By Dave Andrusko
Imagine for a moment you are Supreme Court Justice Clarence Thomas. You have been attacked, mauled, ridiculed, and mocked from the day President George Herbert Walker Bush nominated you to replace Justice Thurgood Marshall.
You survived what you accurately described as a “high tech lynching” only to be caricatured for decades as little more than the justice who does not speak up during oral arguments to ask questions and “the late Justice Antonin Scalia’s judicial sidekick.”
But now, after 28 years suddenly more perceptive observers are beginning to grasp that Justice Thomas has moved the High Court in his direction even as he has created a stable of young conservatives who are found everywhere in the pro-life Trump Administration and in the federal courts.
The latest example of the revisionist history of Justice Thomas is Emma Green’s, “The Clarence Thomas Effect,” which appeared this week in The Atlantic.
It’s a lengthy piece and very, very much worth your reading. Here are three takeaways from Green’s profile.
After a brief rehashing of the slash-and-burn attack on Thomas when he was nominated , Green quickly turns a corner….
1. “And yet, during his time on the Court, Thomas has written prolifically and introduced ideas that have gradually gained influence among other justices. Of all the Supreme Court justices, Thomas takes an approach to the law that is arguably the purest embodiment of the conservative judicial philosophies known as textualism, which holds that the plain meaning of the text of a law is all that matters in judicial interpretation, and originalism, which holds that the Constitution should be interpreted only as its authors intended.”
Later, Green adds, ”Scalia himself told a Thomas biographer that Thomas does not believe in the legal principle of generally following settled precedent. ‘Among Federalist Society members, he probably would be their No. 1 favorite justice of anyone on the Court,’ [Carrie] Severino [the chief counsel and policy director of the Judicial Crisis Network] told me. ‘As wonderful as Justice Scalia is, Thomas is someone who has inspired a lot of young lawyers.’”
2. But the bulk of the profile is Justice Thomas incredible capacity to network, to find places for his former clerks here, there, and everywhere. Part of that impact, of course, is because Thomas is the longest-serving justice currently sitting on the Supreme Court. But according to Green
The Thomas effect may be due to more than just the power of networks, however. Thomas has been on the Supreme Court bench since 1991, and his clerks are entering their professional peaks during a Republican administration. Several former clerks told me Thomas goes out of his way to stay in touch with his clerks and cultivate their careers; they have monthly lunches and regularly get together for intergenerational reunions. Each year, Thomas takes his clerks on a field trip to the site of the deadliest battle in the Civil War. “I want them to go to Gettysburg and to think about … the price that was paid for this country to exist,” he said in an interview with the appeals-court judge Diane Sykes at a Federalist Society event in 2013. “I love my law clerks,” Thomas added. “These kids are my family.”
Where this really shows up is on appointments to the Circuit Courts of Appeals:
Trump has far outpaced his recent predecessors, with 42 confirmed appointments to these courts over the past two and a half years; by comparison, Obama had gotten less than half as many appeals-court judges confirmed by this point in his first term. These seats are where Thomas clerks will have the most influence—and are outpacing the former clerks for conservative justices. Former Thomas clerks have now been confirmed to the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits, along with two judges confirmed to the D.C. Circuit Court of Appeals—Katsas and Neomi Rao, the former head of Trump’s Office of Information and Regulatory Affairs. The D.C. Circuit is particularly influential, because it is responsible for reviewing the actions of federal agencies…
3. Green zones in on a fact that insiders and court watchers know but not the wider public. While Justice Thomas rarely speaks, he is a prolific (and very good) writer. “He wrote the most concurrences, dissents, and opinions of any justice during each of the past five terms, according to data from SCOTUSblog,” Green tells us.
Last year he wrote the majority opinion in NIFLA v. Becerra, a very important First Amendment case. The National Institute of Family and Life Advocates challenged the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) that required licensed pregnancy resource centers to disclose where women could receive free or low-cost abortions, and required unlicensed centers to insert state-dictated material in their advertising, thus violating the First Amendment rights of all pregnancy resource centers in the state.
This year, in addressing provisions of a 2016 Indiana abortion law, Justice Thomas unloaded a powerful critique of abortion’s eugenic origins. He wrote
The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.
Green’s story is well worth your time. Perhaps the most encouraging note of all was her conclusion:
Thomas is now 71 years old. If he follows the path of his colleagues Stephen Breyer and Ruth Bader Ginsburg, who are both in their 80s, he could easily have a decade or more to go on the Supreme Court. His greatest legacy, however, may be in the intellectual seeds he has planted in the generation of lawyers who came up studying his work.