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Justice Thomas participated in 2494 cases.
Joined with Majority1608
Concurring in Judgment188
Did Not Participate23
Judgment of the Court9
Jurisdictional Dissent1

Thomas, Clarence

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Birth: June 23, 1948, Pin Point, Georgia.

Education: Immaculate Conception Seminary, 1967–1968; Holy Cross College, B.A., 1971; Yale University Law School, J.D., 1974.

Official Positions: Assistant attorney general, Missouri, 1974–1977; assistant secretary of education for civil rights, 1981–1982; chairman, Equal Employment Opportunity Commission, 1982–1990; judge, U.S. Court of Appeals for the District of Columbia Circuit, 1990–1991.

Supreme Court Service: Nominated associate justice by President George H. W. Bush, July 8, 1991, to replace Thurgood Marshall, who had retired; confirmed by the Senate, October 15, 1991, by a 52–48 vote; took judicial oath October 23, 1991.

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Clarence Thomas
Noteworthy Opinions

Clarence Thomas

Justice Clarence Thomas was the great dissenter on the Rehnquist Court. While the mainstream conservatives on that tribunal largely tinkered with past Burger Court precedent, and Justice Antonin Scalia called for a wholesale rejection of liberal judicial decisions handed down during the 1970s, Thomas called for the overthrow of both Great Society and New Deal constitutional principles. His most Noteworthy Opinions consistently eschewed doctrinal arguments based on past precedents in favor of broad declarations about the original understanding of constitutional provisions and the core principles of the American constitutional regime. No other justice in American history has ever insisted on abandoning so many past judicial decisions in so many areas of the law.

Born in rural Georgia, Thomas was raised by his grandfather, whose penchant for hard work Thomas constantly celebrates. He attended private seminary schools, Holy Cross College, and Yale Law School. Feeling stigmatized and stereotyped because of his race in law school, Thomas began developing strong conservative commitments, a powerful anathema to affirmative action in particular. After graduation, he served on the staff of John Danforth, the attorney general of Missouri, and did a brief stint in private practice. Thomas rejoined Danforth's staff when Danforth was elected to the Senate in 1980. Ronald Reagan appointed Thomas to the Department of Education and then as chair of the Equal Employment Opportunity Commission (EEOC), where he served for eight years. President George H. W. Bush nominated Thomas to the U.S. Court of Appeals for the District of Columbia Circuit in 1990 and to the Supreme Court in 1991.

The confirmation hearings provided little guidance as to how Thomas was likely to behave if confirmed. Prepared by Bush administration officials, Thomas combined vague bromides indicating sympathy toward the poor and a commitment to privacy in general, with a refusal to indicate his opinions on the constitutional issues of the day. Previous writings praising natural law, opposing abortion, and condemning affirmative action, he indicated, were mere speculations by a part-time philosopher. Responding to questions from Senate Democrats, Thomas declared he had never even thought about whether the Supreme Court in Roe v. Wade (1973) correctly ruled that the Constitution protected a right to an abortion. The hearings became sidetracked by claims that Thomas had sexually harassed a subordinate, Anita Hill, when at the EEOC. One consequence of Hill's allegations and the days of uncomfortable testimony was that when Thomas was confirmed by a 52–48 vote, the closest successful judicial confirmation vote in American history, he was already a polarizing figure. Liberals regarded Thomas as a perjurer, unfit for the Court. Conservatives saw him as a victim of left-wing racism. Thomas, a private person, limited his public appearances to friendly conservative audiences.

In his first years on the Court, Thomas typically voted with the conservatives, but in several cases he preferred the company of the moderate justices to Scalia's constitutional conservatism. His votes during his first year on the bench, in particular, gave hints that Thomas might be closer on many issues to Justices Anthony Kennedy and Sandra Day O'Connor than to Scalia. In Richmond v. Lewis (1992), a death penalty case, Thomas's concurring opinion asserted that precedent should govern, even though he thought the previous decisions were mistaken. Scalia's dissent would have overruled those precedents and denied relief. Thomas demonstrated a similar commitment to precedent in Georgia v. McCollum (1992). Chief Justice William Rehnquist and Justices Scalia, O'Connor, and Thomas agreed that Edmonson v. Leesville Concrete Co. (1991) erroneously found state action whenever criminal defendants exercised peremptory challenges. Scalia and O'Connor called for the decision to be overruled. Thomas and Rehnquist insisted that the precedent be followed, particularly because Georgia did not ask for the case to be overruled. In United States v. Fordice (1992), Thomas endorsed the majority's conclusion that “a State does not satisfy its obligation to dismantle a dual system of higher education merely by adopting race-neutral policies for the future administration of that system.” Scalia submitted the only dissent in that case.

Other opinions were less moderate. Thomas dissented in Riggins v. Nevada (1992), a case holding a criminal defendant's Sixth Amendment right to a fair trial was violated by the forced administration of anti-psychotic drugs. While conceding that mandatory medication might have “deprived Riggins of a protected liberty interest in a manner actionable in a different legal proceeding,” Thomas and Scalia concluded that “Riggins nonetheless had the fundamentally fair criminal trial required by the Constitution.” In Hudson v. McMillan (1992), Scalia and Thomas were the only two justices who questioned previous judicial decisions holding that conditions of imprisonment might violate the Eighth Amendment. “For generations,” Thomas's dissent declared, “judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration.” This use of history to combat doctrine became a constant theme in Thomas's opinions.

Thomas seemingly began playing a leadership role in 1994 when he spoke for the Court in three cases of some constitutional significance. All three opinions gained strong support across the judicial spectrum. Two opinions discussed dormant commerce clause issues, matters concerning whether states may regulate interstate commerce in the absence of federal legislation. In Associated Industries of Missouri v. Lohman (1994), Thomas, speaking for an 8–1 majority, issued an opinion holding unconstitutional a Missouri use tax on goods purchased outside the state. That the tax discriminated against interstate commerce only in some state counties was constitutionally unimportant. Thomas's opinion, signed by every justice but Harry Blackmun, “rejected any theory that would require aggregating the burdens on commerce across an entire State to determine the constitutionality of a burden on interstate trade imposed by a particular political subdivision of the State.” Oregon Waste Systems v. Department of Environmental Quality (1994) held that Oregon could not impose a surcharge on in-state disposal of waste imported from other states. Thomas gained the support of every justice but Rehnquist and Blackmun for his analysis in that case. In FDIC v. Meyer (1994), Thomas for a unanimous Court declared that the due process clause did not permit persons to sue federal agencies they believed violated their rights, only the federal official responsible for the alleged rights violation.

Thomas's concurring and dissenting opinions on racial matters before 1995 were often less moderate than his majority opinions. His concurring opinion in Holder v. Hall (1994), joined only by Scalia, asserted that the Voting Rights Act “reach[ed] only state enactments that limit citizens' access to the ballot.” Insisting that justices should examine only the text of the Voting Rights Act and not the legislative debates responsible for that measure, Thomas declared that the federal government had left states free to structure government offices in ways that in practice prevented persons of color from winning elections. That opinion was the first time that Thomas, as a justice, attacked the use of race as a criterion for making government decisions. The Court's voting dilution jurisprudence, he declared, relied on “questions of political philosophy, not questions of law” and had contributed to “the racial ‘balkinization’ of the Nation.” “As a practical political matter,” Thomas concluded, “our drive to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions.”

Although strongly worded, Thomas's concurrence in Holder did not go further than Scalia's frequent condemnations of race-based measures. Nor did Thomas appear to push the Court beyond Scalia in solo opinions issued in Johnson v. Texas (1993), Graham v. Collins (1993), and Farmer v. Brennan (1994). His concurring opinions in the first two cases called on the justices to reject past decisions protecting the procedural rights of persons sentenced to death. In Farmer, Thomas's concurrence rejected claims that “the Eighth Amendment regulates prison conditions not imposed as part of a sentence.” Scalia did not join these opinions, but reasonable observers could conclude Thomas had Scalia's full support. Given that Scalia had dissented from the precedents Thomas would have overruled, Thomas's most important solo opinions written before 1995 could be interpreted as expressing agreement with Scalia rather than marking out new legal terrain.

The United States, the Supreme Court, and Thomas all lurched to the right after the 1994 midterm elections. The Republican Party landslide that year enabled the GOP to gain control of both the Senate and House of Representatives for the first time in more than forty years. The new Republican leadership in the House and Senate was far more sympathetic to Scalia's conservatism than to the moderate approach identified with O'Connor. The Court in 1995, perhaps emboldened by these political and electoral developments, began striking down an unprecedented number of federal laws passed by more liberal regimes and curtailing the powers of state governments to restrict campaign finance, regulate commercial speech, adopt affirmative action policies, and pass land-use regulations. Thomas endorsed this new activism, voting with the majority in all the major cases in which conservative justices declared state and federal laws unconstitutional. Still, the concurring opinions in these cases made clear that the conservative bloc was not internally united behind a common constitutional vision. Kennedy and O'Connor often indicated that they had no desire to significantly turn back the constitutional clock. Rehnquist and Scalia did not fully reveal their ambitions. Thomas alone insisted that the justices should make a full-scale assault on the New Deal constitutional order, that fundamental constitutional questions thought settled by the Hughes and Vinson Courts had to be reopened.

The new judicial revolution was heralded by United States v. Lopez (1995). That 5–4 decision, declaring the Gun-Free School Zones Act of 1990 unconstitutional, was the first time in more than fifty years that the Court rejected a claim of federal power under the interstate commerce clause. Lopez was followed by other decisions limiting federal power under the commerce clause: a series of cases beginning with Printz v. United States (1997) imposing federalism limits on all federal powers set out in Article I; a series of cases beginning with Seminole Tribe of Florida v. Florida (1996) prohibiting states from being sued in federal or state courts for violating otherwise valid exercises of Congress's Article I powers; and a series of cases beginning with City of Boerne v. Flores (1997) limiting congressional power under Section 5 of the Fourteenth Amendment to enforce the equal protection and due process clauses of Section 1. The conservative justices proved as willing to limit state and federal power in the service of individual rights. In 1993 Shaw v. Reno had suggested that race-based legislative districting might be suspect; in 1995 Miller v. Johnson declared unconstitutional any districting scheme where “race was the predominant factor.” The Court in Adarand Constructors, Inc. v. Pena (1995) seemed to ring the judicial death knoll for affirmative action.

Thomas agreed with the results in these cases but proclaimed their doctrinal foundations constitutionally inadequate. His concurring opinions exhorting greater judicial activism combined with his inability to gain votes for his constitutional views indicated that Thomas was jurisprudentially as far from the new conservative mainstream as were the liberal justices who repeatedly dissented from Rehnquist Court rulings. Thomas was the only member of the Rehnquist Five who did not announce the judgment of the Court in any major or landmark decision handed down from Lopez until Bush v. Gore (2000). He wrote the opinion for the Court only in cases of constitutional criminal procedure, where he usually rejected claims of individual right on doctrinal grounds, and on less politically charged constitutional matters such as the proper interpretation of the excessive fines clause of the Eighth Amendment (United States v. Bajakajian, 1998). For the most part, when Thomas wrote on constitutional matters, he wrote only for himself and his hopes for the future.

Lopez provided the first occasion for Thomas to distinguish himself from O'Connor, Kennedy, Scalia, and Rehnquist. Rehnquist's opinion for the Court repeatedly endorsed New Deal rulings such as Wickard v. Filburn (1942) that vested the national government with the power to regulate any “activity that substantially affects interstate commerce.” The majority opinion merely insisted that the Gun-Free School Zones Act did not meet the constitutional standard established by past precedent. Congress, Rehnquist wrote, had not made the findings necessary to establish a substantial effect on interstate commerce. The three dissents in Lopez agreed with Rehnquist that Congress could constitutionally regulate any economic activity that had a substantial effect on interstate commerce, but they insisted that guns near schools have such an effect. Thomas challenged this consensus. His concurring opinion called on the justices to “reconsider our ‘substantial effects’ test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause.”

Thomas's concurrence in Lopez claimed that constitutional jurisprudence took a wrong turn during the New Deal when the Roosevelt Court interpreted the commerce clause as permitting any federal regulation that might have some impact on interstate commerce. Disdaining Rehnquist's effort to limit stricter commerce clause scrutiny to noneconomic activity, Thomas called for a return to pre-New Deal cases that distinguished commerce from production. “The term ‘commerce,’” he insisted, was originally “used in contradistinction to productive activities such as manufacturing and agriculture.” This constitutional language sharply restricted federal economic power. Although the framers were “well aware that agriculture, manufacturing, and other matters substantially affected commerce,” Thomas continued, “the founding generation did not cede authority over all these activities to Congress.” Whether these distinctions between different economic activities provided appropriate categories for describing contemporary economic practice was not constitutionally significant. “The boundary between commerce and other matters” that might “seem arbitrary or artificial to some,” Thomas wrote, still constituted “a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.”

Other concurring opinions during the 1995 term provide more evidence that Thomas was less satisfied than Scalia with the speed at which the Rehnquist Court was moving to the right. In Rosenberger v. Rector & Visitors of the University of Virginia (1995), a 5–4 majority ruled that state universities had to fund student newspapers with religious perspectives when funding was available to all other student organizations. Kennedy's majority opinion said that state officials had engaged in unconstitutional viewpoint discrimination and that the establishment clause did not obligate state actors to discriminate against religious groups when distributing public benefits. Thomas would have the Court provide greater accommodation for religious groups. In his view, the Constitution both forbids government discrimination against religious groups when distributing public benefits and permits government to favor religion when making public policy as long as the policy is neutral between religious groups. His concurring opinion suggested that states could limit some benefits to religious groups as long as all religious groups were equally benefited. Thomas found “much to commend” in the position that “the Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religious faiths over others.”

Affirmative action was a second area in which Thomas expressed concern with possible limits on Rehnquist Court activism. He applauded the majority's holding in Adarand that “strict scrutiny applies to all government classifications based on race,” but he wrote separately to reject suggestions in O'Connor's majority opinion that benign racial classifications might meet that standard. Largely supported by Scalia's concurrence, Thomas declared, “It is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.” In his view, “racial paternalism” was “as poisonous and pernicious as any other form of discrimination.” The beneficiaries of such programs, he believed, would “develop dependencies or …. adopt an attitude that they are ‘entitled’ to preferences.” Thomas concluded that both hostile and benign discrimination violated fundamental regime principles. “The paternalism that appears to lie at the heart of [affirmative action],” he wrote, “is at war with the principle of inherent equality that underlies and infuses our Constitution.”

Thomas more clearly separated himself from Scalia on racial issues in Missouri v. Jenkins (1995). The 5–4 conservative majority in that case ruled that federal courts could not order Missouri to fund magnet programs that might reduce segregation in public schools. Thomas's solo concurrence was the only opinion that questioned whether desegregation was a constitutional value. “It never ceases to amaze me,” he declared, “that courts are so willing to assume that anything that is predominantly black must be inferior.” Echoing views W. E. B. Du Bois had articulated during the 1930s, Thomas endorsed a restoration of black institutions, minus state-enforced segregation. He wrote: “Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.”

Printz v. United States (1997) provided Thomas with the opportunity to demonstrate his iconoclastic views on both federal power and individual rights. Scalia's majority opinion in that case ruled that the Tenth Amendment forbade federal legislation requiring state officers to implement federal gun laws. Thomas's concurrence maintained that the commerce clause was violated as well by the congressional effort to monitor local gun sales. Federal commerce power, he insisted, did not “extend to the regulation of wholly intrastate, point-of-sale transactions,” even though the guns in question may have been shipped from state to state. Thomas further insisted that federal regulations concerning “purely intrastate sale or possession of firearms” might violate the Second Amendment. Alone, he hoped “this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered as the palladium of the liberties of a republic.’”

The closest Thomas came to speaking for the conservative justices in a landmark case decided between 1995 and 2000 was his dissent in U.S. Term Limits v. Thornton (1995). Writing for the majority, Justice John Paul Stevens held that Arkansas could not constitutionally prevent the names of representatives seeking reelection who had served three terms and senators who had served two terms in Congress from appearing on the ballot. Stevens's opinion held that states could not prescribe additional qualifications for federal representatives beyond those laid out in Article I. Thomas, speaking for Rehnquist, Scalia, and O'Connor, disagreed with both the result and the theory of federalism underlying that ruling. Thomas's dissenting opinion was particularly notable for endorsing a theory of state sovereignty thought abandoned after the Civil War. Challenging doctrine dating from McCulloch v. Maryland (1819), he insisted that “the ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.” This compact theory of the Constitution structured the appropriate interpretation of federal powers. Thomas maintained that because the states were the parties to the original Constitution, “the States can exercise all powers that the Constitution does not withhold from them.” Given that Article I did not explicitly declare that the constitutional qualifications for representatives were exclusive, states were free to add whatever qualifications their citizens thought best.

That Thomas was estranged from the conservative bloc on many issues, and the liberal bloc on most, does not mean that he always stood alone during the Clinton presidency. He and Scalia typically took the same conservative positions on issues of constitutional criminal procedure, and they were often joined by the moderate conservatives and sometimes by the liberal justices. In Mitchell v. Helms (2000), for example, Thomas wrote for the judicial plurality, sustaining a Louisiana law permitting educational materials to be loaned to religious schools. “If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious, and the irreligious,” his opinion stated, “it is a mystery which view of religion the government has established.” Thomas also took an active interest in free speech issues. He joined with Scalia and Rehnquist in efforts to strike down all regulations of campaign finance, but joined with the liberal justices in McIntyre v. Ohio Elections Commission (1995), a case finding a First Amendment right to anonymous speech. Thomas wrote for an 8–1 majority in Rubin v. Coors Brewing Co (1995), holding that the Constitution protected commercial speech and that a federal law prohibiting beer labels from indicating alcohol content did not satisfy the First Amendment standards laid out in Central Hudson Gas v. Public Service Commission (1980). That particular show of community spirit proved transient. The next year, in 44 Liquormart v. Rhode Island (1996), Thomas urged the justices to abandon the Central Hudson test when determining whether governments could regulate truthful advertising. “I do not see a philosophical or historical basis,” his solo opinion declared, “for asserting that commercial speech is of ‘lower value’ than ‘noncommercial’ speech.”

Conservative expectations for the Supreme Court were not immediately realized after Bush v. Gore and the inauguration of a conservative chief executive. Although Scalia and Thomas enjoyed the strong support of a president whom they had helped put into office and, after 2002, solid majorities in both houses of Congress, conservative electoral victories in 2000, 2002, and 2004 were not matched by conservative judicial triumphs. The federalist revolution stalled; efforts to ban affirmative action failed; small judicial majorities began once again to chip away at the death penalty; and Roe v. Wade remained the law of the land. Worse, from a conservative perspective, O'Connor and Kennedy wrote majority and concurring opinions in Lawrence v. Texas (2003), the decision holding that states could not punish consensual homosexual sodomy. As the judicial revolution inaugurated in 1995 faded, Thomas found himself increasingly isolated, often even from Scalia and Rehnquist.

One measure of Thomas's isolation on the Court is the decline in the already low number of constitutional cases in which he announced the Court's opinion. Although Thomas has been on the Court since 1991, his majority assignments from 2001 to 2005 resembled those of a newly minted appointee learning the judicial ropes. He wrote the majority opinion in thirty-nine cases, but only nine involved constitutional issues. Nineteen of the twenty-three opinions for the Court Thomas wrote from 2003 to 2005 involved nonconstitutional matters. The only statutory case that captured national attention in which Thomas announced the judicial ruling was United States v. Oakland Cannabis Buyers' Cooperative (2001), a decision rejecting any medically necessary exception for marijuana in the Controlled Substances Act. Most of the constitutional issues on which Thomas wrote majority opinions were relatively minor, and concurrences by Kennedy or O'Connor sometimes further reduced the impact of his writing.

Thomas appeared to be in the judicial mainstream only during the 2001–2002 term. That spring he delivered the opinion for the Court in three fairly important constitutional cases. In Board of Education v. Earls (2002), Thomas compensated for O'Connor's defection from the conservative bloc by picking up Justice Stephen Breyer's vote for his opinion sustaining the power of public schools to administer drug tests to all student participants in extracurricular activities. Breyer questioned whether the privacy interests were “negligible,” but both he and Thomas agreed that the drug problem in schools was sufficiently troubling to make the mandatory and suspicionless drug testing reasonable. Federal Maritime Commission v. South Carolina State Ports Authority (2002) extended state sovereign immunity to administrative agency rulings. After declaring that “dual sovereignty is a defining feature of our Nation's constitutional blueprint,” and that “an integral component of that ‘residuary and inviolable sovereignty’ …. retained by the States is their immunity from private suits,” Thomas concluded that administrative agency hearings were sufficiently judicial to warrant immunizing state agencies from federal administrative adjudications. Thomas also announced that the Court in Ashcroft v. American Civil Liberties Union (2002) had rejected a facial challenge to the Child Online Protection Act. The justices agreed that Congress could regulate pornography on the Internet but disputed whether regulatory standards could vary by community. Thomas, for a plurality, called for local standards. He insisted that “if a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standard.” Justice O'Connor's crucial concurring opinion disagreed. She suggested that a judicial majority would sustain a conviction only if the trial court adopted a national standard for determining what constituted proscribable pornography.

Thomas's continued penchant for solo opinions more clearly marked his isolation during the last years of the Rehnquist Court. No other justice signed fifty-three of the ninety-three concurring or dissenting opinions Thomas issued from 2001 to 2005. Two-thirds of his sixty concurrences and dissents in constitutional cases were solo. Again 2002 was the major exception, the only year in which a slight majority of Thomas's dissenting and concurring opinions in constitutional cases attracted at least one other justice. In some cases, Thomas did little more than endorse or provide an addendum to another opinion. For example, his dissenting opinion in Lawrence v. Texas described the Texas ban on homosexual sodomy as “silly,” but not unconstitutional. Although Thomas's opinions in affirmative action cases reemphasized his belief that race-conscious measures designed to benefit persons of color were as pernicious as Jim Crow, the constitutional standards he applied in Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) were those that Scalia articulated in his separate opinions. At times, however, Thomas's solo opinions were not mere elaborations or endorsements of other opinions, but his laying out pieces of a constitutional vision alien to his colleagues.

Federal power was the area in which Thomas most often expressed frustration with the Rehnquist Court. His solo opinions from 2001 to 2005 continued to insist that the commerce clause did not permit the federal government to regulate agriculture, manufacturing, and production, while he offered three additional inroads into New Deal jurisprudence. Thomas's dissent in Gonzales v. Raich (2005), a California medical marijuana case, rejected reasonableness tests under the necessary and proper clause, suggesting instead the more demanding standard that “there must be an ‘obvious, simple, and direct relation’ between the intrastate ban and the regulation of interstate commerce.” A federal ban on medical marijuana, he insisted, was constitutionally improper because that policy “encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.” Thomas's solo concurrences in Sabri v. United States (2004) and Cutter v. Wilkinson (2005) rejected rationality tests under the spending clause in favor of requiring federal spending to have “an obvious, simple and direct relationship” with the end to be achieved. Thomas was the only member of the Rehnquist Court to question precedents on legislative delegation that date from before the New Deal. In Whitman v. American Trucking Associations, Inc. (2001), the other eight members of the Court debated whether the delegation under review met the “intelligible principle” requirement set out in J. W. Hampton, Jr., & Co. v. United States (1928). Thomas announced he was “not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power.” His opinion called for the justices to revisit questions of legislative delegation thought settled by the Hughes Court. No other Rehnquist Court justice accepted that invitation.

When constitutional issues raised by the war on terror came before him, Thomas remained isolated from his colleagues, but in these cases he endorsed fewer constitutional limitations on federal power than they did. Hamdi v. Rumsfeld (2004) raised questions about the extent to which federal statutes and the Constitution limited presidential power to declare an American citizen an “enemy combatant.” Justices O'Connor, Scalia, and David Souter agreed that the Bush administration had unconstitutionally deprived Yaser Hamdi of his liberty by failing to give him any opportunity to rebut claims that he had affiliated with the Taliban. Thomas alone would have the executive completely unfettered. He insisted that the matter was “of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong to the domain of political power not subject to judicial intrusion or inquiry.” “Judicial interference in those domains,” Thomas continued, “destroys the purpose of vesting primary responsibility in a unitary Executive.” In his view, courts had no role to play when the nation was a war. “The Power to protect the Nation,” he declared citing The Federalist Papers, “‘ought to exist without limitation.’”

Thomas also ventured further afield than any other Rehnquist Court justice on matters concerning the constitutional law of religion. Inspired by the work of Yale Law School professor Akhil Amar, Thomas began questioning “whether and how” the establishment clause “should constrain state action under the Fourteenth Amendment.” His concurring opinion in Zelman v. Simmons-Harris (2003) suggested that “state action should be evaluated on different terms than similar action by the Federal Government.” Thomas claimed that “while the Federal Government may ‘make no law respecting an establishment of religion,’ the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.” The next year, Thomas bluntly declared that “the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” State religious exercises were constitutional, his solo concurrence in Elk Grove Unified School District v. Newdow (2004) declared, as long as the state did not require participation by “tax or penalty.”

This iconoclasm extended to the takings clause of the Fifth Amendment. In Kelo v. City of New London (2005), the other eight justices on the Rehnquist Court debated whether past precedents permitted localities to condemn property, with compensation, to facilitate economic development. Justices Ruth Bader Ginsburg, Kennedy, Stevens, Souter, and Breyer insisted that if, as previous decisions had held, land condemned for urban renewal satisfied the “public use” clause of the Fifth Amendment, then condemning land for economic development was constitutional. O'Connor's dissent, joined by Scalia and Rehnquist, distinguished Kelo from those precedents. Thomas's solo dissent proposed discarding one hundred years of precedent that he believed “replaced the Public Use Clause with a ‘Public Purpose’ Clause.” Combining textual and historical arguments, he insisted that evidence that the taking produced public benefits was constitutionally not relevant. “The most natural reading of the Clause,” he declared, “is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.”

Any evaluation of a justice's jurisprudence reveals as much about the critic as the subject of criticism. That proponents of liberal judicial activism are more critical of Thomas than proponents of conservative judicial activism is hardly surprising. Whether Thomas engages in constitutional interpretation or legislates from the bench depends to a fair degree on whether one believes the Constitution properly interpreted supports the New Deal/Great Society principles that he detests or imposes the sharp limits on federal power that he champions. How one evaluates Thomas's claim in Stenberg v. Carhart (2000) that judicial protection for abortion rights has “no historical or doctrinal pedigree” and is “illegitimate” depends on contestable assertions about the constitutional pedigree of reproductive choice.

Evaluating Thomas's jurisprudence is especially difficult because he practices originalism inconsistently and selectively. He is concerned with how constitutional language was understood at the time of framing only in some areas of constitutional law. He offers detailed investigations into the original meaning of constitutional provisions when writing on commerce and takings clause issues, but barely acknowledges history when voting to strike down bans on commerce speech or affirmative action policies. Law professor Scott Gerber provided a glimpse into this practice when he suggested that Thomas in race and speech cases is a liberal originalist committed to the original principles underlying the constitutional order, but a conservative originalist in criminal rights and federalism cases committed to the particular practices entrenched by the framers. What neither Thomas nor Gerber offers is any explanation as to why aspirational reasoning is appropriate in some cases, but not in others.

Thomas clearly is a judicial activist, if activism is defined by a willingness to strike down federal and state laws that a reasonable person might think constitutional. Professor Thomas Keck found that from 1994 until 2000 Thomas voted to strike down federal laws in twenty-five cases. This tied him with Scalia for the highest number of invalidations on the Rehnquist Court. This activism increased during the next half decade. Among the types of federal laws Thomas routinely votes to invalidate are restrictions on campaign finance, affirmative action policies, bans on commerce speech, efforts to limit state sovereign immunity, and federal efforts to expand individual rights, such as the Religious Freedom Restoration Act, which Thomas believes are beyond the power of Congress to enact. Although Thomas is no more activist than the other justices on the Rehnquist Court when judging the constitutionality of state laws, he still exercises judicial power aggressively. Affirmative action programs, land restrictions, state campaign finance restrictions, and local laws restricting commerce speech have been particular targets of his ire.

Thomas is also a judicial activist if activism is defined by a willingness to overrule past precedent. No Supreme Court justice in American history has been less constrained by previous judicial rulings. In three 1992 cases, he urged the Court to overrule or rethink basic confrontation clause doctrine (White v. Illinois), abandon heightened rationality in some areas of equal protection law (Nordlinger v. Hahn), and reverse past cases forbidding litigants to use race when exercising peremptory challenges (Georgia v. McCollum). He later urged justices to abandon the pervasive sectarian test and overrule past cases limiting state power to provide religious organizations with public benefits (Mitchell v. Helms, 2000); overrule those parts of Buckley v. Valeo (1976) that permit some regulation of campaign finance (Nixon v. Shrink Missouri Government PAC, 2000); overrule past decisions applying a balancing test to truthful commercial advertising (Glickman v. Wileman Brothers & Elliott, Inc. 1997); overrule decisions limiting punitive damages (Cooper Industries v. Leatherman Tool Group, Inc., 2001); and rethink judicial decisions providing less protection to broadcast media (Denver Area Educational Telecommunications Consortium v. FCC, 1996).

He would overrule or rethink decisions holding that prison conditions may constitute cruel and unusual punishment (Farmer v. Brennan, 1994); decisions providing prisoners with some access to legal materials (Lewis v. Casey, 1996); the line of cases, beginning with Griffin v. Illinois (1956), providing some assistance to impoverished persons appealing criminal convictions (M. L. B. v. S. L. J., 1996); virtually all limits the Supreme Court places on the capital sentencing process (Graham v. Collins, 1993); a decision, Papachistou v. Jacksonville (1972), declaring loitering statutes unconstitutionally vague (City of Chicago v. Morales, 1999); decisions providing notice of various remedies for persons whose property has been seized during criminal investigations (West Covina v. Perkins, 1999); decisions forbidding adverse commentary on the exercise of Fifth Amendment rights (Mitchell v. United States, 1999); decisions claiming that the Fifth Amendment does not protect the production of incriminating evidence (United States v. Hubbell, 2000); and cases justifying some suspicionless roadblock searches (Indianapolis v. Edmond, 2000).

Thomas would overrule every judicial case providing constitutional protection for abortion rights (Stenberg v. Carhart, 2000) and reconsider every judicial decision using the due process clauses of the Fifth and Fourteenth Amendments to protect substantial freedoms (Troxel v. Granville, 2000). He insists that the entire commerce clause doctrine developed after the New Deal be reconsidered (United States v. Lopez, 1995), as well as modern decisions on legislative delegation (Whitman v. American Trucking Associations, 2001), the spending power (Cutter v. Wilkinson, 2005), and the necessary and proper clause (Gonzales v. Raich, 2005). Age provides little protection for past precedent. Thomas wants the justices to rethink past understandings of the privileges and immunities clause dating back to the Slaughterhouse Cases (1873) (Saenz v. Roe, 1999); not only overrule the Chase Court's decision in Woodruff v. Parham (1869), limiting to foreign trade the constitutional prohibition on state efforts to lay duties on imports or exports, but also abandon dormant commerce clause doctrine first developed by the Marshall and Taney Courts (Camps Newfound/Owatonna v. Town of Harrison, 1997); and rethink the Jay Court's decision in Calder v. Bull (1798), limiting the ex post facto clause to retroactive criminal legislation (Eastern Enterprises v. Apfel, 1998).

Thomas was the only justice on the Rehnquist Court interested in the constitutional scholarship of the 1990s. The other conservative justices largely limited their activism to the parameters marked out by the conservative academics opposed to the direction of the Burger Court. Thomas, by comparison, often relies on and cites more contemporary works, particularly those that support conservative judicial activism or justify greater state solicitude for religion. His solo concurrences in Lopez and Raich urged constitutionalists to incorporate the work of libertarians such as Randy Barnett and Richard Epstein into constitutional law. Thomas frequently advances new originalist positions only after those positions appear in scholarly works. Amar's The Bill of Rights (1998) seems to have inspired the justice's claim that the Fourteenth Amendment did not incorporate the establishment clause. Thomas first objected to the twentieth-century interpretation of “public use” after Eric Claeys published an essay in the Northwestern Law Review insisting that “public use” during the framing was limited to takings of property that would be used by the government or open to the entire public.

This effort to incorporate contemporary conservative scholarship into constitutional law is problematic. One difficulty is that Thomas often rejects a more general consensus among historians in favor of contrarian scholarship that favors preferred results. Although Thomas cites law professor (now federal judge) Michael McConnell's article in Virginia Law Review for the proposition that Brown v. Board of Education (1954) was consistent with the original understanding of the framers, he does not mention the far more voluminous legal and historical literature questioning this proposition. Prominent legal historians insist that the persons responsible for the Fourteenth Amendment supported race-conscious measures designed to benefit persons of color, and the dominant strain in contemporary Fifth Amendment scholarship suggests that in 1791 and 1868 “public use” was understood to refer to any taking that conferred a benefit on the public. Relying on the most conservative historical scholarship in different areas of constitutional law may result in a jurisprudence that does not add up to a coherent whole. Thomas appropriated Boston University law professor Randy Barnett's writings on the original understanding of federalism in Gonzales v. Raich when he insisted on a narrowly limited federal commerce power, but Barnett insists the same principles support the majority decision in Lawrence v. Texas. Amar's claim that the Fourteenth Amendment did not incorporate the establishment clause is embedded in a more general claim that the Fourteenth Amendment ought to be interpreted far more expansively than Thomas has been willing to do. Whether the conservative writings Thomas cites are part of a consistent jurisprudence or whether he merely cherry-picks whatever historical scholarship is available for supporting conservative results remains to be seen.

Great dissenters have had different fates on the Supreme Court. William Brennan and Thurgood Marshall during the 1980s became the fading voices of the ancien régime, defending Great Society constitutional visions that no longer had the power to command judicial or popular majorities. John Marshall Harlan and Oliver Wendell Holmes heralded the future. Their respective claims that “our Constitution is color blind” and that the government may regulate only speech that presents a “clear and present danger” became the unquestioned constitutional law of the land only after they left the bench. William Johnson and Peter Daniel represent paths not taken. Their views on natural law and judicial power were accepted by neither their judicial ancestors nor descendants. Thomas is not, as Justice Story described himself, “the last of the old race of judges.” Whether he will be remembered as a prophet or a crank is for the future to determine.


Scott Gerber, First Principles: The Jurisprudence of Clarence Thomas (1999), is the only scholarly analysis of the justice's opinions. The work is solid but focuses on Thomas's first year on the Court. Those interested in sympathetic popular biographies should read Ken Foskett, Judging Thomas: The Life and Times of Clarence Thomas (2004); or Andrew Peyton Thomas, Clarence Thomas: A Biography (2001). Those preferring criticism will enjoy Ronald Suresh Roberts, Clarence Thomas and the Tough Luck Crowd: Counterfeit Heroes and Unhappy Truths (1995); and John Greenya, Silent Justice: The Clarence Thomas Story (2001). The same partisan split characterizes accounts of the Thomas confirmation hearings. John Danforth, Resurrection: The Confirmation of Clarence Thomas (1994), is sympathetic; Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas (1994), is not.

Studies of the Rehnquist Court provide additional insight into the jurisprudence of Clarence Thomas and his status on the tribunal. The two best are Thomas M. Keck, The Most Activist Supreme Court in History (2004); and Mark Tushnet, A Court Divided (2005). Keck does an excellent job documenting Rehnquist Court activism. Tushnet highlights important differences between Thomas and Scalia. Mark A. Graber's essay on Justice Thomas in Earl Maltz, ed., Rehnquist Justice: Understanding the Court Dynamic (2003), focuses on Thomas's marginalization and his disdain for precedential reasoning.

Noteworthy Opinions

United States v. Fordice, 505 U.S. 717 (1992) (Concurrence)

United States v. Lopez, 514 U.S. 549 (1995) (Concurrence)

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (Dissent)

Printz v. United States, 521 U.S. 898 (1997) (Concurrence)

Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2002)

Gonzales v. Raich, 545 U.S. ___ (2005) (Dissent)

Kelo v. City of New London, 545 U.S. ___ (2005) (Dissent)


Document Citation
Thomas, Clarence, in Biographical Encyclopedia of the Supreme Court 542 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18170-979586
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