Clarence Thomas

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Clarence Thomas
Clarence Thomas

Clarence Thomas

Associate Justice of the Supreme Court of the United States
Assumed office 
October 19, 1991
Nominated by George H. W. Bush
Preceded by Thurgood Marshall

Born June 23, 1948 (1948-06-23) (age 60)
Pin Point, Georgia
Spouse Kate Ambush Thomas (div.)
Virginia Lamp Thomas
Alma mater College of the Holy Cross
Yale Law School
Religion Roman Catholic[1]

Clarence Thomas (born June 23, 1948) is an American jurist. He has served as an Associate Justice of the Supreme Court of the United States since 1991, the second African American to serve on the nation's highest court (after Justice Thurgood Marshall, whom he succeeded). Appointed by President George H. W. Bush, Thomas's career on the Supreme Court has seen him take a judicially conservative approach, adhering to the principle of originalism. Because he believes in upholding the original meaning of the Constitution and statutes, he looks to the exact phrasing of a law's text as the surest guide to its meaning.


[edit] Early life

Clarence Thomas was born in Pin Point, Georgia, a small, impoverished African American community.[2] His father left his family when he was two years old.[3] After a house fire left them homeless, Thomas and his younger brother Myers were taken to Savannah, Georgia, where their mother worked as a domestic employee. Thomas' sister Emma stayed behind with relatives in Pin Point.

When Thomas was 7, the family moved in with his maternal grandfather, Myers Anderson, in Savannah.[4] Anderson had little formal education, but had built a fuel oil business that also sold ice. Thomas calls his grandfather "the greatest man I have ever known",[4] and one of his many hard tasks was to help his grandfather deliver fuel oil. When Thomas was 10, Anderson started taking the family to help at a farm every day from sunrise to sunset.[4] This led Thomas to complain that "slavery was over", and his grandfather replied: "Not in my house."[4] His grandfather believed in hard work and self-reliance; he would counsel Thomas to "never let the sun catch you in bed."

Thomas was the only black person at his high school in Savannah, where he was an honors student.[5]

Raised Roman Catholic (he later attended an Episcopal church with his wife, but returned to the Catholic Church in the late 1990s), Thomas considered entering the priesthood at the age of 16, becoming the first black student to attend St. John Vianney's Minor Seminary (Savannah) on the Isle of Hope.[4] He also attended Conception Seminary College, a Roman Catholic seminary in Missouri, briefly. No one in Thomas's family had attended college, and Thomas has said that during his first year in seminary he was one of only "three or four" blacks attending the school.[5] Thomas told interviewers[6] that he left the seminary (and the call for priesthood) after overhearing a student say, in response to the news that Martin Luther King, Jr. had been shot, "Good, I hope the son of a bitch died."[2][7] He did not think the church did enough to combat racism.[4]

At a nun's suggestion, Thomas attended the College of the Holy Cross in Worcester, Massachusetts, where as a sophomore transfer student he had to adjust to a New England atmosphere very different from what he was used to in Savannah.[5] At Holy Cross, Thomas helped found the Black Student Union and once walked out after an incident in which black students were punished while white students were not for committing the same violation.[5] Some of the priests negotiated with the protesting black students to return to school,[5] and Thomas graduated in 1971 with an A.B., cum laude in English. Among Thomas's classmates at Holy Cross were future defense attorney Ted Wells and Pulitzer Prize-winning author Edward P. Jones.[8][4] Thomas then attended Yale Law School from which he received a Juris Doctor (J.D.) degree in 1974. Justice Thomas has recollected that his Yale law degree was not taken seriously by law firms to which he applied after graduating, and potential employers assumed he obtained it because of affirmative action policies.[9] According to Thomas, he was "asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated."[10]

[edit] Influences

In 1975, when Thomas read Race and Economics by economist Thomas Sowell, he found an intellectual foundation for this philosophy.[3][11] The book criticized social reforms by government and instead argued for individual action to overcome circumstances and adversity. He was also influenced by Ayn Rand,[12] particularly The Fountainhead and would later require his staffers to watch the 1949 film version.[3] Thomas later said that novelist Richard Wright had been the most influential writer in his life; Wright's books Native Son and Black Boy "capture[d] a lot of the feelings that I had inside that you learn how to repress."[13]

[edit] Personal life

Thomas has one child, Jamal Adeen, from his first marriage. This marriage, to college sweetheart Kathy Grace Ambush, lasted from 1971 until their 1981 separation and 1984 divorce. [13][14] Thomas married Virginia Lamp in 1987. In 1997 they took in one of Thomas' great nephews.[15]

Since joining the Supreme Court, Thomas requested an annulment of his first marriage from the Roman Catholic Church, which was granted by the Tribunal of the Roman Catholic Diocese of Arlington. He was reconciled to the Church in the mid-1990s and remains a practicing Catholic,[16][17] although he criticized the Church in his 2007 autobiography for its approach to ending racism in the 1960s, saying it was not as "adamant about ending racism then as it is about ending abortion now."[18] Justice Thomas is one of twelve Catholic justices — out of 110 justices total — in the history of the Supreme Court.[19]

In 1994, Thomas performed, at his home, the wedding ceremony for radio host Rush Limbaugh's third marriage, to Marta Fitzgerald.[20]

Given that his wife grew up in Nebraska and attended college at the University of Nebraska, Thomas is an avid Nebraska Cornhuskers fan who attends Husker football games, and in 2007 met with the 2006 National Championship Husker Volleyball team, telling them he bled Husker red.[21][22]

[edit] Career

[edit] Early career

Official Equal Employment Opportunity Commission portrait of Thomas

From 1974 to 1977, Thomas was an Assistant Attorney General of Missouri under then State Attorney General John Danforth. When Danforth was elected to the U.S. Senate in 1976 to 1979, Thomas left to become an attorney with Monsanto in St. Louis, Missouri. He moved to Washington, D.C. and returned to work for Danforth from 1979 to 1981 as a Legislative Assistant. Both men shared a common bond in that both had studied to be ordained (although in different denominations). Danforth was to be instrumental in championing Thomas for the Supreme Court.

In 1981, he joined the Reagan administration. From 1981 to 1982, he served as Assistant Secretary of Education for the Office of Civil Rights in the U.S. Department of Education. From 1982 to 1990 he was Chairman of the US Equal Employment Opportunity Commission ("EEOC").

[edit] Federal judge

In June 1989, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit, despite Thomas's initial protestations that he would not like to be a judge.[23] Thomas gained the support of other African-Americans such as former Transportation Secretary William Coleman, but said that when meeting white Democratic staffers in the United States Senate, he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights."[23]

Thomas's confirmation hearing was uneventful, and he developed warm relationships during his time at the federal court, including with fellow federal judge Ruth Bader Ginsburg.[23]

[edit] Supreme Court nomination and confirmation

When Justice William Brennan stepped down in 1990, Bush wanted to nominate Thomas as Brennan's replacement; he felt that replacing Marshall with Thomas could imply that Thomas received the appointment out of tokenism, but he then decided that Thomas had not yet had enough experience as a judge after only months on the federal bench.[23] Bush therefore nominated New Hampshire Supreme Court judge David Souter instead.[23]

On July 1, 1991 President George H. W. Bush nominated Clarence Thomas to replace Thurgood Marshall, who had recently announced his retirement.[24] Marshall had been the only African-American justice on the court. Legal author Jeffrey Toobin says Bush and others saw Thomas as "pretty much" the only qualified black candidate who would be a reliable conservative vote.[25] Thomas had flown to Kennebunkport, Maine to discuss the prospective appointment with Bush.[23]

After the appointment of David Souter and the ensuing disappointment of conservatives, White House chief of staff John H. Sununu had promised that the president would fill the next Supreme Court vacancy with a nominee so conservative that there would be a "knock-down, drag-out, bloody-knuckles, grass-roots fight" over confirmation.[26]

President Bush said that Thomas was the "best qualified [nominee] at this time."[23] The American Bar Association's (ABA) rating for Judge Thomas was split between "qualified" and "not qualified." Thomas had never argued a case in the high courts, though others had been appointed without Supreme Court oral argument experience.[27] Some Supreme Court justices had been appointed without any prior experience as a judge.[28] Toobin says Thomas had never written a legal book, article, or brief of any consequence, and had been a judge for only a year.[27]

Organizations including the NAACP, the Urban League and the National Organization for Women opposed the appointment based on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of the Supreme Court judgment in Roe v. Wade; NOW and the NAACP had also protested Bush's previous Court appointee, David Souter.[29] Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision.[30]

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from activist Florynce Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to the failure of Robert Bork's nomination, she said of Thomas, "We're going to 'bork' him."[31]

Clarence Thomas's formal confirmation hearings began on September 10, 1991.[25] Because of Thomas's relative inexperience in judging at the time, with only fifteen months on the bench[32], he was reticent when answering senators' questions during the appointment process.[26] Four years earlier, Robert Bork, a law professor, had expounded on his judicial philosophy during his confirmation, and he had been refused confirmation.[27] Legal analyst Jeffrey Toobin says Thomas gave the impression that he had no views[27], and indeed, Justice Thomas specifically affirmed that in the course of his professional career and public service, he had not developed a judicial philosophy ["My Grandfather's Son," ibid.].

[edit] Anita Hill allegations

Toward the end of the confirmation hearings, an FBI interview with Anita Hill who had worked for Thomas at the Department of Education and the EEOC, was leaked. Hill, an attorney, was then called to testify at Thomas' confirmation hearings, where she alleged that Thomas had subjected her to inappropriate harassing comments of a sexual nature. Hill's testimony included lurid details, and she was aggressively questioned by some Senators.[33]

Thomas denied the allegations, stating:

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.[34]


Hill was the only person to testify at the Senate hearings against Thomas. Angela Wright, who worked with Thomas at the EEOC before he fired her,[36] decided not to testify,[37] but alleged similar improprieties in a written statement, saying that Thomas had repeatedly made sexual comments to her, commenting on her body or pressuring her for dates.[38] [7] Also, Sukari Hardnett, a former Thomas assistant, wrote to the Senate committee saying that although Thomas had not harassed her, "if you were young, black, female, reasonably attractive and worked directly for Clarence Thomas, you knew full well you were being inspected and auditioned as a female."[39][40][41]

Other former colleagues differed, and testified on Thomas's behalf. Nancy Altman, who shared an office with Thomas at the Department of Education, testified that she "could hear virtually every conversation for two years that Clarence Thomas had ... [and n]ot once in those two years did I ever hear Clarence Thomas make a sexist or offensive comment...." Altman said that it was "not credible that Clarence Thomas could have engaged in the kinds of behavior that Anita Hill alleges, without any of the women who he worked closest with—dozens of us, we could spend days having women come up, his secretaries, his chief of staff, his other assistants, his colleagues—without any of us having sensed, seen or heard something."[42] Diane Holt testified that in the years after Hill left for another job, Hill called at least a dozen times.

After extensive debate, the Judiciary Committee split 7–7 on September 27, sending the nomination to the full Senate without a recommendation. Thomas was confirmed by a 52–48 vote on October 15, 1991, the narrowest margin for approval in more than a century.[43] The final floor vote was mostly along party lines: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination. On October 23, 1991, Thomas took his seat as the 106th Associate Justice of the Supreme Court.

The debate over who was telling the truth continues, and several books have been written about the original hearings and testimony that could have been presented. Clarence Thomas and Anita Hill have both written autobiographies that include their takes on the hearings. The conduct, meaning, and outcome of the hearings are still vigorously disputed by all sides.

[edit] Early years on the Court

Though Thomas was immediately welcomed by most Justices, including Marshall, whom he was replacing, law clerks of the more liberal justices viewed Thomas with ill-disguised contempt, questioning his qualifications and intellectual heft.[44] According to Jan Crawford Greenburg, Justice Harry Blackmun allowed his clerks to refer to Christopher Landau, a Thomas clerk, as "Justice," because they saw him as the one really "running the show." Greenburg called this "a rude and glaring breach of protocol."[45] Greenburg says that pundits' portrayal of Thomas as Antonin Scalia's understudy was grossly inaccurate - she says that from early on, it was more often Scalia changing his mind to agree with Thomas, rather than the other way around.[46][47] However, Greenburg points out that the perceived extremity of Thomas's views pushed Justices Souter, Sandra Day O'Connor, and Anthony Kennedy away.[48]

[edit] Later years on the Court

Thomas has rarely given media interviews during his time on the Court. He said in 2007: "One of the reasons I don't do media interviews is, in the past, the media often has its own script."[5] In 2007, Justice Thomas received a $1.5 million advance for writing his memoir, My Grandfather's Son.[18]

[edit] Judicial philosophy

Clarence Thomas being sworn in by Byron White, as wife Virginia Lamp Thomas looks on.

[edit] Conservatism and originalism

Justice Thomas is often described as an originalist, and may be the most judicially conservative member of the Supreme Court.[49][50][51][52] However, Justice Scalia is sometimes viewed as perhaps more conservative.[53][54][55]

Former Thomas clerk Erik Jaffe has explained that the term "conservative" can be somewhat confusing when used with reference to a judge:

You know, what people frequently misunderstand is, when someone says a judge is conservative, that means they're judicially conservative. It doesn`t necessarily mean that they're politically conservative. And outcomes of a judicial conservative`s approach to law often depend upon what statutes and what laws are being passed. If you have a liberal Congress passing liberal laws, a conservative court could easily uphold those.[56]

Justice Thomas also acknowledges having some "libertarian leanings."[57]

[edit] Voting alignment

John Fox, a writer and documentary film producer, wrote an online biography of Justice Thomas published in December 2006 by the Public Broadcasting System in which he stated that, "Thomas ... almost always votes with Scalia."[58] The Harvard Law Review reports that on average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the court, followed by Ginsburg and Souter (85.6%), Rehnquist and Kennedy (84.9%), Breyer and Ginsburg (82.1%), and Rehnquist and O’Connor (81.3%).[59] More recently, other pairs of justices have had alignments closer than (or as close as) the Scalia-Thomas alignment.[60] For example, in 2005 seven pairs of justices had an alignment as close,[61] and in 2006 five pairs of justices had an alignment as close.[62] According to Tom Goldstein, during the 2006-07 term, Justices Alito and Roberts "had the highest proportion of agreement of any members of the Court, 89 percent in pure agreement, that is to say, not just in the result but in absolute, complete agreement, every word.”[63]

The conventional wisdom that Thomas's votes follow Antonin Scalia's is reflected by Linda Greenhouse's observation that Thomas voted with Scalia 91 percent of the time during October Term 2006,[64] and with Justice John Paul Stevens the least, 36% of the time.[65] Statistics compiled annually by Tom Goldstein of SCOTUSblog demonstrate that Greenhouse's count is methodology-specific, counting non-unanimous cases where Scalia and Thomas voted for the same litigant, regardless of whether they got there by the same reasoning.[66] Goldstein's statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences. For example, in that same term, Justices Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia; by the metric that produces the 91% Scalia/Thomas figure, Justices Ginsburg and Breyer agreed 90% of the time, and Chief Justice Roberts and Justice Alito agreed 94% of the time.[67]

Legal correspondent Jan Crawford Greenburg wrote in her book on the Supreme Court that Justice Thomas's forceful views have moved moderates like Sandra Day O'Connor further to the left, but frequently attracted votes from former Chief Justice Rehnquist and Justice Scalia.[68]

[edit] Frequency of dissent

The online PBS biography of Justice Thomas by John Fox states that, "He [sic] decisions frequently disagree with those of the Court majority."[58] However, four other justices dissented as frequently in 2007.[69] Three other justices dissented as frequently in 2006.[62] One other justice dissented as frequently in 2005.[61] From 1994 to 2004, on average, Justices Stevens and Scalia were both more frequent dissenters than Justice Thomas.[59]

[edit] Stare decisis

The online PBS biography of Justice Thomas by John Fox states: "Unlike Scalia, however, he [Thomas] has little or no respect for judicial precedent."[58] Other sources provide a somewhat more nuanced view. The Court generally takes a different approach depending upon whether the prior Court case was interpreting the Constitution or instead was interpreting a statute,[70] and Thomas is no exception. Both Justice Scalia and Justice Thomas "embrace statutory stare decisis."[71] During his confirmation hearings Thomas said: "[S]tare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."[72]

According to Scalia, Thomas is far more willing to overrule constitutional cases: "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."[73] Thomas believes that an erroneous decision can and should be overturned, no matter how old it is.[74] Thomas's belief in originalism is strong; he has said, "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."[74]

[edit] Commerce Clause

Justice Thomas consistently supports a strict interpretation of the Constitution's interstate commerce clause,[75] limiting federal power, and a broad interpretation of states' sovereign immunity.[76] In both United States v. Lopez and United States v. Morrison Thomas wrote a separate concurring opinion arguing for the original meaning of the commerce clause and criticizing the substantial effects formula. Thomas sees manufacturing and agriculture as being outside of the scope of the Commerce Clause, and therefore not subject to federal regulation.[77] He believes federal legislators have abused the Commerce Clause, and critics argue that his limited view of Congressional authority would invalidate much of the contemporary work of the federal government, if it were shared by the majority.[75]

Thomas wrote a sharply worded dissent in Gonzales v. Raich, a decision that permitted the federal government to arrest, prosecute, and imprison patients who were using medical marijuana. He had previously authored United States v. Oakland Cannabis Buyers' Cooperative, an earlier case that permitted the federal government to inspect medical marijuana dispensaries (the Oakland case dealt with the issue of medical necessity rather than federalism).

Thomas's conception of federal preemption can be seen in Altria Group v. Good, where his dissenting opinion said the federal Labeling Act barred a suit brought by consumers. The consumers charged that a cigarette manufacturer's advertising of product as "light" and "low tar" had misled them, causing smoking-related health problems.[78]

[edit] Federalism and "states' rights"

Federalism was a central part of the Rehnquist Court's constitutional agenda.[79] Justice Thomas consistently voted for outcomes that promoted state-governmental authority, in cases involving federalism-based limits on Congress’s enumerated powers.[79] According to Ann Althouse, the Court has yet to move toward "the broader, more principled version of federalism propounded by Justice Thomas."[80]

The term "states' rights" is sometimes used instead of the term "federalism." According to Althouse, the former term is inflammatory due to historical association with racism and segregation, and is more often part of the vocubulary of opponents (rather than supporters) of the Court’s more recent federalism jurisprudence.[80]

Justice Thomas has been characterized as defending "states' rights," for example by Harvard sociology professor Orlando Patterson.[81] Patterson wrote: "His ardent defense of states’ rights would have required him to uphold Virginia’s anti-miscegenation law, not to mention segregated education, yet he lives with a white wife in Virginia." Patterson did not point to any case where Justice Thomas defended "states’ rights", however.[81] Justice Thomas has endorsed the Court’s opinion in Loving v. Virginia, which held that state laws banning inter-racial marriage violate the Equal Protection Clause.[82] Thomas has also endorsed the Court’s opinion in Brown v. Board of Education which held that state laws requiring segregated education violate the Equal Protection Clause.[83]

[edit] Executive power

Thomas has argued that the executive branch has broad powers under the constitution. In Hamdi v. Rumsfeld, he was the only Justice who sided entirely with the government and the Fourth Circuit's ruling, arguing for the important security interests at stake and the President's broad war-making powers. He also was one of three justices who dissented in Hamdan v. Rumsfeld, which held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay required explicit congressional authorization because they conflicted with both the Uniform Code of Military Justice (UCMJ) and "at least" Common Article 3 of the Geneva Convention.[84] Thomas argued that Hamdan is an illegal combatant and therefore not protected by the Geneva Convention and also agreed with Justice Scalia that the Court was "patently erroneous" in its declaration of jurisdiction in this case.

[edit] Free speech

Among the present Supreme Court, Thomas is typically the second most likely to uphold free speech claims (tied with David Souter), as of 2002.[85] He has voted in favor of First Amendment claims in cases involving a wide variety of issues, including pornography, campaign contributions, political leafletting, religious speech, and commercial speech.

On occasion, however, he has disagreed with free speech claimants. For example, he dissented in Virginia v. Black, a case that struck down a Virginia statute that banned cross-burning, and he authored ACLU v. Ashcroft, which referred the Child Online Protection Act back to District Court, where COPA was overturned. Concurring in Morse v. Frederick, he argued that Tinker v. Des Moines should be overruled and that that students' free speech rights in public schools are limited.[86]

[edit] Fourth Amendment

In the cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants. For example, his opinion for the court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and he wrote again for the court in Samson v. California, permitting random searches on parolees. He dissented in the case Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the case was controlled by the court's decision in Coolidge v. New Hampshire. In Indianapolis v. Edmond, Thomas described the court's extant caselaw as having held that "suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops." Although he expressed doubt that those cases were correctly decided, he concluded that since the litigants in the case at bar had not briefed or argued that the earlier cases be overruled, he believed that the court should assume their validity and rule accordingly.[87]

There are counterexamples, however: for example, he was in the majority in Kyllo v. United States, which held that the use of thermal imaging technology to probe a suspect's home, without a warrant, violated the Fourth Amendment.

[edit] Eighth Amendment and capital punishment

Justice Thomas was among the dissenters in both Atkins v. Virginia and Roper v. Simmons, which held that the Constitution prohibited the application of the death penalty to certain classes of persons. In Kansas v. Marsh, his opinion for the court indicated a belief that the Constitution affords states broad procedural latitude in imposing the death penalty provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the court had reversed its 1972 ban on death sentences as long as states followed certain procedural guidelines.

In Foucha v. Louisiana, Thomas dissented from the majority Supreme Court opinion removing from a mental institution a prisoner who had become sane.[88] The court held that a Louisiana statute violated the Due Process Clause "because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness."[89] Dissenting, Thomas cast the issue as a matter of federalism.[90] "Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter," he concluded, "but the Due Process Clause does not require the States to conform to the policy preferences of federal judges."[91]

In Hudson v. McMillan, a prisoner had been beaten, garnering a cracked lip, broken dental plate, loosened teeth, and cuts and bruises. The court held that "[t]he use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury."[92] Dissenting, Thomas wrote that, in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not ‘cruel and unusual punishment.' In concluding to the contrary, the Court today goes far beyond our precedents.”[93] Thomas's vote - in one of his first cases after joining the court - was an early example of his willingness to be the sole dissenter (Scalia later joined the opinion).[94]

In Doggett v. United States, the defendant had been a fugitive since his indictment in 1980. After he was arrested in 1988, the court held that the 8½ year delay between indictment and arrest violated Doggett's Sixth Amendment right to a speedy trial.[95] Thomas dissented, arguing that the purpose of the Speedy Trial Clause was to prevent "'undue and oppressive incarceration' and the 'anxiety and concern accompanying public accusation'" and that the case implicated neither.[96] He cast the case as instead "present[ing] the question [of] whether, independent of these core concerns, the Speedy Trial Clause protects an accused from two additional harms: (1) prejudice to his ability to defend himself caused by the passage of time; and (2) disruption of his life years after the alleged commission of his crime." Thomas dissented from the court's decision to, as he saw it, answer the former in the affirmative.[97] Thomas wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role."[98]

In United States v. Bajakajian, Thomas joined with the Court's more liberal bloc to write the majority opinion declaring a fine unconstitutional under the Eighth Amendment. The fine was for failing to declare over $300,000 in a suitcase on an international flight. Under a federal statute, 18 U.S.C. § 982(a)(1), the passenger would have had to forfeit the entire amount. Thomas noted that the case required a distinction to be made between civil forfeiture and a fine exacted with the intention of punishing the respondent. He found that the forfeiture in this case was clearly intended as a punishment at least in part, was "grossly disproportional," and a violation of the Excessive Fines Clause.[99]

[edit] Fourteenth Amendment

In Elk Grove Unified School District v. Newdow and Cutter v. Wilkinson, Thomas argued that the Establishment Clause was not incorporated to states by the Fourteenth Amendment, directly challenging the precedent Everson v. Board of Education.

Thomas believes that the Fourteenth Amendment forbids any consideration of race, such as race-based affirmative action or preferential treatment. In Adarand Constructors v. Pena, for example, he wrote that "there is a 'moral [and] constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. ¶ That [affirmative action] programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."[100]

In Gratz v. Bollinger, Thomas said that, in his view, "a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause."[101] In Parents Involved in Community Schools v. Seattle School District No. 1, Thomas joined the opinion of Chief Justice Roberts, concluding that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."[102] Concurring, Thomas wrote that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," and charged that the dissent carried "similarities" to the arguments of the segregationists in Brown v. Board of Education.[103] And in Grutter v. Bollinger, he approvingly quoted Justice Harlan's Plessy v. Ferguson dissent: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”[104]

[edit] Abortion

In Planned Parenthood v. Casey (1992), the court reaffirmed Roe v. Wade. Thomas joined the dissenting opinions of Chief Justice William Rehnquist and Justice Antonin Scalia. Rehnquist wrote that "[w]e believe Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."[105] Scalia's opinion concluded that the right to obtain an abortion is not "a liberty protected by the Constitution of the United States."[106] "[T]he Constitution says absolutely nothing about it," Scalia wrote, "and [ ] the longstanding traditions of American society have permitted it to be legally proscribed."[107]

In Stenberg v. Carhart (2000) the Court struck down a state ban on partial-birth abortion, concluding that it failed the "undue burden" test established in Casey. Thomas dissented, writing: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."[108] He went on to excoriate the reasoning of the Casey and Stenberg majorities: "The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States -- a hostility that Casey purported to reject."

In Gonzales v. Carhart (2007), the court rejected a facial challenge to a federal ban on partial-birth abortion.[109] Concurring, Thomas noted that the Court's abortion jurisprudence had no basis in the Constitution, but that the court had accurately applied that jurisprudence in rejecting the challenge.[110] Thomas added that the court was not deciding the question of whether Congress had the power to outlaw partial birth abortions. "[W]hether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court [in this case]," he wrote; "[t]he parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."[111]

[edit] Judicial review

The online PBS biography of Justice Thomas by John Fox states that Justice Thomas "would severely limit the Court's right to review legislation."[58] However, according to the New York Times, “from 1994 to 2005....Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer."[112]

[edit] Approach to oral arguments

Thomas is well-known for listening rather than asking questions during oral arguments of the Court. He has offered several reasons for this, including that he developed a habit of listening as a young man, when he "found that I could learn better just listening."[113] Thomas also gave some additional reasons, during a question-and-answer session with high school students in 2000:

There's no reason to add to the volume. I also believe strongly, unless I want an answer, I don't ask things. I don't ask for entertainment, I don't ask to give people a hard time. I have some very active colleagues who like to ask questions. Usually, if you wait long enough, someone will ask your question. The other thing, I was on that other side of the podium before, in my earlier life, and it's hard to stand up by yourself and to have judges who are going to rule on your case ask you tough questions. I don't want to give them a hard time.

Thomas is not the first quiet justice; "liberal icons William Brennan and Thurgood Marshall were likewise generally quiet."[114] Thomas attributes his listening habit partly to his cultural environment. He comes from the Gullah/Geechee cultural region of coastal Georgia and grew up speaking the Gullah language, which is a hybrid of English and various West African languages. In 2000, during that same question-and-answer session with high school students, Thomas explained:

When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it [Gullah] now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at a young age, I was self-conscious, like we all are... So I...just started developing the habit of listening.[113]

New York Times op-ed columnist and book reviewer Professor Orlando Patterson says that Thomas "erased his accent long ago" and therefore should have erased his listening habit long ago.[81] CNN analyst Jeffrey Toobin also questions Thomas's explanation, writing that Thomas knew how to speak English well from an early age, because he lived with his English-speaking grandfather from the age of six, attended only English-speaking parochial schools, and earned excellent school grades.[115] (Toobin does not say when the accent ended.)

In November 2007, Thomas said to an audience at Hillsdale College in Michigan: "My colleagues should shut up!". He later explained, "I don't think that for judging, and for what we are doing, all those questions are necessary", and compared his profession to the medical arts: "Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gall bladder surgery."[116]

[edit] Writings

[edit] References

  1. ^ Clarence Thomas bio from Notable Names Database
  2. ^ a b "The Holy Cross Fraternity". BusinessWeek. 2007-03-12. Retrieved on 2008-10-19. 
  3. ^ a b c Merida, Kevin; Fletcher, Michael A. (August 4, 2002), "Supreme Discomfort", Washington Post Magazine: W08 
  4. ^ a b c d e f g Dolin, Monica (2007-10-03). "Anger Still Fresh in Clarence Thomas' Memoir". ABC News. Retrieved on 2008-10-19. 
  5. ^ a b c d e f Clarence Thomas Speaks Out BusinessWeek
  6. ^ Supreme Court Justice Clarence Thomas visits Conception Seminary College
  7. ^ a b Margolick, David (1991-07-03). "Judge Portrayed as a Product Of Ideals Clashing With Life". The New York Times. Retrieved on 2008-10-19. 
  8. ^ Linton Weeks (2007-02-21). "Ted Wells, Center Of the Defense". Washington Post. Retrieved on 2008-10-19. 
  9. ^ Radio Online::Radio Show
  10. ^ "From Clarence Thomas to Palin". Newsweek. 2008-09-27. Retrieved on 2008-10-17. 
  11. ^ Karen Tumulty (1991-07-07). "Court Path Started in the Ashes: A fire launched Clarence Thomas on a path toward fierce personal drive-but not before the Supreme Court nominee journeyed through anger, self-hatred, confusion and doubt.". Los Angeles Times. Retrieved on 2008-10-19. 
  12. ^ [1]
  13. ^ a b Jan Crawford Greenburg (2007-09-30). "Clarence Thomas: A Silent Justice Speaks Out: Part VII: 'Traitorous' Adversaries: Anita Hill and the Senate Democrats". ABC News. Retrieved on 2008-10-18. 
  14. ^ Washington Post
  15. ^ "Justice Thomas marches to own tune," Associated Press via USA Today (2001-09-03).
  16. ^ Insight Scoop | The Ignatius Press Blog: Did Clarence Thomas just say he's not Catholic?
  17. ^ The religion of Clarence Thomas, Supreme Court Justice
  18. ^ a b Robert Barnes, Michael A. Fletcher and Kevin Merida (2007-09-29). "Justice Thomas Lashes Out in Memoir". The Washington Post. Retrieved on 2008-10-20. 
  19. ^ Religious affiliation of Supreme Court justices Justice Sherman Minton converted to Catholicism after his retirement.
  20. ^ NYT Chronicle Article, 5/30/94
  21. ^ Columbus Telegram
  22. ^ Rush Limbaugh, Rush Recounts His Trip to Lincoln,, September 17, 2007.
  23. ^ a b c d e f g Jan Crawford Greenburg (2007-09-30). "Clarence Thomas: A Silent Justice Speaks Out". ABC News. Retrieved on 2008-10-18. 
  24. ^ New York Times
  25. ^ a b Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 30.
  26. ^ a b Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 25.
  27. ^ a b c d Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 31.
  28. ^
  29. ^ Tinsley E. Yarbrough (2005). "David Hackett Souter: Traditional Republican on the Rehnquist Court". Oxford University Press. Retrieved on 2008-06-27. 
  30. ^ It is routine for nominees, at all levels of the Federal judiciary, to refuse to discuss cases during their confirmation hearings that might come before them if they are confirmed. Clinton appointed Associate Justices Ruth Bader Ginsburg and Steven Breyer, who both refused to discuss Roe before the Judiciary Committee, even though Ginsburg has worked for years for the ACLU defending it. Despite this nearly universal refusal of nominees to discuss hot button issues such as Roe, members of the Senate Judiciary Committee nearly always try to draw the nominee's view out during confirmation hearings.
  31. ^ Wall Street Journal
  32. ^ "My Grandfather's Son, A Memoir," Thomas, Clarence (New York: HarperCollins, 2007), p. 238
  33. ^ In particular, the questioning by Senator Specter was intense. See Morrison, Toni. “Race-ing Justice, En-gendering Power,” page 55 (Pantheon Books 1992). After the questioning, Specter said that, "the testimony of Professor Hill in the morning was flat out perjury", and that "she specifically changed it in the afternoon when confronted with the possibility of being contradicted." See transcript, page 230.
  34. ^ Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court, Electronic Text Center, University of Virginia Library, October 11, 1991.
  35. ^ Complete text, audio, video of Judge Thomas 'High Tech Lynching' statement to the Senate Judiciary Committee from
  36. ^ "The Thomas Nomination; On the Hearing Schedule: Eight Further Witnesses," The New York Times (1991-10-13)
  37. ^ See hearing record from October 13, 1991. Senator Biden wrote to Wright: "I wish to make clear, however, that if you want to testify at the hearing in person, I will honor that request." Wright responded to Biden: "I agree the admission of the transcript of my interview and that of Miss Jourdain's in the record without rebuttal at the hearing represents my position and is completely satisfactory to me."
  38. ^ "United States Senate, Transcript of Proceedings" (pdf). 1991-10-10. pp. 442-511. Retrieved on 2008-09-18. 
  39. ^
  40. ^
  41. ^
  42. ^ page 590
  43. ^ Hall, Kermit (ed), The Oxford Companion to the Supreme Court of the United States, page 871, Oxford Press, 1992
  44. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 112.
  45. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Pages 112-113.
  46. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 115.
  47. ^ Jan Crawford Greenburg (2007-01-28). "The Truth About Clarence Thomas". The Wall Street Journal. Retrieved on 2008-10-19. 
  48. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Pages 115-116.
  49. ^ Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 116.
  50. ^
  51. ^
  52. ^
  53. ^ Marshall, Thomas. Public Opinion and the Rehnquist Court, page 79 (SUNY Press, 2008).
  54. ^ Von Drehle, David. "Executive Branch Reined In", Washington Post (2004-06-29).
  55. ^ West, Paul. A president under siege throws down the gauntlet,” Hartford Courant (2005-11-01).
  56. ^ “Glenn Beck Show,” CNN (2006-11-08).
  57. ^ Kauffman B., "Clarence Thomas", Reason Magazine, November 1987, Accessed May 7, 2007.
  58. ^ a b c d Fox, John. “Biographies of the Robes: Clarence Thomas,” PBS (December 2006)
  59. ^ a b “Nine Justices, Ten Years: A Statistical Retrospective,” Harvard Law Review, volume 118, page 510, 519 (2004).
  60. ^ Baude, Will. Brothers in Law, The New Republic Online, (2004-06-30): "Justices Souter and Ginsburg were in complete agreement in 85 percent of the Court’s decisions. Chief Justice Rehnquist agreed with Justice O’Connor in 79 percent and Justice Kennedy in 77 percent. Justices Stevens and Souter agreed 77 percent of the time; so did Justices Ginsburg and Breyer. Thomas and Scalia agreed in only 73 percent of the cases. Thomas regularly breaks with Scalia, disagreeing on points of doctrine, finding a more measured and judicial tone, and calling for the elimination of bad law. Unless he is simply a very bad yes-man, Clarence Thomas is a more independent voice than most people give him credit for."
  61. ^ a b “The Statistics,” Harvard Law Review, volume 119, page 415 (2005).
  62. ^ a b “The Statistics,” Harvard Law Review, volume 120, page 372 (2006).
  63. ^ Mauro, Tony. "Reading the Roberts Court," Legal Times (2007-08-17).
  64. ^ Greenhouse, Linda."In Steps Big and Small, Supreme Court Moved Right", New York Times, July 1, 2007.
  65. ^ Greenhouse, Linda. "In Steps Big and Small, Supreme Court, Moved Right", The New York Times, July 1, 2007.
  66. ^ [2]
  67. ^ [3]
  68. ^ Greenburg, Jan Crawford Greenburg, . Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 166.
  69. ^ “The Statistics,” Harvard Law Review, volume 121, page 439 (2007).
  70. ^ See Payne v. Tennessee, 501 U.S. 808 (1991).
  71. ^ Barrett, Amy. “Statutory Stare Decisis in the Courts of Appeals,” George Washington Law Review (2005).
  72. ^ "A Big Question About Clarence Thomas", The Washington Post, October 14, 2004. Accessed May 7, 2007.
  73. ^ Scalia also said that Thomas "doesn't believe in stare decisis, period," but this seems almost certainly to have been jocular or overstating the case for effect; either way, the statement is wrong. See Michael Gerhardt, The Power of Precedent 188 (2008) (Thomas "does not, at least statistically, urge more than three overrulings per term, thus indicating his willingness to leave a fairly broad spectrum of constitutional decisions intact").
  74. ^ a b Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 120.
  75. ^ a b Toobin, Jeffrey. The Nine. First Anchor Books Edition, September 2008. Page 117.
  76. ^ E.g. Seminole Tribe v. Florida.
  77. ^
  78. ^
  79. ^ a b Joondeph, Bradley “Federalism, the Rehnquist Court, and the Modern Republican Party,” Oregon Law Review, Volume 87 (2008): "Most scholars agree that federalism was central to the Rehnquist Court’s constitutional agenda."
  80. ^ a b Althouse, Ann. “Why Talking About States' Rights Cannot Avoid the Need for Normative Federalism Analysis: A Response to Professors Baker and Young,” Duke Law Journal, Volume 51, page 363 (2001).
  81. ^ a b c Patterson, Orlando. “Thomas Agonistes,” New York Times (2007-06-17).
  82. ^ See Lawrence v. Texas, 539 U.S. 558 (2003) (Thomas, J., dissenting).
  83. ^ Parents Involved in Community Schools v. Seattle School District, 551 U.S. (2007).
  84. ^ Hamdan v. Rumsfeld, Supreme Court Syllabus, pg. 4., point 4.
  85. ^ Volokh, Eugene. How the Justices Voted in Free Speech Cases, 1994-2002, UCLA Law
  86. ^
  87. ^
  88. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 117.
  89. ^
  90. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 117.
  91. ^
  92. ^
  93. ^
  94. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 119.
  95. ^
  96. ^ (citation omitted).
  97. ^ Id.
  98. ^ Greenburg, Supreme Conflict, page 123.
  99. ^
  100. ^ (citation omitted)
  101. ^
  102. ^
  103. ^
  104. ^
  105. ^
  106. ^
  107. ^
  108. ^
  109. ^
  110. ^
  111. ^
  112. ^ “Activism Is in the Eye of the Ideologist,” New York Times (2006-09-11).
  113. ^ a b "The 43rd President; In His Own Words," The New York Times (2000-12-14).
  114. ^ David Garrow, [ "The Rehnquist Reins", New York Times Magazine (1996-10-06).
  115. ^ Jeffrey Toobin, The Nine. Page 106. 2007. Doubleday. ISBN 0385516401.
  116. ^ U.S. News & World Report

[edit] See also

[edit] Further reading

[edit] External links

Legal offices
Preceded by
Robert Bork
Judge of the U.S. Court of Appeals for the D.C. Circuit
Succeeded by
Judith Ann Wilson Rogers
Preceded by
Thurgood Marshall
Associate Justice of the Supreme Court of the United States
Succeeded by
Order of precedence in the United States of America
Preceded by
David Souter
Associate Justice of the Supreme Court of the United States
United States order of precedence
Associate Justice of the Supreme Court of the United States
Succeeded by
Ruth Bader Ginsburg
Associate Justice of the Supreme Court of the United States

NAME Thomas, Clarence
SHORT DESCRIPTION American jurist and Associate Justice of the Supreme Court of the United States
DATE OF BIRTH June 23, 1948
PLACE OF BIRTH Pin Point, Georgia
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