WASHINGTON — Clarence Thomas has been a Supreme Court justice for nearly three decades. It may finally be his moment.
Many Americans know Thomas largely from his bruising 1991 confirmation hearing, when he was accused of sexual harassment charges by former employee Anita Hill — charges he denied. People may know he’s a conservative and has gone years without speaking during arguments at the court. But scholars say it would be wise to pay closer attention to Justice Thomas.
Justice Thomas is now the longest-serving member of a court that has recently gotten more conservative, putting him in a unique and potentially powerful position, and he’s said he doesn’t plan on retiring anytime soon. With President Donald Trump’s nominees Neil Gorsuch and Brett Kavanaugh now on the court, conservatives are firmly in control as the justices take on divisive issues such as abortion, gun control and LGBT rights.
Justice Thomas, for the first time, is on a court where there are at least four votes for some “pretty radical” decisions, said political science professor Corey Robin, the author of a Justice Thomas book due out in September. Mr. Robin says the question will be whether the court’s more conservative justices — Thomas, Gorsuch, Kavanaugh and Samuel Alito — can get Chief Justice John Roberts, a more moderate conservative, to go along.
Justice Thomas, 70, became the high court’s longest-serving justice, the “senior associate justice,” when Justice Anthony Kennedy retired last summer. But unlike Justice Kennedy, who sat at the court’s ideological center and was most often the deciding vote when the court split 5-4, Justice Thomas is consistently on the court’s far right.
That’s won him praise from Mr. Trump. As a presidential candidate, he called Justice Thomas “highly underrated.” Mr. Trump said Justice Thomas has “been so consistent for so long, and we should give him credit.”
More than 20 of the men and women Justice Thomas mentored as law clerks have gone on to hold political appointments in the Trump administration or been nominated to judgeships by Mr. Trump. Justice Thomas and his wife, Virginia, herself a well-known conservative activist, have dined with the president and first lady.
Elizabeth Wydra, president of the liberal Constitutional Accountability Center, acknowledged that Justice Thomas’ views may now have more sway, something she described as “terrifying to many progressives.”
Still, Justice Thomas’ views can be so far from his fellow justices that neither Chief Justice Roberts nor Chief Justice William Rehnquist before him have assigned Justice Thomas big, landmark opinions on the belief that he won’t be able to keep together the votes of his colleagues, said Ralph Rossum, the author of a book on Justice Thomas. Instead, Justice Thomas often writes separately, speaking only for himself. Some critics dismiss those solo opinions as uninfluential, but Mr. Rossum disagrees.
“He stakes out a position more forthrightly or vigorously than other justices are willing to go, but they’re kind of sucked along in his wake,” Mr. Rossum said, adding that, like a magnet, “Thomas drags the court in his direction. They may not go as far as he goes, but they go further than they would have otherwise.”
Some of the areas of law where, over time, Justice Thomas has pulled the court closer to his positions include voting rights, campaign finance, and the Second Amendment, Mr. Robin and Mr. Rossum said.
If it were up to Justice Thomas alone, the high court would be willing to make sweeping moves. While the court is typically cautious about overturning its past decisions, Justice Thomas, who as an originalist believes in reading the Constitution as those who wrote it meant, feels less bound by precedent than other justices.
Just this term, Justice Thomas called on the court to reconsider a landmark 1964 First Amendment case, describing it and later decisions extending it as “policy-driven decisions masquerading as constitutional law.” He also criticized a 1963 Supreme Court decision that guarantees a lawyer for anyone too poor to hire one. And he equated the court’s Roe v. Wade abortion decision with its Dred Scott decision, which said African Americans weren’t citizens, labeling both “notoriously incorrect.”
He also wrote an opinion rebuking his colleagues for declining to hear cases involving states’ efforts to strip Medicaid money from Planned Parenthood, a decision Thomas described as “abdicating our judicial duty.” Alito and Gorsuch agreed.
If Justice Thomas’ writing can be attention-getting, he personally keeps a low profile. Justice Thomas shies away from public speaking, describing himself as an introvert. He once explained: “My personality is not such that I enjoy public appearances.”
At the high court, Justice Thomas rarely asks questions during arguments, a contrast with his vocal colleagues. When in March he asked a question during arguments for the first time in three years, it was headline news.
But colleagues and court staff know Justice Thomas as gregarious.
“Clarence knows the name of every employee in the courthouse, from the lowest position to the highest ... with virtually all of them he knows their families, their happinesses and their tragedies,” Justice Sonia Sotomayor told an audience in 2014 at Yale, where both she and Justice Thomas attended law school.
Over the past year, speculation has intensified about whether Justice Thomas might retire, letting Mr. Trump nominate a like-minded, conservative justice. But Justice Thomas, who declined an Associated Press interview request, said in public comments recently that he’s not retiring, not even in 20 or 30 years.
If so, Justice Thomas is on track to be the longest-serving justice in history in 2028, when he’ll celebrate his 80th birthday. He is currently the court’s third-oldest member, behind Justice Ruth Bader Ginsburg, 86, and Justice Stephen Breyer, 80.
Yale law professor Akhil Amar said part of the appeal of staying on the court for Justice Thomas has to include his increasing influence. Mr. Amar said he could see Justice Thomas justify staying this way: “It’s a pretty good job. I’m having fun, and I’m winning.”
First Published: May 4, 2019, 5:29 p.m.