Stone Washington
Honoring “Chief” Justice Thomas’s thirty years of service on the U.S. Supreme Court
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By Stone Washington
December 4, 2021

“Right is still right, even if you stand by yourself”

“So long as there are people of character who have the will to lead and have faith in our fellow man, there is hope that we will remain a free and prosperous nation”

~ Justice Clarence Thomas

*N.B.: My father, Professor Ellis Washington told me years ago about an aphorism he has lived by—“If you want to understand what is seen, you must look very carefully at what is unseen.” That said, although technically Justice Thomas is not the Chief Justice of the Supreme Court, but because he presently holds the longest tenure on the High Court, and arguably the most influence, Thomas is in essence the de facto Chief Justice of SCOTUS. See CNN Legal Analysist Jeffrey Toobin’s July 2021 article—Opinion: Clarence Thomas is the New Chief Justice.

For many Americans and patriots, Clarence Thomas has served as an inspirational beacon of conservative jurisprudence on the U.S. Supreme Court. As of October 23rd, Justice Thomas has served on the Court for 30 years, after being nominated by President George H.W. Bush. He is the Court’s second Black Associate Justice after Thurgood Marshall, appointed to succeed him, and is the Court’s first Black conservative Justice. Regarded by many as the most conservative jurist to serve on the Court, Thomas has established himself as a staunch adherent to the U.S. Constitution, adopting a strict Originalist and Textualist approach toward interpreting the original meaning of the law by means of ascertaining the intent of the lawmakers. Since 2018, Thomas has been the senior-most Associate Justice and the longest-serving member of the current Court. According to a commemorative article by Heritage Senior Fellow Thomas Jipping, Thomas is among the longest serving members ever to occupy the Court, ranking 16 out of the 115 men and women who have served. Should he remain on the bench through May 20, 2028, Thomas would qualify as the longest serving Justice in Supreme Court history, surpassing Associate Justice William Douglas, who ironically, is notorious for being the most Progressively liberal justice in the Court’s history.

Prior to his many dedicated years on the Supreme Court, Thomas’s stellar background in government service and contribution to the law is inspiring, especially when in the context of all that he overcame during a difficult childhood and as a young adult. After completing studies at the College of the Holy Cross and later graduating from Yale Law School in 1974, Thomas worked as Assistant Attorney General for his mentor and fellow Yale alum, John Danforth, then Sate Attorney General of Missouri. Thomas considered this to be his finest job and worked as the only Black member of Danforth’s staff in the criminal appeals division. After later serving as an attorney for Monsanto company, he would eventually return to work for Danforth following his election to the U.S. Senate. Thomas served as his legislative assistant to handle energy policy for the Senate Commerce Committee from 1979-1981.

Thomas would subsequently join the Reagan Administration, first beginning as Assistant Secretary of Education for the Office of Civil Rights in the Department of Education, and later becoming chairman of the U.S. Equal Opportunities Commission (EEOC). In this role, Justice Thomas shifted away from the former approach of handling class-action suits of discrimination and engaged more with individual-based suits. He often butted heads with Black community leaders, like Jesse Jackson, to convince them to assist the Reagan Administration in the ongoing struggle to solve issues plaguing the Black community, including teen pregnancy, stagnant unemployment, and welfare dependency. As Juan Williams noted in a Washington Post op-ed, Thomas even went so far as describe these individuals as guys “watching the destruction of the Black race” and continued by arguing that “the lack of black leadership is the problem."

Following his time in the EEOC, Clarence Thomas would carry the honor of being nominated to fill the seat of Robert Bork on the United States Circuit Court of Appeals for the District of Columbia. While he initially held a disinterest to become a judge, Thomas eventually came to accept the process and garnered the widespread support of many Blacks. His nomination process was smooth and didn’t meet any snags or sprout media controversy. Shortly after being nominated, Thomas tempered the awesome authority of his position by reciting to himself that “every day when I put on that robe, I have to remind myself that I am only a judge.” Thomas would serve on the D.C. Circuit alongside his future colleague on the Supreme Court, Ruther Bader Ginsburg, for a little over 19 months, until the time he was selected by President George H.W. Bush to replace retiring Justice Thurgood Marshall. Thomas’s confirmation process to the Supreme Court was arguably the most contentious and controversial in recorded history, perhaps only rivaled by the infamous Robert Bork hearings 4 years prior and the more recent Kavanaugh hearings 27 years later, which presented mirroring sexual assault allegations, followed by a Congressionally held trial-like test of guilt.

The Senate Judiciary committee hearings were extensive, as many Democrats sought to consistently question his views on natural law and abortion rights. Thomas responded to his politically pointed questioning brilliantly, by providing careful and cognizant answers that avoided attracting the explosive negativity of the prior Bork hearings. After skating through the committee with a 13-1 vote of approval, the confirmation process faced its largest and most unexpected hurdle with the arrival of the baseless Anita Hill allegations of sexual assault. Thomas was accused of using sexually suggestive comments toward his former subordinate at the DOE and EEOC, sparking a delay in the original hearings, and a process of hearings by the Judiciary Committee from several witnesses who worked with Thomas and Hill. The witnesses did not provide any sufficient evidence pointing to the conclusion that Thomas had sexually assaulted Hill, with a few female staffers making uncorroborated claims that while Thomas never sexually assaulted them, he was sexually suggestive on occasion. Thomas had provided a powerful declaration of innocence, vehemently disputing the assault allegations, and calling out his many accusers in the Senate (Chairman of the Judiciary Committee, Senator Joe Biden included) as perpetuators of a hateful, “high-tech lynching” campaign against him. On October 15, 1991, after hearing the testimony, the full Senate voted to confirm Thomas as an Associate Justice of the Supreme Court by a razor thin vote of 52–48.

The remainder of my article will explore the jurisprudence of Clarence Thomas as a Supreme Court Justice, touching upon the significance of his interpretative views toward the U.S. Constitution. I will then examine how his judicial philosophy has influenced some of the most significant cases that he administered key opinions in.

Justice Thomas’s Jurisprudence

Justice Thomas is well regarded on the Supreme Court as the most traditionally conservative member. His judicial philosophy is grounded in a strict adherence to the original intent of the Constitutional Framers (Originalism), in addition to a strict application of the Constitution’s text when solving present legal issues (Textualism). During the Senate Judiciary hearing, Senator Orrin Hatch (R-UT) proscribed a precise understanding of Thomas’s Originalist approach in comparison to Progressive jurists who feel that the Judicial branch should operate as a quasi-legislature by implementing personal policy preferences into judicial decision-making, “I am confident that Judge Thomas will interpret the law according to its original meaning, rather than substitute his own policy preferences for the law.” Thomas firmly believes, as all Justices should, that the Constitutional role of the Supreme Court is to interpret the law and not to make the law.

Within Originalism, there exist two types. New Originalism, or “Textualism”, is a form that emerged in the 1980’s during the Reagan Administration, inspired in-part by the legal thinking of Regan’s Attorney General Edwin Meese III and became the favored approach of Justice Antonin Scalia. This form interprets an aspect of the Constitution or a separate legal document based on how the American public viewed the examined the law during the era it was enacted. It is less concerned about the views of the Framers and more concerned with the general public’s common views of the Constitution were during the time of adoption.

The other type is Original Intent Originalism, where one adheres to the original intentions and views of the Constitutional Framers, or abides by the will of the lawmakers when interpreting the Constitution. This is the preferred interpretive type embraced by Justice Thomas, who strives to understand what the author/s of a given law meant when interpreting the meaning of that law. While Justice Thomas has not plainly stated that his interpretive choice is Originalism, he has consistently rendered decisions on cases in the manner that beckons the original intent of the lawmaker and applies this understanding to a contemporary perception of the law. Thomas’s judicial philosophy is deeply rooted in a respect for views of the American Framers and an adherence to the original principles they established upon America’s founding as a nation, enduring 245 years later.

How my Father, Professor Ellis Washington became a Protege of Justice Thomas for 30+ Years

During my father Professor Ellis Washington’s history and law studies at Harvard University (1988-89), where he met future POTUS Barack Hussein Obama, he stumbled upon some writings of Justice Clarence Thomas in the Harvard Law Library including his iconic 1987 and 1989 law review articles published in the Harvard Journal of Law & Public Policy, the Howard Law Review and the Policy Review – has dedicated his academic career to proclaiming the Originalism or Natural Law/Natural Rights jurisprudence of Justice Clarence Thomas.

    *N.B.: Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 HARv. J.L. & PUB. POL'Y 63 (1989) [hereinafter Higher Law Background]; Clarence Thomas, Toward a "Plain Reading" of the Constitution-The Declaration of Independence in Constitutional Interpretation, 30 Howard L.J. 983, 994 (1987) [hereinafter Plain Reading]; Clarence Thomas, Why Black Americans Should Look to Conservative Policies, Address Before the Heritage Foundation (June 1987), in POL'Y REv. Fall 1991, at 72 [hereinafter Conservative Policies].

My father summarized this history in two extended essays—(1) Essay Letter to Megan Brown – The First Black Editor-in-Chief of the Michigan Law Review (29 Oct. 2019). (2) Justice Clarence Thomas. . . and the Road Not Taken (5 Jan. 2020)

From this 33-year friendship and mentorship my father, he would later introduce me to Justice Clarence Thomas who graciously became my mentor also.

Legal Approach and Notable Case Decisions

In his 30 years on the Court, Justice Thomas has overseen a wide variety of notable cases, adjudicating disputes spanning the end of the 20th century and into the first quarter of the 21st century. Justice Thomas began his tenure close to the mid-point of the Rehnquist Court (1986-2005) and has pushed well into the Roberts Court (2005-Present). In every case, Justice Thomas takes especially careful consideration to the manner in which the case should be decided. Many legal analysts sometimes overlook that the primary reason Justice Thomas refuses to ask many (or even any) questions during the oral arguments of a case is due to his strong emphasis on observational learning and analytical thinking, in that he would rather absorb the pure facts of the case straight from the lawyers without hearing himself or other Justices chime in with their personal input.

The 1-hour oral argument stage actually provides the smallest window of opportunity for a Justice to exert influence on the case itself, compared to the opinion writing stage, of which Justice Thomas has outworked all of his other fellow Justices. According to Thomas Jipping’s article and data from SCOTUSblog, “Thomas has written the most total opinions (majority, concurring, and dissenting) in eight of the last 10 terms, more than 700 total opinions since he joined the Supreme Court.” Additionally, the page length of these written opinions surpasses the majority of his peers, placing Thomas in the top three of lengthiest opinions in most of the terms examined. He has also been in the majority decision of 78% of the cases since 2011.

Thomas is more concerned with the Court rendering a decision that obtains the right result in the best possible manner, as opposed to settling for the right result absent the proper decision-making method. An example of this is the landmark Brown v. Board of Education (1965), where the Supreme Court ruled that the policy of “separate but equal” was unconstitutional, and public schools could not discriminate against colored students on the basis of race. Justice Thomas unequivocally agrees with the outcome of the Brown decision, but disagreed in the way it was rendered. He felt the decision relied too heavily on various psychological and sociological effects of segregation in schools and not on the actual application of the Constitutional principles, like equality under the law, that would underscore the necessity of having a color-blind education system. Below are a sample of some of the most notable cases Justice Thomas has played an instrumental role in as the opinion writer for the majority or in writing a notable dissenting opinion.

Stenberg v. Carhart (2000)

This was a landmark case that concerned a law banning partial-birth abortions in the state of Nebraska, which the Supreme Court majority ruled was unconstitutional because it placed an undue burden on women seeking abortions. In a close 5-4 decision, Justice Thomas wrote the dissenting opinion which underscored his stance for upholding the abortion ban, believing that the ban would have satisfied the constitutional precedent established in Planned Parenthood v. Casey (1992). He argued that the majority’s opinion was dismissive of the right to ban such a rarely used type of abortion (which many aligned to being borderline infanticide), that should be guaranteed to the 30 states affected by the decision.

Good News Club v. Milford Central School District (2001)

The case revolved around Milford Central School in Milford New York allowing for residents in the community to openly use of its facilities for after-school activities. When two residents Stephen and Darleen Fournier sought approval to use school facilities to house a children's Christian organization called the Good News Club, they were rejected by the School. Milford School claimed that the Good News Club’s practice of prayer, Bible study, and singing hymnals constituted as a violation to their community use policy, which restricted religious practices. The Club retaliated by filing a suit claiming that Milford School violated its First and Fourteenth Amendment rights to free speech.

A federal district court ruled in favor of the School, citing that because the School had not permitted access to use the facilities by other religious groups, they did not engage in viewpoint discrimination by denying Good News Club. The Second Circuit Court of Appeals upheld this decision. When appealed to the Supreme Court, the decision was reversed in favor of the Club, with Justice Thomas writing for the 6-3 majority decision. Thomas wrote that the School did in-fact engage in viewpoint discrimination that violated the Free Speech clause of the First Amendment "when Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature”.

Kansas v. Marsh (2006)

The Kansas Supreme Court had overruled a lower court ruling that sentenced a criminal to the death penalty on the grounds of upholding an equal balance of aggravating factors and mitigating factors, in accordance with Kansas law. The jury found that the aggravating circumstances are not outweighed by the mitigating circumstances in the case, thus allowing for the death sentence to be enforced. Writing for the majority, Justice Thomas upheld the lower court’s ruling, deeming that the sentencing was properly held in accordance with Kansas’s state Constitution and that precedents against the death penalty by the Supreme Court do not override the state practice of enforcing the death penalty.

McDonald v. City of Chicago (2010)

In this landmark decision by Court, Justice Thomas was part of the 5-4 majority opinion administered by Justice Alito, which ruled that the individual right to “keep and bear arms” was protected under the Second Amendment of the Constitution and incorporated by the Due Process Clause of the Fourteenth Amendment, allowing it to be enforced against states seeking to prohibit gun ownership. The Court ruled against the Seventh Circuit Court’s opinion to uphold the city of Chicago’s ban on handguns and restrictions on owning shotguns and rifles. Gun ownership was protected under the Fourteenth Amendment from encroachment by state and city ordinances that attempted to either limit or ban the possession of firearms. While ruling with the majority opinion, Justice Thomas went beyond his colleagues by issuing a concurring opinion that criticized the previous Slaughter-House (1873) and Cruikshank (1876) decisions, which were relied on by the Seventh Circuit to uphold Chicago’s prohibition against gun ownership. In his concurrence, Justice Thomas argued that the right for Americans to own firearms is one of the naturalized privileges inherent to American citizenship and is applied against the states through the Fourteenth Amendments Privileges and Immunities Clause, which upholds the fundamental rights (or Natural Rights) of citizens and prevents states from discriminating against these rights.

Franchise Tax Board of California v. Hyatt (2018)

This case saw Justice Thomas writing for a majority 5-4 decision that overruled the previous case of Nevada v. Hall (1979), which established that states could not possess sovereign immunity over another state’s courts. The doctrine of sovereign immunity prohibits a state from being sued in federal or state court without its consent. The precedent established in Nevada was that states could in-fact have private lawsuits be filed against them in the courts of another state. Thomas overturned the case, and nullified any reliance on stare decisis to adhere to such precedent, stating,

Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent. We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States.”

Conclusion: Remembering Justice Thomas’ 30-year Impact

In closing, Justice Thomas has distinguished himself as one of the most enduring and hard-working jurists in Supreme Court history. He has exercised the greatest level of careful attention to the opinions he writes for the Court, whether in the majority or in the dissent. The length of his majority opinions has generally surpassed that of his fellow Justices, and he has maintained the distinction of writing the greatest number of total opinions, across the three areas (majority, concurrence, and dissent), than any other Justice in eight of the last ten terms. Justice Thomas isn’t afraid to go against the grain or challenge the majority on a consistent basis, as he was the third most frequent dissenter in the Court during the 1994 to 2004 terms, behind only Justices Scalia and Stevens. This bold sense of individualism, in combination to his penchant for often being the only Justice who refused to issue a question during oral argument for 10 years straight, is symbolic of Thomas’s timeless quote, “right is still right, even if you stand by yourself”. He is among the long-serving Justices in the Court’s history, and is widely viewed as one of the most conservative. Justice Thomas is also highly regarded for his strict adherence to the original intent of the Constitutional Framers when interpreting the meaning of the Constitution and applying it to solve contemporary cases.

As I stated above, my father, Professor Ellis Washington has been a longstanding admirer and friend of Justice Thomas since 1988 – several years before he ascended to service on the Supreme Court. My father was first inspired to examine the work of Justice Thomas in 1988 during his time as a student at Harvard Law School. Justice Thomas’s jurisprudence guided my father’s understanding of Constitutional Law, the proper role of judges and better informed his critical understanding of history and politics. Although my father has never personally met Justice Thomas, other than by letter, he has been a long-time admirer, and was greatly inspired by his influence on the Court since being sworn in 30 years ago. My father has dedicated much of his published work in honor of Justice Thomas’ unyielding defense for Natural Law and Natural Rights, and originally inspired me to examine Thomas’s work on the Court and profound influence on the conservative movement.

My father’s admiration would lead me to dedicate a special commemorative article written in honor of Justice Thomas’s life and influence on my generation of young conservatives, during my Freshman year at George Mason University in 2015. I had the honor of meeting and speaking in length with Justice Thomas on two separate occasions, and I continue to keep him abreast about my professional developments from time to time. Additionally, I am a big fan of his recently released 2020 documentary film, “Created Equal: Justice Thomas in His Own Words”, which provides an in-depth analysis into Thomas’s inspiring life story based on a well-constructed series of interviews. The Heritage Foundation also does well to sponsor Justice Thomas in a number of specialized discussions that shed light on his unique role as a Justice and the importance of upholding conservative ideas. Most recently, Heritage hosted a paneled discussion featuring Justice Thomas, Don McGahn, Edwin Meese, Mitch McConnell, and many of Thomas’s former law clerks who all spoke in honor of the 30th anniversary of his time on the Court. It is important for scholars of the U.S. judiciary to remember the profound impact that Justice Thomas has made on directing many of the Court’s majority opinions, profound respect for the intent of the Constitutional Framers, preservation of Natural Law, and well-regarded influence on conservative principles.

© Stone Washington

 

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Stone Washington

Stone Washington is a second year PhD student in the Policy Studies Program at Clemson University Graduate School. Stone is employed as a Research Assistant in the Legal Policy Department at the Manhattan Institute, where he recently completed the Collegiate Associate Program. He is also employed as a Graduate Teaching Assistant in Clemson's Department of Political Science and serves as a WAC Fellow for the Pearce Center for Professional Communication. Stone is a recent addition to the Steamboat Institute's Emerging Leaders Council.... (more)

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