Justice Clarence Thomas Will Enter His 29th Term In The Fall
RACHEL MARTIN, HOST:
There's an interesting dynamic on the U.S. Supreme Court. Nine people often disagree but then try to meld their views into majority decisions. One justice, though, stands out for his views and his disdain for prior court rulings. Clarence Thomas is the longest-serving member of the current court and its only African American. He will enter his 29th term on the court this fall.
NPR legal affairs correspondent Nina Totenberg takes a look at Thomas' role in the term that just wrapped up.
NINA TOTENBERG, BYLINE: Talk to court-watchers about Clarence Thomas and the words they use to describe his views are idiosyncratic, eccentric, provocative, probing and, yes, wacky. Yale Law professor Akhil Amar.
AKHIL AMAR: He's gone through all sorts of different ideologies in his life. In law school, he was a Black Panther type - black power extremist of a certain sort. Now he defines the right wing on the United States Supreme Court.
TOTENBERG: As he has in terms gone by, Thomas has charted a course that is at times breathtakingly different from his colleagues. While he wrote eight majority opinions for the court this term, it was his 18 dissenting and concurring opinions that raised eyebrows.
He dissented when the court invalidated the conviction of a black man tried six times for the same crime by the same prosecutor with juries that were either all white or nearly all white. He argued that the Constitution's ban on establishment of religion does not apply to the states - in other words, that the states are free to prefer or endorse one religion over another.
He twice called on the court to reverse its abortion decisions, in one case linking birth control and Planned Parenthood to the eugenics movement of a century ago. For the first time, he called for overturning the 1963 landmark decision requiring that criminal defendants too poor to pay for a lawyer be provided an attorney.
In another first, he called for overturning a 1964 landmark free press decision that established standards to make it more difficult for public figures to sue for libel without proof of a knowing falsehood. Thomas' newfound objection to the decision was not joined by any other justice, but it does coincide with President Trump's views.
(SOUNDBITE OF ARCHIVED RECORDING)
PRESIDENT DONALD TRUMP: I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.
TOTENBERG: That was Trump at a Fort Worth, Texas, rally in 2016. As a private citizen, he repeatedly and unsuccessfully tried to sue his media critics. Trump has been particularly solicitous of Justice Thomas and his wife Ginni, who is a vocal conservative activist. The Thomases dined with the Trumps at the White House this year. Soon after, Ginni Thomas led a group of fellow social conservatives in a one-hour meeting with Trump.
The Trump-Thomas relationship may have been responsible for retirement rumors, fueled by some conservatives who apparently wanted the 71-year-old Thomas to step down so that Trump could replace him with a younger conservative able to serve for 30 or 40 more years. If that was the plan, it didn't work, as Thomas made clear during an interview at Pepperdine University.
(SOUNDBITE OF ARCHIVED RECORDING)
JAMES GASH: ...As well. Let's fast-forward to 20 years from now at your retirement party.
CLARENCE THOMAS: I'm not...
GASH: No. No, you're not going to argue with me. Twenty...
THOMAS: I know. But I'm not retiring.
GASH: Twenty years?
UNIDENTIFIED PERSON: (Laughter).
GASH: Thirty years?
TOTENBERG: After each of Thomas' 28 years on the court, analysts have offered different theories about his jurisprudence. Brooklyn College professor Corey Robin has a book coming out this fall contending that Thomas' overriding legal philosophy stems from his views as a black nationalist.
COREY ROBIN: The way I understand Thomas is that he believes that the American state, in particular, is imbued with race and racial consciousness. And he thinks it's kind of a fool's errand to try to change that.
TOTENBERG: Thomas' dissent in this term's jury discrimination case would fit right into that category. His solution to white prosecutors discriminating against black jurors is to allow similar discrimination by defense lawyers against white jurors, too.
An entirely different view comes from professor Ralph Rossum of Claremont McKenna College, author of another book about Thomas. Rossum says that Thomas disdains prior Supreme Court rulings because they get him further and further away from the original Constitution.
RALPH ROSSUM: If you have a finely wrought piece of furniture and you put layer after layer of paint on it, pretty soon, all the detail is lost under the coats of paint. And what Thomas wants to do is scrape back to bare wood, to the original text.
TOTENBERG: But even the man who made originalism popular, the late Justice Antonin Scalia, did not have such a purist view. Unlike Thomas, Scalia did believe in precedent. As he famously put it, I'm an originalist, but I'm not a nut.
University of Baltimore law professor Garrett Epps sees Thomas' unique views as arrogant. As an example, he points to a Thomas opinion in which the Justice referred to James Madison's views on separation of church and state as, quote, "extreme" and said that, quote, "in any event, the views of one man do not establish the original meaning of the First Amendment" religion clauses.
GARRETT EPPS: Wait a minute. You just called James Madison, the father of the Bill of Rights - you just called him an extremist, particularly in the area of religious freedom, which is the area he is most identified with.
TOTENBERG: Epps maintains that if you read Clarence Thomas' jurisprudence, the views of only one man count.
EPPS: Thomas alone knows the original meaning of these provisions. And even Madison, who wrote them, can be disregarded. Now, that takes a level of confidence or megalomania that I find really breathtaking.
TOTENBERG: It is, however, important not to dismiss Clarence Thomas' views. Yale's professor Amar acknowledges that Thomas has not written many high-profile majority opinions for the court.
AMAR: If you think that the measure of a success of a justice is how many majority opinions he writes, well, then Thomas ranks somewhat lower. But if, instead, the game is scored by how many new ideas someone gets into the conversation and eventually wins on, well, then Thomas is way high in the pecking order.
TOTENBERG: Indeed, if the new Supreme Court conservative majority begins rethinking lots of long-held precedents, it may be Thomas leading the way.
Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF RAE AND CHRISTIAN'S "IT AIN'T NOTHING LIKE FEAT. THE PHARCYDE") Transcript provided by NPR, Copyright NPR.