Jul 2, 2022 - Politics & Policy

Clarence Thomas is at the peak of his power

Photo illustration of Justice Clarence Thomas with the Supreme Court forming his judge's robes.

Photo illustration: Shoshana Gordon/Axios. Photo: Tasos Katopodis/Getty Images

Clarence Thomas is suddenly, for the first time since his confirmation, the main character at the Supreme Court.

Why it matters: Thomas is more powerful than he’s ever been inside the court, and ideas that the legal establishment once treated as his quirky hobbyhorses now carry increasing weight.

Driving the news: Thomas handed down two bombshell opinions within 24 hours last week.

  • First came a majority ruling striking down strict limits on concealed weapons. The next day, he issued a concurring opinion in the court’s abortion ruling that said the justices should not only have struck down Roe v. Wade, but should also revisit other precedents, including the rights to contraception and same-sex marriage.

The big picture: Thomas has spent years essentially laying out a whole parallel understanding of the law. He’s one of the court’s most prolific authors of solo dissents, according to Adam Feldman of Empirical SCOTUS, and has also written a slew of solo concurrences similar to last week's.

  • Thomas doesn't just write a dissent here and an additional point about a majority holding there, but rather has created a whole ecosystem of opinions that build on and reference each other almost in the same way as the court’s actual precedents, except for the fact that they are all one man speaking only for himself.
  • Thomas’ solo opinion in last week’s abortion case cited 11 of his past opinions, 10 of which were solo opinions. It drew more heavily from the Clarence Thomas Cinematic Universe than from the rest of the court’s historical precedents, dissents and non-Thomas concurrences.

But as the makeup of the court has shifted around him, Thomas’ views have gotten more influential. And that influence will only grow.

  • “There’s this whole array of concurring and dissenting opinions that are now available for the majority on the court to take more seriously,” said Ralph Rossum, a professor at Claremont McKenna College who wrote a book about Thomas.
  • Thomas has been able to “plow the field and plant the seeds” that other justices would later “harvest” for their own majority opinions, even if they didn’t join Thomas at the outset, Rossum said. “You see that coming to fruition again on abortion,” Rossum said.

Details: The Supreme Court has protected rights to abortion, same-sex marriage, same-sex intercourse and contraception under the same legal doctrine, known as “substantive due process.”

  • Thomas rejects that entire theory, and so he would throw out every ruling that relies on it.
  • “That's classic Thomas. There isn't a justice on the court less committed to reliance on precedent than Thomas,” Rossum said. He said Thomas believes the court spends too much time interpreting its own work and too little time on the Constitution.
  • The court’s majority opinion in Dobbs, written by Justice Samuel Alito, did not say that substantive due process is altogether nonsense, as Thomas would have said. But it adopted a very narrow view of which rights the doctrine can protect. Outside of the conservative movement, it can seem like a distinction without a difference.
  • “Although Alito and Thomas are coming at it from different places, both are making arguments that suggest the fundamental rights that the court has protected should be rolled back,” said David Gans, the director of civil rights at the Constitutional Accountability Center, a liberal legal advocacy organization.

Behind the scenes: An important detail of the court’s inner workings has helped elevate Thomas.

  • Once the justices decide how they’re going to rule in a given case, the most senior justice in the majority decides who will get to write the ruling.
  • A lot of power rests in that assignment, and Thomas has rarely gotten to wield it — until now. On the 6-3 court, Chief Justice John Roberts is the only one more senior than Thomas. So any time Roberts joins the court’s liberals, and the rest of the conservatives stay united, Thomas will get to decide who writes the majority ruling.
  • He can assign it to himself, if it’s an area of law he feels strongly about, or choose whichever of his colleagues he believes will get the closest to his own interpretation while still keeping the majority intact.

What’s next: Thomas’ newfound seniority and the court’s overall ideological balance aren’t going anywhere. And he will have ample opportunities to make his mark on the law.

  • Thomas has been an outspoken critic of affirmative action in college admissions — it’s one of the issues he seems to care about most deeply. The court has an affirmative action case already on the docket for its next term.
  • He’s also been a longstanding critic of the administrative state, an area of law where the court will likely be particularly active over the next several years.

The bottom line: “I think [the court] will continue to move in his direction — not as conclusively or as profoundly as he might want,” Rossum said, but enough that Thomas likely will be “extraordinarily influential going forward.”

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