Clarence Thomas: Deeply conservative, yet uniquely so

August 7, 2013

Clarence Thomas(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

The subject of last week’s post in this series, Justice Ruth Bader Ginsburg, described being a Supreme Court justice as “the best job in the world for a lawyer.”

This week, we’ll be looking at the justice who seems to be the least enthusiastic with the job: Justice Clarence Thomas.

That isn’t to say that we should be expecting Justice Thomas to announce his retirement anytime soon; although Thomas has freely admitted that he never wanted to be on the Court, he carries out his role out of a sense of duty to his country.

It’s easy to understand why Thomas feels this way after looking at his personal history.

Clarence Thomas was born on June 23, 1948 in Pin Point, Georgia, a predominantly black community near Savannah.  His family primarily spoke Gullah, a Creole language, and lived in poverty.

When Thomas was two years old, his father left the family, which left Thomas’s mother as the sole breadwinner for the family.  Thomas’ mother, though hard-working, was not able to provide regular meals for the family.

After the family house burned down, Thomas and his younger brother were sent to live with their maternal grandfather Myers Anderson, while Thomas’ sister remained with their mother.

Thomas’ grandfather operated a successful fuel-oil business, allowing Thomas and his brother a much higher standard of living than either had enjoyed while living with their mother.  For the first time in his life, Thomas had indoor plumbing and regular meals. 

His grandfather put him and his brother to work as field laborers, and strongly impressed on Thomas the values of hard work and self-reliance.

After graduating from his Catholic high school, Thomas decided to be a priest, and entered the seminary.  With his grandfather financing his education, Thomas was allowed to attend the seminary with his grandfather’s requirement that he “can’t quit.”

Two years later, however, Thomas had become disillusioned with the Catholic Church that wasn’t doing enough to combat racism.  The final “nail in the coffin” was in the spring of 1968 after Martin Luther King was assassinated.  In reaction to King’s death, Thomas heard someone say: “Well, that’s good. That’s, I hope the SOB dies.”

Thomas left the seminary after that.  When he informed his grandfather, Thomas recalled that “he immediately kicked me out of the house.”

After leaving the seminary, Thomas attended College of the Holy Cross in Worcester, Massachusetts on a scholarship.  While there, he was active in several black student organizations and founded the black students union.

Thomas graduated cum laude from Holy Cross, and thereafter attended Yale Law School.

However, Thomas felt that others at Yale looked at him as though he was only able to get into the prestigious law school because of his race.  He felt as though all of his achievements were “discounted.”

Thomas graduated “toward the middle of his class” from Yale in 1974.  However, he was unable to find a job out of law school, which he felt was again due to his feeling that others viewed his achievements at Yale being due in large part, if not exclusively, to benefits given to him because of the color of skin.

He peeled a 15-cent sticker off a package of cigars and placed it on the frame of his Yale Law degree “to remind [himself] of the mistake [he]’d made by going to Yale.”  Thomas recently commented that his degree is “tainted” and “remains in [his]basement.”

Thomas eventually found a job working for the Missouri state attorney general, John Danforth.  Aside from the low pay, Thomas’ biggest reservation was working for “a dreaded Republican.”  At the time, Thomas considered himself a “radical” (“liberal” was “too lukewarm” for him).

However, after years of working with Danforth, and following him to Washington when he was elected as U.S. Senator in 1976, Thomas changed his party affiliation to Republican.  The justice found that the party’s touted values of hard work and personal initiative were more in line with the values instilled in him by his grandfather.

After two years of working as a legislative assistant for Danforth, Thomas worked for the Reagan Administration as Assistant Secretary of Education for the Office for Civil Rights in the U.S. Department of Education.  A year later, he became Chairman of the US Equal Employment Opportunity Commission (EEOC), a role in which he worked for eight years.

On October 30, 1989, President George H.W. Bush nominated Thomas to a seat on the U.S. Court of Appeals for the District of Columbia Circuit (in spite of Thomas’ initial objections that he didn’t want to be a judge); after an uneventful hearing, the Senate confirmed Thomas on March 6, 1990.

Clarence Thomas on C-SPAN during Supreme Court confirmation hearing, 1991After 16 months of experience on the D.C. Circuit, on July 1, 1991, President Bush nominated Thomas to the Supreme Court to fill the vacancy left by the retiring Justice Thurgood Marshall, the first black Supreme Court Justice.  Thomas’ confirmation process for this nomination, however, was anything but uneventful.

Thomas was confronted with allegations of sexual harassment by a former EEOC employee – Anita Hill – who had worked under Thomas.

Thomas reported feeling blind-sided by the allegations, claiming that the Anita Hill that testified was not the same Anita Hill he knew at the EEOC.  Although a polygraph test confirmed the veracity of Hill’s statements, Thomas vehemently denies them to this day.

He has stated that he believes that they were an effort to keep him in his place, and he further sees strong parallels between his situation and those of the protagonists in two classic works of literature – Native Son and Black Boy.  Both protagonists were falsely accused of crimes and were discriminated against by both the justice system and the community at large because they were black.

After addressing the Senate (which, at the time, did not contain a single African American member) and stating that these accusations were a “high-tech lynching for uppity blacks who in any way deign to think for themselves, the Senate confirmed Thomas by a vote of 52 to 48, the lowest margin for any justice since the nineteenth century.

The experience left Thomas with a very negative impression of Washington, and he has often stated that he feels more at home away from the capitol and the politics it engenders (Thomas has reported that one of his and his wife’s favorite pastimes is traveling the country in their RV, often camping the night in a Wal-Mart parking lot).

Thomas was sworn in on October 23, 1991.  During his time on the Supreme Court, Justice Thomas has made a reputation for himself as an originalist in the same vein as Justice Scalia.

However, Justice Thomas often takes more conservative positions than even Scalia on many issues, most notably in the realm of criminal procedure – seen in 2012’s Smith v. Cain and most recently in two rulings from this past term: Maryland v. King and Missouri v. McNeely (more on those cases in this post).

In addition, despite his involvement with civil rights groups when he was younger, Justice Thomas ardently rejects laws and policies that protect (or favor, depending on your perspective) certain racial groups. 

Thomas’ entire voting record on these issues has reflected these beliefs, and he has persisted in them in this past term with Shelby County v. Holder (in which Thomas concurred separately to argue for the dismantling of the entire Voting Rights Act) and Fisher v. University of Texas at Austin (Thomas concurred separately to argue for the invalidation of all use of race in school admissions policies)

Clarence Thomas 2This is likely largely due to Thomas’ experiences in feeling as though others discounted his achievements at Yale because he was black.  Moreover, Thomas has stated on numerous occasions that he believes that government protections for racial minorities only make them dependent on them, arguing that eradicating these protections will make these groups self-reliant.

Justice Thomas is also a fervent supporter of states’ rights, which sometimes puts him on the liberal side of some issues.  For example, in 2005’s Gonzales v. Raich, Thomas voted to strike down federal laws banning the local cultivation and use of marijuana, opting to give states the choice for themselves.  Thomas took a similar position with the liberals that favored the state, this time at the expense of a group of citizens, in 2012’s Armour v. Indianapolis.

In 2009’s Wyeth v. Levine, Thomas side with the liberals to allow a woman who lost her hand to gangrene due to improper medication labeling to bring suit under state law, in spite of federal laws protecting the pharmaceutical company from such claims.

Thomas has also joined with liberals on several other occasions.

In the criminal procedure realm, Thomas took expansive defendant rights positions in 2000’s Apprendi v. New Jersey, 2001’s Kyllo v. U.S., 2010’s Bullcoming v. New Mexico, and this past term’s Alleyne v. U.S. and Florida v. Jardines.

In 1992’s Jacobson v. U.S., Thomas voted with the liberals to overturn the conviction of a defendant caught in a child pornography sting.

However, these occurrences aren’t the result of Thomas’ being an inconsistent conservative; rather, Thomas takes these positions because he is a unique conservative.

As Thomas’ dissent in 2011’s Brown v. Entertainment Merchants Association demonstrates, Thomas thoroughly looks at how he believes that the Founders would have seen an issue.  In EMA, Thomas’ dissent arises from his belief that “’the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”  Thomas had previously stated his belief in the extensive rights of parents to rear their children in 2000’s Troxel v. Granville.

In quite a few of these cases (EMA, Raich, Alleyne, and Troxel among them), Thomas’ originalism led him to a different result than that of Scalia’s own version.  Thus, although they often do reach the same result in a case, they are, by no means, ideological reflections of one another.  True, Thomas is generally more conservative than Scalia, but there are also some issues on which Thomas will take the “liberal” position while Scalia takes the “conservative.”

Further, although he is generally regarded as the most conservative justice on the Court, he is not the most reliably conservative (a title which I have given to Justice Alito).

So the picture that we are left with of Justice Thomas is of a deeply conservative jurist who breaks the mold of traditional conservatism.