating evidence of good character, the prosecutor may respond with countervailing evidence that the defendant belonged to a white supremacist prison gang; (2) state tort law, rather than the constitutional prohibition on cruel and unusual punishment, governs the routine mistreatment of prisoners; and (3) if a criminal defendant secures an acquittal on the ground of insanity, he may be civilly confined for as long as he remains dangerous.  The first of these cases was ultimately decided by an 8-1 margin, the second by 7-2, and the third by 5-4.  In the second and third cases, Justice Scalia switched his original vote from the majority to the dissent.  So, while outside observers were chortling about how Justice Thomas seemed to be consistently following Justice Scalia, in significant part it was Justice Scalia who was following Justice Thomas.

Another striking opinion from that year was Wright v. West.  On a superficial level, the case involved an absurdly narrow question about whether there was enough evidence to support a particular criminal conviction.  The lower court had said no, and the Justices unanimously said yes.  Rather than simply reinstate the conviction, Justice Thomas wrote a long, scholarly opinion explaining why it was wrong for a federal court to review the conviction at all without giving respect to the views of the state court in which the defendant had been originally tried and convicted.  His ambitious opinion fractured the Court into a 3-3-1-1-1 split.  But, four years later, Congress codified his view in the Antiterrorism and Effective Death Penalty Act of 1996, thereby fundamentally changing the law and practice of habeas corpus.

Then there was United States v. Fordice, which involved the desegregation of public university systems.  The majority opinion, which Justice Thomas joined, contained much lofty rhetoric about the urgent need for desegregation.  At the same time, Justice Thomas worried about harming historically black colleges, and he wrote separately to urge their preservation:  “It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.”

Since that year, Justice Thomas has staked out strikingly original positions in areas including the Commerce Clause, the non-delegation doctrine, federal war powers, deference to federal agencies, the Establishment Clause, retroactivity, implied preemption, race neutrality, and cross burning, to name only a few examples.  With the loss of Justice Scalia, he is the Court’s only remaining originalist.  The Court has been, and will be, greatly enriched by his service.

Gregory G. Katsas served as a law clerk for Justice Thomas between 1991 and 1992.  Later, he served as Assistant Attorney General and Acting Associate Attorney General in the Department of Justice.  He is currently a partner in the Washington office of Jones Day.

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