Thomas, Clarence (1948–)

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In 1991, President george h. w. bush nominated Clarence Thomas to fill the U.S. Supreme Court seat vacated in the retirement of Justice thurgood marshall. Thomas's qualifications that appealed to Bush were not those of legal accomplishment and judicial experience. At the time of his nomination, Thomas was at forty-three a young man whose experience consisted largely of service in the administration of President ronald reagan. By 1991, Thomas had served for little more than one year as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Because Marshall was the Supreme Court's first and only African American Justice, Bush apparently wanted to have an African American replacement to avoid being blamed for creating an all-white Supreme Court once again. With virtually no experienced federal African American judges whose decisions were sufficiently conservative to satisfy Bush, the President selected Thomas, who had expressed his commitment to conservative doctrines.

Thomas's confirmation hearings before the senate judiciary committee caught the nation's attention when Anita Hill, a law professor who had previously worked as Thomas's assistant in the Reagan administration, accused Thomas of sexual harassment. In the aftermath of the controversy, Thomas's nomination was confirmed by the narrowest of margins—fifty-two to forty-eight—in a nationally televised vote in the U.S. senate. During his confirmation testimony, Thomas consistently distanced himself from the many speeches he had made endorsing controversial conservative positions, such as opposition to abortion and affirmative action, during his years as a Reagan administration official. Although Thomas portrayed himself to the Judiciary Committee as open-minded and moderate, his subsequent performance as a Justice casts him as a confident, doctrinaire jurist whose opinions seek to make significant changes in constitutional law.

Thomas aspires to follow a coherent theory of constitutional interpretation. Rather than reacting to individual issues as they arise, Thomas consistently expresses a commitment to interpret the Constitution according to the original intent of the Framers who wrote the document. Thomas seeks to eliminate what he sees as judicial activism, interfering in the policies established by legislators and other elected officials. Thomas claims that by following the intentions of the Framers he avoids the pitfall of applying his own values and policy preferences in judicial decisions. Nonetheless, the legal conclusions he designates as dictated by the Framers' intentions consistently produce conservative results that apparently fit his values and policy preferences. Unlike other scholars and jurists who debate whether the intentions of the Framers can be determined for each provision of the Constitution and whether original intent should be based on the understandings of the authors or the ratifiers of each provision, Thomas manifests confidence about the certainty of his historical knowledge. That confidence is often translated into strident opinions that show little respect for alternative interpretations. Thomas's tone may deter Chief Justice william h. rehnquist, with whom Thomas agrees on the outcomes of nearly all cases, from giving Thomas the responsibility for writing important majority opinions. Although Thomas receives his fair share of majority opinion assignments, his assignments nearly always concern either taxation and other statutory issues, or unanimous constitutional decisions. Thomas's first assignment to write the majority opinion in a controversial constitutional-rights case came in Kansas v. Hendricks (1997), in which the Court rejected due process, ex post facto, and double jeopardy claims to permit states to detain sex offenders indefinitely after they have already served out their entire criminal sentences. Thomas's uncompromising positions may limit his potential for shaping constitutional law on behalf of the Supreme Court majority. Often he finds himself writing concurring and dissenting opinions to express views with which no Justice other than antonin scalia agrees.

Thomas's views, if adopted by majority, would change constitutional law significantly. In a dissenting opinion in Helling v. McKinney (1993), joined only by Scalia, Thomas argued that the drafters of the Eighth Amendment never intended for the prohibition against " cruel and unusual punishments " to protect convicted offenders inside prisons. Thomas concluded that the Eighth Amendment only prevents a judge from announcing a cruel and unusual punishment as a sentence for a crime. If Thomas's views had governed the Eighth Amendment, federal judges never would have been able to order correctional institutions to end the brutal practices and inhuman conditions that were characteristic of prisons in several states prior to the 1980s.

Thomas's concurring opinion in united states v. lÓpez (1995) argued that the Framers' original intentions for the commerce clause preclude congressional regulation of manufacturing, agriculture, and mining. This argument contradicted sixty years of development in constitutional law. Carried to its logical conclusion, it would require a return to nineteenth-century constitutional doctrines that forbade the federal government from regulating most areas of business endeavor. However, Thomas recognized that adherence to precedent "may convince us that we cannot wipe the slate clean" of the Court's more recent decisions. Thus, he does not seem to anticipate that the Court will follow his preferred theory by invalidating a wide range of federal laws affecting minimum wages, employment discrimination, consumer protection, and a variety of other areas in which the federal government has actively regulated economic activities since the 1930s.

Because Thomas believes that his originalist theory of interpretation holds the answers to virtually all constitutional questions presented to courts, he is critical of courts' reliance on what he calls "the easy answers" of social science. But relying on formal legal theory rather than empirical evidence often leads to unrealistic assumptions about difficult constitutional problems. In a concurring opinion in Graham v. Collins (1993), for example, Thomas suggested that mandatory capital punishment for all offenders convicted of first-degree murder would cure problems of racial discrimination in capital sentencing. Thomas has been criticized for not recognizing that mandatory sentences cannot eliminate the discriminatory impact of discretionary decisions occurring throughout the criminal process, such as decisions by prosecutors about which defendants to charge with first-degree murder and the discretion of juries in convicting offenders of lesser homicide offenses.

Drawing on his mistrust of social science, Thomas appears implicitly to criticize the Court's revered decision in brown v. board of education (1954) for relying on social science evidence indicating that school segregation was harmful to African American children. In his concurring opinion in missouri v. jenkins (1995), Thomas suggested that such conclusions rest on "an assumption of black inferiority." In light of Thomas's belief in limiting the authority of judges to remedy social problems as well as historical evidence that the Framers of the equal protection clause did not intend to end racial segregation, it is difficult to square Thomas's theory of constitutional interpretation with Brown.

Thomas's consistent adherence to his version of original intent jurisprudence has established him as the most conservative Justice of the rehnquist court. Although his colleagues Scalia and Rehnquist reject individuals' constitutional claims with similar frequency, Thomas's approach to constitutional interpretation has the most dramatic implications for changing constitutional law.

Christopher E. Smith

(see also: Appointment of Supreme Court Justices; Confirmation Process.)


Baugh, Joyce and Smith, Christopher E. 1996 Doubting Thomas: Confirmation Veracity Meets Performance Reality. Seattle University Law Review 19:455–496.

Mayer, Jane and Abramson, Jill 1994 Strange Justice: The Selling of Clarence Thomas. Boston: Houghton Mifflin Co.

Rosen, Jeffrey 1996 Moving On. The New Yorker, April 29 & May 6, pp. 66–73.

Smith, Christopher E. 1996 Bent on Original Intent. American Bar Association Journal 82(October):48–52.

——1997 Clarence Thomas: A Distinctive Justice. Seton Hall Law Review 28:1–28.