washingtonpost.com

Jurist Embraces Image as a Hard-Line Holdout
 

By Michael A. Fletcher and Kevin Merida
Washington Post Staff Writers
Monday, October 11, 2004; Page A01

Second of two articles

Shortly after delivering a sober commencement address at Ave Maria School of Law in Ann Arbor, Mich., Clarence Thomas chatted and posed for pictures with some of the 56 graduates. On an overcast day in May, they stood in front of a newly unveiled statue of Sir Thomas More, the Catholic martyr whom Thomas has called an inspiration.

Before long, someone asked about Brown v. Board of Education, the monumental 1954 Supreme Court decision to end legal segregation that was being widely hailed throughout the nation on the occasion of its 50th anniversary. Thomas, the only black justice on the Supreme Court, launched into an impromptu lecture. It was not about Brown, but about Plessy v. Ferguson, the 1896 case that produced the infamous separate-but-equal doctrine.

Thomas singled out the lonely dissent of John Marshall Harlan, the only justice to vote against the decision. "In the eye of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens," Harlan wrote. "There is no caste here. Our constitution is colorblind."

Thomas said of Harlan's opinion: "It was not reported. There were no contemporaneous articles. No law review articles. Just one guy." One guy, he added, whose view eventually was embraced by a nation.

Thomas's take on Plessy says much about how he sees his own role on the nation's highest court: a lonely holdout for principle. Since his elevation to the Supreme Court 13 years ago, Thomas has methodically built a record notable for its unwavering conservatism and aggressive challenges to long-standing legal precedents in areas from church-state separation to voting and prisoners' rights.

Aligning himself with the court's conservative majority, Thomas has supported decisions that scaled back affirmative action, allowed use of some public money to send students to parochial schools and restricted the creation of election districts intended to elevate minorities. His rethinking of legal doctrine extends to more obscure areas such as the Constitution's commerce clause, which is the basis for a wide range of federal workplace and environmental statutes. Thomas has said the court should consider limiting the clause's reach to its original understanding, which was to allow federal regulation of the movement of goods between states.

As Thomas sees it, a majority of his colleagues are too often bent on interpreting the laws according to the currents of modern times. Rather than tinkering, Thomas would end affirmative action, allow widespread use of school vouchers and eliminate "majority-minority" election districts in almost every circumstance.

"He doesn't view his job the way that Justice [Sandra Day] O'Connor does," said Scott D. Gerber, a law professor at Ohio Northern University who closely follows Thomas's work on the court. "I think he is more concerned about being committed to his principles than in trying to reach some consensus with his colleagues."

Thomas's jurisprudence has made him the toast of conservative activists, who laud his firm legal stands, and the nemesis of liberal activists, who view him as vindictive and narrow in his reading of the law. The irony is that Thomas is the author of few majority opinions in constitutionally significant cases. His unbending approach makes it difficult to assign him opinions in closely contested cases for fear that he might not be able to hold a majority, and his junior status among the court's conservatives also means he might get fewer opportunities to write for the majority in important cases.

Cases decided by a 5 to 4 vote account for 14 percent of Thomas's majority opinions, the second lowest percentage rate among current justices behind liberal Ruth Bader Ginsburg, according to a database of Supreme Court votes maintained by Michigan State University. By contrast, the highest percentage rate -- 31 -- belongs to Justice Anthony M. Kennedy, one of the court's swing voters.

Thomas "has firm views that [the court's swing voters] would be uncomfortable with," said Mark V. Tushnet, a Georgetown University law professor. "If you give him a closely contested major case, he may not end up in the majority."

The court's fragile balance was reflected in the 2000 case involving whether governments could lend computers and other equipment to religious schools without violating the church-state separation. Thomas, writing for the court, said flatly that such aid does not advance religion. That stance caused him to lose two justices, O'Connor and Stephen G. Breyer, who voted with the court's 6 to 3 majority but refused to join Thomas's opinion. They wrote that Thomas's opinion "foreshadows the approval of direct monetary subsidies to religious organizations," a position they oppose.

Thomas's entrenchment makes him more a symbol of the ideological divide in American jurisprudence than a persuasive force on the bench.

He most often finds himself assigned to speak for the court in cases that do not address the great issues of the day -- for example, complex regulatory matters and arcane disputes over pension benefits, taxes and bankruptcy. Cases involving economic issues accounted for 28 percent of the majority opinions Thomas wrote, while they constituted 19 percent of the cases that have come before the court during his tenure, according to an analysis of Supreme Court decisions by Cornell University's Legal Information Institute.

Thomas seems not to care. This streak of independence -- some intimates have called it stubbornness -- courses through his life. Even during his flirtation with black militancy at Holy Cross, he was the only Black Student Union member to vote against establishing an all-black dorm corridor. "He's an ornery something -- always was," said Eddie Jenkins, a Holy Cross classmate and friend.

Some legal observers have said that Thomas displays a rigidity in thinking that extends beyond ideology.

Former University of Southern California law professor Catharine Pierce Wells wrote more than a decade ago: "For Thomas, there are no gray areas and no mitigating factors -- one's abstract principles generate a series of categorical judgments that need never yield to a human dimension."

On the court's most important cases, Thomas's voice is most often heard not in majority opinions but in strongly worded dissents and concurrences that he believes one day will become law. It remains to be seen whether that approach will place him on the path of quirky justices whose solitary views never capture the court or in the company of a Harlan or Oliver Wendell Holmes Jr. -- the latter an early champion of the legislative authority to prohibit child labor and establish a 60-hour limit on the workweek.

Legal analysts have described Thomas as the justice most willing to overturn bedrock legal standards on the grounds that they do not conform to the intent of the Constitution's framers. Thomas startled court observers in June with his concurring opinion in a case challenging the words "one nation, under God" in the Pledge of Allegiance. The court upheld the words in the pledge, but its decision rested on a technicality. Writing alone, Thomas advanced the position that the constitutionally mandated separation applied to the federal government, but not to individual states -- a position that would allow Virginia, for example, to declare a state religion.

The 'Scalia' Slight

 

Chief Justice William H. Rehnquist swore in Thomas as an associate justice of the Supreme Court on Oct. 23, 1991. It wasn't long before Thomas was criticized for the perceived harshness of his opinions, his silence during oral argument and his close voting alignment with Justice Antonin Scalia, the court's conservative beacon.

"I think Thomas is basically in Scalia's pocket," legal commentator Bruce Fein, an associate deputy attorney general in the Reagan administration, observed in 1994.

That criticism extended into the circle of young law clerks who assist the justices in researching and writing opinions, according to recently released papers of the late Justice Harry A. Blackmun.

"Justice Thomas [I know this is going to be a surprise] joined Justice Scalia," a clerk wrote with obvious sarcasm in a memo to Blackmun during a 1992 case.

Thomas always has dismissed the criticism as uninformed or politically motivated, though he often raises it himself in speeches and other public appearances. He has said vigorous questioning by justices during oral arguments is inconsequential. He sees racism in the suggestion that he is an intellectual flunky to Scalia.

"People say that because I'm black, Justice Scalia does my work for me," Thomas told students at the University of Louisville in 2000. "But I rarely see him, so he must have a chip in my brain."

Thomas and Scalia vote alike to a high degree -- 92 percent of the time, which is the highest correlation between any two sitting justices, according to the Cornell analysis. But legal scholars increasingly attribute that alignment to nothing more than like-minded judicial philosophies.

"When two justices are similar in their constitutional approaches, it is not surprising they would agree," said Geoffrey Stone, a constitutional law professor at University of Chicago Law School. "Those justices who tend to have more extreme views than their colleagues, whether on the right or on the left, . . . will tend to vote together."

Strong voting alignments between justices certainly are nothing new. For example, Justice Thurgood Marshall and his liberal court comrade, William J. Brennan Jr., voted together 94 percent of the time, according to the Michigan State data.

In recent years, the contours of Thomas's jurisprudence -- and subtle but significant differences with Scalia -- have become more distinct.

Thomas and Scalia parted ways in June over the case of Yaser Hamdi, an American citizen detained by the U.S. military after being captured in Afghanistan, where he allegedly was fighting for the Taliban. Scalia agreed with the court's rejection of the administration's position that Hamdi could be held indefinitely without a court hearing. Thomas was the lone dissenter, arguing that Hamdi's indefinite detention "falls squarely" within the war powers of the president. Hamdi is expected to be returned to Saudi Arabia.

Thomas and Scalia have voted against laws regulating campaign fundraising and spending, arguing that they restrict the free-speech rights of political candidates. But Thomas often has gone further than Scalia in defending the First Amendment -- in fact, Thomas has been one of the amendment's staunchest defenders on the court. In 2000, for example, Thomas cast the decisive vote against a federal law requiring cable television stations to do a better job of scrambling their sexually explicit programs. Thomas saw the broadcasts as protected by the First Amendment, while Scalia did not.

"The change that I have seen in Thomas from the start of his Supreme Court career until now does not have to do with any change of philosophy," said Christopher E. Smith, a criminal justice professor at Michigan State who follows Thomas's work on the court. "It's just that he has become more strident, confident and outspoken in expressing it."

A Steadfast Philosophy

 

Many of Thomas's views as a justice are identical to those he articulated when he worked in the Reagan administration as assistant education secretary for civil rights and as head of the Equal Employment Opportunity Commission.

During his days in the Reagan administration, Thomas opposed the deliberate crafting of election districts that had enabled record numbers of minority representatives to school boards, city councils, state legislatures and congressional seats across the country. Such redistricting, Thomas argued, treats voting as a group, rather than an individual, right -- in the same way that segregation sorted individuals into groups. When the issue reached the Supreme Court, in the 1994 case Holder v. Hall, Thomas was a justice. In his concurrence with a court majority ruling against a Georgia redistricting plan, Thomas condemned the notion "that race defines political interest."

Similarly, Thomas's opposition to affirmative action as demeaning to minorities and problematic under the Constitution was articulated early in an article he wrote while he was at the EEOC.

"I think that preferential hiring on the basis of race or gender will increase racial divisiveness, disempower women and minorities by fostering the notion they are permanently disabled and in need of handouts," he wrote in 1987.

Writing in a concurrence to a 1995 ruling establishing tougher standards for justifying federal affirmative action programs, Thomas said: "So-called benign discrimination teaches many that because of chronic and immutable handicaps, minorities cannot compete with them without their patronizing indulgence."

As the court's only black member, Thomas has faced particularly pointed criticism from those who see many of his positions as undercutting black interests. But Thomas rejects the idea that his jurisprudence should be shaped by his race or his personal experiences, as inevitable as that might be. Instead, he has said, "there are right and wrong answers" to legal questions to which he must stubbornly adhere.

"There are some opinions -- a class of opinions -- where something inside you as a human being says: 'Boy, I really need to do something. This just isn't right,' " Thomas said in 1999. "But you have no authority to do anything. That's when discipline is required. As I tell groups of kids when they come to visit me, that it's like watching someone drowning 20 feet below and you only have 10 feet of rope."

That philosophy was apparent in one of the first cases he heard as a justice, involving a cross burning on the lawn of a black family in St. Paul, Minn. The issue was whether a city ordinance banning displays of symbols that are racially or religiously offensive was compatible with the First Amendment.

In their preliminary vote at conference, the justices unanimously agreed that the ordinance was too broad and should be struck down as a violation of the First Amendment. But as they worked to hash out an opinion that would set proper parameters for such laws, deep ideological divides emerged.

As the factions began to form, Molly McUsic, a clerk to Justice Blackmun, wrote to her boss: "CT [Clarence Thomas] is still out, but based on past behavior it is a fairly safe bet that he will join AS [Antonin Scalia]."

Thomas -- along with three other justices -- did indeed join Scalia's majority opinion saying that governments cannot outlaw such acts as cross burning simply because of their hateful implications. "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible," Scalia wrote. "But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Thomas took a different posture last year, when the court considered a case involving a Virginia cross-burning statute. As a deputy solicitor general defended the Virginia law during oral argument, Thomas broke his usual silence to agree and urge the deputy solicitor general to make his argument even stronger.

"Aren't you understating the effects . . . of 100 years of lynching?" Thomas said. "This was a reign of terror, and the cross was a sign of that. . . . It is unlike any symbol in our society. It was intended to cause fear and to terrorize a population."

Thomas's words made national news, in no small part because of his personal story of growing up black in segregated and racially hostile Georgia. His public stance prompted widespread speculation that he would sway the court to his view. But he didn't. The court brushed aside Thomas's arguments and struck down the portion of the Virginia statute presuming that all cross burnings are threats.

In the end, Thomas dissented.