From The New Yorker:
As the Justice has assumed an influential role on the Roberts Court, his wife has helped lead the public war against the Administration. ILLUSTRATION: PHILIP BURKE
By Jeffrey Toobin
August 29, 2011
It has been, in certain respects, a difficult year for Clarence Thomas. In January, he was compelled to amend several years of the financial-disclosure forms that Supreme Court Justices must file each year. The document requires the Justices to disclose the source of all income earned by their spouses, and Thomas had failed to note that his wife, Virginia, who is known as Ginni, worked as a representative for a Michigan college and at the Heritage Foundation. The following month, seventy-four members of Congress called on Thomas to recuse himself from any legal challenges to President Obama’s health-care reform, because his wife has been an outspoken opponent of the law. At around the same time, Court observers noted the fifth anniversary of the last time that Thomas had asked a question during an oral argument. The confluence of these events produced the kind of public criticism, and even mockery, that Thomas had largely managed to avoid since his tumultuous arrival on the Court, twenty years ago this fall.
These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control. In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.)
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
Thomas may be well known for silence on the bench, but he is actually a frequent public speaker, if on his own terms. He appears regularly at law schools around the South, as well as in states covered by the Eighth Circuit Court of Appeals, mostly in the northern Midwest. (Each Justice represents one or two Circuits, and Thomas long supervised the Eighth, though he no longer does.) Thomas rarely uses a prepared text, and often simply takes questions from students for an hour or more.
For those whose picture of Thomas remains frozen at the time of his confirmation hearings, in 1991, the Justice is today a startling sight. His jet-black hair has gone almost completely white. He has gained a great deal of weight. (An injury long ago ended his days on the “highest court in the land,” the basketball court on the top floor of the Supreme Court building.) His gait is weary, and he looks older than his sixty-three years. On these public occasions, Thomas often limits himself to platitudes, but the nature of his views—and of his place on the Court—sometimes slips out in unexpected ways.
When he recently received an honorary doctorate from the Stetson University College of Law, in Gulfport, Florida, he said, “Thank you for a law degree that I can put up on my wall.” The audience greeted the remark with polite laughter, but Thomas’s sentiment has a long history. Thomas graduated from Yale Law School in 1974, and he maintains a rich and public loathing for the institution. In his autobiography, published in 2007, he wrote, “As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.” Thomas has refused entreaties from a series of deans at Yale to sit for a portrait for the school. (His law-school travels never take him to Yale or to comparable institutions. “I don’t do Ivies,” he told a law professor.)
The gist of Thomas’s complaint about Yale reflects his feelings about the worth of affirmative action generally. In his book, Thomas recounts his difficulties finding a job after Yale, which he attributed to “what a law degree from Yale was worth when it bore the taint of racial preference.” In light of this, he wrote, “Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.” This hostility to élite institutions manifested itself at Stetson. “We talk about diversity. The real problem of our Court is that it’s all Ivy League,” Thomas said. Currently, all nine Justices attended law school at either Harvard or Yale. “Correct me if I’m wrong, but I think there are other law schools out there,” he said. Alone among his colleagues, Thomas usually selects at least some of his law clerks from less prominent schools. In recent years, his clerks have included graduates of the law schools of Creighton University, in Nebraska; Rutgers; George Mason; and the University of Utah.
“I grew up with maids, and janitors, and yard people,” he told the students at Stetson. “It gives you a perspective on society. You’re looking from the bottom up, and how people see it from that direction. . . . You understand why people are angry or upset. You understand why they become rich soil for class envy and class hatred, or class warfare. You see how they become easy pickings for people who have snake-oil merchants for solving all their problems. But you develop a respect for them without condescension. You develop an attitude that we are all inherently equal regardless of who went to school and who did not—that there can be smart people who did not have any book learning and never had a chance.”
Thomas continued, “There’s a difference between being poor and being stupid. And you’re stupid for thinking that they’re stupid. As my granddaddy would say, you’re just an educated fool. . . . I am passionate about preserving liberty so that people can rise from that to go to the Supreme Court.” Thomas saw that he was getting worked up and paused with a small laugh. “My wife does this, too,” he said. “My wife is my best friend. I can rant with her. She doesn’t read opinions or anything. We believe that this is a good country and that people should have a chance. That’s why you see so many of my law clerks who don’t go to Ivy League schools. These are kids who tried hard and did well. Why don’t we reward them?”
Thomas presents his populism as a form of humility, portraying himself as merely the tribune for the masses from which he came. In fact, Thomas’s approach to judging places the current Supreme Court in an especially powerful position, because he approaches precedent in a very different way from his colleagues. “You have to remember that we are the court of last resort,” he told the students at Stetson. “I always ask people, ‘What would you do with Plessy v. Ferguson, which was sixty years old?’ ” That case, from 1896, affirmed the racial doctrine of separate but equal, until it was overruled by Brown v. Board of Education, in 1954. “If it’s wrong, the ultimate precedent is the Constitution. And it’s not what we say it is, it’s what it actually says, and I think we have to be humble enough to say we were wrong,” Thomas said. In other words, Thomas is humble before his own reading of the constitutional text—and dismissive of the attempts of others, including other Justices, to interpret it.
In practical terms, Thomas pays far less deference to prior rulings of the Court than his colleagues do. As he put it at Stetson, “If it’s wrong, it’s wrong, and we are obligated to revisit it.” This is a different approach from the traditional conservative position, which stresses the importance of stare decisis—of relying on precedent. As Roberts put it in his confirmation hearings, “Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.” (Whether Roberts, as Chief Justice, has actually honored that sentiment is a different question.) Thomas, though, makes little pretense of relying on the words of his colleagues and their predecessors when their interpretations conflict with his own understanding of the text of the Constitution itself.
From the moment Thomas arrived on the Court, he has been a committed originalist; he believes the Constitution should be interpreted as the words were understood by the men who wrote it. “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning,” Thomas wrote in an opinion from 2005. Scalia is the figure most often associated with this school of thought, but he refers to himself as a “fainthearted originalist.” Scalia means that other factors besides his own understanding of the intent of the framers, most especially the long-established precedents of the Court, influence his judgment on the resolution of constitutional disputes. “If a constitutional line of authority is wrong, he”—Thomas—“would say let’s get it right,” Scalia told a reporter in 2004. “I wouldn’t do that. He does not believe in stare decisis period.” In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution.
“When interpreting a constitutional provision,” Thomas wrote earlier this year, “the goal is to discern the most likely public understanding of that provision at the time it was adopted.” To that end, he plumbs the words of the framers and the eighteenth-century (and earlier) thinkers who influenced Jefferson, Madison, and their contemporaries. No other Justice, not even Scalia, studies the historical record with as much care, and enthusiasm, as Thomas. In June, Thomas dissented from Scalia’s opinion holding unconstitutional the California law limiting the sale of violent video games to children. “A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England,” Thomas wrote. Following a survey of child-rearing in the eighteenth century, Thomas concluded that the “founding generation would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.” In legal academia, Thomas’s rigor has won respect across the political spectrum. According to Sanford Levinson, a left-leaning professor at the University of Texas School of Law, “Scalia is far more influential, because he has spent much of the last two decades campaigning around the nation for his views, but it would not surprise me if future historians find Thomas to be the more intellectually serious of the two.”
In 1993, during the early days of the Clinton Administration, Congress passed the gun-control law known as the Brady bill. The complex piece of legislation included an interim provision that directed state and local officials to conduct background checks for prospective handgun purchasers. That portion of the bill was challenged, and in 1997, by a vote of five-to-four, the Supreme Court found the temporary part of the law unconstitutional. Scalia’s opinion for the Court in Printz v. United States concluded that the law amounted to an impermissible federal intrusion on states’ rights.
Thomas joined Scalia’s opinion for the majority but wrote a concurring opinion that examined the case in a different way. Thomas devoted his opinion to the Second Amendment, which provides that a “well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment had not been addressed by the Supreme Court since 1939, and the parties in Printz had not raised a Second Amendment claim at any stage of the proceedings, but Thomas used the case to undertake an extensive discussion of it. Indeed, Thomas suggested that the Brady bill might well be unconstitutional as a violation of the Second Amendment. “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right,” Thomas wrote. Concluding with a flourish, and referring to Joseph Story, a renowned figure from the early days of the Court, Thomas declared, “Perhaps, at some future date, 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.’ ”
In his Printz opinion, Thomas gently elided the fact that the meaning of the Second Amendment had, at that point, long been considered a closed issue. Because of the “militia clause,” many lower-court decisions had held that the law did not confer the right to bear arms on an individual. That, more or less, was what the 1939 Supreme Court opinion said. Chief Justice Warren E. Burger, who was no liberal, called any other reading of the amendment “a fraud.” But in the nineteen-eighties and nineties the conservative movement, led by the National Rifle Association, began pressing for a new reading of the Second Amendment, one that invested in individuals the right to bear arms. Thomas gave this interpretation his imprimatur.
Many noticed. The Brady bill also made it a crime for an individual who was covered by a domestic-violence protection order to possess a firearm. In 1999, Timothy Emerson, a doctor in Green County, Texas, who was involved in a messy divorce, challenged the constitutionality of that law, on the ground that it violated the Second Amendment. A federal district court, relying heavily on Thomas’s concurring opinion in Printz, concluded that the Second Amendment did confer an individual right to bear arms and threw out the indictment. In 2001, the Fifth Circuit Court of Appeals reinstated Emerson’s indictment, but again cited Thomas’s opinion in calling for a new understanding of the Second Amendment.
Thomas’s opinion also drew the attention of Clark Neily III and Steve Simpson, two libertarian lawyers who wanted to bring a test case to the Supreme Court. They approached Robert Levy, a software and financial entrepreneur with libertarian views who in his fifties had sold his company and gone to law school. “There was an outpouring of scholarship, including from liberals, indicating that the Second Amendment secured an individual right,” Levy told me. “You had the Bush Administration taking that position. And you had the Emerson decision, citing Thomas’s Printz opinion.” Levy agreed to underwrite the costs, and he hired Alan Gura, a young lawyer from Virginia, to argue the case.
Levy’s group found Dick Heller, a security guard living in Washington, D.C., who had been prevented, by the District’s tough gun-control law, from having a handgun for self-protection. Heller became the plaintiff in the test case, and in 2008 the Supreme Court ruled in his favor, holding that the Second Amendment does confer on individuals the right to bear arms. Scalia wrote the opinion for the five-to-four majority in District of Columbia v. Heller, but his sentiments closely reflected those which Thomas had put forward eleven years earlier. “Thomas’s opinion in Printz signalled an openness on the Supreme Court to a new view of the Second Amendment,” Gura told me. “When a Supreme Court Justice indicates interest in a dormant constitutional question, people take note, especially if it’s a question that’s otherwise generating a lot of controversy. It was highly influential.”
On September 12, 2009, tens of thousands of opponents of President Obama’s agenda, especially his proposed health-care reform, gathered in protest at the west front of the Capitol, where Obama had taken the oath of office earlier that year. FreedomWorks, the conservative organization led by Dick Armey, the former Republican leader of the House, and the de-facto leader of the Tea Party movement, had pulled the event together. “Give me liberty or give me death,” Armey told the crowd. “Well, Barack Obama is trying to make good on that.”
The Tea Party had come to wide public notice that summer, in a series of contentious town-hall meetings with members of Congress who were weighing whether to support health-care reform. As the movement developed, a distinctive reading of the Constitution came to play a central role among its principles. “We have now in our government people who don’t understand the Constitution, and we are fearful about where they are taking our government,” Armey told me. He asserted that only the originalist position, as opposed to the view that the meaning of the Constitution may change over time, was legitimate. “One of the things the activists care about is that the so-called ‘living Constitution’ is a convenient political fiction. A living Constitution gives more power and authority to the state.”
The Tea Party, and the September 12th rally in particular, had a transformative effect on the life of Ginni Thomas. Until then, she had mostly been a behind-the-scenes player. She told Fox News last year that she decided to move to the front lines “because of the march on Washington on September 12th, and seeing and being inspired by the real people who came and spent their own money to get to Washington.” She had been active in the conservative movement since well before her marriage to Clarence Thomas, in 1987, but after the March on Washington, as it was known, she took on, for her, an unprecedented public role as a fiery and outspoken leader in the conservative cause.
Virginia Thomas, who is fifty-four, grew up in Omaha. She received an undergraduate and a law degree from Creighton, and moved to Washington to work for Hal Daub, a Republican congressman from her home state. She later had jobs in the United States Chamber of Commerce and in the Labor Department under the first President Bush before going to work for Armey. In 1998, she joined the Heritage Foundation, where she had a series of policy positions over the next decade. (Her work for Heritage was well known, which renders Justice Thomas’s decision to omit it especially peculiar. In January, he issued a statement saying that information was “inadvertently omitted due to a misunderstanding of the filing instructions,” even though the document clearly called for the Justice to provide “Spouse’s Non-Investment Income.”)
Shortly before Obama won the Presidency, Ginni Thomas took a position in Washington, with Hillsdale College, a small, liberal-arts institution in rural Michigan. The school has no formal religious affiliation, but it has been described by National Review as “a citadel of American conservatism.” Thomas ran a speaker series for the college in Washington, called the Center for Constitutional Studies and Citizenship. After she was named to the post, she said, in a statement, that Hillsdale students “always study our Western heritage, American history, and the Constitution. Maybe some of what they learn at Hillsdale will rub off.” Thomas brought in conservative speakers on such subjects as “The Meaning and Intent of the Second Amendment” and “The Constitutional Roots of the Free Enterprise System.”
After the Washington rally, Ginni Thomas started Liberty Central, a non-profit at the forefront of conservative advocacy. According to tax records, it was funded by two donations: one of five hundred thousand dollars, the other of fifty thousand dollars. Under current law, she was not obligated to disclose the identities of her contributors, and she has not done so. Liberty Central had a Web site, but mostly the organization appeared to exist to support Ginni Thomas’s travels. “Ginni created Liberty Central more as an effort to provide a switchboard in the conservative movement,” Armey told me. “She has always shown up in every fight I’ve been in, and she’s been on the right side—that’s my side.”
Ginni Thomas spent much of 2010 on a coast-to-coast campaign against the Obama Administration. As she said in an introductory video on her Web site, “If you believe in limited government, individual liberty, free enterprise, national security, and personal responsibility, and have felt these principles are under attack from Washington, then you’ve come to the right place.” In a later interview, she said, “I’ve never seen, in my thirty years in Washington, an agenda that’s so far left. It’s a radical, leftist agenda that grabs a lot of power to Washington so that Washington élites can pick the winners and losers.” In his own speeches, Justice Thomas expresses himself in terms similar to those of his wife. Answering questions recently in Florida, he said, “The government has to be limited. We have separations of powers, and some of the other enumerated powers that prevent the government from becoming our ruler. I don’t know if that’s happened already.”
Ginni Thomas’s contempt for “élites” also mirrors a theme in Justice Thomas’s writings. Dissenting from Sandra Day O’Connor’s opinion upholding the affirmative-action program at the University of Michigan Law School, he wrote, “All the Law School cares about is its own image among know-it-all élites.” In a concurring opinion in a 2007 case that invalidated school-integration plans in Seattle and Louisville, he wrote, “If our history has taught us anything, it has taught us to beware of élites bearing racial theories.” In his autobiography, he described the ordeal of his confirmation hearings, as a time when “America’s elites were arrogantly wreaking havoc on everything my grandparents had worked for and all I’d accomplished in forty-three years of struggle.”
Ginni Thomas’s particular target was the health-care-reform law, which was, in her view, clearly unconstitutional. In Atlanta, in April: “I have been writing my congressman, and going to his office. I waited for the August health-care hearings and were there any town-hall hearings? No.” On Fox News, in May: “The audacity of power-grabbing that I’m seeing right now in cap-and-trade, health care, the stimulus plan, it’s corrupt. It’s a big power grab. It’s picking winners and losers from Washington; it’s abhorrent to our national principles.” At the Steamboat Institute, in Colorado, in August: “We need outsiders to help a constitutional audit to help set up a system where Congress can reconsider different functions, and programs, and agencies. . . . I think we need a big spending reduction and no new taxes. . . . I think we need to repeal Obamacare.” In Florida, noting her support for Republicans running for office in the midterm elections: “We support the more constitutionally inclined candidate.”
On occasion, especially in television interviews, Ginni was asked about her husband’s view of her activities. At a Dallas appearance, she said, “My husband and I do really different things, by the way, but there was a tornado over our wedding when we got married. God knew that we were both troublemakers coming together. I do policy, he does law, and I don’t understand that world and I’m glad God didn’t tell me to do that, because I don’t know how to do that.” Both Thomases appear to overstate Ginni’s ignorance about legal matters. After all, she is a lawyer, and she, too, invariably invokes the Constitution as the authority for smaller government.
By the fall of last year, Ginni Thomas’s activities had become so public that she began to draw journalistic scrutiny. On Saturday, October 9th, the Times ran a front-page story headlined “ACTIVISM OF THOMAS’S WIFE COULD RAISE JUDICIAL ISSUES,” which was a straightforward account of Ginni’s political activities. Still, the story may have unnerved its subject, because at seven-thirty-one that morning Ginni Thomas left a voice mail for Anita Hill, at her office at Brandeis University, where she teaches. “Anita Hill, it’s Ginni Thomas. I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.” She went on to urge Hill to “pray about this,” and then signed off, “O.K., have a good day!”
The Thomas-Hill hearings remain one of the great set pieces of recent American history. Even twenty years later, the facts are familiar. Anita Hill, also a graduate of Yale Law School, worked on Thomas’s staff at the Department of Education and at the Equal Employment Opportunity Commission. According to her testimony, Thomas made a series of crude advances to her, which included references to pornographic movies starring Long Dong Silver and utterances like “Who has put pubic hair on my Coke?” Thomas denied her allegations categorically and denounced the hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”
Thomas was confirmed in the Senate by a vote of fifty-two to forty-eight, and neither the Judiciary Committee nor any other part of the government has since seen fit to reëxamine the Thomas-Hill controversy. Still, a good deal of evidence has since emerged about the protagonists and their testimony. Even near the end of the hearings, several other women who had worked for Thomas were prepared to testify and corroborate Hill’s testimony that Thomas had a history of making female subordinates uncomfortable with personal and sexual talk. The group included Angela Wright, Rose Jourdain, and Sukari Hardnett; other associates of Thomas, among them Kaye Savage and Fred Cooke, would have testified about the nominee’s long-standing interest in pornography, which would have corroborated Hill’s account. But Joseph Biden, the chairman of the Judiciary Committee at the time, decided not to call these witnesses. This year, Lillian McEwen, a Washington lawyer who had a long-term romantic relationship with Thomas before he met Ginni, published a memoir, “D.C. Unmasked & Undressed.” She, too, remarked on the Justice’s “strong interest in pornography,” and she also said that Thomas scrutinized his work colleagues as prospective sexual partners. In short, virtually all the evidence that has emerged since the hearings corroborates Hill’s version of events. This, of course, makes Ginni Thomas’s phone call to Hill all the more puzzling. (Ginni Thomas did not respond to a request for comment; in an interview with the Daily Caller, a conservative Web site, she called her voice mail “a private matter” that was “probably a mistake on my part.” Justice Thomas also declined to comment.)
The origin of Ginni’s call to Hill may be found in the nature of the Thomases’ social and professional lives. They are known for their long trips in their “bus”— a motor home that they drive around the country, and to football games. (The Justice roots for the Dallas Cowboys and the Nebraska Cornhuskers.) In Washington, though, the couple are pillars of the conservative movement, socially as well as professionally. The Thomases hosted at their home, and the Justice officiated at, the third wedding of Rush Limbaugh. (The Justice did not preside at, but did attend, Wedding No. 4.) Other friends include the radio talk-show host Mark Levin, the author of “Men in Black: How the Supreme Court is Destroying America.” As reported recently by the Times, Thomas has also been a close friend of Harlan Crow, a Dallas businessman and supporter of conservative causes, who is funding a museum in Thomas’s home town of Pin Point, Georgia. According to Politico, it was Crow who made the five-hundred-thousand-dollar contribution to Liberty Central. When questioned by the Times, Crow said, “I disclose what I’m required by law to disclose, and I don’t disclose what I’m not required to disclose.” Thomas has spoken to the conference of conservative funders that is sponsored by Charles and David Koch, who are leading benefactors of the Tea Party movement. The Justice is also a regular at Bohemian Grove, the annual all-male conclave in Northern California. In his social life, Thomas thus differs from his frequent ally Scalia, who is well known for his friendship with Ruth Bader Ginsburg, his ideological opposite and a fellow opera buff. (“I’m not really a Washington-type person,” Thomas said at a recent law-school appearance. “I don’t sort of like hanging out at the opera and that sort of thing.”) Even in today’s highly polarized political environment, any number of members of Congress share friendships across the aisle. But the Thomases live in a world where, it seems, everyone believed Thomas’s testimony, and Ginni might well have got the impression that everyone else did, too.
After the bewildered public reaction to her call to Hill, Ginni decided to lower her profile. Shortly after news of the voice mail surfaced, a memo attributed to Ginni Thomas which said that the health-care law was unconstitutional drew attention on the Liberty Central Web site. “With the U.S. Constitution on our side and the hearts and minds of the American People with us, freedom will prevail,” the memo read. Later, an official issued a statement saying the memo “mistakenly carried Ginni Thomas’s name.” After the midterm elections, Ginni Thomas announced that she would be stepping down from her position at Liberty Central. Instead, a few months later, she launched Liberty Consulting, a lobbying firm dedicated to “effective advocacy and assistance on behalf of those liberty-loving citizens and organizations who wish to preserve limited government, free enterprise, national security, individual liberty and personal responsibility.” At this point, it’s unclear how many, if any, clients she has found. In recent months, she appears to have limited her public activities to conducting interviews with fellow-conservatives for the Daily Caller Web site.
Ginni Thomas’s political activities prompted seventy-four Democrats in the House to write Justice Thomas in February and demand that he recuse himself from any litigation on health-care reform because of an “appearance of a conflict of interest.” (To Thomas’s good fortune, the leader of the effort was the now disgraced former Representative Anthony Weiner.) On the question of recusal, the law is clear that the decision is entirely up to Thomas; the Supreme Court operates on an honor system. The federal statute governing judicial conflicts of interest covers only lower-court judges. “Congress has always felt a greater sensitivity when it tries to regulate something related to the Supreme Court,” Michael Gerhardt, a professor at the University of North Carolina School of Law, told me. “The tradition is that the Justices can be trusted to deal with these issues themselves.”
As for whether Thomas should recuse himself regarding health care under the standards that prevail for lower-court judges, that appears to be a close question. “I think it is possible she”—Ginni Thomas—“might have significant interests in the dispute before the Court,” Gerhardt said. “And these interests are not restricted only to financial ones. The code, after all, forbids judges from engaging in conduct that undermines their impartiality or the appearance of impartiality. In Thomas’s case, the evidence so far seems compelling enough to put the burden on the Justice to explain why he does not believe he has to recuse himself.” Patrick Longan, who holds a chair in ethics and professionalism at the law school of Mercer University, in Macon, Georgia, disagrees. “The standard is whether there is something materially to be gained by the judge or his spouse from the outcome of the litigation,” he said. “It’s hard for me to see how his vote in the case would help her materially, one way or the other.” In any event, there is no sign that Thomas plans to recuse himself on health care or on any other case related to his wife’s political activities.
Still, the controversy over Ginni’s work has already taken a toll on Justice Thomas, as he made clear in an emotional appearance at a Federalist Society event at the University of Virginia School of Law, in February. “This is about our country, and one of the things I want to do is I want to go to my grave knowing that I gave everything I have to trying to get it right. And all I ask of you all, especially those of you who are still in school, is you give it your best,” Thomas said, in remarks first reported by Politico. “I watch my bride who, in doing the same things, when she started her organization, she gives it 24/7 every day, in defense of liberty. You know, and maybe that’s why we’re equally young and we love being with each other because we love the same things; we believe in the same things. So, with my wife and the people around me what I see unreinforced is that we are focused on defending liberty. So, I admire her and I love her for that because it keeps me going.” Then, concluding his speech, he said, “My bride is with me, Virginia Thomas, and some of you may know her. But the reason that I specifically bring it up: there is a price to pay today for standing in defense of your Constitution.”
At the appearance at Stetson, Thomas was asked about the most controversial decision so far from the Roberts Court, Citizens United v. Federal Election Commission, in 2010. In that case, Thomas joined Anthony M. Kennedy’s five-Justice majority opinion, which held that a major part of the McCain-Feingold campaign-finance law was unconstitutional. The case said that corporations enjoyed the right to free speech and that any attempt to limit corporate spending on behalf of political candidates amounted to a violation of the First Amendment.
Thomas’s defense of the decision was unconventional but was consistent with his long-standing approach to free-speech issues. He told the students that federal regulation of corporate involvement with politics began with the Tillman Act, which in 1907 banned direct corporate contributions to candidates. “Go back and read why Tillman introduced that legislation,” Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
This is a characteristic intellectual gesture by Thomas—to assert that government poisons whatever it touches. More to the point, he argues that government attempts to assist black people, even to integrate white institutions, invariably backfire against their purported beneficiaries. In 2010, the Court expanded the Heller ruling to forbid the states, as well as the federal government, from infringing on the right to bear arms. In a concurring opinion in that case, McDonald v. Chicago, Thomas argued that gun control originally arose as a way for whites to disarm blacks around the time of the Civil War. Referring to the revolts by Nat Turner and others before the war, Thomas wrote, “The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense.” He went on, with regard to the Reconstruction period, “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.” More bluntly, in his dissent in the Michigan law-school case, Thomas quoted Frederick Douglass: “If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!”
Like his intellectual heirs in the Tea Party, Thomas has a special hostility for government attempts to level the playing field in the political arena. For this Justice, the Constitution mandates the law of the jungle. When it comes to free speech, Thomas first laid out his views in McIntyre v. Ohio Elections Commission, a case early in his tenure. In 1988, Margaret McIntyre distributed unsigned leaflets at public meetings in a small town in Ohio. According to Ohio election laws, she was required to put her name on any material she distributed, and McIntyre was ultimately fined a hundred dollars for breaking the rule. In a 1995 opinion by John Paul Stevens for a seven-Justice majority, the Court overturned the fine as a violation of McIntyre’s right to free speech. For the Court, Stevens weighed the interest of the state in protecting the integrity of campaigns versus the individual’s right to express herself and concluded that the state’s restrictions went too far.
Thomas wrote a concurring opinion, which laid out a template that he, and to some extent the Court, has since followed. The opinion is an originalist tour de force, with extensive discussion of the practice of anonymous speech as practiced by the framers of the Constitution. “In light of the Framers’ universal practice of publishing anonymous articles and pamphlets,” Thomas wrote, it was clear “that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.” This case marked the début of Thomas’s absolutist position on free-speech issues. “I don’t agree with him, but Thomas has the most internally coherent view of any Justice,” Richard Hasen, a professor at the School of Law at the University of California at Irvine and the proprietor of a widely read blog on electoral law, said. “His view is that the First Amendment allows virtually no regulation of campaign advertising, campaign contributions, or expenditures. The Court has been moving his way.”
Thomas put his position straightforwardly in a dissent to a decision, in 2000, that upheld a Missouri law that limited individual contributions to local campaigns to a total of a thousand and seventy-five dollars. “In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade,” he wrote. During the past decade, Justice Stephen Breyer has led the way for the other side, arguing in a series of cases (and in two books) that Congress may enact strict campaign-finance laws. As Breyer wrote in his book “Active Liberty,” campaign-finance laws reflect the concern that “the few who give in large amounts may have special access to, and therefore influence over, their elected representatives.” Breyer asserts that the Constitution permits Congress to limit the influence of these wealthy political insiders.
By 2010, in Citizens United, it had become clear that Thomas was routing Breyer. Though Thomas was not the author of the Court’s opinion in that famous case, Kennedy did adopt several Thomas tropes—that there was no difference, under the First Amendment, between an individual and a corporation, and limitations on expenditures amounted to limitations on speech. But still, remarkably, Thomas wanted more. Kennedy’s opinion did uphold federal rules that required corporations and others to disclose how much they had contributed to political campaigns. To Thomas, even this amounted to an unlawful intrusion on the First Amendment. Returning to a theme first expressed in McIntyre, fifteen years earlier, Thomas said, in a separate opinion, in Citizens United, that the First Amendment protected anonymity as much as speech itself. Ever alert to contemporary political developments as much as to eighteenth-century history, Thomas asserted that harassment of contributors to Proposition 8 in California, which banned same-sex marriage, demonstrated the dangers of mandatory disclosures. “These instances of retaliation sufficiently demonstrate why this Court should invalidate mandatory disclosure and reporting requirements,” he wrote. On this issue, Thomas has not persuaded a majority of his colleagues—yet.
Notwithstanding Thomas’s scholarly and influential jurisprudence, he remains best known for his silence on the bench. No Justice in the modern history of the Court has gone as long as a single year without asking a question; Thomas is now into his sixth year. Sonia Sotomayor and Elena Kagan, the two newest members of the Court, immediately asserted themselves as vigorous participants in oral arguments, which drew even more attention to Thomas’s unique approach.
In his public appearances, Thomas is often asked about his silence, and sometimes he brings it up himself. His answers have evolved over time, but he usually says that he finds that the other Justices ask too many questions and that the lawyers should be given a chance to speak for a time without interruption. At an appearance at Hillsdale, in 2007, he said, “My colleagues should shut up!” At a law-school appearance last year, Thomas was asked what might change his mind in a case. “If my colleagues would let me talk,” he said with a small laugh, then added, “assuming that improbability.”
In one respect, Thomas has a point. During his tenure on the Court, the other Justices have become notably more aggressive questioners, and lawyers sometimes have trouble getting a word in edgewise. Even the Chief Justice, at an appearance in West Virginia in June, expressed the view that he and his colleagues might be talking and interrupting too much. “I am probably one of the prime offenders,” Roberts said. Obviously, though, Thomas’s reaction to this problem is extreme, and he would certainly be allowed to ask questions if he tried.
What makes Thomas’s silence even more peculiar is his behavior in the courtroom, especially in recent years. The Justices all sit in high-backed leather swivel chairs, and Thomas has set his so that he can recline so far that he appears almost to be lying down. He stares at the ceiling. He rubs his face. He does not appear to be listening. He closes his eyes and sometimes appears to be asleep. The over-all effect is rude, if not contemptuous.
Thomas’s performance at oral argument is even odder, because he is otherwise a popular, if elusive, figure at the Court. His separate opinions, while vigorously argued, are invariably respectful of his colleagues. Thomas never engages in the abusive rhetoric that is a Scalia specialty. (Scalia denounced a recent opinion by Sotomayor as “utter nonsense” that “demeans this institution.”) As a group, the Justices lobby one another less than many suppose, but Thomas expresses himself in writing or not at all. He talks to his colleagues about sports or his travels, but he will go months, or even years, without discussing the substance of cases with some of them. He discusses these issues almost exclusively with his law clerks, whom he chooses for their ideological compatibility. At Stetson, he described his relationships with his law clerks this way: “Zero tolerance for mistakes, zero tolerance for excuses, zero tolerance for tardiness. I want my stuff done. I want it done my way. I also make it clear that if you don’t like my opinion, or you have a different opinion, all you’ve got to do is get nominated and confirmed.”
At this point, Thomas may see his continued silence on the bench as a provocation to his critics—a gesture that says their contempt will not move him. Certainly, Thomas seems to relish outraging his ideological adversaries. His views on the Eighth Amendment’s ban on cruel and unusual punishment remain so eccentric, even bizarre, that they have found little favor even on this more conservative Court. In 2008, in Baze v. Rees, a badly splintered Court upheld lethal injection as a method of execution. In the lead opinion for the Court, Roberts said that the evidence in the case showed that lethal injection was not “cruelly inhumane” and thus not a violation of the Eighth Amendment.
Thomas concurred, in an opinion that reads like a treatment for a slasher movie. As always, Thomas began by asserting that the relevant constitutional provision must be “understood in light of the historical practices that led the Framers to include it in the Bill of Rights.” To that end, Thomas surveyed eighteenth-century execution methods that were, apparently, cruel and unusual even in those days. There was burning at the stake, “ ‘gibbeting,’ or hanging the condemned in an iron cage so that his body would decompose in public view, and ‘public dissection.’ ” Thomas went on, “But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors.” Their punishments involved “embowelling alive, beheading, and quartering.” One death sentence in England called for the condemned to be “drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters.”
The point of this grotesque catalogue was to assert that the Eighth Amendment prohibited methods of execution that were also forms of torture—nothing more. Such a standard meant that Thomas was implicitly writing out of existence decades of precedent on the Eighth Amendment. Over the years, the Court had vetoed the imposition of “hard and painful labor”; rejected disproportionate sentences for minor crimes; abolished the death penalty for rape; and outlawed life sentences for juveniles convicted of crimes other than murder. Under Thomas’s narrow reading of the Eighth Amendment, all these cases would be wrong; under his approach to stare decisis, all would be overturned.
Thomas’s approach to the Eighth Amendment underlines some of the problems with his approach to the Constitution, and with originalism generally. Only two Justices, Thomas and Scalia, have built their jurisprudence around originalism (one of them faintheartedly), so its full adoption would require the trashing of dozens, if not hundreds, of Court precedents. Further, notwithstanding Thomas’s enduring certainties, it is difficult to know what the framers would have thought of any given situation. (Alito, a conservative but not a full-fledged originalist, captured this problem nicely, in the oral argument about the California law on violent video games. Following up on a series of questions by Scalia, Alito asked the lawyer, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”) It is true, too, that the framers often disagreed profoundly with each other, making a single intent behind the Constitution even more difficult to discern, and the twenty-seven amendments (all with their own framers) created another overlay of complication. For all of Thomas’s conviction, originalism is just another kind of interpretation, revealing as much about Thomas as about the Constitution.
In “Boiling Mad: Inside Tea Party America,” the Times reporter Kate Zernike wrote, “In the originalist view, and the Tea Party view, the perversion of the Constitution took off during the presidency of Franklin Delano Roosevelt.” On this issue, as ever, Thomas led where the conservative movement soon followed.
Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s signature initiatives as violating the Commerce Clause of the Constitution. If the law did not directly affect commerce “among the several states,” in the words of Article I, the Nine Old Men on the Court said that Congress had no right to pass it. F.D.R. responded to these setbacks with his infamous court-packing plan, but a change of heart by Justice Owen J. Roberts in 1937, followed by Roosevelt’s own appointments to the Court, transformed the understanding of that provision. In a series of cases, the Justices gave Congress essentially unlimited power to regulate the national economy. In Wickard v. Filburn, from 1942, the Court said that the federal government could regulate the amount of wheat grown on a farm, even if none of the wheat was sold across state lines, or even if no wheat was sold at all. Because the production of wheat, taken in aggregate, did affect interstate commerce, the regulation was permissible. With that, the issue of the Commerce Clause more or less vanished from the Supreme Court’s docket for decades—until Thomas and the Tea Party brought it back to life.
In 1995, the Supreme Court, in an opinion by Chief Justice William H. Rehnquist, did finally strike down another law as violating the Commerce Clause. In United States v. Lopez, the Court rejected a federal law that made it a crime to possess a gun near a school. Rehnquist’s opinion said, in essence, that possession of a gun in or near a school was so completely remote from the national economy that Congress had no right to prohibit it.
Thomas agreed—and then some. In a concurring opinion, he said, “I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.” Even Rehnquist had acknowledged the long line of cases that said the Commerce Clause was satisfied if the activity in question “substantially affects” interstate commerce. In a characteristically lengthy and detailed opinion, Thomas said that the early New Deal Court—the Nine Old Men—was right, and all the Justices over the following six decades were wrong. Thomas wrote, “From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.” By Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional. “Justices can be influential by indicating to lawyers the boundaries of what’s possible,” Eugene Volokh, a professor at U.C.L.A. School of Law and a widely read blogger, said. “There is conventional wisdom about what’s possible, like ‘Whatever you think about the Commerce Clause, no one is going to go back to the pre-1937 approach,’ or ‘The Second Amendment is a closed issue.’ Thomas has shown that sometimes the conventional wisdom is wrong.”
Supreme Court Justices, especially those who are appointed young, like Thomas, can afford to take the long view. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act. That same day, Kenneth Cuccinelli, the Attorney General of Virginia, filed one of the first of several legal challenges to the law. Earlier this year, sixteen years after Lopez, Judge Roger Vinson, of the Federal District Court in Pensacola, struck down the law in its entirety—and he relied several times on Thomas to do so. (The Eleventh Circuit affirmed Vinson, in part.) Quoting Thomas’s concurring opinion in Lopez, Vinson said that the Obama Administration’s position would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.” These words, of course, would fit just as well in a speech by Ginni Thomas as in an opinion by her husband.
Four more circuit courts of appeals are slated to weigh in on the constitutionality of the health-care law. In due course, the Justices will have their turn. I asked Cuccinelli what role Thomas might play in the resolution of the health-care case. “I don’t like to make predictions,” he told me. “But I know I’ve got his vote.” ♦
Filed under: Affordable Care Act, In The Courts | Tagged: ACA, Affordable Care Act, Akhil Reed Amar, Clarence Thomas, Federalist Society, Ginni Thomas, healthcare reform, Heritage Foundation, Hugo Black, Justice, Liberty Central, oral argument, Roberts Court, SCOTUS, Steve Calabresi, Supreme Court, Tea Party, Virginia Thomas, Yale Law School | Comments Off on Clarence and Virginia Thomas Against Healthcare Reform