As a Supreme Court nominee, Clarence Thomas presented himself as a cautious jurist committed to judicial restraint. “I have no agenda to change existing case law,” Thomas told a Republican senator during his confirmation hearing after being asked about his critical views about school desegregation. “That’s not my predisposition. It's not the way that I approach my job.”
In his 20 years on the bench, however, Thomas has been a judicial activist of the first rank, a veritable bull in a china shop of Supreme Court precedents. More than any justice in recent memory perhaps more than any justice in history Thomas has time and again called for overruling prior decisions, some of them of recent vintage and some dating back decades or even centuries.
Thomas was a brand-new Supreme Court justice in fall 1991 when he first met a precedent that he did not like. In Hudson v. McMillian (1992), a case argued in November 1991 in Thomas’s second week of oral arguments, Thomas contended in dissent that the Eighth Amendment’s Cruel and Unusual Punishment Clause should not apply to a prison guard’s deliberate beating of an inmate. For the majority, Justice Sandra Day O’Connor said that Thomas’s dissent ignored a “settled rule” dating to 1977 that “unnecessary and wanton infliction of pain” violates the Eighth Amendment.
Thomas originally cast a lone dissenting vote in the case in the justices’ conference, though fellow conservative Antonin Scalia later joined his opinion. (In her book Supreme Conflict, the conservative-leaning reporter Jan Crawford Greenburg, then with ABC News and now with CBS, cites that sequence to refute the notion that Thomas in his early years simply followed Scalia’s positions.) In at least three dozen cases since then, however, Thomas has been all by himself in calling to overturn precedents.
A compilation in 2004 by Jason Rylander, a lawyer then with the progressive group Community Rights Counsel, lists 35 cases in which Thomas argued alone either in concurring or dissenting opinions for reconsidering settled precedents. The list begins with Thomas’s questioning in Georgia v. McCollum (1992) of the rule established a year earlier that private litigants cannot use peremptory challenges to exclude potential jurors on the basis of race.
Rylander, now with Defenders of Wildlife, ended his list in 2004, a year in which Thomas argued in half a dozen cases for rethinking past decisions. In one of those, Elk Grove Unified School District v. Newdow, Thomas took the startling position that the Establishment Clause, the central pillar of the separation of church and state, should apply only to the federal government, not to the states. In another, Sabri v. United States, Thomas argued for reconsidering decisions broadly interpreting Congress’s powers under both the Commerce Clause and the Necessary and Proper Clause.
Had Rylander continued the compilation, he could have added at least two more from the past two terms. In Citizens United v. FEC (2010), Thomas argued in a lone dissent for scrapping campaign-finance precedents that uphold mandatory disclosure of campaign contributions. And just this year, in Brown v. Entertainment Merchants Association (2011), Thomas argued in dissent that minors have no independent First Amendment right of access to speech that the government wants to censor. That approach would be at odds with the court’s landmark student-speech ruling in Tinker v. Des Moines Unified School District. Writing the majority opinion in the case, Scalia noted that Thomas cited no case in support of his view.
Thomas is not always alone in his penchant for breaking precedent. In his first term, he joined three others, including Chief Justice William H. Rehnquist, in a dissenting opinion that called for a “re-examination” of the landmark abortion rights ruling Roe v. Wade. Thomas had studiously avoided all questions on abortion during the confirmation hearing. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), he joined a plurality opinion by Chief Justice John G. Roberts Jr. that undercut the line of school desegregation decisions that Thomas had earlier appeared to accept.
Precedents are not sacrosanct. The court itself has stated that the principle of stare decisis respect for precedent "is not an inviolable command.” Some of the court’s greatest moments have come in rejecting decisions that were wrong when decided or wrong when reconsidered. Think Brown v. Board of Education, Gideon v. Wainwright, and Lawrence v. Texas.
Thomas’s approach, however, sets him apart even from his fellow conservatives. In his confirmation hearing, Roberts acknowledged that overruling a precedent can be “a jolt to the legal system.” As chief justice, Roberts has stopped short at times of officially overruling prior decisions. Thomas is less hesitant. As Scalia remarked to Thomas’s biographer Ken Foskett, Thomas “doesn’t believe in stare decisis, period.
As he marks his twentieth anniversary on the court, controversy still rages whether Thomas or law professor Anita Hill was telling the truth about Hill’s accusations of sexual harassment. That controversy will likely remain unsettled. But Thomas’s record over two decades shows that he has not been the justice that he promised to be during confirmation hearings. His record may cheer conservatives, but others will see evidence that Thomas reached the court only after a calculated dissembling before the Senate about his approach to legal issues. That may be a reflection on the confirmation process, but it is also, and more to the point, a reflection on Thomas himself.