Justice Clarence Thomas: The Supreme Court Influencer


By Ariane de Vogue, CNN Supreme Court reporter

Supreme Court Justice Clarence thomas sat at the end of the bench in 1991, feeling – he once said – “beaten” by the workload. A bitter confirmation battle marked by allegations of sexual harassment by Anita Hill was over, but the Liberals still bemoaned the fact that a 43-year-old Tory would take the place of retired civil rights icon Justice Thurgood Marshall.

Fast forward to 2021 and the most important term in recent history. Judges are set to decide a major abortion case and expand gun rights in a dispute outside New York.

Thomas, now 73, sits next to Chief Justice John Roberts in an armchair reserved, in this case, not only for the most senior member of the court, but for a judge who finds himself at the center of a conservative judicial movement, hailed for 30 years of writing which has, for some, become currency for the future.

Since 2017, three new colleagues, perhaps influenced by Thomas’ many opinions, have joined the bench. And Thomas, taking advantage of a revised pleading format, broke his historic silence and started the first question at every plea so far this term.

During this time, he amassed over 100 former clerks, and some of those faithful continued to serve at the highest levels of government and the judiciary. He began a tradition of taking his paralegals – whom he calls his “children” – to the Gettysburg battlefields at the end of each quarter to remind them of the nation’s past.

Thomas – to steal a word from the culture of Generation Z – is now an influencer.

At an event Thursday night, hosted by The Heritage Foundation to celebrate his legacy, Thomas addressed a crowd of staunch conservatives, referring to his most difficult days and thanking those who had helped him.

He said it was “an absolute joy” to be able to “celebrate this moment, not because of me, but because of all of you and what we are trying to stand up for in this great country.”

It was introduced by Senate Minority Leader Mitch McConnell, a Republican from Kentucky, who called Thomas a “legal titan.”

McConnell was largely responsible for pushing President Donald Trump’s candidates onto the bench, infuriating the Liberals by blocking President Barack Obama’s candidate citing the upcoming presidential election, then orchestrating the appointment of Judge Amy Coney Barrett just before Trump loses. He called Thomas “the brightest pole star possible”.

“At the risk of sounding greedy,” said McConnell, “we would like 30 more years.”

Thomas said he was “a little embarrassed” by the attention because he is a “100% introvert” and he thanked “countless people that I didn’t know” – calling them “angels in one. very very dark period “.

“I appreciate the senators who voted for me, all 52,” Thomas said with a laugh. “Hey, all you need is 50.”

(Thomas was confirmed by a 52-48 vote in 1991 after his nomination nearly derailed after allegations of sexual harassment by hill, his former employee at the Ministry of Education and the Commission for Equal Employment Opportunities.)

His remarks came after top lawyers and appellate judges – including many former clerks – from the highest echelons of the judiciary gathered in Washington to celebrate Thomas – only the second African-American to sit in court – and his legacy.

Panelists at the event discussed his take on the First Amendment, religion and race, as well as his efforts to limit the power of federal agencies and the so-called “administrative state.” They praised his adherence to the judicial philosophy called “originalism” and his firm belief that the tribunal is not always bound by past precedents, even if a ruling has been in effect for decades.

After the event, he returned to work to process a late-night death penalty request that was still pending.

What awaits us

It is too early to have full opinions this quarter, but In the wings, the missions have started. Because of his seniority, when Roberts disagrees and Thomas is in the majority, Thomas will attribute the opinion. This fact alone could shape the thinking of the Chief Justice in the future.

On September 1, a 5-to-4 vote created a firestorm across the country, allowing a six-week Texas abortion ban to go into effect pending appeal, nearly overturning Roe v. Wade in this state. In December, the court will also pass a Mississippi law that bans most abortions after 15 weeks. The state is asking the court to overturn Roe – the landmark ruling that has been in effect for nearly 50 years.

Thomas’ vote is clear. In June 2020, for example, he wrote that Roe was “gravely wrong.”

On Thursday, McConnell praised Thomas’ case law in the region.

“Take its case law on unborn life,” McConnell said. “Each time without fail, Judge Thomas writes a separate and concise opinion to slice the tangle of 50 years of invented testing and shifting standards and calmly reminds everyone that the whole house of cards lacks a constitutional foundation,” he said. he declared.

Judges will also deal with a Second Amendment case and hear arguments in November.

In 2008, in District of Columbia v. Heller, the court ruled for the first time that the Second Amendment protected an individual’s right to keep and bear arms in their own homes in self-defense. With the exception of a follow-up decision two years later, the judges have largely stayed on the sidelines – infuriating gun rights advocates and even some of the judges themselves.

In 2017, joined by Judge Neil Gorsuch, Thomas expressed his frustration. “I find it extremely unlikely that the Framers understood that the Second Amendment protected little more than carrying a gun from the bedroom to the kitchen,” he wrote.

For years Thomas urged his colleagues to take care of another matter, and now they have.

This term the court will consider New York State Rifle & Pistol Association v. Bruen, regarding a New York law that prohibits individuals from carrying a concealed handgun in public.

It requires a resident to obtain a permit to carry a concealed pistol or revolver and demonstrate that there is “good cause” for the permit. Residents must show that they are in great need of the permit and that they face a “special or unique danger to their life”.

Judges can also take up a case concerning affirmative action, if not that term, maybe the next. In 2013, Thomas made his point of view clear on this issue. “A state’s use of race in higher education admissions decisions is categorically prohibited by the equal protection clause,” he said.

Former clerks with a major influence in the judiciary

At the Heritage event, Thomas employees pointed out Thomas’ model, as in the case of affirmative action, to express his opinions and hope that they will someday become majority opinions.

Judge Allison Jones Rushing, Trump’s candidate for the 4th U.S. Court of Appeals and former Thomas ‘clerk, devoted her discussion to Thomas’ influence.

“He persuaded his colleagues to go with him,” she said, even as late as the last quarter in a case where a 6-3 court, divided along familiar ideological lines, invalidated a California rule which requires charities to disclose the names of contributors. The case had been closely watched by campaign finance reform supporters who believe the move could eventually lead to more anonymous money entering the political arena. Thomas endorsed the decision, saying the “right to assemble” includes the right to “associate anonymously”.

Judge Sonia Sotomayor wrote the main contestation for his Liberal colleagues. “That the disclosure requirements weigh directly on the rights of association was the opinion of Judge Thomas, but it was never the opinion of the Court,” she said.

It’s no surprise that another former clerk, William Consovoy, is also the lead lawyer behind the affirmative action challenge going to the High Court over Harvard admissions policies. Consovoy also served as counsel for President Donald Trump when he attempted to block a subpoena from New York State prosecutors for his tax returns.

During the Trump administration, several former Thomas employees held senior positions.

Neomi Rao and Gregory Katsas both worked in the executive branch, then they were appointed to serve on a powerful appeals court in Washington, DC.

Jeffrey Wall served as Acting Solicitor General in the Trump administration and has advocated for Trump’s controversial travel ban. Another Trump candidate, James Ho, sits on the 5th U.S. Court of Appeals and voted to allow Texas’ six-week abortion ban to come into effect. Two high-level sources claim that if Trump had had the opportunity to appoint another Supreme Court judge, Ho would have been at the top of the list.

And Carrie Severino is the president of the Judicial Crisis Network, a group that has played an important role in supporting candidates for the Trump administration.

Thursday evening Thomas thanked them all. “I love my children,” he says. “They are my children, they spend a year of their life with me and they never get away with it. I like to be a part of their life.

But as many of his former clerks scramble to shape the law, Thomas continues to pave the way for questions that he hopes will one day win a majority.

He asked, for example, the re-examination of a landmark First Amendment case, New York Times v. Sullivan, qualifying it as a political decision “masquerading as constitutional law”. He suggested Congress assess whether laws should be updated to better regulate social media platforms.

And in 2019, he explained his thoughts on an Indiana abortion law that prohibited a doctor from performing an abortion based solely on race, gender, a diagnosis of Down’s syndrome, or fetal disability. The court said it would leave in place a notice from a lower court which had struck down this provision of the law, in accordance with “our usual practice” of dismissing motions that raise legal issues that have not been considered by the court. other courts of appeal.

In a concurring opinion, Thomas agreed with the court’s decision to refuse to “deal with the matter now”. But he moved on to warn colleagues of the potential of abortion “to become a tool for eugenic manipulation.”He said the court “will soon have to confront the constitutionality of laws like Indiana’s.”

Notably, in April, a federal appeals court upheld an Ohio law that bars a doctor from performing an abortion when he knows the reason is a fetal diagnosis of Down’s syndrome. all agreed on the reasoning, but in the 111 pages were references to eugenics and the opinion of Thomas.

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