CLARENCE THOMAS, U.S. SUPREME COURT DECISIONS:
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From 1994 to 2004, on average, Thomas was the third most frequent dissenter on the Court, behind Stevens and Scalia.[96] Four other justices dissented as frequently in 2007.[103]
Three other justices dissented as frequently in 2006.[104] One other justice dissented as frequently in 2005.[105]
Stare decisisSee also: Stare decisis in the U.S. legal system
According to law professor Michael J. Gerhardt, Thomas has supported leaving a broad spectrum of constitutional decisions intact.[106]
Thomas supports statutory stare decisis.[107]
During his confirmation hearings Thomas said: "[S]tare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."[108]
Among the thirteen justices who served on the Rehnquist Court, Thomas ranked eleventh for the number of votes he cast overturning precedent (without accounting for length of Court service).[109]
However, on a frequency basis, he urged overruling and joined in overruling precedents more frequently than any other justice.[109]
According to Scalia, Thomas is more willing to overrule constitutional cases: "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."[110]
Thomas's belief in originalism is strong; he has said, "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."[111]
Thomas believes that an erroneous decision can and should be overturned, no matter how old it is.[111]
Commerce ClauseThomas has consistently supported narrowing the Court's interpretation of the Constitution's Interstate Commerce Clause (which is often simply called the "Commerce Clause") to limit federal power. At the same time, Thomas has broadly interpreted states' sovereign immunity from lawsuits under the Commerce Clause.[112]
In United States v. Lopez and United States v. Morrison, the Court held that Congress lacked power under the Commerce Clause to regulate non-commercial activities. In these cases, Thomas wrote a separate concurring opinion arguing for the original meaning of the Commerce Clause.
Subsequently, in Gonzales v. Raich, the Court interpreted the Interstate Commerce Clause combined with the Necessary and Proper Clause to empower the federal government to arrest, prosecute, and imprison patients who used marijuana grown at home for medicinal purposes, even where the activity is legal in that particular state.
Thomas dissented in Raich, again arguing for the original meaning of the Commerce Clause.Thomas and Scalia have rejected the notion of a Dormant Commerce Clause, also known as the "Negative Commerce Clause". That doctrine bars state commercial regulation even if Congress has not yet acted on the matter.[113]
In Lopez, Thomas expressed his view that federal regulation of either manufacturing or agriculture is unconstitutional; he sees both as outside the scope of the Commerce Clause.[114][115]
He believes federal legislators have overextended the Commerce Clause, while some of his critics argue that Thomas's position on Congressional authority would invalidate much of the contemporary work of the federal government.[115]
According to Thomas, it is not the Court's job to update the Constitution. Proponents of broad national power such as Professor Michael Dorf deny that they are trying to update the Constitution. Instead, they argue that they are merely addressing a set of economic facts that did not exist when the Constitution was framed.[116]
Federalism was a central part of the Rehnquist Court's constitutional agenda.[117] Thomas consistently voted for outcomes that promoted state-governmental authority, in cases involving federalism-based limits on Congress's enumerated powers.[117]
According to law professor Ann Althouse, the Court has yet to move toward "the broader, more principled version of federalism propounded by Justice Thomas."[118]
In Foucha v. Louisiana, Thomas dissented from the majority opinion that required the removal from a mental institution of a prisoner who had become sane.[119]
The Court held that a Louisiana statute violated the Due Process Clause "because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness."[120] Dissenting, Thomas cast the issue as a matter of federalism.[119]
"Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter," he concluded, "but the Due Process Clause does not require the States to conform to the policy preferences of federal judges."[120]
Thomas agreed with the judgment in McDonald v. Chicago (2010) that the right to keep and bear arms is applicable to state and local governments,
but Thomas wrote a separate concurrence finding that an individual's right to bear arms is fundamental as a privilege of American citizenship under the Privileges or Immunities Clause rather than as a fundamental right under the due process clause.
The four justices in the plurality opinion specifically rejected incorporation under the privileges or immunities clause, "declin[ing] to disturb" the holding in the Slaughter-House Cases, which, according to the plurality, had held that the clause applied only to federal matters.[121][122]
Executive power
Thomas has argued that the executive branch has broad authority under the Constitution and federal statutes.
In Hamdi v. Rumsfeld, he was the only justice who agreed with the Fourth Circuit that Congress had power to authorize the President's detention of US citizens who are enemy combatants.
Thomas granted the federal government the "strongest presumptions" and said "due process requires nothing more than a good-faith executive determination" to justify the imprisonment of Hamdi, a US citizen.[123]
Thomas also was one of three justices who dissented in Hamdan v. Rumsfeld, which held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay required explicit congressional authorization, and held that the commissions conflicted with both the Uniform Code of Military Justice (UCMJ) and "at least" Common Article 3 of the Geneva Convention.[124]
Thomas argued that Hamdan was an illegal combatant and therefore not protected by the Geneva Convention, and he agreed with Justice Scalia that the Court was "patently erroneous" in its declaration of jurisdiction in this case.
Among the nine justices, Thomas was the second most likely to uphold free speech claims (tied with David Souter), as of 2002.[125]
He has voted in favor of First Amendment claims in cases involving a wide variety of issues, including pornography, campaign contributions, political leafleting, religious speech, and commercial speech.
On occasion, however, he has disagreed with free speech claimants. For example, he dissented in Virginia v. Black, a case that struck down a Virginia statute that banned cross burning. Concurring in Morse v. Frederick, he argued that students' free speech rights in public schools are limited.[126]
Thomas authored the decision in ACLU v. Ashcroft, which held that the Child Online Protection Act might (or might not) be constitutional. The government was enjoined from enforcing it, pending further proceedings in the lower courts.[127]
Thomas wrote a concurrence in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).[128]
In cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants.
For example, his opinion for the Court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and he wrote again for the Court in Samson v. California, permitting random searches on parolees.
He dissented in the case Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the case was controlled by the Court's decision in Coolidge v. New Hampshire.
In Indianapolis v. Edmond, Thomas described the Court's extant case law as having held that "suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops."
Although he expressed doubt that those cases were correctly decided, he concluded that since the litigants in the case at bar had not briefed or argued that the earlier cases be overruled, he believed that the Court should assume their validity and rule accordingly.[129]
There are counterexamples, however: he was in the majority in Kyllo v. United States, which held that the use of thermal imaging technology to probe a suspect's home, without a warrant, violated the Fourth Amendment.
In cases involving schools, Thomas has advocated greater respect for the doctrine of in loco parentis, which he defines as "parents delegat[ing] to teachers their authority to discipline and maintain order."[130]
His dissent in Safford Unified School District v. Redding illustrates his application of this postulate in the Fourth Amendment context. School officials in the Safford case had a reasonable suspicion that 13-year-old Savana Redding was illegally distributing prescription-only drugs.
All the justices concurred that it was therefore reasonable for the school officials to search Redding, and the main issue before the Court was only whether the search went too far by becoming a strip search or the like.[130]
All justices but Thomas concluded that this search violated the Fourth Amendment. The majority required a finding of danger or reason to believe drugs were hidden in a student's underwear in order to justify a strip search.
In contrast, Thomas said, "It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not"[131] and that "reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed."
Thomas said, "There can be no doubt that a parent would have had the authority to conduct the search."[130]
In Doggett v. United States, the defendant had technically been a fugitive from the time he was indicted in 1980 until his arrest in 1988. The Court held that the delay between indictment and arrest violated Doggett's Sixth Amendment right to a speedy trial, finding that the government had been negligent in pursuing him and that he was unaware of the indictment.[132]
Thomas dissented, arguing that the purpose of the Speedy Trial Clause was to prevent "'undue and oppressive incarceration' and the 'anxiety and concern accompanying public accusation'" and that the case implicated neither.[132]
He cast the case as instead "present[ing] the question [of] whether, independent of these core concerns, the Speedy Trial Clause protects an accused from two additional harms:
(1) prejudice to his ability to defend himself caused by the passage of time; and (2) disruption of his life years after the alleged commission of his crime." Thomas dissented from the Court's decision to, as he saw it, answer the former in the affirmative.[132]
Thomas wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role."[133]
Thomas was among the dissenters in Atkins v. Virginia and Roper v. Simmons, which held that the Eighth Amendment to the United States Constitution prohibits the application of the death penalty to certain classes of persons.
In Kansas v. Marsh, his opinion for the Court indicated a belief that the Constitution affords states broad procedural latitude in imposing the death penalty, provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the Court had reversed its 1972 ban on death sentences if states followed procedural guidelines.
In Hudson v. McMillian, a prisoner had been beaten, garnering a cracked lip, broken dental plate, loosened teeth, and cuts and bruises. Although these were not "serious injuries", the Court believed, it held that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury."[134]
Dissenting, Thomas wrote that, in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment'. In concluding to the contrary, the Court today goes far beyond our precedents."[134]
Thomas's vote – in one of his first cases after joining the Court – was an early example of his willingness to be the sole dissenter (Scalia later joined the opinion).[135]
Thomas's opinion was criticized by the 7-member majority of the Court, which wrote that by comparing physical assault to other prison conditions such as poor prison food, Thomas's opinion ignored "the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment".[134]
According to historian David Garrow, Thomas's dissent in Hudson was a "classic call for federal judicial restraint, reminiscent of views that were held by Felix Frankfurter and John M. Harlan II a generation earlier,
but editorial criticism rained down on him".[136] Thomas would later respond to the accusation "that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion ... no honest reading can reach such a conclusion."[136]
In United States v. Bajakajian, Thomas joined with the Court's more liberal bloc to write the majority opinion declaring a fine unconstitutional under the Eighth Amendment.
The fine was for failing to declare over $300,000 in a suitcase on an international flight. Under a federal statute, 18 U.S.C. § 982(a)(1), the passenger would have had to forfeit the entire amount.
Thomas noted that the case required a distinction to be made between civil forfeiture and a fine exacted with the intention of punishing the respondent. He found that the forfeiture in this case was clearly intended as a punishment at least in part, was "grossly disproportional", and a violation of the Excessive Fines Clause.[137]
Law professor and former Thomas clerk John Yoo says Thomas supports allowing religious groups more participation in public life.[138]
Thomas says the Establishment Clause ("Congress shall make no law respecting an establishment of religion") "is best understood as a federalism provision –- it protects state establishments from federal interference but does not protect any individual right."[139]
In Elk Grove Unified School District v. Newdow[139] and Cutter v. Wilkinson,[140]
Thomas wrote that he supported incorporation of the Free Exercise Clause, which he says "clearly protects an individual right."
He said that any law that would violate the Establishment Clause might also violate the Free Exercise Clause.
Thomas says "it makes little sense to incorporate the Establishment Clause" vis-à-vis the states by the Fourteenth Amendment.[139]
And in Cutter, he wrote: "The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference."
Thomas believes that the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment.
In Adarand Constructors v. Peña, for example, he wrote "there is a 'moral [and] constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.
Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. That [affirmative action] programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."[141]
In Gratz v. Bollinger, Thomas said that, in his view, "a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause."[142]
In Parents Involved in Community Schools v. Seattle School District No. 1, Thomas joined the opinion of Chief Justice Roberts, who concluded that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."[143]
Concurring, Thomas wrote that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," and charged that the dissent carried "similarities" to the arguments of the segregationist litigants in Brown v. Board of Education.[143]
In Grutter v. Bollinger, he approvingly quoted Justice Harlan's Plessy v. Ferguson dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."[144]
In a concurrence in Missouri v. Jenkins (1995), he wrote that the Missouri District Court "has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development.
This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority."[145]
Thomas has contended that the constitution does not address the issue of abortion.[138] In Planned Parenthood v. Casey (1992), the Court reaffirmed Roe v. Wade. Thomas along with Justice Byron White joined the dissenting opinions of Chief Justice William Rehnquist and Justice Antonin Scalia.
Rehnquist wrote that "[w]e believe Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."[146]
Scalia's opinion concluded that the right to obtain an abortion is not "a liberty protected by the Constitution of the United States."[146] "[T]he Constitution says absolutely nothing about it," Scalia wrote, "and [ ] the longstanding traditions of American society have permitted it to be legally proscribed."[146]
In Stenberg v. Carhart (2000), the Court struck down a state ban on partial-birth abortion, concluding that it failed the "undue burden" test established in Casey. Thomas dissented, writing: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."[147]
He went on to criticize the reasoning of the Casey and Stenberg majorities: "The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States – a hostility that Casey purported to reject."
In Gonzales v. Carhart (2007), the Court rejected a facial challenge to a federal ban on partial-birth abortion.[148]
Concurring, Thomas asserted that the Court's abortion jurisprudence had no basis in the Constitution, but that the Court had accurately applied that jurisprudence in rejecting the challenge.[148]
Thomas added that the Court was not deciding the question of whether Congress had the power to outlaw partial birth abortions: [W]hether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court [in this case] ... the parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."[148]
In Lawrence v. Texas (2003), Thomas issued a one-page dissent where he called the Texas anti-gay sodomy statute "uncommonly silly." He then said that if he were a member of the Texas legislature he would vote to repeal the law.
Since he was not a member of the state legislature, but instead a federal judge, and the Due Process Clause did not (in his view) touch on the subject, he could not vote to strike it down. Accordingly, Thomas saw the issue as a matter for the states to decide for themselves.[149]
In Romer v. Evans (1996), Thomas joined Scalia's dissenting opinion arguing that Amendment 2 to the Colorado State Constitution did not violate the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution.
The Colorado amendment forbade any judicial, legislative, or executive action designed to protect persons from discrimination based on "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships."[150]
Thomas is the justice most willing to exercise judicial review of federal laws. According to a New York Times editorial, "from 1994 to 2005 ... Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer."[151]
In 2009's Northwest Austin Municipal Utility District No. 1 v. Holder, Thomas was the sole dissenter, voting in favor of throwing out Section 5 of the 1965 Voting Rights Act. Section 5 requires states with a history of racial voter discrimination—mostly states from the old South—to get Justice Department clearance when revising election procedures.
Though Congress had reauthorized Section 5 in 2006 for another 25 years, Thomas said the law was no longer necessary, pointing out that the rate of black voting in seven Section 5 states was higher than the national average.
Thomas said "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."[152]
Thomas is well known for his reticence during oral argument. As of February 12, 2011, he had not asked a question from the bench in almost 5 years.[153]
He has given many reasons for his silence, including self-consciousness about how he speaks, a preference for listening to those arguing the case, and difficulty getting in a word.[153]
In 2000, he told a group of high school students that "if you wait long enough, someone will ask your question."[154]
In November 2007, he told an audience at Hillsdale College: "My colleagues should shut up!" He later explained, "I don't think that for judging, and for what we are doing, all those questions are necessary."[155]
Thomas's speaking and listening habits may have also been influenced by his Gullah upbringing, during which time his English was relatively unpolished.[4][10][156]
Thomas is not the first quiet justice.
In the 1970s and 1980s, William J. Brennan, Thurgood Marshall, and Harry Blackmun were likewise generally quiet.[157][158] However, Thomas's silence stood out in the 1990s as the other eight justices engaged in active questioning.[158]
• Thomas, Clarence (2007). My Grandfather's Son: A Memoir. Harper. ISBN 0-06-056555-1.
• Thomas, Clarence. "Why Federalism Matters," Drake Law Review, Volume 48, Issue 2, page 234 (2000).
See also
• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of U.S. Supreme Court Justices by time in office
• United States Supreme Court cases during the Rehnquist Court
• United States Supreme Court cases during the Roberts Court
1. ^ Senior Republicans believed that Thomas was indeed well-qualified, but that the ABA would not support him because in their mind, the ABA had been politicized. The White House attempted to preemptively discredit the ABA as partisan, and Republican Senators threatened to bar the ABA from future participation if it gave Thomas anything less than a "qualified" rating.
References
1. ^ Clarence Thomas bio from Notable Names Database
2. ^ a b c d e Oyez, The Oyez Project Supreme Court media, Clarence Thomas biography (2003).
3. ^ a b Brady, Diane (March 12, 2007). "The Holy Cross Fraternity". BusinessWeek. Retrieved October 19, 2008.
4. ^ a b "In His Own Words: Justice Clarence Thomas", New York Times, Dec 14, 2000, accessed Mar 25, 2010
5. ^ Foskett 2004, pp. 22–23.
6. ^ a b c Merida, Kevin; Fletcher, Michael A. (August 4, 2002). "Supreme Discomfort". Washington Post Magazine: pp. W08.
7. ^ a b c d e Dolin, Monica (October 3, 2007). "Anger Still Fresh in Clarence Thomas's Memoir". ABC News. Retrieved October 19, 2008.
8. ^ a b c d Brady, Diane. "Clarence Thomas Speaks Out", BusinessWeek (March 12, 2007).9. ^ Margolick, David (July 3, 1991). "Judge Portrayed as a Product Of Ideals Clashing With Life". New York Times. Retrieved October 19, 2008.
10. ^ a b c Kantor, Jody; Gonzalez, David (June 6, 2009). "For Sotomayor and Thomas, Paths Diverge at Race". New York Times. Retrieved April 5, 2010.
11. ^ a b "Clarence Thomas". FindLaw. Retrieved April 5, 2010.
12. ^ Weeks, Linton (February 21, 2007). "Ted Wells, Center Of the Defense". The Washington Post. Retrieved October 19, 2008.
13. ^ Simon, Martin (September 15, 1991). "Supreme Mystery". Newsweek. Retrieved November 1, 2011.14. ^ a b Kroft, Steve, (Sept. 30, 2007) Clarence Thomas: The Justice Nobody Knows – Supreme Court Justice Gives First Television Interview To 60 Minutes.
15. ^ "Talk Radio Online::Radio Show". Townhall.com. Retrieved December 6, 2009.
16. ^ Lithwick, Dahlia. "From Clarence Thomas to Palin" (Opinion Column), Newsweek (September 27, 2008).
17. ^ Thomas 2007, pp. 143-144.
18. ^ Tumulty, Karen (July 7, 1991). "Court Path Started in the Ashes: A fire launched Clarence Thomas on a path toward fierce personal drive-but not before the Supreme Court nominee journeyed through anger, self-hatred, confusion and doubt.". Los Angeles Times. Retrieved March 29, 2011.
19. ^ Foskett, pp. 142–143
20. ^ Bidinotto, Robert James, Celebrity "Rand Fans" – Clarence Thomas,, The Atlas Society.
21. ^ a b Greenburg, Jan Crawford (September 30, 2007). "Clarence Thomas: A Silent Justice Speaks Out: Part VII: 'Traitorous' Adversaries: Anita Hill and the Senate Democrats". ABC News. Retrieved October 18, 2008.
22. ^ Kauffman, Bill (November 1987), "Clarence Thomas", Reason, p. 3. Retrieved April 29, 2010.
23. ^ Foskett 2004, p. 139.
24. ^ Foskett 2004, p. 138.
25. ^ Foskett 2004, pp. 139–140.
26. ^ Foskett 2004, p. 147.
27. ^ Foskett 2004, pp. 147, 149.
28. ^ Foskett 2004, p. 149.
29. ^ Thomas, Evan (July 15, 1991). "Where Does He Stand?". Newsweek. Retrieved April 20, 2009.
30. ^ Williams, Juan (October 25, 1984). "EEOC Chairman Blasts Black Leaders". The Washington Post. Retrieved April 20, 2009. "The chairman of the Equal Employment Opportunity Commission says that black leaders are 'watching the destruction of our race' as they 'bitch, bitch, bitch' about President Reagan but fail to work with the administration to solve problems. Clarence Thomas said in an interview that, in his 3½ years on the job, no major black leader has sought his help in influencing the Reagan administration. Black spokesmen should be working with the administration to solve such problems as teen-age pregnancy, unemployment or illiteracy instead of working against Reagan, Thomas said."
31. ^ a b c d e Greenburg, Jan Crawford (September 30, 2007). "Clarence Thomas: A Silent Justice Speaks Out". ABC News. Retrieved October 18, 2008.
32. ^ The Library of Congress Presidential Nominations, Look up of Nomination: PN838-101. February 6, 1990 – Committee on Judiciary, hearings held. February 22, 1990 – Committee on Judiciary, ordered to be reported favorably, placed on Senate Executive Calendar. March 6, 1990 – floor action, confirmed by the Senate by voice vote.
33. ^ Profile at the Biographical Directory of Federal Judges, a Public domain publication of the Federal Judicial Center. Accessed November 1, 2011.
34. ^ Dowd, Maureen. "The Supreme Court; Conservative Black Judge, Clarence Thomas, Is Named to Marshall's Court Seat", New York Times (July 2, 1991).
35. ^ Toobin 2007, p. 26.
36. ^ a b Hall, Kermit and McGuire, Kevin. The Judicial Branch, p. 155 (Oxford University Press 2006).
37. ^ a b Viera, Norman; Gross, Leonard (1998). Supreme Court appointments: Judge Bork and the politicization of Senate Confirmations. Southern Illinois University Press. p. 137. ISBN 9780809322046.
38. ^ Foskett, Ken. Judging Thomas, p. 224 (William Morrow 2004).
39. ^ Abraham, Henry. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments From Washington to Bush II, pp. 27-30, 299 (Rowman and Littlefield 2007).
40. ^ Yalof, David. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees, page 214 (University of Chicago Press, 2001).
41. ^ Segal, Jeffrey and Spaeth, Harold. The Supreme Court and the attitudinal model revisited, page 187 (Cambridge University Press, 2002).
42. ^ Hall, Kermit and McGuire, Kevin. Institutions of American Democracy: The Judicial Branch, page 155 (Oxford University Press, 2006).
43. ^ Toobin 2007, pp. 172, 398.
44. ^ Tushnet, Mark. A Court Divided, p. 335 (Norton & Company 2005).
45. ^ a b c Mayer, Jane; Abramson, Jill (1994). Strange Justice: The Selling of Clarence Thomas. Houghton Mifflin Company. ISBN 978-0-395-63318-2.[page needed]
46. ^ Merida, Kevin; Michael Fletcher (2008). Supreme Discomfort: The Divided Soul of Clarence Thomas. Random House. ISBN 9780767916363.
47. ^ Toobin 2007, p. 30.
48. ^ Toobin 2007, pp. 25, 31.
49. ^ Toobin 2007, p. 31.
50. ^ Woodward, Kenneth (September 23, 1991). "Natural Law, An Elusive Tradition". Newsweek. Retrieved April 20, 2009.
51. ^ Epstein, Aaron (August 30, 1991). "The Natural Law According To Clarence Thomas". The Seattle Times. Retrieved April 20, 2009.
52. ^ Campbell, Linda and Drew, Christopher. "Truth proves elusive in nomination drama", Chicago Tribune (October 15, 1991): "She said she followed Thomas to EEOC in 1982 as an assistant...."
53. ^ "The Thomas Nomination; Excerpts From Senate's Hearings on the Thomas Nomination", The New York Times (1991-10-12):
"Q: Professor Hill, there's a big difference between your articulating your version of events, contrasted with your statement that Judge Thomas sexually harassed you. And in the transcript of your October 7 interview, you responded to a question saying that it was sexual harassment.
"A: In my opinion, based on my reading of the law, yes, it was. But later on, immediately following that response, I noted to the press that I did not raise a claim of sexual harassment in this complaint. It seems to me that the behavior has to be evaluated on its own with regard to the fitness of this individual to act as an Associate Justice. It seems to me that even if it does not rise to the level of sexual harassment, it is behavior that is unbefitting an individual who will be a member of the Court."
54. ^ Braver, Rita. "Inappropriate Conduct", CBS News (1999): “Hill herself did not accuse Thomas of outright harassment, but did say that he had made unwelcome advances toward her and used language that embarrassed her."
55. ^ Pollitt, Katha. Subject to Debate: Sense and Dissents on Women, Politics, and Culture, page 161 (2001): "The question Hill's testimony placed before us was not whether Thomas was guilty of a legally actionable offense (she herself was unsure if his behavior added up to sexual harassment) but whether he belonged on the Supreme Court."
56. ^ Travis, Carol. "Casting Simple Louts as Lawbreakers", St. Petersburg Times (June 11, 1997): “Although Thomas was never accused of illegal behavior – merely of behavior thought unseemly in a Supreme Court nominee – in the public mind the case conflated obnoxious actions with illegal harassment."
57. ^ In particular, the questioning by Senator Specter was intense. See Morrison, Toni. "Race-ing Justice, En-gendering Power", p. 55 (Pantheon Books 1992). After the questioning, Specter said that, "the testimony of Professor Hill in the morning was flat out perjury", and that "she specifically changed it in the afternoon when confronted with the possibility of being contradicted." See transcript, p. 230.
58. ^ Hudson, David. The Rehnquist Court: Understanding Its Impact and Legacy, p. 50 (2007).
59. ^ Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court, Electronic Text Center, University of Virginia Library, October 11, 1991.
60. ^ THE THOMAS NOMINATION; Excerpts From an Interview With Another Thomas Accuser, The New York Times (October 15, 1991).
61. ^ "The Thomas Nomination; On the Hearing Schedule: Eight Further Witnesses", The New York Times (October 13, 1991)
62. ^ See hearing record from October 13, 1991. Senator Biden wrote to Wright: "I wish to make clear, however, that if you want to testify at the hearing in person, I will honor that request." Wright responded to Biden: "I agree the admission of the transcript of my interview and that of Miss Jourdain's in the record without rebuttal at the hearing represents my position and is completely satisfactory to me."
63. ^ Vieira, Norman and Gross, Leonard (1998). Supreme Court appointments: Judge Bork and the politicization of Senate Confirmations, p. 219.
64. ^ "United States Senate, Transcript of Proceedings". U.S. Government Printing Office. October 10, 1991. pp. 442–511. Retrieved September 18, 2008.
65. ^ "The Thomas Nomination; Excerpts From Judiciary Committee's Interview of Angela Wright". The New York Times. October 4, 1991. Retrieved November 1, 2011.
66. ^ Marcus, Ruth (October 30, 2007). "One Angry Man, Clarence Thomas Is No Victim" Washington Post (opinion column). "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female."
67. ^ Press Release, FAIR's Reply to Limbaugh's Non-Response (10/17/94) Fairness and Accuracy in Reporting.68. ^ "Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States," Senate Hearing 102–1084, pt. 4, p. 590. (See table of contents for hearing, here.[1] )
69. ^ "The Thomas Nomination; Questions to Those Who Corroborated Hill Account", The New York Times (October 21, 1991).
70. ^ Hall, Kermit (ed), The Oxford Companion to the Supreme Court of the United States, p. 871, Oxford Press, 1992 ISBN 978-0-19-505835-2.
71. ^ a b Yorke, Jeffrey. "The Call-in People's Court", Washington Post (October 29, 1991).
72. ^ "The Thomas Swearing-In; A Festive Mood at Thomas Swearing-In", The New York Times (October 19, 1991).
73. ^ a b Greenhouse, Linda. Thomas Sworn in as 106th Justice", The New York Times (October 24, 1991).
74. ^ Toobin 2007, p. 39.
75. ^ Fiske, John. Media matters: race and gender in U.S. politics, p. 113 (1998).
76. ^ Hill, Anita (1997). Speaking truth to power.
77. ^ Vanzo, John (October 12, 2007). "Clarence Thomas". Georgia Encyclopedia. Retrieved July 20, 2009.
78. ^ Greenburg 2007, pp. 112–113.79. ^ a b Greenburg 2007, pp. 115–116.
80. ^ Greenburg, Jan Crawford (January 28, 2007). "The Truth About Clarence Thomas". The Wall Street Journal. Archived from the original on January 3, 2010. Retrieved December 7, 2011.
81. ^ a b Barnes, Robert; Fletcher, Michael A.; Merida, Kevin (September 29, 2007). "Justice Thomas Lashes Out in Memoir". The Washington Post. Retrieved October 20, 2008.
82. ^ Garner, Dwight. "TBR; TBR: Inside the List", New York Times (October 21, 2007).
83. ^ a b Gerber, Scott Douglas. First principles: the jurisprudence of Clarence Thomas, pages 30–33 (1999).
84. ^ "Major Political Figures", Rasmussen Reports. Retrieved May 16, 2010.
85. ^ "National Opinion Survey of 1,000 Likely Voters", Rasmussen Reports. Retrieved July 26, 2010.
86. ^ Supreme Court Watch, Profile: Justice Clarence Thomas Public Broadcasting Service.
87. ^ Cohen, Adam, Editorial Observer (June 3, 2007) New York Times.
88. ^ Toobin 2007, p. 99.
89. ^ Lazarus, Edward. "BOOK REVIEW – It seems Justice Thomas is still seeking confirmation – My Grandfather's Son A Memoir Clarence Thomas", Los Angeles Times (October 1, 2007).
90. ^ Marshall, Thomas. Public Opinion and the Rehnquist Court, page 79 (SUNY Press, 2008).
91. ^ Von Drehle, David. "Executive Branch Reined In", Washington Post (June 29, 2004).
92. ^ West, Paul. A president under siege throws down the gauntlet", Hartford Courant (November 1, 2005).
93. ^ "Jeffrey Toobin Profiles 'The Nine' Inside the Robes", NPR (September 19, 2007).94. ^ Mencimer, Stephanie. "Does Scalia Think Clarence Thomas is a Nutter?" Mother Jones (September 28, 2007).
95. ^ a b Marzulla, Nancie. "The Textualism of Clarence
Thomas: Anchoring the Supreme Court's Property Rights Jurisprudence to the Constitution", Journal of Gender, Social Policy & The Law (2002).
96. ^ a b c "Nine Justices, Ten Years: A Statistical Retrospective", Harvard Law Review, volume 118, page 510, 519 (2004).
97. ^ Baude, Will. Brothers in Law, The New Republic Online, (June 30, 2004): "Justices Souter and Ginsburg were in complete agreement in 85 percent of the Court's decisions. Chief Justice Rehnquist agreed with Justice O'Connor in 79 percent and Justice Kennedy in 77 percent. Justices Stevens and Souter agreed 77 percent of the time; so did Justices Ginsburg and Breyer. Thomas and Scalia agreed in only 73 percent of the cases. Thomas regularly breaks with Scalia, disagreeing on points of doctrine, finding a more measured and judicial tone, and calling for the elimination of bad law. Unless he is simply a very bad yes-man, Clarence Thomas is a more independent voice than most people give him credit for."
98. ^ Greenhouse, Linda. "In Steps Big and Small, Supreme Court, Moved Right", The New York Times, July 1, 2007.
99. ^ "EAST-#7825019-v1-OT06_Non-Unan_Agreement.XLS". Retrieved June 20, 2010.
100. ^ "EAST-#7824858-v1-OT06_Agreement_2.XLS". Retrieved June 20, 2010.
101. ^ Greenburg 2007, p. 166.
102. ^ Mark Tushnet, A Court Divided 85-6 (2006); Jeffrey Toobin, The Nine 119 (2008).
103. ^ "The Statistics", Harvard Law Review, volume 121, page 439 (2007).
104. ^ "The Statistics", Harvard Law Review, volume 120, page 372 (2006).
105. ^ "The Statistics", Harvard Law Review, volume 119, page 415 (2005).
106. ^ Gerhardt, Michael. The Power of Precedent, page 188 (Oxford University Press 2008): Thomas "does not, at least statistically, urge more than three overrulings per term, thus indicating his willingness to leave a fairly broad spectrum of constitutional decisions intact".
107. ^ Barrett, Amy. "Statutory Stare Decisis in the Courts of Appeals", George Washington Law Review (2005).108. ^ "A Big Question About Clarence Thomas", The Washington Post, October 14, 2004. Accessed May 7, 2007.
109. ^ a b Gerhardt, Michael. The Power of Precedent, pages 249 (ranked eleventh for overturning precedent) and 12 (most frequently urged overturning) (Oxford University Press 2008).
110. ^ Ringel, Jonathan. "The Bombshell in the Clarence Thomas Biography", Daily Report bvia Law.com (August 5, 2004). Scalia also said that Thomas "doesn't believe in stare decisis, period."111. ^ a b Toobin 2007, p. 120.
112. ^ E.g., Seminole Tribe v. Florida 517 U.S. 44 (1996). Full text of opinion courtesy of Findlaw.com.
113. ^ United Haulers Assn. v. Oneida-Herkimer Solid Waste Mgmt. Auth. 550 U.S. 330 (2007). Full text opinion courtesy of Cornell University
114. ^ United States v. Lopez 514 U.S. 549 (1995). Full text of opinion courtesy of Findlaw.com.
115. ^ a b Toobin 2007, p. 100.
116. ^ Dorf, Michael. "What California's Trans Fat Ban Teaches Us About Federalism", Findlaw's Writ (July 29, 2008): "Proponents of broad national power like myself do not say that the Court should update the Constitution to keep it in tune with the times. Rather, we argue —- or at least some of us argue —- that the growth of a national, indeed, global, economy, means that activities that might have been carried out in relatively discrete local markets in 1789 are now undoubtedly part of interstate and international commerce."
117. ^ a b Joondeph, Bradley "Federalism, the Rehnquist Court, and the Modern Republican Party", Oregon Law Review, Volume 87 (2008): "Most scholars agree that federalism was central to the Rehnquist Court's constitutional agenda."
118. ^ Althouse, Ann. "Why Talking About States' Rights Cannot Avoid the Need for Normative Federalism Analysis: A Response to Professors Baker and Young", Duke Law Journal, Volume 51, page 363 (2001).
119. ^ a b Greenburg 2007, p. 117.
120. ^ a b Foucha v. Louisiana, 504 U.S. 71 (1992). Full text of opinion courtesy of Findlaw.com.
121. ^ Ost, Harriet. "U.S. Supreme Court: Chicago's gun ban struck down", United Press International (June 28, 2010).
122. ^ McDonald v. Chicago slip opinion from the U.S. Supreme Court
123. ^ Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Full text of opinion courtesy of Findlaw.com.
124. ^ Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
125. ^ Volokh, Eugene. "How the Justices Voted in Free Speech Cases, 1994–2000" (Updated), 48 UCLA L. Rev. 1191 (2001).
126. ^ Morse v. Frederick, 551 U.S. 393 (2007). Full text of opinion courtesy of Findlaw.com.
127. ^ American Civil Liberties Union v. Ashcroft, 535 U.S. 564 (2002), full text courtesy of Findlaw.
128. ^ 514 U.S. 334 Full text of the opinion courtesy of Findlaw.com.
129. ^ Indianapolis v. Edmond, 531 U.S. 32 (2000). Full text of opinion courtesy of Findlaw.com.130. ^ a b c Safford Unified School District v. Redding, 557 U. S. __ (2009). Full text of opinion courtesy of Findlaw.com.
131. ^ "Court Says Strip Search of Ariz. Teenager Illegal", Associated Press via NPR (June 25, 2009).
132. ^ a b c Doggett v. United States, 505 U.S. 647 (1992). Full text of opinion courtesy of Findlaw.com.
133. ^ Greenburg 2007, p. 123.
134. ^ a b c Hudson v. McMillian, 503 U.S. 1 (1992).
135. ^ Greenburg 2007, p. 119.
136. ^ a b Garrow, David (October 25, 2004), "Saving Thomas", The New Republic
137. ^ United States v. Bajakajian, 524 U.S. 321 (1998).
138. ^ a b Yoo, John, Opinion (October 9, 2007) The Real Clarence Thomas Wall Street Journal.
139. ^ a b c Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). Thomas wrote: "It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause."
140. ^ Cutter v. Wilkinson, 544 U.S. 709 (2005). Thomas wrote: "I note, however, that a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause."
141. ^ Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).
142. ^ Gratz v. Bollinger, 539 U.S. 244 (2003).143. ^ a b Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
144. ^ Grutter v. Bollinger, 539 U.S. 306 (2003).
145. ^ Thomas concurring opinion, Missouri v Jenkins
146. ^ a b c Planned Parenthood v. Casey, 505 U.S. 833 (1992).
147. ^ Stenberg v. Carhart, 530 U.S. 914 (2000).
148. ^ a b c Gonzales v. Carhart, 550 U.S. 124 (2007).
149. ^ Lawrence v. Texas, 539 U.S. 558, 605 (2003).
150. ^ "Romer v. Evans". The Oyez Project. Retrieved April 11, 2010.151. ^ "Activism Is in the Eye of the Ideologist" (Editorial), New York Times (September 11, 2006).
152. ^ Opinion of Thomas, J. NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL (June 22, 2009) Full text courtesy of Cornell University Law School.
153. ^ a b Liptak, Adam "No Argument: Thomas Keeps 5-Year Silence", The New York Times, February 12, 2011, accessed February 13, 2011
154. ^ "Justice Clarence Thomas". The New York Times. December 14, 2000. Retrieved November 8, 2010.
155. ^ Bedard, Paul (November 29, 2007). "This Is Not Perry Mason". Washington Whispers. U.S. News & World Report.
156. ^ Patterson, Orlando (June 17, 2007), "Thomas Agonistes", The New York Times, p. 2 retrieved April 28, 2010
157. ^ Garrow, David (October 6, 1996). "The Rehnquist Reins". New York Times Magazine.
158. ^ a b Toobin 2007, pp. 106–107.
159. ^ Merida, Kevin; Fletcher, Michael A. (April 22, 2007). "Justice Thomas's Life A Tangle of Poverty, Privilege and Race". The Washington Post. Retrieved April 20, 2009.
160. ^ Toobin 2007, pp. 111–112.
161. ^ "Justice Thomas marches to own tune", USA Today, Associated Press, September 3, 2001.
162. ^ Foskett 2004, p. 303.
163. ^ Hennessey, Kathleen (March 14, 2010). "Justice's wife launches 'tea party' group". Los Angeles Times. Retrieved March 15, 2010.
164. ^ Vogel, Kenneth; Cogan, Marin; Bresnahan, John (February 4, 2011). "Justice Thomas's wife Virginia Thomas now a lobbyist". Politico. Retrieved February 4, 2011.
165. ^ Lichtblau, Eric (February 4, 2011). "Justice Thomas's Wife Sets Up a Conservative Lobbying Shop". The New York Times. Retrieved February 4, 2011.
166. ^ Olson, Carl (October 1, 2007). "Did Clarence Thomas just say he's not Catholic?". Insight Scoop: The Ignatius Press Blog. Retrieved December 6, 2009.
167. ^ "Religious affiliation of Supreme Court justices" Justice Sherman Minton converted to Catholicism after his retirement. James F. Byrnes was raised as a Catholic, but converted to Episcopalianism before his confirmation as a Supreme Court Justice.
168. ^ Toobin 2007, p. 103.
169. ^ Toobin 2007, p. 103–104.
170. ^ Barone, Michael (July 12, 2009). "Clarence Thomas: The courage of his convictions". The Washington Examiner. Retrieved May 23, 2010.
171. ^ Geiger, Kim (January 22, 2011). "Clarence Thomas failed to report wife's income, watchdog says". Los Angeles Times. Retrieved January 23, 2011.
172. ^ Lichtblau, Eric (January 24, 2011). "Thomas Cites Failure to Disclose Wife’s Job". The New York Times. Retrieved January 29, 2011.
173. ^ Camia, Catalina (January 24, 2011). "Clarence Thomas fixes reports to include wife's pay". USA Today. Retrieved February 5, 2011.
[edit] References
• Foskett, Ken (2004). Judging Thomas: The Life and Times of Clarence Thomas. William Morrow. ISBN 978-0-06-052721-1.
• Greenburg, Jan Crawford (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Penguin Group. ISBN 978-1-59420-101-1.
• Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court. Random House. ISBN 978-0-385-51640-2.
[edit] Further reading
• Abraham, Henry J. (2007). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (5th ed.). Rowman & Littlefield Publishers. ISBN 978-0-7425-5895-3.
• Brooks, Roy L. (2008). Structures of Judicial Decision Making from Legal Formalism to Critical Theory (2nd ed.). Durham, N.C.: Carolina Academic Press. ISBN 978-1-59460-123-1.
• Carp, Dylan (September 1998). "Out of Scalia's Shadow". Liberty. Archived from the original on February 13, 2006.
• Cushman, Clare, ed (2001). The Supreme Court Justices: Illustrated Biographies,1789–1995 (2nd ed.). Supreme Court Historical Society, Congressional Quarterly Books. ISBN 978-1-56802-126-3.
• Foskett, Ken (2004). Judging Thomas: The Life and Times of Clarence Thomas. William Morrow. ISBN 978-0-06-052721-1.
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 978-0-7910-1377-9.
• Gerber, Scott D (1999). First Principles: The Jurisprudence of Clarence Thomas. New York University Press. ISBN 978-0-8147-3099-7.
• Greenburg, Jan Crawford (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Penguin Group (USA). ISBN 978-1-59420-101-1.
• Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 978-0-19-505835-2.
• Holzer, Henry Mark (2006). Supreme Court Opinions of Clarence Thomas 1991–2006: A Conservative's Perspective. Madison Press. ISBN 978-1-59113-911-9.
• Lazarus, Edward (January 6, 2005). "Will Clarence Thomas Be the Court's Next Chief Justice?". FindLaw. Retrieved May 15, 2010.
• Mayer, Jane; Abramson, Jill (1994). Strange Justice: The Selling of Clarence Thomas. Houghton Mifflin. ISBN 978-0-452-27499-0.
• Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Congressional Quarterly Books. ISBN 978-0-87187-554-9.
• Onwuachi-Willig, Angela (January 2005). "Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity". Iowa Law Review (University of Iowa College of Law) 90: 931.. Available online at SSRN 638281
• Presser, Stephen B. (January, February 2005). "Touting Thomas: The Truth about America's Most Maligned Justice". Legal Affairs. Retrieved May 15, 2010.
• Thomas, Andrew Peyton (2001). Clarence Thomas: A Biography. Encounter Books. ISBN 978-1-893554-36-8.
• Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. ISBN 978-0-8153-1176-8.
• Woodward, Robert; Armstrong, Scott (1979). The Brethren: Inside the Supreme Court. New York: Simon and Schuster. ISBN 978-0-671-24110-0.
Images and media from Commons
Quotations from
• Supreme Court official site with biographies
• Profile at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center
• Legal resources at the Law Library of Congress
• Biography and writings at the Legal Information Institute
• Profile at the Oyez Project
• Appearances on C-SPAN
• Profile at the Internet Movie Database
• Financial information at OpenSecrets.org
• Collected news and commentary at The New York Times
• Works by or about Clarence Thomas in libraries (WorldCat catalog)
• Profile at Notable Names Database
• About.com Quinn, Justin, A Profile of Clarence Thomas at About.com U.S. Conservative Politics
• Clarence Thomas at the 2007 Annual National Lawyers Convention – November 2007.
• Cornell Law School Biography of Clarence Thomas.
• Michael Ariens, Clarence Thomas.
• Outline of the Anita Hill and Clarence Thomas Controversy
• Overview of Personal Memoir
• Oyez, Official Supreme Court media, Clarence Thomas biography.
• How to Read the Constitution Excerpt from Thomas's Walter B. Wriston Lecture to the Manhattan Institute in October 2008
• Transcripts of Senate Judiciary Committee Hearing on the Nomination of Clarence Thomas to the Supreme Court
• Washington Post article about Thomas
• New Yorker Magazine: "Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?" by Jeffrey Toobin - August 29, 2011
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