Justice Clarence Thomas has become a luminary in today’s Washington, in a way that might never have been imagined in the arc of his life and time on the bench.
Thomas has drawn notice for asking more questions during the Supreme Court’s new pandemic-prompted system during oral arguments than he has asked for more than a decade in the courtroom, as the justices broadcast hearings for the first time in their history.
Yet the public attention to his baritone-voice presence comes as the 71-year-old justice has been – more significantly – building influence for his brand of conservatism.
Donald Trump’s presidency has given Thomas and the people around him new currency. His views are attracting fresh support from new Supreme Court appointees, particularly Justice Neil Gorsuch. An increasing number of former law clerks to Thomas have been appointed to top US courts and senior administration posts. And his wife, Virginia “Ginni” Thomas, has become a Trump loyalist and insider.
If Trump were to win a second term, he would likely name more judges in the mold of Thomas, providing an enduring legacy for a justice who for nearly 30 years has been on the legal fringe and may be moving to the vanguard.
Most importantly for the law in America, Thomas’ view of the Constitution would lead to reversal of abortion rights, the elimination of gun regulations and diminishment of press rights. Last year, he also expressed doubt about the constitutional underpinnings of a 1963 landmark guaranteeing that criminal defendants too poor to hire their own lawyer are appointed counsel.
He has also pushed his colleagues to take up more cases on which lower courts are divided and chastised the majority for avoiding tough issues. In late 2018, Thomas wrote that the majority had rejected a petition because it involved Planned Parenthood and “a politically fraught issue.”
The case arose from Republican-led state efforts to deny Medicaid money for Planned Parenthood services to poor patients. When the court spurned an appeal by Louisiana officials, Thomas, joined by Gorsuch and Samuel Alito, dissented.
“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote. “If anything, neutrally applying the law is all the more important when political issues are in the background. … We are responsible for the confusion among the lower courts, and it is our job to fix it.”
Appointed to the bench in 1991 by Republican President George H.W. Bush, Thomas is now the most senior associate justice.
“Over those 30 years,” says former law clerk Helgi Walker, “he has remained the same jurist, true to his principles, following them wherever they go, whether in the majority or dissent.”
Thomas has, indeed, been consistent, asserting positions that would roll back high court decisions protecting individual rights and liberties, seemingly unfazed by criticism and unperturbed that many times he is alone.
Thomas has been the subject of enduring rumors that he might want to retire while Trump holds office, so the President would appoint a successor, perhaps a younger jurist in Thomas’ image. When asked in public appearances about such talk, Thomas has scoffed and said he does not intend to step down anytime soon.
“I have no idea where this stuff comes from,” he said in a March 2019 appearance.
Speculation buzzed anew last month after conservative commentator Hugh Hewitt suggested to Senate Majority Leader Mitch McConnell that a jurist might consider retiring on the condition that a successor be confirmed before a new president could take office.
Walker, now a partner in the Gibson Dunn law firm in Washington, is among those close to Thomas who continued to brush back theories regarding a Thomas retirement. “I don’t have any reason to think he is going anywhere,” she said in an interview this week.
Speaking up
Thomas has long been characterized by his silence, as his eight colleagues engage in a robust give-and-take during oral arguments. He once went more than a decade without asking a question. When he spoke during a 2019 hearing (the most recent instance before this week), it was the first time after a three-year gap.
Thomas has attributed his reluctance to join the fray to various reasons over the years. In 2000, he told a group of students that as a child, born in poverty in low-country Pin Point, Georgia, he was self-conscious about the way he spoke.
“I had grown up speaking a kind of dialect,” he said, referring to Geechee. He said that when he was young, he often avoided speaking to be spared ridicule.
Thomas, who graduated from Holy Cross College and Yale Law School, has long been a polished public speaker and, in more recent years, has said he thinks too much unproductive chatter occurs in the courtroom. He says his colleagues should give the lawyers at the lectern more time to speak and stop interrupting each other. He has also remarked that other justices often raise the questions he would have.
The new teleconference format allows the justices to ask questions only after being called on by Chief Justice John Roberts, in order of seniority, and prevents justices from jumping in to probe a point out of order.
Second in line to the chief, Thomas was ready for his turn in the new system. He was also prepared during Wednesday’s session to advance his criticism that lower court judges are too often, without grounds, imposing nationwide injunctions to block Trump administration programs.
Thomas asked a lawyer supporting exemptions to the Affordable Care Act’s contraceptive-mandate to address lower court action in the case and “the proliferation of nationwide injunctions.” Thomas’ concerns, raised in a later question, too, echoed complaints by Trump lawyers who have regularly turned to the Supreme Court to lift lower-court injunctions before the merits of a policy have been tested.
Voting with Gorsuch
Earlier this year, when the five-justice conservative bloc voted to lift a nationwide injunction preventing a new Trump income test for green-card applicants from taking effect, Gorsuch, joined by Thomas, added in a separate statement: “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.”
He added: “By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.”
Adam Feldman, a court scholar who conducts statistical analyses for SCOTUSblog, said that Thomas votes most often with Gorsuch. (Thomas is least in agreement with liberal Justice Sonia Sotomayor, appointed by President Barack Obama.)
Another emphasis of Thomas, joined by Gorsuch, has been the reining in of federal regulatory power. In that, he is in sync with broader Trump administration’s protests about a burgeoning bureaucracy and “the administrative state.”
Back in 2015, Thomas wrote, “We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
“The end result,” he continued, “may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”
In one case last year, Gorsuch, joined by Thomas and Trump’s second appointee Brett Kavanaugh, referred to the “explosive growth of the administrative state” and said it “wields vast power and touches almost every aspect of daily life.”
Other, mostly liberal, colleagues have countered that if such views prevailed, protections for the environment, energy, and other health and safety matters would be lifted, and much of government would be struck down as unconstitutional. They have insisted that Congress depends on the ability of agencies to carry out its programs.
Citing court precedent, Justice Elena Kagan wrote in one case: “Consider again this Court’s long-time recognition: ‘Congress simply cannot do its job absent an ability to delegate power under broad general directives.’”
Originalist theory
Thomas still writes only for himself when it comes to an unyielding vision of the “originalist” theory of the Constitution and his interest in sweeping reversal of precedent. His interpretation of the Constitution’s 18th Century context has led Thomas to call for a reexamination of the underpinnings of multiple landmarks.
Last year, Thomas wrote a statement arguing for reconsideration of the 1964 New York Times v. Sullivan, which restricts public figures from suing the news media for libel, and of a line of abortion rights decisions tracing to the 1973 Roe v. Wade decision, which made abortion legal nationwide.
Thomas believes that neither decision was sufficiently grounded in the Constitution, writing of the First Amendment milestone: “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
In both instances, no other justice joined Thomas. That also was the situation on Thursday when the high court unanimously reversed a lower court decision against a federal law that makes it a felony to encourage immigrants to stay in the country illegally. The lower court had rejected the law as too broadly written, in violation of the First Amendment.
Thomas, meanwhile, wrote separately to generally criticize judges who may use of the “overbreadth” concept to engage in policy matters.
“The overbreadth doctrine appears to be the handiwork of judges, based on the misguided notion that some constitutional rights demand preferential treatment,” Thomas wrote, separately adding that “this Court has a tendency to lower the bar” for certain challenges “when preferred rights are at stake.” He used abortion rights as an example.
Thomas and Trump connections
For much of the past three decades, Thomas was likely best known for the turmoil of his Senate confirmation. In 1991, at the age of 43, Bush nominated Thomas to succeed Thurgood Marshall, the first black ever named to the high court.
Liberal advocates protested Thomas’ nomination for the seat held by an architect of the Brown v. Board of Education school desegregation litigation and a bulwark of civil rights. His Senate confirmation hearings were further roiled by the sexual-harassment accusations of former employee Anita Hill. He categorically denied the claims.
He was approved by the Senate by 52-48 vote.
At Thomas’ side then and for virtually all of his time in the public eye has been his wife, Ginni, a conservative lightning rod in her own right. The couple met when Thomas was in the Reagan administration, leading the Equal Employment Opportunity Commission, and she was a lobbyist for the US Chamber of Commerce. They married in 1987. (After the confirmation, they posed for a People magazine cover article, headlined, “Virginia Thomas tells her story: ‘How we Survived.’”)
Ginni became a prominent Tea Party activist, and during the 2016 presidential campaign first supported Texas Sen. Ted Cruz. She eventually turned to Trump and has been in sync with his agenda. Earlier this year, she was reportedly among the Trump allies providing lists to the President of people who were disloyal or who would advance his agenda.
In February, Ginni Thomas was among those attending Trump’s East Room celebration after acquittal in the Senate of articles of impeachment brought by the US House.
Former law clerks to Thomas have filled administration ranks, including Deputy Solicitor General Jeff Wall and Deputy White House Counsel Patrick Philbin. Trump’s first two appointments to the prestigious DC Circuit were Thomas clerks, Gregory Katsas and Neomi Rao, and he has tapped other Thomas acolytes for powerful US appeals court posts.
Many of these new appointees are a quarter century younger than their mentor Thomas and would presumably be ruling on cases long after he retires.
Thomas declined to respond to CNN questions about his work on the court, including his new pattern during oral arguments or any retirement thoughts.
He participated in a recently released documentary, “Created Equal: In His Own Words,” produced by a company led by Michael Pack, formerly of the conservative Claremont Institute and currently pending as a Trump nominee to the media organization that oversees Voice of America.
In the film, which is to be shown on PBS stations this month, Thomas observes that in the end, “I want to be able to say I lived up to my oath and did my best.”
