It is possible Clarence Thomas’s appointment to the U.S. Supreme Court 25 years ago this October was part of a scheme to steal his office furniture.
Thomas was a judge on the U.S. Circuit Court of Appeals for the District of Columbia for all of 16 months (“two minutes” as he tells it), when President George H. W. Bush nominated him to succeed Justice Thurgood Marshall on the high court. The furniture for his chambers at the D.C. Circuit had only just arrived when the announcement was made.
“So the furniture finally shows up, and it’s got a tag on it, and they nominate me to the Supreme Court,” he told a crowded lecture hall at Harvard Law School in 2013. “So I always thought there was a conspiracy to get my furniture.”
During the same lecture, Thomas explained he preferred to keep his office fairly bare in those days, so he could quickly gather his things if he was sacked. That day never came, but the aesthetic minimalism proved fortuitous given his rapid ascension to the high court — he would change offices three times in less than two years. (RELATED: Clarence Thomas Is Conspicuously Absent In The New Black History Smithsonian)
Mark Paoletta, a Washington lawyer who served in the first Bush administration, and participated in the judicial selection process, told The Daily Caller News Foundation that enthusiasm for Thomas reached the highest summits of the White House.
“When [Justice] Brennan resigned, President Bush wanted to do Clarence Thomas right then, but he had only been on the D.C. Circuit for three or four months,” he said. “Thomas needed some more time on the D.C. Circuit — he had just gotten on there — so we went with Souter.” And after all, the young Thomas was still paying off his law school loans (a feat not completed until his third year on the Supreme Court.)
While Souter would prove a disappointment to Republicans, Thomas has helped inspire an originalist revival reaching the law schools and the halls of Congress — though he has done so from a lonely perch, often alone in concurrence or dissent, committed to a judicial iconoclasm which would smash the opinions of dead judges against the rock of the Constitution.
In 25 years of service on the Court, a familiar cast of detractors continues to disparage his interpretative approach, casting him as a marginal and cantankerous presence on the bench. Others say he is poised to join the company of Justices John Marshall Harlan and Oliver Wendell Holmes as one of the great dissenters, whose power and consequence is realized and vindicated long after their tenure.
“I don’t think he’s interested in writing for the Court of five if that means making a lot of political deals and legal compromises,” professor John Yoo, a former Thomas clerk, told TheDCNF. “He wants to get it right. And I think he’s most interested in returning the Court to the original understanding of the Constitutional text and often that means crossing out decades or centuries of precedent of early Supreme Court cases.”
Yoo, now a professor at UC Berkeley School of Law, points out that Thomas’s work has already secured a place in the American legal canon. “If you read the casebooks for example, a lot of his separate writings are excerpted in the teaching materials in constitutional law,” he said. “Again, not because he’s written the holding for five justices representing the majority of the Court, but because Justice Thomas is a person who is most willing to say the emperor has no clothes.”
Still, he is essentially alone in the effort, rarely able to build a majority even among his conservative colleagues, including the late Justice Antonin Scalia. But he is not deterred by his solitude.
“I think we are required to swim upstream no matter what it is,” Thomas told Bill Kristol in October. “I think it’s a matter of principle.”
“We are obligated not to despair,” he continued. “Do I know what the outcome is going to be? No. Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people. You do it because it’s right.”
He applies that same austerity to his opinions. Black’s Law Dictionary editor Bryan Garner noted that Thomas’s opinions are markedly shorter than his colleagues’ writings.
“I think we are obligated to make the Constitution, and what we write about the Constitution, accessible to our fellow citizens,” Thomas said in October when giving the Justice Joseph Story Distinguished Lecture at the Heritage Foundation. “We owe it to people to present to them their Constitution in a way they can understand it, to enfranchise them.”
While visiting the Gettysburg battlefield, he was once approached by a National Parks Service employee who asked him to sign a copy of his opinion in Federal Maritime Commission v. South Carolina State Courts Authority, a case about the scope of state sovereign immunity.
“I want to thank you because I could understand what you were saying,” the employee said. For Thomas, the encounter was a triumph; he had addressed an esoteric question in a manner communicable to the average citizen.
“In the earlier years he was charting an untrodden path in First Amendment law, in terms of taking it seriously,” Carrie Severino, a former Thomas clerk and chief counsel at the Judicial Crisis Network, told TheDCNF. “If commercial speech is speech, if political speech is speech, let’s treat it like speech, let’s not treat it like a second-class citizen,” she said, explaining his jurisprudence. “Let’s give it the same protections we give other speech.”
“Those opinions are calling the Court to a real consistency in that area,” she added. She also argues that from his earliest days on the bench, Thomas recast the Court’s traditional coalitions.
Paoletta and Yoo also point to Thomas’ opinion in Adarand v. Pena, in which Thomas argued against racial preferences in government contracts by an appeal to the dignity of the individual enshrined in the Declaration of Independence. “It goes back to the heart of his jurisprudence — the dignity of the individual,” Paoletta said. Yoo noted it was probably the first time a Supreme Court justice had cited the Declaration as an authority applicable in the Supreme Court.
His influence can be detected elsewhere.
“People at the time pilloried Thomas, they called him Scalia’s lapdog, and then low and behold, the files are released, and it was Justice Thomas writing these lone dissents, from his first week, which turned out to attract two or three more votes,” Severino said.
Veteran Supreme Court correspondent Jan Crawford corroborates as much in her 2007 book “Supreme Conflict.” In the course of her research she reviewed Justice Harry Blackmun’s papers, which included a trove of conference notes and bench memos which are not available to the public. She concluded that the archive indicates Thomas’ arrival to the Court begat realignments not generally appreciated — he butressed an ascendant conservative bloc and dragged the center of gravity to the right, while rearranging the roles of centrists Sandra Day O’Connor and Anthony Kennedy.
In his first months as a justice, he began at least two dissents on his own — one in Foucha v. Louisiana, the other in Hudson v. McMillan — which attracted additional votes from conservatives after the first round of drafts were circulated among the justices, emboldened to a greater fidelity to the Constitution by his dissent.
“Scalia, in light of Thomas, was calling himself a faint-hearted originalist,” Severino notes.
Perhaps by virtue of this, Thomas’s silence during oral arguments becomes more surprising. He manages, from time to time, to attract a following among his colleagues (albeit not one large enough to build a majority) by the power of his drafts. It seems oral arguments, open by transcript or audio recording to any interested observer, are a powerful venue indeed.
“I think Justice Thomas thinks we’re all ridiculous,” Justice Elena Kagan said of Thomas, who chooses to remain silent out of respect for the lawyers arguing before him. He feels his colleagues rain the advocates with a barrage of questions, a Pickett’s Charge of queries, which impede the arguments the lawyers are trying to make and look a little too much like intellectual strutting.
“And he has a point,” Kagan added. “It’s part of the reason we love Justice Thomas.”
It’s part of the reason he jokes that his elevation to the nation’s highest court was an elaborate play for his office furniture.
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