New York Times

Reticent on the Bench, but Effusive About It

November 1, 2016

by Adam Liptak

WASHINGTON — Twenty-five years ago this week, Justice Clarence Thomas first took his seat on the Supreme Court bench. The court, which worked harder in those days, heard four arguments that Monday. The new justice, who had barely survived a brutal confirmation process, asked no questions.

In the years that followed, Justice Thomas has remained taciturn on the bench, once setting a modern record by asking no questions for more than a decade. His determined silences have led some people to think that he is sullen and disengaged.

But Justice Thomas, 68, is neither of those things. As he demonstrated in a pair of recent interviews, at the Heritage Foundation and in a conversation with Bill Kristol, the editor of The Weekly Standard, he is a gregarious man with a booming laugh and a committed judge with uncompromising ideas about the law.

The interviews, which seemed timed to celebrate his quarter-century on the court, were partly overshadowed by new accusations of sexual misconduct. On Thursday, The National Law Journal reported that an Alaska lawyer had accused Justice Thomas of groping her in 1999 at a dinner party.

As he did when Anita Hill accused him in 1991 of sexual harassment, Justice Thomas flatly denied the new accusations, calling them preposterous. On Wednesday, at the Heritage Foundation, after he had learned of the new accusation but before it had become public, he was asked about the confirmation process. He turned somber.

“This city is broken in some ways,” he said. “We have decided that rather than confront the disagreements and the differences of opinion, we’ll simply annihilate the person who disagrees with us.”

The rest of Justice Thomas’s recent wide-ranging reflections help fill out a portrait of a man often reduced to caricature.

He is only the second African-American justice, having succeeded the first, Justice Thurgood Marshall, a civil rights hero. Justice Marshall was by some political science measures the most liberal member of the Supreme Court since the Second World War. By those same measures, Justice Thomas is the most conservative.

He has written few important majority opinions, but his concurrences and dissents present a rigorous and consistent judicial philosophy rooted in what he says is the original meaning of the Constitution.

At the Heritage Foundation on Wednesday, he initially resisted talking about his legacy. “I don’t spend a lot of time thinking back,” he said. “I’m not a navel gazer.”

Nor would he identify the opinions he has written that make him proudest. “I don’t really see them as trophies,” Justice Thomas said.

But he did say that he struggled with “cases where your heart goes one way but you’ve got to stick with the law.”

“Those are really hard opinions, and I think those are the ones you think a lot about,” he said. “Those are the ones where your hair begins to fall out.”

When he arrived in 1991, the court heard about 120 cases each term. These days, the number has dropped to around 65. “We’re not exactly killing it,” Justice Thomas told Mr. Kristol.

While the court once heard four arguments a day, these days it usually hears two. Lately, days with a single argument are not uncommon.

That may be a good thing, Justice Thomas said, as it gives the court fewer chances to distort the law. “Maybe we shouldn’t be doing any more than we’re doing,” he said. “Cuts down on the opportunities.”

One reason for the shrinking docket, Justice Thomas said, is that Congress has not been enacting many major pieces of legislation that lead to litigation. The exception, he said, was the Affordable Care Act, which “seems like a misnomer.” Justice Thomas voted, in the minority, to strike the law down in 2012.

Asked about setbacks, Justice Thomas told Mr. Kristol that he felt a religious obligation not to give in to despair. At Heritage, he did allow that “at the end of the term you can be a little upset.”

Justice Thomas is the second longest-serving member of the current Supreme Court, after Justice Anthony M. Kennedy, and he is a student of its culture and currents. He said he missed the version of the court that ended with the arrival of Chief Justice John G. Roberts Jr. in 2005, following an 11-year run without changes in personnel, the longest such period since the 1820s.

Since then, three more justices have joined the court, each a jolt to the system. But the greatest blow came in February, when Justice Antonin Scalia died. Justice Thomas spoke fondly about their teasing relationship, referring to his friend by his nickname.

“I didn’t go to the Kennedy Center to see operas with him,” Justice Thomas said. “I used to kid him about it. I said: ‘Nino, I like opera. I just don’t want to be around people who like opera.’ ”

Justice Thomas also refused to join Justice Scalia in one of his other favorite pastimes.

“He always thought it was really odd that I was from the South but wouldn’t go hunting,” Justice Thomas said. “And I thought it was really odd that he was from New York and New Jersey and he went hunting. He would try to talk me into that. I said, ‘No good comes from being in the woods.’ ”

Justice Thomas said he was a student of history who reads widely, rattling off titles. He told Mr. Kristol that he read “books that people say they’ve read, that they haven’t read, like ‘The Wealth of Nations.’ ”

He said he took his law clerks to Gettysburg every year, partly to reflect on what would have happened had the South, with an army led by Gen. Robert E. Lee, prevailed.

“If Lee had won, that would have been a problem,” Justice Thomas told John Malcolm, a Heritage official, who is white. “It would have been more of a problem for me than you.”

Justice Thomas, who had been chuckling during the exchange, let out an infectious laugh.