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CLARENCE THOMAS : The Record of a Justice

Jurist Embraces Image as a Hard-Line Holdout

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By Michael A. Fletcher and Kevin Merida
Washington Post Staff Writers
Monday, October 11, 2004

Second of two articles

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Shortly after delivering a sober commencement address at Ave Maria School of Law in Ann Arbor, Mich., Clarence Thomas chatted and posed for pictures with some of the 56 graduates. On an overcast day in May, they stood in front of a newly unveiled statue of Sir Thomas More, the Catholic martyr whom Thomas has called an inspiration.

Before long, someone asked about Brown v. Board of Education, the monumental 1954 Supreme Court decision to end legal segregation that was being widely hailed throughout the nation on the occasion of its 50th anniversary. Thomas, the only black justice on the Supreme Court, launched into an impromptu lecture. It was not about Brown, but about Plessy v. Ferguson, the 1896 case that produced the infamous separate-but-equal doctrine.

Thomas singled out the lonely dissent of John Marshall Harlan, the only justice to vote against the decision. "In the eye of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens," Harlan wrote. "There is no caste here. Our constitution is colorblind."

Thomas said of Harlan's opinion: "It was not reported. There were no contemporaneous articles. No law review articles. Just one guy." One guy, he added, whose view eventually was embraced by a nation.

Thomas's take on Plessy says much about how he sees his own role on the nation's highest court: a lonely holdout for principle. Since his elevation to the Supreme Court 13 years ago, Thomas has methodically built a record notable for its unwavering conservatism and aggressive challenges to long-standing legal precedents in areas from church-state separation to voting and prisoners' rights.

Aligning himself with the court's conservative majority, Thomas has supported decisions that scaled back affirmative action, allowed use of some public money to send students to parochial schools and restricted the creation of election districts intended to elevate minorities. His rethinking of legal doctrine extends to more obscure areas such as the Constitution's commerce clause, which is the basis for a wide range of federal workplace and environmental statutes. Thomas has said the court should consider limiting the clause's reach to its original understanding, which was to allow federal regulation of the movement of goods between states.

As Thomas sees it, a majority of his colleagues are too often bent on interpreting the laws according to the currents of modern times. Rather than tinkering, Thomas would end affirmative action, allow widespread use of school vouchers and eliminate "majority-minority" election districts in almost every circumstance.

"He doesn't view his job the way that Justice [Sandra Day] O'Connor does," said Scott D. Gerber, a law professor at Ohio Northern University who closely follows Thomas's work on the court. "I think he is more concerned about being committed to his principles than in trying to reach some consensus with his colleagues."

Thomas's jurisprudence has made him the toast of conservative activists, who laud his firm legal stands, and the nemesis of liberal activists, who view him as vindictive and narrow in his reading of the law. The irony is that Thomas is the author of few majority opinions in constitutionally significant cases. His unbending approach makes it difficult to assign him opinions in closely contested cases for fear that he might not be able to hold a majority, and his junior status among the court's conservatives also means he might get fewer opportunities to write for the majority in important cases.

Cases decided by a 5 to 4 vote account for 14 percent of Thomas's majority opinions, the second lowest percentage rate among current justices behind liberal Ruth Bader Ginsburg, according to a database of Supreme Court votes maintained by Michigan State University. By contrast, the highest percentage rate -- 31 -- belongs to Justice Anthony M. Kennedy, one of the court's swing voters.

Thomas "has firm views that [the court's swing voters] would be uncomfortable with," said Mark V. Tushnet, a Georgetown University law professor. "If you give him a closely contested major case, he may not end up in the majority."


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