Clarence Thomas plays a central role in the new Supreme Court


For decades, U.S. Supreme Court Justice Clarence Thomas has held a somewhat lonely place on the court’s conservative fringe. He was prolific in his opinions, but often alone, leading an idiosyncratic path.

However, during the term that ended last week, he seems to have become an increasingly central figure. The court’s new conservative 6-3 qualified majority defied expectations in many ways. While some major decisions have been clearly conservative – for example, scrutiny of the voting rights law – others have strongly challenged partisan lines.

Why we wrote this

This last term of the Supreme Court did not take shape as many expected. But the key to understanding how the Court might evolve may lie in its more conservative member.

Yet the clues left during that term and the cases on file for the next term suggest that a right turn may be ahead. And Judge Thomas’ intellectual imprints on the new court are visible. The arguments he has long advanced against abortion and affirmative action seem to be gaining ground. And above all, he is no longer so lonely.

“Many [justices] are closer to Thomas ”ideologically than other conservatives on the ground, says Ilya Shapiro of the Cato Institute. “He has more allies.

It was a slip of the tongue, but an illustration. In oral argument in March, a lawyer referred to United States Supreme Court Justice Clarence Thomas as “Mr. Chief Justice.”

“Thanks for the promotion,” Judge Thomas replied, his laughter bursting out. momentarily fill the live broadcast argument.

There is no chance of a coup in the highest court in the land. But it’s fair to say that Judge Thomas – an at times idiosyncratic mainstay of Conservative case law – has never been more of a keystone for the court than he is now.

Why we wrote this

This last term of the Supreme Court did not take shape as many expected. But the key to understanding how the Court might evolve may lie in its more conservative member.

For the term that ended last week, that meant a surprising amount of unanimity and unusual alignments in some high-profile cases. On the surface, at least, that was a relatively calm term. But the next term, with some successful abortion and gun law cases already on the agenda, may see the “Thomas Tribunal” take on a very different meaning.

“It’s a changing tribunal,” says Ilya Shapiro, vice-president of the Cato Institute, a libertarian think tank. And Judge Thomas, he adds, “is definitely at the height of his influence.”

Unexpected twists in the term

In some ways, the Supreme Court defied expectations last year. Judge Amy Coney Barrett arrived a month after the start of the session, replacing Liberal icon Judge Ruth Bader Ginsburg, who died five weeks earlier, and cementing a Tory 6-3 superiority in the field. But the predicted wave of pro-Conservative decisions did not materialize.

The court upheld the Affordable Care Act for the third time in a 7-2 decision. That same day, in a high-profile religious freedom case, he delivered a unanimous but narrow decision in favor of a Catholic reception agency. Of the 16 decisions handed down by the 6-3 court last quarter, there were five different rosters. Justice Thomas has voted twice with the court’s three Liberals in divided cases.

It is, however, a very conservative Supreme Court, as evidenced by two opinions issued on the last day of the mandate. The two 6-3 decisions were ideological – one severely restricted a key provision of the voting rights law, and the other represented a sort of personal victory for Judge Thomas.

In the latter case, the court declared unconstitutional a California law requiring charities to disclose the identity of their major donors to the state. Judge Thomas has criticized these laws for years, saying they violate donors’ right to freedom of association.

“Now six judges are really embracing this concept,” Sarah Harris, partner at the Williams & Connolly law firm and former clerk of Judge Thomas, said during a webinar last week hosted by the American Constitution Society.

“This is a big change in the law over the past 20 years,” she added.

Erin Schaff / The New York Times / AP / File

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021. Sitting left to right are Justice Samuel Alito, Justice Clarence Thomas, Chief Justice John Roberts, Justice Stephen Breyer and Judge Sonia Sotomayor, standing from left, Judges Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett.

These types of victories are strewn over Judge Thomas’ three decades on the court. Two of the greatest victories of the Supreme Court for the Tories of this century – the extension of gun rights in Heller v. District of Columbia and the rescinding of campaign funding restrictions in Citizens United v. FEC – came years after he made similar arguments in solo contests.

These cases, however, are exceptions – at least to this day. Some of his arguments, such as the (repeatedly made) that the Constitution’s ban on government establishment of religion does not apply to states, are unlikely to gain traction with the government. the majority of the court. But after decades of writing alone from the conservative bangs, he seems to have more power and more support.

“Many [justices] are closer to Thomas ”ideologically than other conservatives on the ground, Shapiro says. “He has more allies.

Typically the court’s most prolific author, Judge Thomas again led the way in the last quarter with 23 opinions. But at least one colleague has joined him in all but seven cases – his lowest number of solo opinions since the 2013-14 term.

Chief among these allies is Judge Neil Gorsuch, the colleague with whom he most agreed. Among the cases in which they took similar positions was a First Amendment case that the court refused to hear. In separate dissent, the two justices argued that New York Times v. Sullivan – the 1964 precedent protecting the right of journalists and the public to criticize public officials – should be reconsidered.

On the ideological side, he voted to keep the Affordable Care Act. And two administrative law cases also saw Judge Thomas write dissenting opinions joined by the progressive wing of the court. Together this illustrates that while Judge Thomas may have more influence than ever before, he is still, well, Judge Thomas.

“He is a decidedly politically conservative judge,” said Steven Schwinn, professor at the University of Illinois at Chicago Law School. But “he has an independent streak.”

The extent of this independent streak spanning the next term, with a hot list of cases already on file, is a major question.

How conservative is the court?

Because the Supreme Court is now so conservative, judges are urged to hear more cases seeking to move the law forward in the right direction. The cases, however, have divided the conservative wing of the court over how quickly and to what extent the law should change.

In the last term, the court mostly took a narrow path, adopting limited decisions and avoiding more important business issues.

Term following “the court [may] start to define yourself more, ”says Mr. Shapiro of the Cato Institute. But with moderate conservatives like Chief Justice John Roberts and Justice Brett Kavanaugh at its ideological center, he adds, “this is still a cautious and progressive tribunal.”

Other experts believe that the Roberts Tribunal is, and has long been, only selectively incrementalist. Although the court issued restrictive rulings in important cases in the last quarter, they note, it also made significant changes to the voting rights law on the last day of office.

“It’s not as if the tribunal is always passive or always active. It is an activity or an always variable constraint, explains Nicholas Stephanopoulos, professor at Harvard Law School.

“It is not a total surprise that a conservative court sometimes feels uncomfortable with the most conservative arguments presented to it,” he adds. But “on the right types of cases, there is no doubt that this is an ultra-conservative, ultra-ideological tribunal.”

The next quarter, the court has already agreed to hear several of what could be these “good types” of cases for conservative judges. Abortion, gun rights, and state funding for religious schools are all on the agenda. The judges are also still considering taking an affirmative action case to Harvard University. (Last month, they asked the Biden administration to rule on the case.)

These are also cases that could see the court bringing the law closer to how Judge Thomas views it. Earlier this year, a solo deal he wrote in 2019 linking abortion with eugenics began to gain traction in lower federal courts. He has long been a critic of affirmative action.

The last time the court ruled on an affirmative action case was months after the death of Judge Antonin Scalia. Judges upheld a University of Texas race-based admissions policy in a deadlock decision, and Judge Thomas wrote a fiery dissent.

It was then, as the ideological balance of the court was about to shift from conservative to liberal for the first time in decades, that the court’s most conservative justice seemed “destined to purge.” his sentence in an even more distant fringe, ”wrote The New Yorker’s Jeffrey Toobin.

Five years and four new judges later, and months away from a successful tenure, Judge Thomas has never been so close to the mainstream of the court.


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