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Jurist Embraces Image as a Hard-Line Holdout

Strong voting alignments between justices certainly are nothing new. For example, Justice Thurgood Marshall and his liberal court comrade, William J. Brennan Jr., voted together 94 percent of the time, according to the Michigan State data.

In recent years, the contours of Thomas's jurisprudence -- and subtle but significant differences with Scalia -- have become more distinct.


The Supreme Court poses for a photo in December. Seated, from left: Antonin Scalia, John Paul Stevens, Chief Justice William H. Rehnquist, Sandra Day O'Connor and Anthony M. Kennedy. Standing: Ruth Bader Ginsburg, David H. Souter, Clarence Thomas and Stephen G. Breyer. (John Mcdonnell -- The Washington Post)

_____Style of a Justice_____
Photo Gallery: Supreme Court Justice Clarence Thomas has a low profile by Washington standards, but is far more engaged than he lets on.
_____Record of a Justice_____
Interactive Chart: An analysis of Thomas's record compared to other Supreme Court justices.
A Justice's Private File
Excerpts: Thomas's Legal Writings
_____Part I of This Series_____
Narrowly Defined Image Belies Jurist's Quiet Clout (The Washington Post, Oct 10, 2004)
Thomas's Across-the-Aisle Aid Puzzles Even the Beneficiaries (The Washington Post, Oct 10, 2004)
Yale Law Lacks Portrait -- And Thomas's Goodwill (The Washington Post, Oct 10, 2004)
Thomas v. Blackmun (The Washington Post, Oct 10, 2004)
_____Part II of This Series_____
Jurist Mum Come Oral Arguments (The Washington Post, Oct 11, 2004)
Culling the Reputable, Reliable, Right-Leaning (The Washington Post, Oct 11, 2004)
In Sharp Divide on Judicial Partisanship, Thomas Is Exhibit A (The Washington Post, Oct 11, 2004)
About This Series

This series of articles about Justice Clarence Thomas is the result of more than two years of reporting by Washington Post staff writers Kevin Merida and Michael A. Fletcher. The two reporters published a Post magazine article about Thomas in August 2002. Their book on Thomas is scheduled to be published next year by Doubleday.

Thomas and Scalia parted ways in June over the case of Yaser Hamdi, an American citizen detained by the U.S. military after being captured in Afghanistan, where he allegedly was fighting for the Taliban. Scalia agreed with the court's rejection of the administration's position that Hamdi could be held indefinitely without a court hearing. Thomas was the lone dissenter, arguing that Hamdi's indefinite detention "falls squarely" within the war powers of the president. Hamdi is expected to be returned to Saudi Arabia.

Thomas and Scalia have voted against laws regulating campaign fundraising and spending, arguing that they restrict the free-speech rights of political candidates. But Thomas often has gone further than Scalia in defending the First Amendment -- in fact, Thomas has been one of the amendment's staunchest defenders on the court. In 2000, for example, Thomas cast the decisive vote against a federal law requiring cable television stations to do a better job of scrambling their sexually explicit programs. Thomas saw the broadcasts as protected by the First Amendment, while Scalia did not.

"The change that I have seen in Thomas from the start of his Supreme Court career until now does not have to do with any change of philosophy," said Christopher E. Smith, a criminal justice professor at Michigan State who follows Thomas's work on the court. "It's just that he has become more strident, confident and outspoken in expressing it."

A Steadfast Philosophy

Many of Thomas's views as a justice are identical to those he articulated when he worked in the Reagan administration as assistant education secretary for civil rights and as head of the Equal Employment Opportunity Commission.

During his days in the Reagan administration, Thomas opposed the deliberate crafting of election districts that had enabled record numbers of minority representatives to school boards, city councils, state legislatures and congressional seats across the country. Such redistricting, Thomas argued, treats voting as a group, rather than an individual, right -- in the same way that segregation sorted individuals into groups. When the issue reached the Supreme Court, in the 1994 case Holder v. Hall, Thomas was a justice. In his concurrence with a court majority ruling against a Georgia redistricting plan, Thomas condemned the notion "that race defines political interest."

Similarly, Thomas's opposition to affirmative action as demeaning to minorities and problematic under the Constitution was articulated early in an article he wrote while he was at the EEOC.

"I think that preferential hiring on the basis of race or gender will increase racial divisiveness, disempower women and minorities by fostering the notion they are permanently disabled and in need of handouts," he wrote in 1987.

Writing in a concurrence to a 1995 ruling establishing tougher standards for justifying federal affirmative action programs, Thomas said: "So-called benign discrimination teaches many that because of chronic and immutable handicaps, minorities cannot compete with them without their patronizing indulgence."

As the court's only black member, Thomas has faced particularly pointed criticism from those who see many of his positions as undercutting black interests. But Thomas rejects the idea that his jurisprudence should be shaped by his race or his personal experiences, as inevitable as that might be. Instead, he has said, "there are right and wrong answers" to legal questions to which he must stubbornly adhere.

"There are some opinions -- a class of opinions -- where something inside you as a human being says: 'Boy, I really need to do something. This just isn't right,' " Thomas said in 1999. "But you have no authority to do anything. That's when discipline is required. As I tell groups of kids when they come to visit me, that it's like watching someone drowning 20 feet below and you only have 10 feet of rope."

That philosophy was apparent in one of the first cases he heard as a justice, involving a cross burning on the lawn of a black family in St. Paul, Minn. The issue was whether a city ordinance banning displays of symbols that are racially or religiously offensive was compatible with the First Amendment.

In their preliminary vote at conference, the justices unanimously agreed that the ordinance was too broad and should be struck down as a violation of the First Amendment. But as they worked to hash out an opinion that would set proper parameters for such laws, deep ideological divides emerged.

As the factions began to form, Molly McUsic, a clerk to Justice Blackmun, wrote to her boss: "CT [Clarence Thomas] is still out, but based on past behavior it is a fairly safe bet that he will join AS [Antonin Scalia]."

Thomas -- along with three other justices -- did indeed join Scalia's majority opinion saying that governments cannot outlaw such acts as cross burning simply because of their hateful implications. "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible," Scalia wrote. "But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Thomas took a different posture last year, when the court considered a case involving a Virginia cross-burning statute. As a deputy solicitor general defended the Virginia law during oral argument, Thomas broke his usual silence to agree and urge the deputy solicitor general to make his argument even stronger.

"Aren't you understating the effects . . . of 100 years of lynching?" Thomas said. "This was a reign of terror, and the cross was a sign of that. . . . It is unlike any symbol in our society. It was intended to cause fear and to terrorize a population."

Thomas's words made national news, in no small part because of his personal story of growing up black in segregated and racially hostile Georgia. His public stance prompted widespread speculation that he would sway the court to his view. But he didn't. The court brushed aside Thomas's arguments and struck down the portion of the Virginia statute presuming that all cross burnings are threats.

In the end, Thomas dissented.

Database editor Dan Keating, research editor Margot Williams and researcher John Imbriglia contributed to this report.


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