Clarence Thomas

JD, Yale University

What is it about Supreme Court Justice Clarence Thomas we—and so many—find so objectionable? Is it the silence he displays on the bench, suggesting—since he has no questions—that he always knows in advance how he’s going to rule? His negligence in failing to declare more than $600,000 of his wife’s lobbying income? His lifelong admiration of The Fountainhead and his requiring that his staff watch the ludicrous, self-parodying 1949 movie version?

Or maybe it’s just his horrible, often seemingly willfully cruel, voting record.

Antonin Scalia, in his time, had a reputation as the court’s “fiery conservative,” but in fact Clarence Thomas is, as it were, more Catholic than the pope—to the right even of Scalia, and one of the most conservative justices in US history. As such, he has been involved in the following terrible decisions:

• Bush v. Gore, which destroyed, for at least a generation, the idea that the Supreme Court held itself above party politics and judged issues according to the disinterested legal lights of its members. (Or are we being too sensitive? After all, as Scalia explained, “Get over it.”)

• Connick v. Thompson, in which Thomas, writing for the five-man majority, tossed out a verdict in favor of a defendant who was wrongly convicted of both an armed robbery and a murder, after the prosecution withheld ten exhibits of exculpatory evidence. Thompson, the defendant, was sent to death row for eighteen years, until the official misconduct was discovered mere weeks before his scheduled execution. A jury awarded the man $14 million plus another million for attorneys’ fees, and the Fifth Circuit Court of Appeals upheld it. The defendant was exculpated on both charges, but Clarence Thomas ruled against the compensation, holding that the DA (Harry Connick, Sr.*) couldn’t be held responsible for a single errant prosecutor (even though five different prosecutors were involved in suppressing the evidence) mishandling a single piece of evidence (which was actually one of ten).

• Shelby County v. Holder, striking down the Voting Rights Act’s requirement that racist states be required to obtain federal clearance for any changes to state voting laws. Thomas said such racially prejudicial conduct was no longer in evidence in such states as Mississippi and Alabama—which, as soon as the toner was dry on the ruling, instituted voter ID and other vote-suppressing laws. Thomas was thus a doctor telling a diabetic she can stop taking insulin shots, since they’ve worked so well up until now.

• Citizens United v. FEC, because Thomas believes all limits on federal campaign contributions are unconstitutional and should be struck down. In his view, the Founders clearly felt that insurance companies, securities and investment firms, real estate interests, and commercial banks are “persons,” and should be able to pour unlimited money into our political process. Sure, it looks like the very definition of corruption. But it’s really “speech.”

His dissents are a laugh riot, too. They include:

• Foster v. Chatman, in which Thomas disagreed with the other seven justices, who upheld an African American defendant’s claim that African Americans had been specifically dismissed, via peremptory challenge, from his jury. (The defense found the prosecutors’ notes, which included a list of potential jurors, with each black individual’s name highlighted in green and with an identifying B beside it.) This was just the latest example of how Thomas has consistently ruled against programs designed to help African Americans and rejected findings of racial discrimination.

• Obergefell v. Hodges, which invalidated same-sex marriage restrictions. Thomas rummaged through the attic of Anglo-American legal history and cited John Locke, the Magna Carta, eighteenth-century British legal philosophy, natural law, and the Declaration of Independence—none of which are germane to a Supreme Court ruling. And shouldn’t an “originalist,” of all people, know that? It was in his Obergefell dissent that he contributed the extraordinary thought that

… human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

(This from a Supreme Court nominee who, accused of sexual harassment by Anita Hill, thundered righteously that he was being subjected to “a high-tech lynching” when in fact what he was undergoing was a job interview.)

• Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, which upheld the use of disparate impact claims under the 1968 Fair Housing Act. Joined by Samuel Alito in his dissent, Thomas noted that racial imbalances sometimes appear without prejudicial intent, and cited the NBA as evidence. “Racial imbalances do not always disfavor minorities.… In our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.” No, given the context, it doesn’t make sense.

• Voisine v. United States, in which the court upheld federal law prohibiting those people convicted of misdemeanor domestic assault from buying a gun. This dissent was a rare example of Thomas expressing sympathy for an individual versus a state. He objected to the majority opinion because “it imposes a lifetime ban on gun ownership for a single intentional nonconsensual touching of a family member.” Appalling, yes—to Thomas, a citizen should be prohibited from owning a gun only after he uses it to shoot his wife. Still, we look forward to using the phrase “intentional nonconsensual touching” in a threatening manner next time we’re drunk and feeling frisky.

There’s more, but you get the idea. Clarence Thomas, who once affixed a sticker reading “15 cents” to his Yale Law School diploma—Why? We’ll tell you why! To inform it, and the world, just what he thought of its value, that’s why!—rose from southern rural poverty to the apex of the American legal profession. In so doing, he has used the law, the Constitution, and “originalism” as a trio of clubs with which to beat the very idea of the individual, and to enact some sort of bizarre revenge against a society he feels has treated him badly. Which, to us, seems more than a little insane.

But don’t take our word for it. Take, instead, the word of none other than Antonin Scalia, as quoted by Jeffrey Toobin in The New Yorker:

As for Thomas’s place on the Court, it’s difficult to improve on Scalia’s analysis, which I heard him give at a synagogue a decade ago. Scalia was asked about how his judicial philosophy differed from Thomas’s. “I’m an originalist,” Scalia said, “but I’m not a nut.”