Dispatches from the Creation Wars

Greenburg on Justice Thomas

Jan Crawford Greenburg, one of the better legal journalists today, had an article in yesterday’s Wall Street Journal that confirmed many of the things I’ve said about Clarence Thomas for years. I did not think he was the most qualified person for the job by a longshot when he was nominated to be a Supreme Court justice, and I disagree with him most of the time, but I think Thomas has been treated abominably and dismissed unjustifiably by his political enemies from the earliest moments of his nomination to the present day.

The primary myth upon which his blithe dismissal as a lightweight rests is the notion that he is a mindless follower of Scalia. I can’t tell you how many times I have heard this, almost always from someone who has never read a single opinion Thomas has written. It’s just become a mantra for many liberals. It’s also completely untrue, as Greenburg helps document in this article.

Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia’s dutiful apprentice, blindly following his mentor’s lead. It’s a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas’s very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices’ votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court — a court with seven justices appointed by Republican presidents — evolved into an ideological and legal disappointment for conservatives.

Justice Thomas’s first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan’s seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left — even putting Roe v. Wade on more solid ground.

Justice Thomas’s first year on the job brought to life the adage that a new justice makes a new court. His entry didn’t merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others — the moderate Justice Sandra Day O’Connor, in particular — to realign themselves into new voting blocs.

Consider a criminal case argued during Justice Thomas’s first week. It concerned a thief’s effort to get out of a Louisiana mental institution and the state’s desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it “may make eminent sense as a policy matter” to let the criminal out of the mental institution, nothing in the Constitution required “the states to conform to the policy preferences of federal judges.”

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas’s dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the “youngest, cruelest justice,” he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas’s dissent, which said a prison inmate beaten by guards had several options for redress — but not under the Eighth Amendment’s prohibition of “cruel and unusual punishment.”

That last case is an excellent example of why you should never accept the media’s description of a court ruling without reading it yourself. The Times completely distorted Thomas’ opinion in the case and it immediately became part of the Thomas myth. I’ve had commenters on this blog tell me that Thomas once wrote an opinion that said it was okay for prison guards to beat inmates; that is complete nonsense. He said nothing like that.

There are lots of legitimate criticisms of Clarence Thomas’ jurisprudence, many of which I’ve made myself on this blog. For example, his views on incorporation, particularly regarding the establishment clause, are flat wrong. But this myth that he is just a lapdog for Scalia is demeaning and unjustified, as is the idea that Thomas is an intellectual lightweight on the court. He has proven to be anything but either of those things. His opinions, even while often wrongheaded, are clear, well-written and intellectually challenging.


  1. #1 CPT_Doom
    January 23, 2007

    Although I find Thomas’ legal and constitutional stances wrong on many different levels, I did gain a new respect for the man in the Lawrence v. Texas decision. Whereas Scalia decided to take the opportunity of the case to prove that he is more than willing to let his own personal biases trump the Constitution, Thomas’ dissent was far more reasonable. He basically said that although the sodomy law was a joke, and he didn’t support it, it was up to the state to change it. I don’t agree with his opinion, but it was a refreshing change from the bigoted screed Scalia polluted the court with.

  2. #2 Don
    January 23, 2007

    Very interesting. Thanks for setting the record straight. It is very easy to just accept the “common knowledge” as true.

  3. #3 ruidh
    January 23, 2007

    I agree, Thomas is no Scalia. While Scalia is sometimes correct, Thomas almost never is outside of 9-0 decisions.

  4. #4 SLC
    January 23, 2007

    The issue relative to Mr. Thomas is not that he is a clone of Scalia but that he is a self-hating black man and an uncle tom. This is the overwhelming opinion in the black community, fairly or unfairly.

  5. #5 Melody
    January 23, 2007

    Then there’s the sexual harassment and sleeping at the bench during oral arguments…

  6. #6 Craig Pennington
    January 23, 2007

    I was among those who considered Thomas to be following Scalia until I read Hamdi. I consider his view expressed in that case to be incorrect in that there is nothing in the Constitution that prevents the SC from deciding cases involving the executive’s actions during war. Such a position is an opening to a dictatorship, especially given an open-ended war on a shadowy, ill-defined enemy.

  7. #7 Reed A. Cartwright
    January 23, 2007

    When Thomas came to talk to UGA a couple years ago, he said that the only Amicus briefs that he will always read for himself are those by the ACLU. (I guess the others are summarized by his clerks.) According to him, the ACLU aways produces the best written and researched briefs.

  8. #8 knutsondc
    January 23, 2007

    Ed, you’re right on the money here. Clarence Thomas clearly is his own man on the Supreme Court and, though dangerously wrong on many important issues, manifestly no intellectual “lightweight.” In the last couple of years, there have been a number of cases where Thomas and Scalia have been on opposite sides and, if there’s an 8-1 decision from the Court, there’s about a 75% chance that the lone dissenter is Thomas.

    Thomas’ view that the Establishment Clause of the First Amendment was intended solely to protect state religious establishments from interference by the federal government and, accordingly, that state governments should be free to promote religious doctrine should they so choose, is particularly pernicious. Although Scalia’s views on the Establishment Clause leave much to be desired, even he doesn’t go nearly as far as Thomas on that question.

  9. #9 Ed Brayton
    January 23, 2007


    That’s very interesting, I’d never heard that.

  10. #10 DuggleBogey
    January 23, 2007

    The book on how the conservative court “went wrong” so to speak, sounds fascinating. Please keep us updated on it’s availability.

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