Appreciation: Celebrating Justice Thomas’s 30 Years on the Supreme Court

He’s made a singularly historic and positive contribution to the life of our Nation and the liberty of the American People.

Justice Thomas and the author’s mother, June 2, 1997—Photo by S.G. Bradbury

Note: Portions of this post were pre­viously pub­lished by FoxNews.com as the author’s tribute to Clarence Thomas on the 25th anni­versary of his nomina­tion to serve as an Associate Justice of the Supreme Court of the United States.

Clarence Thomas was born into a community of Americans scratching out a living in the lowest tidal marshes of society, utterly vulnerable to arbi­trary power and to the suffo­cating dark­ness of “impene­trable bigotry,” as he describes in his memoir My Grand­father’s Son.

But he was blessed—saved from the shanties and squalid tene­ments of segre­gated Savannah by his grand­parents, who were amazingly strong, disciplined, inde­pendent, and self-sufficient people. His grand­father Myers Ander­son demanded uncom­pro­mising habits of self-discipline, hard work, and accounta­bility. “Blisters come before calluses, vulnera­bility before maturity”: That’s how the Justice later summed up the life lesson he learned from his grandfather.

Myers Anderson sent young Clarence to be educated by the strict nuns of St. Bene­dict the Moor Grammar School. In a world-historic act of grace, the Fran­ciscan nuns of St. Bene­dict’s impressed upon the future Associate Justice the faith that all human beings, with­out exception, have inherent dignity, are entitled to respect, and are equal—truly equal—in the eyes of God.

As it turns out, and as President George Bush accurately sensed in 1991, the impressions left by the nuns and the unbelievable totality of the life path of Clarence Thomas make him ideally suited to serve his Nation as a Justice in the inner sanctum of the Supreme Court Building—a building whose West Pediment bears the most apt inscription Equal Justice Under Law.

In October 1991, Justice Thomas emerged from the blast furnace of his con­firma­tion hearings purified in his soul and case-hardened in his natural judicial sensi­bilities and intellect. He was sustained by the love and admira­tion of his wife Ginni and his many close friends and colleagues.

Predictably, after the searing and hyper-politicized spectacle of the con­firma­tion circus (in which Judiciary Committee Chairman Joe Biden served as the ring­master), and in reaction to the Justice’s clear and bold opinions, his rela­tive reti­cence toward the media, and his absence from the Washington cock­tail circuit, the press often por­trayed Justice Thomas as a wounded and brooding figure, stewing in anger in the quiet lone­li­ness of the Court.

The Most Personable Justice

Anger certainly would have been a natural and justi­fi­able emotion for some­one who suffered through a nationally tele­vised inquisi­tion and whose home had been picketed by activists who called him many things, including (astoundingly) “inauthentic.” The truth, how­ever, is that the media’s portrayal of the smoldering, reclusive Justice is the opposite of reality.

Clarence Thomas is the most open and personable of Justices, inti­mate in sharing his feelings, easily moved to laughter. He’s among the most frequently visited Members of the Court—a steady stream of school groups and others have rolled through his Chambers over the past 30 years, always getting strong doses of wis­dom, humor, and obser­va­tions on life and the law. And they get to hear for them­selves his thunderous belly laugh!

He’s on a friendly, first-name basis with everyone who works at the Court—from his fellow Justices, to the staff in the Clerk’s Office and cafeteria, to the officers of the Supreme Court Police, to the janitors and carpenters who toil in the base­ment. And those of us lucky enough to serve as his law clerks have always been wel­comed as part of his family. I would venture to say that few Justices in our Nation’s history—indeed, few men in public life anywhere—have been more genuine and, yes, authentic.

My mother was 75 when she first met the Justice, just a year after his con­firma­tion. A life­long Demo­crat, she had to leave school during the Depression to help support the family, and after my father died when I was 11 months old, she raised me as a single mom, working in a bakery at night and ironing clothes all day for 75 cents an hour. The moment she laid eyes on the Justice, she hugged him tightly and pro­claimed her love for him and her heart­felt pain and respect for what he had endured. He spent nearly two hours huddled with her in his office.

Afterward, the Justice frequently told us he wanted “to write opinions that Steve’s mother Cora would under­stand.” And he’s always stayed true to that course. His judicial opinions are simple, con­sistent, logical, faith­ful to the words of statutes, based on first prin­ciples and unwavering con­sti­tu­tional norms, and never over-intellectualized.

With profound humility, he recog­nizes that to partici­pate in the law, especially as a jurist, is to uphold a sacred trust: Our legal system is an essen­tial part of the Ameri­can experi­ment in self-govern­ment under our Con­sti­tu­tion, and the Supreme Court, as the para­mount court in the United States, is the most important guardian of that trust.

The Greatest Defender of Freedom and Equal Justice

Justice Thomas knows that every time the Court resolves a case, including in the way the Justices reason through the issues, the Court affects the free­dom and individual liberty of all Americans. In cases involving techni­cal questions of statu­tory inter­pre­ta­tion, just as in the most momen­tous deci­sions of con­sti­tu­tional law, he main­tains a con­stant mind­ful­ness that the Court can and should con­tribute to the pre­ser­va­tion of free­dom and the pro­mo­tion of equal justice for all Americans.

He’s steadfastly attentive to the proper limits of the Court’s role as an inter­preter of the law, rather than a rewriter of statutes or a creator of new legal norms, and to the oppor­tunities the Court has to decide cases in ways that will pre­serve and vindi­cate the Founders’ original under­standing of our con­sti­tu­tional sys­tem and the true nature of the rights pro­tected by the Con­sti­tu­tion. He knows that remaining true to the origi­nating vision of the Founders is the surest guaran­tee of liberty.

This vigilance is manifest in the words and structure of each opinion he authors, whether speaking for a majority of the Court or in a separate con­currence or dissent.

Many of his influ­ential opinions are directed at the judi­cial function itself. Federal judges are not elected, and once they’re con­firmed to life­time appoint­ments, they’re not accountable to the people. That means that the most basic free­dom of a self-governing people—the free­dom to make policy choices through their elected repre­senta­tives and to redirect the agenda of govern­ment at all levels according to the changing priorities of the popular will—depends critically upon the discipline and con­sistency with which the judiciary honors its insti­tu­tional limits.

Thus, Justice Thomas has defended the political free­dom of the people by urging the courts to stick to clear, simple, and con­sistent prin­ciples of decision and to avoid using malleable balancing tests and multi-factor standards that allow judges to super­sede the will of the legis­lators with their own pre­ferred policy out­comes. His con­curring opinion in Holder v. Hall (1994), con­struing section 2 of the Voting Rights Act, is a model of such defense: “I can no longer adhere to a reading of the Act that does not com­port with the terms of the statute and that has pro­duced such a disastrous mis­adven­ture in judicial policy­making.”

Knowing that the Constitution, not the niceties of stare decisis, is the true bastion of the people’s liberty, Justice Thomas has often been the lone voice urging the Court to return to the founda­tional under­standing of the Con­sti­tu­tion’s great clauses and to cast aside decades of mis­guided judicial gloss. He’s the only Justice on the current Court calling for a complete course correction back to the original meaning of the Commerce Clause, which has become, as reinter­preted by the Court, the prime spring­board for the run­away growth of the Federal Govern­ment.

In voting with the Court to pro­tect an individual’s right to keep and bear arms against abridgment by a muni­ci­pal govern­ment in McDonald v. City of Chicago (2010), he was also the only Justice who actively urged restora­tion of the Privileges or Immunities Clause of the Fourteenth Amend­ment to its right­ful place as the surest bulwark against the suppression of funda­mental liberties by the States. Justice Thomas wrote separately, and with particular focus on the savage legacy of slavery, to emphasize that the individual’s right to keep and bear arms pro­tected by the Second Amend­ment should be viewed as a privilege of citizen­ship that no State may abridge.

The Fourteenth Amendment, he pointed out in McDonald, was ratified “to repair the Nation from the damage slavery had caused” and was based on the historical lesson that “slavery, and the mea­sures designed to protect it, were irreconcilable with the prin­ciples of equality, govern­ment by consent, and inalienable rights proclaimed by the Declara­tion of Inde­pendence and embedded in our con­sti­tu­tional structure.” One of the motivating purposes of the Fourteenth Amend­ment was to stop those exer­cising local authority in the former Con­federate States from con­tinuing to deprive black Americans of the funda­mental right to keep and bear arms. Justice Thomas recited the history of how Southerners from before the Civil War had tried to suppress slave rebellions by depriving blacks of their basic rights to learn to read, to speak out in dissent, to assemble peaceably, and to possess and carry fire­arms. He urged the Court to recognize, in light of this history, that the right to keep and bear arms was originally meant to have strong and con­sistent applica­tion as a sub­stantive guarantee pro­tected by the Privileges or Immunities Clause, rather than receiving only uncertain and situational application under the pro­cedural pro­tec­tions of the Due Process Clause.

He showed the same vigilant con­cern for liberty in his dissent from the Court’s decision in Voisine v. United States (2016), a case decided after the death of Justice Scalia, when the Court had only eight Members. Most Americans may be surprised to learn that Congress has imposed a life­time Federal ban on the possession of a gun by any­one who pleads guilty to a State-law mis­de­meanor act of “domestic violence,” which the Court has said may include, for example, firmly squeezing a spouse’s arm. United States v. Castleman (2014). In Voisine, the Court inter­preted this Federal life­time ban on gun owner­ship to extend to any “reckless” act that results in injury to a family member, such as texting while driving. Justice Thomas disagreed with the Court’s reading of the statute (in a portion of his dissent joined by Justice Soto­mayor), but he also went further and dissented on con­sti­tu­tional grounds.

In part III of his dissent, he objected that the Court’s reading of the Federal law was unrea­sonable because it treated a funda­mental pro­tection of the Bill of Rights “so cavalierly” as to rele­gate the Second Amend­ment to “second-class” status. It’s difficult to imagine the Court would let Congress perma­nently revoke a person’s First Amend­ment right to use social media based on a single guilty plea for texting while driving, but that’s effectively what the Court allowed Congress to do with the right to keep and bear arms. Justice Thomas, alone among the Justices then on the Court, stood firmly against this encroach­ment on individual rights.

Justice Thomas’s allegiance to the text and original meaning of the Con­sti­tu­tion has often led him to assert broader, bolder, and less com­pro­mising pro­tection for the guaran­tees enshrined in the Bill of Rights. He has been among the staunchest upholders of the First Amend­ment on the Court and has con­sistently urged full pro­tection for commer­cial speech, free from judge-made balancing tests. And he joined Justice Scalia and other Members of the Court to reestablish the force and impera­tive of the Con­fronta­tion Clause as a funda­mental pro­tection for criminal defendants.

With similar bold­ness, Justice Thomas has refused to com­pro­mise in pur­suing the goal of equal treat­ment under the law for all Americans. He knows well that despite the best of inten­tions, govern­ment only exacer­bates preju­dice and inequality when it per­sists in granting preferences or imposing dis­advantages on the basis of race. And he believes that such programs are incon­sistent with the color­blind commands of the Fifth and Fourteenth Amend­ments.

As he wrote in his con­currence in Adarand Con­structors v. Pena (1995), “Purchased at the price of immeasurable human suffering, the equal pro­tection prin­ciple reflects our Nation’s under­standing that such classifi­ca­tions ulti­mately have a destructive impact on the individual and our society.” In his under­standing of the Con­sti­tu­tion, “there can be no doubt that racial paternalism and its unintended con­sequences can be as poisonous and perni­cious as any other form of dis­crimi­na­tion,” since it “teaches many that because of chronic and apparently immutable handi­caps, minorities cannot compete with them without their patronizing indul­gence. Inevitably, such pro­grams engender atti­tudes of superiority or, alternatively, pro­voke resent­ment among those who believe that they have been wronged by the govern­ment’s use of race.”

The Most Courageous Justice

Justice Thomas’s plea for a color­blind Con­sti­tu­tion is just one example of what may be his most distinguishing quality as a judge: the courage of his con­victions.

He showed that courage from his first days on the Court when he wrote fearless opinions as the lone dissenter on hot-button issues, like the appli­ca­tion of the Eighth Amend­ment to the treat­ment of prisoners in State institu­tions in Hudson v. McMillian (1992). When, in reaction, the New York Times reflexively labeled him the “cruelest Justice,” many of us knew that he was actually the most courageous.

This flame of courage has continued to burn strong and steady for 30 years.

It was burning bright in Graham v. Collins in 1993 when he con­cluded that a recent deci­sion in the Court’s death penalty juris­pru­dence had gone too far and had invited capital juries to engage in the same unbounded and poten­tially irrational and discrimi­na­tory sen­tencing judgments that the Court first con­demned in Fur­man v. Georgia (1972):

“Any determina­tion that death is or is not the fitting punish­ment for a particular crime will necessarily be a moral one, whether made by a jury, a judge, or a legis­lature. But beware the word ‘moral’ when used in an opinion of this Court. This word is a vessel of nearly infinite capacity—just as it may allow the sen­tencer to express bene­vo­lence, it may allow him to cloak latent animus. A judgment that some will consider a ‘moral response’ may secretly be based on caprice or even out­right preju­dice. When our review of death penalty pro­ce­dures turns on whether jurors can give ‘full mitigating effect’ to the defendant’s back­ground and character, and on whether juries are free to dis­regard the State’s chosen sen­tencing criteria and return a ver­dict that a majority of this Court will label ‘moral,’ we have thrown open the back door to arbi­trary and irrational sen­tencing.”

His courage was also on display in Elk Grove Unified School District v. Newdow in 2004, where Justice Thomas had the temerity to suggest that the Estab­lish­ment Clause may not pro­tect an individual right and may not be incor­porated fully against the States through the Fourteenth Amend­ment—a proposi­tion often raised by respected law professors but shunned as anathema by the modern Court.

And this courage flamed again in 2009 in North­west Austin Munici­pal Utility District Number One v. Holder when Justice Thomas was the first Member of the Court to reach the con­clu­sion that section 5 of the Voting Rights Act is no longer con­sti­tu­tionally sus­tainable as a counter­measure for a historical pattern of voter dis­crimi­na­tion and dis­enfranchise­ment in the covered States.

Many of us (including me) will not agree with every posi­tion Justice Thomas has staked out in his opinions. But all of us, I believe, should recog­nize and respect the con­viction with which he approaches his duties on the Court and the bold­ness and courage he has cons­istently exhibited in voicing his con­victions.

We live in times today when the courage of con­viction is in short supply among our leaders but is most needed by our Nation. We are there­fore blessed, indeed, that courage and con­viction have full expression on the Supreme Court of the United States through the voice of Clarence Thomas.

*     *     *

Justice Thomas’s opinions will endure, like a guiding star, and will have a positive impact on the work of the Court and the life of the Nation for generations to come.

Whether or not we agree with his juris­prudence, all Americans are blessed—in equal measure—that a man like Clarence Thomas occupies a seat on the Supreme Court.