Clarence Thomas Is More Dangerous and Powerful Than Ever
As Thomas reportedly told two of his law clerks in 1993, he planned to serve until 2034, and until then would continue to make the lives of liberals “miserable.” He has already made good on that pledge.
Clarence Thomas went more than 10 years without asking a single substantive question from the bench. His silence between 2006 and 2016 prompted commentators to call his courtroom quietude embarrassing, a sign of fatigue and a lack of intellectual candlepower. Even earlier in his career, he had earned the nickname of “Scalia’s Puppet” for his habit of joining majority opinions written by Justice Antonin Scalia, the outspoken and reactionary “originalist” who shared the dais with him until his death in 2016.
But the characterization of Thomas as an inattentive echo of Scalia is wrong. Thomas has always been more extreme and dangerous than Scalia, and his influence has never been greater.
After his bruising 1991 confirmation hearing, Thomas set his eyes on the goal of moving American law backward to the laissez-faire era of the Gilded Age, undoing the regulatory state of the New Deal, weakening the civil rights legislation of the 1950s and ’60s, and undermining many of the forward-looking precedent decisions issued by the Warren Court. As Thomas reportedly told two of his law clerks in 1993, he planned to serve until 2034, and until then would continue to make the lives of liberals “miserable.” He has already made good on that pledge: He is now the second-longest serving Supreme Court justice in history.
Thomas is best known for concurrences and dissents that seemed culled from the lunatic fringe when he wrote them, but were later embraced by the majority as the court moved hard right.
There is no telling how much more jurisprudential carnage he will cause or how much more disgrace he will bring to the reputation of the world’s most powerful judicial tribunal.
On affirmative action, in a 1995 case on government contracting (Adarand Constructors v. Pena), his concurrence denounced “remedial racial preferences” in federal hiring as a form of “racial paternalism.” This was an astonishing choice of words for the nation’s second Black Supreme Court justice, who overcame childhood poverty and, after a brief flirtation with Black nationalism, became the beneficiary of affirmative action at Yale Law School. Twenty-eight years later, however, in a majority opinion written by Chief Justice John Roberts (Students for Fair Admissions v. Harvard), the court ended affirmative action in higher education.
On abortion in a 2000 case (Stenberg v. Carhart) that invalidated Nebraska’s late-term abortion ban, Thomas dissented, arguing that the Roe v. Wade decision was “grievously wrong,” and that nothing in the Constitution “dictates that a State” must legalize abortion. Twenty-two years later, Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization adopted Thomas’ view.
Ditto for the Second Amendment. In Printz v. United States, a 1997 gun-regulation case, Thomas contributed a concurrence arguing that the amendment encompassed a personal right to keep and bear arms rather than simply a right connected with service in state militias, as prior case law had clearly held. Eleven years later, in District of Columbia v. Heller, the court recognized the personal right in an opinion authored by Scalia. Thomas went on to expand the personal right in 2022 with his majority opinion in New York State Rifle & Pistol Association v. Bruen, a decision that severely handicaps state and local authorities from enforcing gun-control laws.
Thomas is also on record advising the court to revisit its precedent decisions on the right to court-appointed counsel in criminal trials (Gideon v. Wainwright, 1963); the right of married persons to contraception (Griswold v. Connecticut, 1965); the right of adults to engage in private consensual sex (Lawrence v. Texas, 2003); and the right to same-sex marriage (Obergefell v. Hodges, 2015). He has also called for the court to reconsider 1964’s New York Times v. Sullivan, the landmark case establishing First Amendment protections in defamation cases involving public officials and public figures, which is widely considered the lynchpin of freedom of the press in America.
In a recent column published by the influential Scotusblog website, constitutional law scholar Erwin Chemerinsky noted that “Thomas is the only justice… who has openly said that precedent deserves little weight in constitutional law.”
Despite his laid-back courtroom demeanor, Thomas has also been an active and loquacious speaker out of court on the right-wing banquet and convention circuit, especially in meetings of the Federalist Society and events hosted by Hillsdale College, the Michigan-based private Christian institution long recognized as a hub for conservative thought leaders and a breeding ground for the right-wing’s ever expanding culture wars.
Supreme Court justices typically attend academic, judicial, and bar-related conferences, and initially, Thomas’ public remarks were fairly judge like, focusing on time-honored topics like judicial independence. But as his stature grew and the court’s lurch to the right accelerated, he shed whatever inhibitions he once had about voicing his personal beliefs, becoming in time a full-fledged and open culture war combatant.
n a 2011 address at a law student symposium sponsored by the Federalist Society in Charlottesville, Virginia, he devoted most of his time not to expounding on legal doctrine but to defending his tea party activist wife Ginni against adverse press coverage. He also exhorted his young audience to be wary of the “fundamental changes” wrought by the left that aimed to distort the original meaning of the Constitution. In a 2016 commencement speech at Hillsdale, he went further, urging graduates “not [to] hide your faith and your beliefs under a bushel basket… in this world that seems to have gone mad with political correctness.”
Thomas is now unbound and unrestrained. In a speech on April 15 at the University of Texas, he went “full Monty” in an unhinged broadside against liberals and progressives. “Progressivism seeks to replace the basic premises of the Declaration of Independence and hence our form of government declaring,” he declared, continuing:
It holds that our rights and our dignities come not from God but from government… [Progressivism] was the first mainstream American political movement—with the possible exception of the pro-slavery reactionaries on the eve of the Civil War—to openly oppose the principles of the Declaration.
He went on to blame progressives for the 20th century evils of racial segregation and eugenics, insisting that “Stalin, Hitler, Mussolini, and Mao” were “intertwined with the rise of progressivism.”
All this from an angry and embittered ideologue who is also arguably the most corrupt justice in the Supreme Court’s history, having failed for 13 years to report his wife Virginia’s earnings on his annual financial disclosure forms, and who has been on the gimme end of lavish vacations funded by billionaire Republican donor Harlan Crow.
Thomas celebrated his 78th birthday on June 23. He may not make it to his projected retirement date of 2034, but until he actually steps down, whether voluntarily or post mortem in the fashion of Scalia, there is no telling how much more jurisprudential carnage he will cause or how much more disgrace he will bring to the reputation of the world’s most powerful judicial tribunal.
Composition of Freshmen Athletes at Harvard and Five Other Ivy League Schools, 2006–14.(Photo: NCAA)