Clarence Thomas' Influence On The Supreme Court

Oct 11, 2011
Originally published on October 11, 2011 5:32 pm
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And I'm Guy Raz.

Twenty years ago today, the country was riveted by confirmation hearings on the nomination of Clarence Thomas to the U.S. Supreme Court. What came to be known as the Clarence Thomas-Anita Hill hearings took place after NPR disclosed that Hill, a University of Oklahoma law professor, had told the Judiciary Committee that she was sexually harassed by Thomas when she worked for him at the Equal Employment Opportunity Commission. After three days of tumultuous hearings, Thomas was confirmed by the smallest margin in a century.

Today, NPR legal affairs correspondent Nina Totenberg examines the Thomas record since then.

NINA TOTENBERG, BYLINE: Clarence Thomas is not just a member of the conservative block of Supreme Court justices, he is without a doubt the most conservative justice, willing to regularly strike down long-accepted case law that has been in place for decades, in some cases as much as a century.

He is the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it's unconstitutional to require campaign funders to disclose their identity; he's the only justice who voted to strike down a key provision of the Voting Rights Act; and the only justice to say that the court should invalidate a wide range of laws regulating business conduct and working conditions.

Though his defenders shy from calling his views radical, they trumpet Thomas as the only justice to consistently return to what they see as the original meaning of the Constitution when it was adopted in 1789.

UCLA law professor and academic blogger, Eugene Volokh, compares Thomas to the Supreme Court's most famous justices: Brandeis, Holmes, John Marshall, in the sense that he has a clear vision of where he thinks the court should go.

PROFESSOR EUGENE VOLOKH: Thomas is somebody who has articulated the sharpest and clearest originalist vision of anybody on the court.

TOTENBERG: But that vision is so far removed from modern constitutional law that critics see it as little more than trying to turn the clock back. Georgetown law professor Peter Edelman.

PROFESSOR PETER EDELMAN: I think it's fair to call Thomas a radical conservative He's the Tea Party of the Supreme Court.

TOTENBERG: Even former Reagan administration solicitor general, Charles Fried, who admires Thomas, sees his views as off-kilter. His opinions, says Fried, are well written and researched.

CHARLES FRIED: They are high quality work, there's no question about that. They're just completely out of the mainstream.

TOTENBERG: Scholars note that Thomas's views are in fact so extreme that he is considerably to the right of the court's most heralded conservative, Justice Antonin Scalia. Supreme Court advocate Tom Goldstein says that Scalia balances purism and pragmatism, while Thomas is a purist.

TOM GOLDSTEIN: Justice Scalia has his foot hovering over the brake pedal. Justice Thomas' is firmly planted on the gas.

TOTENBERG: Conservative blogger Ed Whelan says Thomas is the only justice who's willing to trust the Founding Fathers, even if that means, for instance, that states are free to prefer one religion over another.

ED WHELAN: You can call that un-pragmatic if you want, but I think it reflects a deeper faith in the citizenry.

TOTENBERG: Thomas, the second African-American appointed to the court, has proved to be the ideological opposite of the man he replaced, Thurgood Marshall, the first African-American. A stark example of their differences is in cases involving prisoners beaten or denied essential medical care.

Marshall wrote key decisions declaring such treatment a violation of the Constitution's ban on cruel and unusual punishment. At his confirmation hearing, Thomas seemed to agree, noting that every day as an appeals court judge, he looked out the window at the federal courthouse to see busload after busload of criminal defendants being brought to court.

JUSTICE CLARENCE THOMAS: And I say to myself almost every day, but for the grace of God, there go I. So I can walk in their shoes and I could bring something different to the court.

TOTENBERG: Two months later, Thomas, now a Supreme Court justice, dissented from a Supreme Court opinion upholding an $800 damage award to a prisoner who was beaten so severely by prison guards that his teeth and dental plate were broken. Thomas, joined only by Scalia, said that quote, "a use of force which causes only insignificant harm to a prisoner is not cruel and unusual punishment."

Perhaps no subject has engaged Thomas more on a personal level than race. He votes often against civil rights claims, and his own feelings of being underestimated because of his race come out most clearly in Affirmative Action cases.

Although Thomas is widely believed to have been the beneficiary of Affirmative Action programs, he sees them as a scar, not a benefit. And when the Supreme Court reaffirmed the use of race as one factor that can be used in university admissions, Thomas railed that these programs were quote, "nothing more than a facade, a cruel farce of continued racial discrimination that stamp minorities with a badge of inferiority."

Can someone who is so untethered to the big decisions of the last century be influential on the court? Yes and no. For now, it is his dissents, not his majority opinions, that are the attention grabbers.

Supreme Court advocate Tom Goldstein.

GOLDSTEIN: I think he's planting flowers in a garden that he thinks are going to bloom a long time from now. And whether that's going to happen is going to depend on the court's membership.

TOTENBERG: Other scholars note that Thomas makes the other very conservative justices on the court look centrist by comparison. UCLA's Volokh observes that studies show people like to be seen as in the middle.

VOLOKH: That means that if you influence what the extremes look like, then you can shift the middle.

TOTENBERG: And Volokh adds that by just staking out a previously inconceivable position, Thomas, even though alone, makes that position plausible.

Aside from his legal views, Clarence Thomas is something of a contradiction, a person characterized by both soul-shaking anger and hostility, as well as great charm and a booming laugh. Indeed, within the walls of the Supreme Court, he's the most well-liked justice. He knows the janitors, cafeteria workers, everyone. He knows their names, the names of their family members, where they're in school, and he is viewed by the law clerks of all the justices as the most accessible of the court's members.

Thomas, however, unlike his colleagues on the court, only hires law clerks who share his basic constitutional views. Doing otherwise would be like trying to train a pig, he told a Dallas group - it wastes your time and it aggravates the pig. He takes pride in hiring from non-Ivy League schools. Indeed, he refuses to speak at his alma mater, Yale Law School, or any other Ivy League school.

Harvard law professor Charles Fried, who served with Thomas in the Reagan administration, says the justice increasingly fraternizes only with people who agree with him. His friends include talk show hosts Rush Limbaugh and Mark Levin, among others.

FRIED: The effect of that has been to harden his point of view and to make him more and more extreme and isolated in his ideas, because he more and more talks only to people who agree with him. And that's a shame.

TOTENBERG: To the public, this very complicated man is often seen as a caricature; the only justice who does not ask questions. He sits in court, often leaning back in his chair, his eyes closed. His hair is gray now, his frame much heavier than 20 years ago, but he is just 63 years old and reasonably could be expected to serve another 20 years.

His wife's vociferous advocacy for the Tea Party and against the Obama health care law have put Thomas in the crosshairs of controversy. Indeed, last week, 45 Democratic members of Congress asked the House Judiciary Committee to hold hearings on Thomas' conduct. Chances of that happening in a Republican-controlled House are somewhere between nil and zero. But ethics issues continue to pop up.

Conservative Ed Whelan dismisses those questions outright.

WHELAN: It's a testament to him that he's made a lot of the right enemies. And those enemies look for any opportunity, you know, whether or not sound, to attack him. You know, in part, I think Justice Thomas is seen by many as a leading figure in the war over the Supreme Court and that war can sometimes get very personal.

TOTENBERG: Or even ugly. And that very likely is the way Clarence Thomas sees his critics too.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.