Clarence Thomas’ Supreme Court legacy

It’s been almost a quarter century since George H.W. Bush left the White House, but perhaps his most lasting legacy lives on at the Supreme Court: Justice Clarence Thomas.

This month, Thomas celebrates his 25th anniversary on the bench and serves as a reminder that Supreme Court nominations often endure long after a president leaves office.

Those close to him say that he’s there to stay. Thomas has said as much, once comparing his job to a calling.

“I never thought that I would treasure doing my job, and I have reached that point,” the conservative justice told an audience in 2013 during a talk with federal appeals court Judge Diane S. Sykes. “I’ve gotten to a point where it’s like the priesthood, this is what I was called to do.”

Thomas was only 43 when he was chosen as the second African-American nominee to the court and he faced immediate and scathing resistance from the civil rights community for some of his legal positions. That was immediately followed by the bombshell sexual harassment allegations against Thomas from Anita Hill that turned both into household names.

He’s gone gray on the bench and has cemented a reputation as the court’s most consistent adherent to the conservative judicial philosophy of “originalism.”

“More so than any of the justices he’s served with during his 25 years on the Court, there’s a coherent theory behind almost every one of the opinions he writes,” said Steve Vladeck, a CNN contributor and law professor at the University of Texas School of Law.

From his earliest days on the bench Thomas has stuck with a rare discipline to his view that the Constitution should be interpreted based on its original public meaning.

“He has exceeded all of our expectations about the magnitude of his talent,” C. Boyden Gray, who worked in the White House Counsel’s office on the Thomas nomination, said recently.

Although he largely stays out of public view, Thomas still attracts plenty of controversy and much of it concerns his opinions on race. The coming term will be no exception. He confounds his critics who seek something different from the man who replaced Justice Thurgood Marshall, a famed civil rights lawyer, on the court but delights his supporters for looking at the Constitution through what they believe is a color-blind lens.

His supporters were stunned when the Smithsonian opened a major museum meant to promote and highlight the contributions of African-Americans last month and almost entirely ignored the achievements of a black man who rose up from poverty to reach the highest pinnacle of the federal judiciary. His name came up only in reference to Hill’s Senate testimony. They question why there is so little attention to Thomas’ overall jurisprudence and so much time spent analyzing why he chooses to remain largely silent during oral arguments.

Filling the void left by Scalia

After the death of Justice Antonin Scalia in February and the possibility of more liberal justices joining the Supreme Court, Thomas’s importance now and historical role could only grow as the most consistent and active conservative on the bench.

Court watchers went into a frenzy in February, soon after Scalia’s death, when Thomas asked a series of questions from the bench for the first time in a decade. His questions – concerning the Second Amendment implications of a state law – surprised even his colleagues.

“Justice Thomas, after a 10-year silence, astonished all in attendance by asking nine questions, all in the same case,” Justice Ruth Bader Ginsburg later remarked.

There was a scramble to divine why Thomas had changed course.

Was he spurred to ask a question because Scalia – who wrote a landmark opinion concerning the Second Amendment – was no longer alive to do so? Was this a turning point? Was Thomas taking on a new role at the court? Was it a sign of more to come?

To supporters of Thomas, those are all the wrong questions. The answer was simple: he had a question that no one else had asked, and he wanted an answer.

The notion that Thomas might be seeking to fill the void left by Scalia underestimates the work that Thomas is doing in his own sphere, court watchers say.

“It’s long been a mistake to view Justice Thomas as operating in Justice Scalia’s shadow,” said Vladeck. “Behind the fact that they often (albeit not always) ended up on the same side of disputes lurked some fairly significant differences in methodology, interpretative commitments and style.”

‘I think you have to say certain things’

It’s not likely that Thomas is going to suddenly fill Scalia’s vociferous role during oral arguments, or lurch to the center to attract more meaty assignments or even land a landmark opinion.

Instead, he will continue down a path of slow and steady commitment to his judicial approach no matter how the court changes in the next few years.

In the areas of deference to administrative agencies, federalism, the scope of the Commerce Clause, the reach of the Second Amendment and racial preferences among other areas, Thomas is laying the ground work for opinions that may be outliers now, but could plant seeds for the future.

“I think that I may lose,” he told Sykes, “but I think I’m obligated, in fact encouraged by my colleagues – that if you believe that, you write it.”

He referenced the fact that back in 1896, when a 7-1 court approved the principle of “separate but equal” only one justice – Justice John Marshall Harlan – dissented.

“I think someone should have kept writing that segregation was wrong,” Thomas said. “Regardless of what the precedent was, I think you have to say certain things.”

Last term, Thomas made good on that promise. According to Vladeck, he wrote an opinion in 38 of 62 Supreme Court cases with signed decisions – twice as many as the next busiest justice, Samuel Alito, a conservative appointed by George W. Bush.

Carrie Severino, who clerked for Thomas, knows how he approaches his job. “He looks at the actual text of the Constitution and studies the history and what it meant to those who ratified it – not just what the conventional wisdom might be today,” said Severino, now the policy director for the conservative Judicial Crisis Network.

“Justice Thomas is writing for history,” Ken Blackwell of the Family Research Council and Ken Klukowski, a senior counsel at First Liberty Institute wrote for the Washington Times last summer. “Be right on the law, ignore politics and the passions of the moment, and have faith that one day America – through its president and Senate – may appoint a Supreme Court majority that agrees, and makes it official.”

Thomas on race

It is the issue of race that most triggers outrage from the African-American community, especially his opposition to race-based affirmative action plans in public universities.

William S. Consovoy clerked for Thomas in 2008 and also represented Abigail Fisher, a white woman from Texas who challenged the race conscious admissions policy at the University of Texas. Last spring, the court upheld the program.

Thomas wrote separately in dissent saying that the majority opinion rests on “pernicious assumptions about race.” He referenced a dissent he wrote in 2003 after a 5-4 court upheld a similar program at the University of Michigan Law School in a case called Grutter v. Bollinger.

“The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” Thomas wrote in 2003.

“Justice Thomas believes that any discrimination on the basis of race violates the Constitution,” said Consovoy. “He therefore has taken the position that the use of race by universities to favor people of one race over another is illegitimate.”

The roots of Thomas’ beliefs are outlined in his 2008 autobiography that tracks his journey from Pinpoint, Georgia, to the highest court in the land. In the book, he says that after he graduated from Yale Law School he was unable to find a job. “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference,” he wrote.

In a controversial 1998 speech to the National Bar Association, the nation’s oldest and largest association of predominately African-American lawyers, judges, educators and law students, Thomas took on his critics.

“Any effort, policy or program that has as a prerequisite the acceptance of the notion that blacks are inferior is a non-starter with me,” he said.

He added that while it pained him deeply “to be perceived by so many members of my race as doing them harm,” he was addressing the audience “not in anger” but to “assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black.”

Legacy of Marshall

Thomas’ critics lament that he took the seat of the legendary Thurgood Marshall, who as a young lawyer for the NAACP, travelled the country to argue against laws that discriminated on the basis of race. It was Marshall who was the architect of Brown v. Board of Education the landmark opinion that dismantled the idea that government could segregate races.

Unlike Thomas, Marshall was not an originalist, said Guy-Uriel Charles the director of the Duke Law Center on Law, Race and Politics.

“Justice Marshall believed in the living Constitution,” said Charles, “the idea that the meaning of the Constitution can change.”

Charles believes that after his confirmation, “many African-Americans held out hope that even though Justice Thomas was conservative, that as a black person from Georgia and someone who invoked his racial identity in his confirmation hearings, he would be sympathetic on racial issues.”

Instead, he says, “The civil rights community by and large have expressed deep disappointment with Justice Thomas on race” because they “believe that a colorblind Constitution means that black people and people of color will always be at a disadvantage, the playing field will never be leveled.”

Charles points to an instance, when Thomas wrote a stirring opinion in a cross-burning case, when the civil rights community felt “hope” that he may shift course.

“In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote.

Charles said “this is a dissent that could have been written by Justice Marshall were he still on the Court” but he added the case, Virginia v. Black, was decided in the same year as Grutter.

“After 25 years on the court, he has an established record on race issues and no one is surprised by his racial conservative opinions and there is no expectation that he will decide cases differently,” Charles said.

He points to last term when the court ruled in favor of a death row inmate in a case concerning race discrimination in jury selection. Thomas was the sole dissenter.

The case concerned Timothy Tyrone Foster, an African-American, on death row in Georgia for the 1987 murder of an elderly white woman, Queen Madge White. The jury that convicted him was all white. Twenty years after his sentence, his attorneys obtained notes the prosecution team took while it was engaged in picking a jury, including marking potential jurors who were black with a “b” written by their name.

“The focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” Chief Justice John Roberts wrote in the majority opinion.

In his dissent, Thomas said he believed the Supreme Court owed more deference to the lower court’s ruling that prosecutors had race-neutral reasons for striking specific jurors.

In his view, “The court today invites state prisoners to go searching for new ‘evidence’ by demanding the files of the prosecutors who long ago convicted them . …I cannot go along with that ‘sort of sandbagging of state courts’” wrote said.

To Ian Millhiser of the progressive Center for American Progress, the vote was unfathomable.

“A note on one of the prosecution’s internal documents suggested that the office did not want a particular juror to be seated because of the juror’s membership in a ‘Black Church’,” Millhiser wrote at the time. “And yet, even with all of this evidence and more at his fingertips, Justice Clarence Thomas said that the Court should not rule that unconstitutional jury discrimination took place in this case.”

Confirmation controversy

Thomas may still best be remembered for his conformation hearings when Anita Hill, an attorney worked for Thomas in the 1980s, came forward and accused him of sexual harassment. The nature of the allegations shook the country – but also for the first time brought the issue to the forefront of a national discussion. A quarter century later Thomas has stuck to his testimony.

“I deny each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill,” he told the senators, and later famously referred to coverage of the scandal as a “high-tech lynching.”

Indeed, Thomas’ connection to Hill is the only mention of him in the Smithsonian’s new National Museum of African American History and Culture. In a gallery dedicated to “A Changing America: 1968 and Beyond” one display labeled the “1990’s” prominently features a picture of Anita Hill, and a video that excerpts her testimony at his confirmation hearing. Other items in the display feature Nelson Mandela’s election to the African National Congress, Colin Powell’s tenure as Chairman of the Joint Chiefs of Staff, Magic Johnson announcing his contraction of the HIV virus, and Toni Morrison accepting the Nobel Prize. There is no direct mention of Thomas’ nomination to the highest court in the land.

The museum is arranged in most part by theme and doesn’t have a display dedicated to Justice Thurgood Marshall either, but there is a large picture of Marshall near the entrance and a copy of the Brown v. Board of Education opinion as well as a wall dedicated to one of his quotes.

For Severino, leaving Thomas out is a missed opportunity. “The museum was either playing politics,” she said, “or is blissfully ignorant of one of the most significant jurists in the country, perhaps because his commitment to a colorblind Constitution doesn’t fit into their narrative.”