Friday, October 26, 2018

Justice Thomas in his Own Words

By Eric Segall

Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.

Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”

Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.

No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.

A.    Affirmative Action and Race

Although Justice Thomas has said affirmative action helped him get into Yale Law School, he has minced no words about his hatred for such programs. In Fisher v. Texas I, the plaintiffs challenged the University of Texas’ limited used of racial preferences to fill out 25% of its class (the other 75% was decided through a facially neutral top 10% program). At the time, the University was roughly 50% white and 50% non-white. Justice Thomas compared the University’s admission process to slavery and desegregation:

Slaveholders [also] argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life …. In our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today ….  The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

The reference to slavery is extraordinary and needs no comment. As to segregation, the first black student to attend the University of Texas did so in 1955. To Justice Thomas, the intentions of people who in good faith wanted more racial diversity on campuses in 2013 are no different from the intentions of people who wanted all-white campuses in 1954. This is a shamelessly wrong false equivalence.

Justice Thomas also has strong feelings about minority students attending elite universities. In Grutter v. Bollinger, he said this about black students at the University of Michigan Law School: “The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition.” And in Fisher, he said that Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates…. As a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where under performance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.”

Justice Thomas relied on controversial academic studies to make these bold claims. Moreover, who is he to decide for minority students whether it is in their best interests to attend elite schools? No one is forcing them to do so. And, it is also fair to ask what any of this fiery rhetoric has to do with whether the 14th Amendment precludes elite schools from seeking racial diversity by using racial criteria.

Off the Court, Justice Thomas has compared his experiences in the segregated South to those at Yale Law School:

At least southerners were up front about their bigotry: You knew exactly where they were coming from. Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them but slapped you down if you started acting as if you didn't know your place.

Thomas is of course completely entitled to resent the condescension that he says he faced at Yale, but again to suggest white liberal Yale law professors in the early 1970’s were similar to white bigots during segregation is another matter altogether.

B.    Gay Rights

In one of the most controversial dissents of the last fifty years, Justice Antonin Scalia said the following about a Texas statute that criminalized consensual, private gay sodomy: “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable…’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” Scalia went on to say that the law was constitutional because “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” 

Justice Thomas joined this horrific dissent without qualification. He also wrote a short opinion explaining that, although he agreed with Scalia that the law was constitutional, he would vote against this law if he were in the legislature: “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.” Apparently, Thomas’ objection to punishing gays and lesbians for private, consensual sodomy is that other crimes deserve more attention, not that gays and lesbians have a right to enjoy private, consensual intimacy.

C.    Abortion

Although Thomas’ confirmation hearing is most famous for Anita Hill’s allegations of sexual harassment, the part of the hearing about abortion is well worth remembering. Thomas graduated from Yale Law School in 1974, one year after the Court handed down Roe v. Wade. Seventeen years later, Senator Patrick Leahy asked Thomas about what was at the time and still is the most controversial constitutional law issue of the last fifty years.

Senator LEAHY. “Have you ever had discussion of Roe v. Wade, other than in this room, in the 17 or 18 years it has been there?”

Judge THOMAS. “Only, I guess, Senator, in the fact in the most general sense that other individuals express concerns one way or the other, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator….”

Senator LEAHY: “So you don’t ever recall stating whether you thought it was properly decided or not?

Judge THOMAS. “I can’t recall saying one way or the other, Senator.”

Here is another excerpt about abortion from Thomas’ testimony:

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

Andrew Peyton Thomas’ biography of Justice Thomas alleges that William Bradford Reynolds, conservative assistant attorney general under Ronald Reagan, said that “I know we [he and Justice Thomas] discussed [Roe]. I think that he thought little of Roe v. Wade. … [F]rom a scholarly standpoint, we were talking about constitutional law, constitutional issues, and Supreme Court decisions. It was clear he didn’t think much of it.”

Despite widespread reporting of Reynolds’s claims, it appears he has never denied that this conversation took place. Therefore, there are only three possibilities. Either Thomas had the conversation but didn’t remember it, or he never had it, or he lied about it. For the sake of argument, let’s assume that Thomas was telling the truth. That means a Supreme Court nominee never once discussed the correctness of Roe or formed an opinion about it, from the day he graduated law school in 1974 until his confirmation hearing in 1991. Arguably, that itself should have been substantially troubling to the Senate Judiciary Committee.

In 1992, Justice Thomas’ first full year on the bench, the Court reaffirmed Roe v. Wade’s conclusion that women have a constitutional right to terminate their pregnancies in Planned Parenthood v. Casey (albeit the Justices changed the legal framework protecting that right from a trimester approach to the “undue burden” standard). Justice Thomas joined the bitter and harsh dissents of Chief Justice Rehnquist and Justice Scalia arguing that Roe should be reversed. Many years later. Thomas summed up his views in a different abortion case:

My views on the merits of the Casey joint opinion have been fully articulated by others (referring to Scalia and Rehnquist). I will not restate those views here, except to note that the Casey joint opinion was constructed by its authors out of whole cloth. The standard set forth in the Casey joint opinion has no historical or doctrinal pedigree. The standard is a product of its authors’ own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard (the trimester framework) it purported to replace.

These views are similar to the 1992 dissents of Scalia and Rehnquist, which Thomas joined in full. Maybe Thomas’s views on abortion were only formed after he heard arguments in the case, but it is still interesting that when asked about Roe, he didn’t say he couldn’t answer as has been the case for most nominees; he said he had not yet formed an opinion. A year later, he voted to overrule it.

D.    Children and Speech

The issue in Brown v. Entertainment Merchants Association, was the constitutionality of a California law banning the sale of violent video games to minors. The majority struck down the law on the grounds, among other things, that violent games were protected speech as to minors. Thomas disagreed, saying that “the practices and beliefs of the founding generation” did not “include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” In a prior case, Thomas had said that children have no first amendment rights in public schools.

As Ian Millhiser pointed out in his article on Justice Thomas’s importance as a legal thinker, Thomas believes that children have no speech rights separate from their parents. Thomas “rooted” these views “in his belief that seventeenth and eighteenth-century adults lorded over children like petty tyrants.

Millhiser correctly questioned why Thomas’s summary of the relationships between children and parents in 1787 mattered to constitutional law. “That is, even if Thomas is correct that the founding generation ‘believed parents to have complete authority over their minor children and expected parents to direct the development of those children,’ why does it follow that the founding generation would have let the government restrict children’s speech…?” Although we can all agree that children do not have the same speech rights as adults, the notion that they have no speech rights at all separate from their parents, teachers, and guardians, is quite simply absurd.

Two critics of Justice Thomas’s conclusion about the complete lack of students’ speech rights in public schools said the following about his analysis of that issue:

This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted. Even by the time the 14th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started…. Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?

E.    Originalism

Justice Thomas, first and foremost, identifies himself as an originalist. During his confirmation hearings, he clearly signaled his originalist philosophy. In numerous important constitutional law cases, Justice Thomas has said that the Justices should be guided by the Constitution’s original meaning. For example, in United States v. Lopez, Thomas argued that the Court should alter its commerce clause jurisprudence to greatly reduce the power of Congress in order be “more faithful to the original understanding of that Clause.” In McDonald v. City of Chicago, in which the Court applied the Second Amendment to the states for the first time, Thomas wrote a sole concurrence arguing that it is the original meaning of the Privileges or Immunities Clause of the 14th Amendment that allows the Second Amendment to restrict state action, not the Due Process of the Fourteenth Amendment, an opinion which if accepted by the rest of the Court could have major implications for constitutional law. And, in U.S. Term Limits v. Thornton, he strenuously argued, in dissent, that the Constitution’s original meaning allows the states to place term limits on members of Congress, a conclusion rejected by the majority opinion.

Yet, despite Justice Thomas’s constant refrains about the importance of the Constitution’s original meaning to constitutional interpretation, he has regularly voted to strike down state and federal laws without any mention of originalist evidence. For example, he has voted to strike down every campaign finance law (state and federal) and every affirmative action program (state and federal) that has come before him without once relying on ratification era sources. He joined with the other conservative justices to invalidate the key provision of the Voting Right Act despite the opinion’s silence on historical sources. This list could go on and on. Justice Thomas’ failure to harness originalist evidence for these major constitutional law decisions, and there are many more, speaks louder than those opinions where he claims such evidence supports his decisions.

As I detailed in a prior work, Justice Thomas’ America looks like this: Americans possess a right to own guns but no right to abortion; no city, state or federal government may take racial criteria into account where trying to address our racist past and current racial problems; gays and lesbians are strangers to equal rights under the law; Congress is prohibited from addressing serious economic issues that plague our country; corporations may spend as much money on elections as they want because money is speech and corporations are people; the President of the United States may fight terrorism without any constitutional check from the other two branches of government; states may place term limits on members of Congress; and the rights of majority religions constitute constitutional trump cards authorizing discrimination against minorities and traditionally disadvantaged groups.

Perhaps Justice Thomas reached all these conclusions based on his good faith examination of 1787, 1789, and 1868 sources. But if so, it is surprising that so many of his opinions contain no such summary or evidence. Moreover, the sum of all these votes looks surprisingly similar to the Republican Party Platforms both in 1992 and today. Maybe that’s just a coincidence--or maybe not.

Justice Thomas often cloaks his right-wing extremism in originalist musings and obviously deeply-felt personal experiences. Regardless of how he came to his political views, however, his consistently partisan votes as a Justice are unlikely to change with more experiences or more historical analysis. He will almost certainly support the far right in our political and cultural wars for as long as he remains a Supreme Court Justice.


Shag from Brookline said...

To his credit, Thomas is a "Loving" justice.

Joe said...

Not as much to his first wife, perhaps.

I appreciate the discussion. Is there a list of his clerks that became federal judges? It would be interesting if someone charted how it compares to his colleagues.

One thing I'm wary of, including my wariness, is the strong partisan activities of his wife. She is in effect high Tea Party, including re-tweeting the latest b.s. memes of the day. It is fairly clear that Justice Thomas agrees with her generally speaking. But, I realize spouses should be able to have a life and career of their own here.

I am wary though the level of partisanship, to the level of trolling (putting aside things like calling Anita Hill for an apology), for the spouse of a justice of the Supreme Court. I don't want Justice Breyer's wife or a spouse of a female justice to be doing something comparable in a liberal way. Again, maybe that's wrong, but it rubs me the wrong way.

Shag from Brookline said...

Eric had a 10/31/16 post on Justice Thomas' 25th anniversary on the Court at:

that includes comments by me and Joe that might be of interest to some visitors to this post.

Welch's Rarebits said...

What I find interesting about Thomas (as a non-lawyer, but someone passionately interested in the Court) is his dismissal of the Due Process clause of the 14th Amendment in favor of the Privileges or Immunities Clause of the 14th as a way to apply the Bill of Rights to the states.

David Ricardo said...

Thanks for a great post, a post that breaks through the media attitude that Thomas is just a conservative Justice.

I have always felt that there is a letter in the desk of the Chief Justice, a letter that has been there since the 1990's. It reads "Don't give Thomas the chance to write the majority opinion on a signficant case, he's a nut job".

Shag from Brookline said...

I seem to recall that Justice Thomas' personal antipathy towards the affirmative action be benefitted from at Yale Law School was his resentment that he did not get opportunities in "big law." The result was relying on working in the legal field in government, which was more diverse than the private sector. Back in the context of 1974, I'm not sure of the extent of diversity in "big law. Unlike Thurgood Marshall, apparently Thomas was not willing to engage in private practice that might be less economically secure than a government job. Of course Marshall did not have available affirmative action in his day but took steps to challenge Jim Crow, paving the way to the civil rights movement that led to affirmative action that benefitted Thomas. May irony be properly used here?

Originalism was in its early moments in 1974 so it is doubtful that Thomas had that much exposure to it in law school. And it's doubtful that originalism was that significant in his state and federal government legal positions before his appoint to a Circuit Court. (In between his state and federal government jobs Thomas worked at Monsanto for a few years.) Thomas served in his state and federal government jobs under Republican leadership, perhaps being groomed as an African-American to counter Democrats' involvement in the civil rights movement and the Civil Rights Acts of the mid 1960s. Presumably there had been at least a tad of Republican resentment with Marshall's successes as an attorney before the Supreme Court and then as Solicitor Generals followed by appointment to the Court. What might the Bush I Administration have had in mind with Thomas' appointment to a Circuit Court and then, following Marshall's retirement, his appointment to the Supreme Court to succeed the first African American appointed to the Court? Bush I in the 1988 campaign did not discard Nixon's Southern Strategy in the 1968 campaign nor that of Reagan in 1980. A cynic might suggest that the Heritage Foundation might have been involved.

Joe said...

The use of the P/I to apply the Bill of Rights to the states is an example of him using his own reading of history and law while pushing aside precedent.

As a thought experiment, it makes sense to use the P/I Clause to "incorporate" the Bill of Rights and it reflects the sentiments of some when the 14th Amendment was ratified. But, even there, it is not a slam-dunk [there was mixed thoughts and people cite history to get to different places] and soon enough the P/I was used in a more narrow way.

So, due process -- which already was starting to have a content beyond mere procedural protections -- was used to develop the concept of applying rights to the states. It was clearly precedent over a hundred years ago, including things like marriage. The law [the Supreme Court is still a court though Prof. Segall wrote a book arguing why it isn't really] as well as other things develops based on what came before. This in part restrains.

Thomas is less open to that sort of thing, arguing he is compelled by the text and meaning of the Constitution. And, he raises some idiosyncratic arguments there which at times gets him to non-conservative (though usually he's conservative*) places. This is far from clear and Prof. Segall's work shows in part that history isn't on his side many times either.


* For instance, there was a conservative/libertarian argument on why the so-called Defense of Marriage Act was a violation of federalism principles -- at the very least, states should have had discretion to have same sex marriage without a federal law that across the board singled that out as "not marriage" -- but he did not.

The P/I argument was specially argued in the 2nd Amendment case & only he showed any concern for it. So, if he wanted, e.g., he could have had them add a question saying a national abortion law violated the Commerce Clause. Again, using his view of federalism, that logically would be left to the states. He did not.

Joe said...

(even if they didn't add those questions, Thomas repeatedly goes outside of the immediate issue at hand to discuss his own views ... again, he did not in those cases; an example of consistency would be his dissent in a case involving a national ban on medicinal marijuana; on the other hand, in the Lawrence v. Texas case he said the law was "silly" but also joined Scalia's passionate dissent that the law was far from silly, but a valid expression of societal morality)

JS said...

Seems to me that if the court is going to stick to "original intent", Thomas should have only 3/5 of a vote.