Don't Underestimate Clarence Thomas

When President George H.W. Bush nominated Clarence Thomas to the U.S. Supreme Court in 1991, he described the justice-to-be as "a fiercely independent thinker with an excellent legal mind." Many of Thomas' leading critics, then and now, would not even grant him that much.

For decades, liberal commentators dismissed Thomas as an intellectual lightweight who took his marching orders from the late Justice Antonin Scalia—his "apparent mentor," as New York Times legal correspondent Linda Greenhouse sneered in a 1992 article. More recently, some have argued that the right-wing activism of his wife, Ginni Thomas, should disqualify Thomas from the bench. In 2016, to mark the 25th anniversary of Thomas' appointment to the Court, New Yorker legal pundit Jeffrey Toobin derided the justice as a failed crank who would leave no "footprints" on the law. "After years at the periphery of the Court," Toobin wrote, "Thomas looks destined to serve out his term at the even more distant fringe."

Greenhouse and Toobin had no idea what they were talking about. It was actually Thomas who influenced Scalia's opinions in several areas of the law, as Scalia himself repeatedly acknowledged. And if you want to see tracks, look no further than the Supreme Court's recently concluded 2021–22 term, which has Thomas' footprints all over it. In one big case after another, from the expansion of gun rights to the elimination of the constitutional right to abortion, Thomas' long-held views either commanded or inspired the majority of the Court. His critics underestimated him at their peril.

And that is just part of the story about Thomas' impact on American law.

Individual Supreme Court justices can shape the legal landscape in different ways. One way is exemplified by the career of Justice Anthony Kennedy, who happened to be in the right place at the right time for a long time. Socially liberal and fiscally conservative, Kennedy was perfectly placed on a closely divided Court to cast the tiebreaking fifth vote in several blockbuster cases, most notably the constitutional showdown over gay marriage. The judicial stars aligned in his favor, and Kennedy now has his place in the legal history books.

Thomas, by contrast, has shaped the law by playing the long game. During the last three decades, he has repeatedly staked out lonely positions, often writing in dissent but sometimes penning a solo concurrence. Many of those "fringe" positions ultimately become enshrined in law. What's more, generations of conservative law students, who have gone on to become conservative lawyers, lawmakers, and judges, have embraced many of Thomas' opinions as their own. His influence on the broader conservative legal movement will be felt for years to come.

If you want to understand both the current Supreme Court and where the Court might be headed, you need to understand the jurisprudence of Clarence Thomas.

'In an Appropriate Case'

The 1999 case Saenz v. Roe is little-known but looms large in Thomas' career. At issue was a California law capping the amount of welfare benefits that newly arrived state residents could receive. The Supreme Court struck the cap down as a violation of "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State."

According to the Court, that right was secured by the 14th Amendment, which forbids the states to "abridge the privileges or immunities" of U.S. citizens or deprive "any person" of "life, liberty, or property" without due process of law. "In my view, the majority attributes a meaning to the Privileges or Immunities Clause that likely was unintended when the Fourteenth Amendment was enacted and ratified," Thomas wrote in dissent. "In an appropriate case," he said, the Court "should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant."

When the appropriate case arrived in 2010, Thomas was ready for it. McDonald v. Chicago asked whether the Second Amendment right to keep and bear arms that applied against the federal government also applied against the states. Five justices, including Thomas, held that the Second Amendment did bind the states. But their agreement ended there.

Following a line of cases that began in the late 19th century, the other four justices concluded that the Second Amendment was "incorporated" via the 14th Amendment's Due Process Clause. By contrast, Thomas, writing alone and at great length, rejected the rationale behind every single one of those Due Process precedents, including Lawrence v. Texas (2003), which struck down a state ban on "homosexual conduct." (Thomas reiterated his attack on those precedents in the 2022 abortion case Dobbs v. Jackson Women's Health Organization. That time he also lambasted Griswold v. Connecticut, the 1965 ruling which recognized the rights of married couples to obtain and use birth control.) Thomas canvassed the relevant legal history and concluded that "the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause."

No other justice agreed. But that didn't matter, because Thomas still held the decisive fifth vote. In other words, what appeared to be a 5–4 decision was actually a 4–1–4 decision when it came to the legal reasoning, with Thomas in control of the outcome. His position in McDonald set the agenda for all future discussions of the case. Every law student, lawyer, or judge who wants to fully understand the thinking behind this landmark gun rights ruling will have to confront Thomas' arguments about the original meaning of the 14th Amendment. His footprints are plain for all to see.

At the same time, Thomas has seen a number of his once isolated views become the law of the land. Take the issue of campaign finance reform. In the 2003 case McConnell v. Federal Election Commission, the Court upheld the Bipartisan Campaign Reform Act of 2002. Among other things, that law prohibited unions and corporations, including nonprofit organizations, from sponsoring ads that mentioned a candidate's name in the run-up to an election. Thomas wrote a partial dissent that lambasted the majority for approving "the most significant abridgment of the freedoms of speech and association since the Civil War." When the Court invalidated that same ban on "electioneering communications" seven years later in Citizens United v. Federal Election Commission, it cited and drew from Thomas' opinion in McConnell.

Thomas is currently trying to exert a similar influence over the roiling debate about government regulation of social media platforms. Like many modern conservatives, Thomas believes that platforms such as Twitter and Facebook are guilty of censoring right-of-center views. What's more, Thomas believes the government has the lawful power to do something about it.

Thomas advanced that argument in Biden v. Knight First Amendment Institute, a 2021 case formerly known as Trump v. Knight First Amendment Institute. The dispute first arose when then-President Donald Trump blocked various critics on Twitter. The Supreme Court eventually dismissed the case as moot because Trump was no longer president.

Thomas agreed with that outcome, but he also took the opportunity to declare war on Big Tech. "Part of the solution" to the "problem" of "private, concentrated control over online content and platforms available to the public," he wrote in a lone concurrence, may be found in "two legal doctrines" that "limit the right of a private company to exclude."

The first doctrine, Thomas wrote, relates to "common carriers" such as railroads and telegraphs, which have historically been required "to serve all comers." The second doctrine deals with "places of public accommodation" or amusement, such as inns or theaters, which have historically been prohibited from denying service to certain categories of people. "The similarities between some digital platforms and common carriers or places of accommodation," Thomas argued, "may give legislators strong arguments for similarly regulating digital platforms."

Thomas' regulatory call to arms is already having its desired effect in the lower courts. In September, a divided three-judge panel of the U.S. Court of Appeals for the 5th Circuit declined to block a Texas law that forbids social media platforms from moderating content based on a user's "viewpoint." "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," the appellate court declared in NetChoice v. Paxton. Among the legal authorities it cited was Thomas' concurrence in Knight First Amendment Institute.

'A Freedom-Destroying Cocktail'

Thomas' 1991 Supreme Court confirmation hearings are mostly remembered today for the accusations of sexual misconduct leveled against him by Anita Hill. But the proceedings kicked off with Senate Judiciary Committee Chair Joe Biden trying to discredit Thomas as a crazy libertarian.

"I assure you I have read all of your speeches, and I have read them in their entirety," the senator told Thomas shortly after the nominee's opening statement. "And in the speech you gave in 1987 to the Pacific Research Institute, you said, and I quote, 'I find attractive the arguments of scholars such as Stephen Macedo who defend an activist Supreme Court that would'—not could, would—'strike down laws restricting property rights.'"

"It has been quite some time since I have read Professor Macedo," Thomas replied. "But I don't believe that in my writings I have indicated that we should have an activist Supreme Court."

Biden said he didn't buy it. "Quite frankly, I find it hard to square your speeches," he told the nominee, "with what you are telling me today."

Thomas gave the speech in question at the Pacific Research Institute in San Francisco on August 10, 1987. It touched on several issues, including the views of Stephen Macedo, then an assistant professor in Harvard's Government Department and the author of The New Right v. the Constitution, a 1987 book published by the libertarian Cato Institute.

Macedo's book was basically an extended critique of Robert Bork, the highly influential conservative legal thinker who championed a thoroughgoing doctrine of judicial deference. The "first principle" of the U.S. system, Bork insisted, was majority rule, not individual rights. What Bork's view meant in practice was that the federal courts should defer to lawmakers in most cases. "In wide areas of life," Bork argued, "majorities are entitled to rule, if they wish, simply because they are majorities."

Macedo advanced the opposite view. "When conservatives like Bork treat rights as islands surrounded by a sea of government powers," he wrote, "they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."

Which brings us back to Thomas. "I find attractive the arguments of scholars such as Stephen Macedo who defend an activist Supreme Court which would strike down laws restricting property rights," he told the Pacific Research Institute. "But the libertarian argument overlooks the place of the Supreme Court in a scheme of separation of powers. One does not strengthen self-government and the rule of law by having the non-democratic branch of the government make policy. Hence, I strongly support the nomination of Bob Bork to the Supreme Court. Judge Bork is no extremist of any kind. If anything, he is an extreme moderate, one who believes in the modesty of the Court's powers with respect to the democratically elected branches of government."

So yes, Thomas said he found Macedo's arguments "attractive." But then Thomas immediately faulted Macedo and endorsed Bork, the very figure that Macedo was trying to bring down. Biden had ripped Thomas' words out of context to give them a meaning exactly the opposite of what Thomas actually said.

This episode is notable not just for the future president's sleazy tactics. It also highlights Thomas' uneasy relationship with the libertarian legal movement.

On some legal issues, Thomas really does sound like he took Macedo's arguments to heart. Take eminent domain. When the Supreme Court let a local government bulldoze a working-class neighborhood so that a private developer would have a blank slate on which to build, Thomas blasted the majority for adopting a "deferential" and "deeply perverse" standard of review. "If ever there were justification for intrusive judicial review" in defense of constitutional rights, he wrote in the 2005 case Kelo v. City of New London, this was it.

Likewise, Thomas has long criticized the federal ban on marijuana. In the 2005 case Gonzales v. Raich, the Supreme Court said the congressional power to "regulate commerce…among the several states" was broad enough to let the federal government criminalize medical marijuana that was legally cultivated under state law and consumed entirely within the confines of a single state. "If Congress can regulate this under the Commerce Clause," Thomas fumed in his dissent, "then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers."

Libertarian legal activists are still cheering those Thomas dissents. But the cheers typically turn to jeers when Thomas opines about criminal justice. Consider the Fourth Amendment. The 2014 case Navarette v. California involved a traffic stop prompted by an anonymous 911 call claiming that a truck had driven the caller off the road. Based on that uncorroborated report alone, the police located a similar truck in the vicinity of the alleged incident and pulled it over, discovering 30 pounds of marijuana.

The question before the Supreme Court was whether that single anonymous tip provided the police with reasonable suspicion to stop the truck. Writing for the majority, Thomas ruled that "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated."

Writing in dissent, Scalia came out swinging against Thomas. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That state of affairs, Scalia wrote, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Not exactly the nicest thing that one conservative judge can say to another.

When Thomas and Scalia stood on opposite sides of a criminal justice case, as they often did, it was safe to assume that civil libertarians would be rooting for Scalia. A similar dynamic is apparent at the Supreme Court today, with Justice Neil Gorsuch playing the Scalia role.

In the 2022 case United States v. Taylor, for example, the Court considered whether a conviction for attempted robbery under the Hobbs Act qualified as a "crime of violence" under another federal statute, 18 USC 924(c)(3)(A). That mattered because the "crime of violence" designation carried with it a second felony conviction and extra years in prison. Writing for the majority, Gorsuch held that the attempted robbery conviction did not qualify as a "crime of violence."

Under the enhanced-penalty statute, a "crime of violence" must have "as an element" the "use, attempted use, or threatened use of physical force against the person or property of another." As Gorsuch explained, Justin Taylor's Hobbs Act conviction required the government to "show an intention to take property by force or threat, along with a substantial step toward achieving that object. An intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property."

Both Thomas and Justice Samuel Alito dissented from Gorsuch's opinion. Thomas excoriated Gorsuch for a soft-on-crime judgment that distorted federal law, is "divorced from reality," and "threatens public safety." Alito was not exactly complimentary either. "I agree with Justice Thomas that our cases involving §924(c)(3)(A) have veered off into fantasy land," he wrote. Gorsuch's "strict reading of the text," according to Alito, led to an absurd result.

The Supreme Court currently has a 6–3 majority of Republican appointees. But as this case and others like it demonstrate, those judicial conservatives do not march in lockstep when criminal justice matters are on the docket. Libertarians should hope that the Scalia/Gorsuch approach prevails over the Thomas/Alito one in many more such cases. Unfortunately, that result is far from guaranteed.

'The Most Important Change'

Legal scholars usually rank Justice Oliver Wendell Holmes Jr., who sat on the Supreme Court from 1902 to 1932, as one of the most important jurists in American history. Yet many of Holmes' most significant and oft-cited opinions were written in dissent. It sometimes took him decades to see his views reflected in the judgments of the Court. He placed long bets and eventually, after some lean years, won big.

Will future scholars say something similar about Thomas? His colleagues seem to think so. As the late Justice John Paul Stevens observed in his 2019 memoir, The Making of a Justice, "President Bush's nomination of Clarence Thomas to fill the vacancy created by Thurgood Marshall's resignation resulted in the most important change in the Court's jurisprudence that took place during my tenure." Like it or not, Thomas has made his mark on American law.