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Thomas's Impact on Legal Debates
Exceeds High-Court Influence

Bloomberg
September 26, 2007
Greg Stohr

 

Clarence Thomas may be the best known, most controversial of the nine U.S. Supreme Court justices. Whether his influence matches his prominence is another matter.

Thomas, who marks the start of his 17th high-court term next week by releasing his autobiography, has made himself a fixture on one end of the court's ideological spectrum. He is the justice most open to government support for religion, most deferential to the president on national security, fastest to jettison precedents.

His approach has earned him a circle of admirers and words of respect from some scholars who reject his conclusions. At the same time, his reluctance to compromise even when he's part of a majority means he often writes a separate opinion, limiting his power to speak for the court and shape the law.

"He's making an impact perhaps within the academy and perhaps even within society, but I'm not sure he's making much of an impact on the court itself,'' said David Stras, a former Thomas law clerk who now teaches at the University of Minnesota Law School in Minneapolis. "And the reason why is that he's often writing for himself.''

Thomas, 59, was a polarizing figure even before he joined the court in 1991 to succeed Thurgood Marshall. Controversy over Thomas's alleged sexual harassment of law professor Anita Hill produced the closest Senate confirmation vote, 52-48, in six decades.

Rethinking Assumptions

Even more so than fellow court conservative Antonin Scalia, Thomas stands out as the justice most willing to rethink -- and discard -- long-held legal assumptions.

In 1992, Thomas questioned whether the constitutional ban on cruel and unusual punishment applied to prisoner abuse. In 2004, he wrote that the Constitution's prohibition on government establishment of religion restricts only federal officials, not the states.

Earlier this year, he advocated overturning a 1968 decision that conferred free-speech rights on public-school students. Thomas pointed to what he said was the original understanding of the First Amendment and the role of the earliest American schools as places where "teachers taught and students listened.''

Each of those positions stems from Thomas's view, shared with Scalia, that the "original understanding'' of the Constitution should guide today's application of it.

Abandoning His Approach

Critics say Thomas sometimes abandons that approach when it doesn't produce his desired result, as when he joined the majority this year in limiting school-integration efforts. Thomas, the court's only black justice, wrote a 36-page concurring opinion that didn't address the original goal of the Constitution's equal protection clause: protecting blacks against discrimination.

"I don't think he's ever effectively made the case, nor could he, that his view of the equal protection clause is consistent with the original understanding of the framers of that clause,'' said Douglas Kendall, executive director of Community Rights Counsel, a Washington group that represents state and local governments.

Still, Thomas hinted last term that, given the chance, he might have reached an unexpected conclusion in an abortion case -- siding with the "pro-choice'' position. Voting with the majority to uphold a federal limit on abortion, Thomas -- the staunchest champion of limiting congressional power -- noted in a concurring opinion that the court wasn't deciding whether the law was a valid use of lawmakers' authority over interstate commerce.

Provocative Thought

Some legal scholars and advocates who disagree with Thomas, including Harvard law professor Mark Tushnet, give him credit for original and provocative thought. Tushnet wrote in a 2005 book on the court that Thomas was more likely than Scalia to leave an enduring imprint on constitutional scholarship.

"I would not object to being associated with the words, 'He's gotten a bum rap,''' Tushnet said in an interview.

Thomas's backers say he writes with an eye toward the future. "Some of the things that he's talking about need to percolate in the legal culture for a while,'' said Chris Landau, a Washington lawyer who clerked for Thomas during his first year on the court. "It's very possible that those could be majority opinions in the future.''

In speeches, Thomas frequently invokes Justice John Marshall Harlan, who dissented in the 1896 Plessy v. Ferguson case that allowed "separate but equal'' racial discrimination. The court eventually overturned Plessy in the 1954 Brown v. Board of Education decision barring public-school segregation.

Private Jokes

Inside the court, Thomas is a popular figure. During arguments, he shares private jokes with Justice Stephen Breyer, often a foe in constitutional cases. Court clerks, police officers and interns describe him as the friendliest justice, sometimes spending hours talking to a new acquaintance.

Thomas spends much of his summer on the road in a recreational vehicle. Earlier this month, he drove his RV to Winston-Salem, North Carolina, for a football game between Wake Forest University and his beloved Cornhuskers of Nebraska, his wife's home state. Thomas had one special request: to meet professional basketball star Chris Paul, who played at Wake Forest.

Among court-watchers, Thomas remains a subject of fascination, with biographies almost annual events. His own book, "My Grandfather's Son: A Memoir,'' covers his life through his confirmation hearings and may rekindle the passions that surrounded his nomination.

Longtime friend Larry Thompson, general counsel of PepsiCo Inc., said Thomas receives "undue focus'' in part because some in the media see a black conservative as an "oddity.''

"I'm just surprised and saddened by the attention he gets,'' Thompson said. "He's an independent thinker. He's a good lawyer. He bases his decisions in large part on scholarship.''

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

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