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  •   After a Quiet Spell, Justice Thomas Finds Voice

    Justice Clarence Thomas, TWP
    Justice Clarence Thomas, one of the strong conservative voices on the Supreme Court, spoke Saturday at the George Mason University School of Law commencement. (Dudley M. Brooks — The Washington Post)
    By Joan Biskupic
    Washington Post Staff Writer
    Monday, May 24, 1999; Page A1

    He's been known by the company he's kept.

    For the past eight years, Supreme Court Justice Clarence Thomas has walked in the shadow of Justice Antonin Scalia. The pair have voted together more than any other two justices, staking out the court's conservative flank but also inspiring criticism that Thomas is simply a "clone" or "puppet" of the forceful, fiery-tempered Scalia.

    But increasingly, Thomas has been breaking from Scalia, taking pains to elaborate his own views and securing his position as the most conservative justice on the court.

    So far this term, Thomas has more than doubled the number of opinions he has written to explain his individual rationale, compared with the two previous terms. And even though the most controversial, divisive cases of the term are yet to be announced, Thomas already has voted differently from Scalia in several significant disputes, including last week's case on welfare payments for residents new to a state and an earlier case on how public schools must treat disabled children. Through these and other opinions, a more complex portrait is emerging of the court's second black justice, who had been best known among the public for the sexual harassment accusations made against him during his 1991 confirmation hearings.

    "I think Thomas has turned out to be a much more interesting justice than his critics and probably even his supporters expected," said Cass R. Sunstein, a University of Chicago law professor. "He is the strongest originalist on the court, more willing to go back to history and 'first principles' of the Constitution."

    "People in conservative legal circles are definitely noticing that Thomas has found his voice," said Daniel E. Troy, a District lawyer and protege of former conservative judge Robert H. Bork. "He is more willing to strike out on his own."

    This term offers new evidence of Thomas's independent thinking. Of the 45 decisions handed down so far (31 still remain), Thomas has differed from Scalia in the bottom-line ruling of five, and in five other cases he has been on the same side as Scalia but has offered a separate rationale. It's a substantial departure from their previous pattern: Since 1991, Thomas and Scalia have voted together about 90 percent of the time. As recently as two years ago, the two voted together in all but one case.

    For years, the reputations and practices of the two men have helped feed the widespread impression that Thomas was content to follow Scalia's lead. Scalia, a former law professor at the University of Chicago and a longtime judge, was already known for his narrow textualist reading of the Constitution and federal statutes when he joined the high court in 1986. His creative, aggressive approach inspired an admiring appeals court judge to call Scalia a "giant flywheel in the great judicial machine."

    Thomas, meanwhile, had little reputation as a scholar when he joined the court in 1991. He had worked in the federal bureaucracy for nearly a decade, becoming prominent as chairman of the Equal Employment Opportunity Commission. His conservatism, which included opposition to affirmative action programs, was viewed mostly in political terms.

    These impressions were reinforced by the two justices' behavior at the high court. Scalia, the first Italian American justice, is a stylist of the first order, with a sharp, sardonic edge. Last year, for example, when he rejected a legal standard used by the majority, he took a page from Cole Porter, saying: "Today's opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, the Celophane of subjectivity, th' ol' 'shocks-the-conscience' test." In another case, he said, "I join the opinion of the court except that portion which takes seriously, and thus encourages in the future, an argument that should be laughed out of court."

    Thomas, by contrast, was quiet in his early years, rarely speaking during oral arguments and writing few of his own concurring or dissenting opinions. He let Scalia hold the pen: Whatever their joint views, Scalia, 63, tended to write them up. Thomas, 50, merely signed on. Legal scholars on both the right and left publicly criticized Thomas as a pawn.

    Now, however, Thomas is showing an increased willingness to express himself, speaking before broader audiences and writing more of his own opinions.

    Thomas and Scalia are still very like-minded justices. More than the other conservative members of the Rehnquist Court, they believe the Constitution should be interpreted by looking at its exact words and establishing the intentions of the men who wrote it. They are unwilling to read into a statute anything not explicitly stated. They want the government particularly the federal government to get out of people's lives.

    But Thomas is becoming the more consistent standard-bearer of this brand of conservatism. He would go further than Scalia in overturning past court rulings that he believes conflict with the Constitution. And he is more likely than Scalia to delve into legal history predating the writing of the Constitution in 1787 and more inclined to reject recent case law.

    In last week's welfare case, for example, Thomas began by tracing a core constitutional provision from the 1606 Charter of Virginia: "Unlike the majority, I would look to history to ascertain the original meaning of the Clause," he wrote. While Scalia signed onto the majority opinion striking down limited welfare benefits for residents newly arrived in a state, Thomas and Chief Justice William H. Rehnquist dissented. Thomas wrote that the majority was wrongly interpreting the 14th Amendment's Privileges or Immunities Clause, raising "the specter that the . . . Clause will become yet another convenient tool for inventing new rights, limited solely by the predilections of those who happen at the time to be members of this court."

    Thomas has also distinguished himself from Scalia by seeking more strongly to buttress state authority. He has emphasized that the Constitution's authority flows from "the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole."

    This accent on states' rights was evident in a case earlier this term when only Thomas fully dissented from a voting rights decision that he believed too broadly interpreted a federal law targeting discrimination at the polls. "The section's interference with state sovereignty is quite drastic," he complained.

    In another example of Thomas's narrower reading of federal law, he and Scalia were on opposite sides when the court interpreted a statute intended to guarantee equal educational opportunities for disabled schoolchildren. Scalia voted with the majority in the March case to find that the federal disabilities law requires public schools to provide a wide variety of medical care for children with severe handicaps.

    Thomas dissented with Justice Anthony M. Kennedy. "Congress enacted [the law] to increase the educational opportunities available to disabled children, not to provide medical care for them," Thomas wrote. "[W]e must . . . avoid saddling the states with obligations that they did not anticipate."

    Because Scalia did not write separately in any of those three recent cases on welfare, voting rights and disabled children it is impossible to compare directly his thinking with Thomas's. But differences between the two were visible when they both dissented from an April ruling that said defendants who plead guilty do not lose their right to remain silent during a sentencing hearing and that judges cannot use their silence against them. Scalia wrote the main opinion for the four dissenting justices, attempting to discredit the case law on which the majority relied. But Thomas also wrote a separate opinion that went still further, suggesting that an earlier case should be overturned altogether. The "so-called penalty" of having one's silence used adversely, Thomas wrote, "lacks any constitutional significance."

    Some legal experts observe that Thomas's willingness to give voice to his solitary views recalls Rehnquist's position on the court in the 1970s and Scalia's in the late 1980s, before Thomas came on. He's at a point, said Troy and other observers, where he is comfortable enough to express his singular views but not so frustrated with writing alone that he is prepared to compromise.

    "Thomas comes to it more as an outsider," said Alan Meese, a William and Mary law professor, who has followed the writings of Scalia and Thomas. "He probably says when he looks at [an earlier ruling], 'My God, we said that? That's loony.'"

    © Copyright 1999 The Washington Post Company

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