Clarence Thomas’s Twenty-Five Years without Footprints


Clarence Thomas has never been assigned a landmark opinion for the Supreme Court. Why? Here is an excerpt from an article by Jeffrey Tobin for The New Yorker in which he responds to that question. To read the complete article, check out others, and obtain subscription information, please click here.

Photo Credit: Pablo Martinez Monsivais/Reuters

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This month marks the twenty-fifth anniversary of Clarence Thomas’s confirmation to the Supreme Court. Conservatives like Thomas have dominated the Court throughout his tenure, and he has been in the majority in all of their victories. That raises a question: What’s the most important opinion Thomas has written for the majority during his tenure on the Court?

Thomas didn’t write Bush v. Gore, in 2000, nor did he write Citizens United, the campaign-finance case, in 2010. Thomas was in the majority for the Shelby County case, in 2013, which eviscerated the Voting Rights Act, but he didn’t write that one, either. When the Court upheld Congress’s ban on so-called partial-birth abortions, in 2007, Thomas voted with the majority (against abortion rights, as he has always voted), but he did not write for the Court. And Thomas has been in the minority in all the liberal victories of his era—in the Court’s rejections of the Bush Administration’s treatment of detainees at Guantánamo (Hamdan, Hamdi, and Boumediene), in the Court’s embrace of equal rights for gay people (Lawrence, Windsor, Obergefell), in its rejection of the death penalty for juveniles (Roper) and for the mentally retarded (Atkins).

It’s a trick question, in a way. Neither Chief Justice William Rehnquist, who presided over Thomas’s first fourteen years on the Court, nor Chief Justice John G. Roberts, Jr., who has run the court for the past eleven, ever assigned Thomas a landmark opinion for the Court. Thomas’s admirers cite such opinions as Good News Club v. Milford Central School, in 2001, which found that a public school had to allow a religious group to meet on campus after hours. That was indeed a conservative victory, but hardly comparable in magnitude to others handed down during his tenure. The truth is that Rehnquist and Roberts never trusted Thomas to write an opinion in a big case that could command a majority of even his conservative colleagues.

Why was this? It is because Thomas is not a conservative but, rather, a radical—one whose entire career on the Court has been devoted to undermining the rules of precedent in favor of his own idiosyncratic interpretation of the Constitution. By his own account, Thomas is an extreme originalist, one who is guided exclusively by his own understanding of what the words of the Constitution mean rather than what the other hundred and eleven people who have served on the Court in its history have judged them to mean. His vision is more reactionary than that of any Justice who has served on the Court since the nineteen-thirties, and his views are closest to those of the Justices who struck down much of the New Deal during that era. Indeed, in a concurring opinion in 1995, Thomas basically embraced this antediluvian view of the Constitution, writing, “I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century. . . . At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence.”

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Here is a direct link to the complete article.

toobin-1Jeffrey Tobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002. To learn more about him and his work, please click here.

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