Source:npr.org<\/p>\n\n\n\n
On the U.S. Supreme Court, where nine justices often disagree but try\n to meld their views into majority decisions, one justice stands out.<\/p>\n\n\n\n
Clarence\n Thomas, the longest-serving member of the current court \u2014 and its only \nAfrican American \u2014 has views that perhaps can be described only as \nunique.<\/p>\n\n\n\n
Some court watchers, however, use other terms: idiosyncratic, eccentric, provocative, thoughtful and, yes, wacky.<\/p>\n\n\n\n
“He’s gone through all sorts of different ideologies in his life,” observes Yale Law School professor Akhil Amar. “In law school, he was a Black Panther type, a black power extremist of a certain sort. Now, he defines the right wing of the United States Supreme Court.”<\/p>\n\n\n\n
As he has in the past, Thomas this term has charted a course that is,\n at times, breathtakingly different from those of his colleagues. While \nhe wrote eight majority opinions for the court this term, it was his 18 \ndissenting and concurring opinions that raised eyebrows.<\/p>\n\n\n\n
An array of extraordinary opinions<\/strong><\/p>\n\n\n\n In\n Thomas’ most eye-catching separate decisions this term, he only \noccasionally attracted the vote of even one other justice. Here’s a \nselection:<\/p>\n\n\n\n Thomas’ newfound objection to a landmark libel decision that has been\n reaffirmed countless times was not joined by any other justice, but it \ndoes coincide with President Trump’s views.<\/p>\n\n\n\n Trump, as a private\n citizen, repeatedly and unsuccessfully tried to sue his critics in the \nmedia. And he has made no secret of his fury over the state of the \nnation’s libel laws.<\/p>\n\n\n\n At a campaign rally in 2016, Trump attacked the New York Times <\/em>and the Washington Post,<\/em>\n declaring, “I’m gonna open up our libel laws, so when they write \npurposely negative and horrible and false articles, we can sue them and \nwin lots of money.”<\/p>\n\n\n\n It is a pledge he has frequently repeated since then.<\/p>\n\n\n\n Trump has been particularly solicitous of Thomas and his wife, Ginni,\n a vocal conservative activist. The Thomases dined with the Trumps at \nthe White House earlier this year; soon thereafter, Ginni Thomas led a \none-hour meeting between the president and a group of her fellow \nhard-line socially conservative activists.<\/p>\n\n\n\n The Trump-Thomas \nrelationship may have been responsible for retirement rumors, fueled by \nsome conservatives, who apparently wanted the 71-year-old Thomas to step\n down so that Trump could replace him with a younger conservative \nappointee for decades longer.<\/p>\n\n\n\n If that was the plan, it didn’t work, as Thomas made clear during an appearance at Pepperdine University when he was asked what he might say at his retirement party in 20 years.<\/p>\n\n\n\n But I’m not retiring,” he told the interviewer, who queried, “Not in 20 years?”<\/p>\n\n\n\n “No,” replied Thomas with a laugh.<\/p>\n\n\n\n “Not in 30 years?” the interviewer persisted.<\/p>\n\n\n\n “No,” added Thomas, emphatically.<\/p>\n\n\n\n Now,\n nobody really thinks Thomas will still be on the Supreme Court when he \nis 101, but in this and other appearances, he has quite clearly rejected\n the idea of retiring anytime soon.<\/p>\n\n\n\n Theories from black nationalism to originalism<\/strong><\/p>\n\n\n\n In\n each of his 28 years on the nation’s highest court, Thomas has seen \ncritics and supporters alike positing different theories about his \njurisprudence.<\/p>\n\n\n\n Brooklyn College professor Corey Robin, author of the forthcoming book The Enigma of Clarence Thomas,<\/em> contends that Thomas’ overriding legal philosophy stems from his views as a “black nationalist.”<\/p>\n\n\n\n “The way I understand Thomas is that he believes that the American state, in particular, is imbued with race and racial consciousness,” Robin said, “and he thinks it’s kind of a fool’s errand to try to change that.”<\/p>\n\n\n\n In Robin’s view, Thomas’ dissent in this term’s jury discrimination \ncase fits in perfectly. The solution to white prosecutors trying to \nexclude black jurors because of their race is to allow defense lawyers \nto exclude white jurors because of their race too.<\/p>\n\n\n\n An entirely different view of Thomas comes from Ralph Rossum, a professor at Claremont McKenna College and author of Understanding Clarence Thomas.<\/em>\n Rossum said Thomas disdains prior Supreme Court rulings because they \nget him further and further away from the original Constitution.<\/p>\n\n\n\n “If\n you have a finely wrought piece of furniture and you put layer and \nlayer of paint on it, pretty soon all the detail is lost under the coats\n of paint,” Rossum said, “and what Thomas wants to do is scrape back to \nbare wood, to the original text” of the Constitution.<\/p>\n\n\n\n But even \nthe man who made originalism popular, the late Justice Antonin Scalia, \ndid not have such a purist view. Unlike Thomas, he did<\/em> believe in precedent. As he famously put it, “I am an originalist, but I’m not a nut.”<\/p>\n\n\n\n Supreme Court precedents are the building blocks of the law and of an ordered society, said University of Baltimore law professor Garrett Epps. He sees Thomas’ view of precedent as arrogant.<\/p>\n\n\n\n As an example, he points to a 1995 concurring opinion in which Thomas\n referred to James Madison’s views on separation of church and state as \n“extreme” and said that “in any event the views of one man do not \nestablish the original meaning of the First Amendment” religion clauses.<\/p>\n\n\n\n “Wait\n a minute,” said Epps, his voice rising. “You just called James Madison,\n the father of the Bill of Rights … you just called him an extremist, \nparticularly in the area of religious freedom, which is the area he is \nmost identified with.”<\/p>\n\n\n\n Epps maintains that if you read Thomas’ \njurisprudence, the views of only one man count \u2014 his own. Thomas “alone \nknows the original meaning of these provisions,” Epps said, “and even \nMadison, who wrote them, can be disregarded.”<\/p>\n\n\n\n Epps added, “Now that takes a level of confidence or megalomania that I find really breathtaking.”<\/p>\n\n\n\n The measure of success<\/strong><\/p>\n\n\n\n It\n is, however, important not to dismiss Thomas’ views. Yale’s Amar \nacknowledges that Thomas has not written many high-visibility majority \nopinions for the court, but that may not be what matters most at this \nmoment with a newly conservative court majority.<\/p>\n\n\n\n “If you think \nthat the measure of success of a justice is how many majority opinions \nhe writes, well then Thomas ranks somewhat lower,” Amar said. “But if \ninstead the game is scored by how many new ideas someone gets into the \nconversation and eventually wins on, well, then Thomas is way high in \nthe pecking order.”<\/p>\n\n\n\n Thomas, for instance, did not write the court’s landmark 2008 decision declaring for the first time that the Second Amendment right to bear arms includes an individual right to own a gun in one’s home for self-defense. Scalia wrote that decision, but the first justice to propose that idea was Thomas, in a concurring opinion 11 years earlier.<\/p>\n\n\n\n Still, Amar draws a distinction between the gun rights decision and \nother decisions that Thomas criticized this term. The right to a fair \ntrial, guaranteed by the Constitution, is so “foundational,” Amar said, \nand so embraced by courts and scholars that he thinks it “unimaginable” \nthat the Supreme Court would repudiate either Gideon v. Wainwright<\/em>‘s right-to-counsel decision or a line of decisions barring racial discrimination in jury selection.<\/p>\n\n\n\n Similarly,\n he thinks it “unimaginable” that the Supreme Court would repudiate its \nlandmark libel decision or that it would rethink its religion doctrine \nto allow state governments to prefer one religion over another.<\/p>\n\n\n\n But,\n “the one area where Justice Thomas might very well have five votes is \nabortion,” Amar said, adding, “That is the proverbial elephant in the \nroom.”<\/p>\n\n\n\n But if the new conservative Supreme Court majority \nstarts rethinking major and long-established precedents in other areas, \nThomas will be leading the way.<\/p>\n\n\n\n