Thomas, Clarence (b. Pin Point, Georgia, 23 June 1948), associate justice, 1991–. Although he remains one of the most junior members of the U.S. Supreme Court (third last in seniority), Clarence Thomas is the most widely recognized justice on the Court and has received more attention in the popular media than virtually any other justice in American history. It is not hard to understand why. After one of the most caustic and sensational confirmation hearings in which he was accused at the eleventh hour by a former colleague in the Reagan administration of sexual harassment, Thomas emerged as the most outspoken critic of modern liberal jurisprudence ever to sit on the Court. Confirming the fears of his Democratic opponents and delighting his Republican allies, Thomas has been referred to by his supporters as the leading conservative in America. His opinions have ranged from assailing the
New Deal Court, which opened the door to the federal regulatory state, to results‐oriented civil rights policy, to the Court's
abortion rights decisions, to defendant‐friendly criminal law, and interpretations of the
Second Amendment that have failed to recognize the right to bear arms as an individual right.
Descended from slaves of the Thomas and King plantations in Georgia, Thomas was raised by his maternal grandparents. His grandfather, Myers Anderson, was the most significant influence on his life, teaching the young Thomas the virtues of hard work, perseverance, and self‐reliance. Thomas graduated cum laude from Holy Cross and then from Yale Law School in 1974. President Ronald
Reagan appointed Thomas assistant secretary for civil rights in the Department of Education in 1981. In 1982 Reagan elevated Thomas to chair the Equal Employment Opportunity Commission. It was in these two capacities in the Reagan administration that Thomas established his conservative credentials, criticizing affirmative action and statistic‐based quotas, a position that put him at odds with career civil rights employees. George H. W. Bush nominated Thomas to the U.S. Court of Appeals for the District of Columbia in 1989. After a brief tenure on the court of appeals, President Bush nominated Thomas on 1 July 1991 to replace retiring Supreme Court Justice Thurgood
Marshall, the first black justice on the Court. There was no little irony to Bush's appointment of Thomas as Marshall's replacement, as Thomas would be quick to criticize the civil rights orthodoxies and doctrines that were largely the legacy of Marshall's numerous opinions on the high bench. Thomas's jurisprudence involves a unique blend of natural law and natural rights philosophy with the doctrine of originalism, the theory of constitutional interpretation that seeks constitutional meaning in the intent of the framers of the Constitution.
In voting rights, affirmative action, and desegregation cases, Thomas has stressed repeatedly the importance of individual rights in the American constitutional order. His separate concurring opinion in
Holder v. Hall (1994) was one of the longest concurring opinions in Supreme Court history and established Thomas as the Court's preeminent critic of group‐based civil rights policy. In
Holder Thomas critically surveyed the Court's vote dilution jurisprudence under the
Voting Rights Act (VRA). Vote dilution law had required jurisdictions to create “safe” minority electoral districts. The “ideal” that the Court eventually settled upon under the act became one of roughly proportional representation for legally recognized racial and ethnic groups, a policy Thomas denounced as both unprincipled and balkanizing. Thomas criticized the Court's vote dilution law for adopting an arbitrary theory of representation. The idea “that members of racial and ethnic groups must all think alike” (p. 903) had not only embroiled federal courts in “an enterprise of segregating the races into political homelands”—a practice that amounted “to nothing short of a system of ‘political apartheid’” (p. 905)—but was “repugnant to any nation that strives for the ideal of a color‐blind Constitution” (pp. 905–906), a principle Thomas asserted for the first time in
Holder and that has been adopted by only one other justice on the Court, Thomas's close ally Antonin
Scalia. Justice John Paul
Stevens, joined by Harry A.
Blackmun, David
Souter, and Ruth Bader
Ginsburg, took the rare step of authoring a separate dissenting opinion directed solely at Thomas's interpretation of the VRA.
One year later, in
Adarand Constructors, Inc. v. Pena (1995), Thomas provoked Justice Stevens, joined by Justice Ginsburg, to write another broadside directed at Thomas's remarks regarding the pernicious assumptions of affirmative action.
Adarand was a groundbreaking affirmative action case involving a constitutional challenge to minority business set‐asides for federal highway projects. Thomas agreed with the majority that
strict scrutiny should apply to federal as well as state affirmative action programs, a decision overruling the Court's earlier opinion in
Metro Broadcasting, Inc. v. FCC (1990). In a concurring opinion, Thomas insisted that there was no “racial paternalism exception to the principle of equal protection” (p. 240). He then identified the paternalism of affirmative action with laws, such as Jim Crow, that sought to oppress blacks. As authority for the “principle of inherent equality” that he relied on in
Adarand, Thomas cited the Declaration of Independence.
Thomas's focus on constitutional principle was also the basis for his critique of
Brown v. Board of Education (1954), the Court's famous school desegregation case. In
Missouri v. Jenkins (1995), Thomas emphasized that the Court in
Brown did not need to rely on social science evidence. Basing constitutional decisions on social science evidence was dangerous business since one could find social science to support almost any conclusion. In constitutional cases the Court should rely solely upon constitutional principle. In Jenkins, Thomas also criticized the federal courts for excessive use of their powers of equity under Article III to fashion remedies for past segregation.
In a series of rulings, Thomas has also embarked on a critique of the Court's federalism jurisprudence. In
United States v.
Lopez (1995), he focused on its Commerce Clause cases.
Lopez involved an attempt by the federal government to regulate handgun possession in a Texas public school pursuant to the 1990 Gun‐Free School Zones Act. Joining the majority's opinion denying the federal government's authority to regulate such local activities, Thomas filed a separate concurring opinion in which he criticized the Court's Commerce Clause jurisprudence dating back to the New Deal. The Court's interpretation, having “drifted far from the original understanding of the Commerce Clause” (p. 584), had allowed Congress to regulate anything that might have a “substantial effect” on interstate commerce. When “taken to its logical extreme” the substantial effects test allowed “Congress a ‘police power’ over all aspects of American life” (p. 584). This reading of the clause had rendered most of the remaining provisions of Article I, section 8 “superfluous” and came “close to turning the Tenth Amendment on its head.” In
Printz v. United States (1997), Thomas reiterated these concerns, relying on
Lopez to argue that the federal government's attempt under the Brady Act to regulate wholly intrastate gun sales violated the Commerce Clause as well as the Tenth Amendment. In
dicta, Thomas suggested that the Second Amendment conferred a personal right to keep and bear arms and might present yet another bar to the Brady Act.
Thomas has also invited the Court to overturn its decisions applying the
Eighth Amendment's cruel and unusual punishments prohibition to conduct in prisons. In
Hudson v. McMillian (1992), Thomas proclaimed in dissent that “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation” (p. 28). Thomas's narrow, originalist construction of the Eighth Amendment has been evident in death penalty cases. Most recently, he joined Justice Scalia's dissenting opinion in
Atkins v. Virginia (2002), a case that exempted individuals with mild mental retardation from the death penalty. Scalia, Thomas, and Chief Justice William H.
Rehnquist voiced concern that symptoms of mental retardation could be easily feigned. In addition, the Court's reference to a “national consensus” regarding the unconstitutionality of executing those with mild mental retardation was not based on any national consensus so much as the predilections of an elite group of lawyers.
The indictment of elite opinion as the Court's guiding light in constitutional cases has been a constant theme in Justice Thomas's opinions. In
Grutter v.
Bollinger (2003), for instance, where the Court accepted the “diversity” rationale for the University of Michigan law school's affirmative action program, Thomas described the majority's opinion as upholding “the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti.” In
Zelman v. Simmons‐Harris (2002), where the Court approved the state of Ohio's school voucher program for the city of Cleveland, Thomas similarly condemned “the romanticized ideal of universal public education” which “resonates with the cognoscenti who oppose vouchers” (p. 682).
In other cases Thomas has implored the Court to protect
commercial speech, to allow states to impose term limits on members of Congress (which the Court has prohibited), to lower the wall between church and state in religion clause cases, and to construe the Fifth Amendment's
Takings Clause more generously to safeguard property owners. Thomas's opinions in these cases have crystallized issues that have defined the modern Court. Considered a likely Republican nominee to replace Chief Justice Rehnquist upon his retirement, Thomas, the Court's youngest member, stands to exercise significantly more influence on American law than he has to date.
See also
Nominations, Controversial.
Bibliography
Ken Foskett , Judging Thomas: The Life and Times of Clarence Thomas (2004).
Scott D. Gerber , First Principles: The Jurisprudence of Clarence Thomas (1998).
Andrew Peyton Thomas , Clarence Thomas: A Biography (2001).
Anthony A. Peacock
