As the case of Donald Trump v. United States continues to chafe America’s social fabric, an unlikely character threatens to steal the ex-President’s limelight: the ever-taciturn Supreme Court justice Clarence Thomas. The demands for his recusal from the insurrection trial arrive almost daily, with critics pointing to his wife Virginia’s calls to overturn the 2020 presidential election results and her presence at the rally before the January 6 Capitol protests. Thomas, by contrast, has remained resolutely silent on the matter. And nor should we be surprised: this is a man who has rarely felt compelled to justify his often-unconventional positions — or even his occasional disappearances from public view.
The past year has been particularly rough for the once-robust but now-obese and physically frail Thomas, beset by investigations into financial improprieties and heightened scrutiny over gifts and favours from wealthy benefactors. The oldest member of the Court at 74, he doesn’t seem to be long for the bench. And when he finally departs, not only will it mark the exit of the Court’s most polarising — and, perhaps surprisingly, most relatable and down-to-earth — figure, but could also alter the trajectory of American jurisprudence.
Thomas’s journey to the Supreme Court bench was, as lawyers might say, sui generis. Raised in poverty in Pinpoint, Georgia, his early life was framed by hardship and resilience. He was reared by his grandfather, Myers Anderson, a self-made man who built his own home and instilled in Thomas a rigorous work ethic and staunch moral code that the young man has, at times, struggled to follow.
After entering a seminary with the intention of becoming a priest, Thomas’s path dramatically shifted: he swiftly developed a pornography addiction so profound he wallpapered his apartment with nude pin-ups. To accommodate his less religious tendencies, he moved to the College of the Holy Cross, a liberal arts school in Massachusetts, where he embraced and then critically questioned the radical ideologies prevalent during the Seventies. His shift to conservative thought crystallised during his time at Yale Law School, where he began to question the efficacy and morality of affirmative action and other liberal policies he felt patronised rather than empowered African Americans.
Though one of America’s few black conservative intellectuals, Thomas’s ascent to the Supreme Court was anything but smooth. Nominated by President George H.W. Bush in 1991, his confirmation hearings — conducted in a rushed fashion by then-Senate Judiciary Committee Chairman Joe Biden — were nearly derailed by accusations of sexual harassment by Anita Hill, a former colleague at the Department of Education and the Equal Employment Opportunity Commission. They soon became a national spectacle that polarised public opinion and highlighted deep societal rifts around race, gender and power.
Largely because Biden closed the hearings before more witnesses could come forward, Thomas was confirmed by an exceedingly close Senate vote, 52-48. However, the scars of the process left a lasting imprint on his tenure and public persona: rarely speaking during oral arguments in the decades thereafter, Thomas adopted a jurisprudential approach that favoured colourful written opinions, where his advocacy for an unorthodox conservative interpretation of the Constitution could be fully articulated without immediate rebuttal.
Crudely speaking, Thomas could be considered an “extreme originalist”, often seeing cases through a lens that emphasises the Declaration of Independence and its revolutionary principles (instead of the later Constitution, which actually established the government). Along the way, he has freely taken peculiar positions — such as his opinion in Virginia v. Black (2003) that cross-burning constitutes racially intimidating conduct rather than mere speech, and should be unequivocally banned — aligning him unexpectedly with more liberal views on this issue.
But these were rare occasions. In United States v. Lopez (1995), by contrast, where the Court evaluated the constitutionality of the federal Gun-Free School Zones Act — which banned the possession of firearms in school zones — Thomas concurred with the majority that this act exceeded Congress’s power under the Commerce Clause. He argued that regulating guns in schools was a fundamentally local matter that had insufficient impact on interstate commerce to justify federal oversight. However, in doing so, he potentially provided the grounds to invalidate the Civil Rights Act of 1964 and a host of other landmark federal laws enacted under the Commerce Clause that helped end state-based segregation in the South.
A decade later, in another significant case, Kelo v. City of New London (2005), Thomas dissented from the Court’s decision, in which the combined liberal-conservative majority ruled that the city could legally seize private property without the owner’s consent — in this case, someone’s actual house — and sell it to private developers as part of an economic development plan. Thomas criticised this decision, arguing that it strayed far from the founders’ intent that “eminent domain” be used only for direct public uses, such as the construction of roads or bridges, not to coercively transfer property from one private owner to another under the guise of economic development. His dissent underscored his deep scepticism of expansive government powers. “Something has gone seriously awry with this Court’s interpretation of the Constitution,” he wrote.
As well as presenting himself as an advocate of a more restrained interpretation of federal authority, Thomas is the most relatable justice in another critical respect: he was born poor and always sought material comfort. Over the past year, ProPublica has highlighted multiple embarrassing instances where Thomas received gifts that included international vacations on private jets and luxury yacht trips, financed by billionaire donors who, depending on one’s interpretation, were either sympathetic friends or cynically buying access.
Early in the 2000s, for example, Thomas found himself hundreds of thousands of dollars in debt, his financial strain coming to a head after he borrowed $267,000 from a friend to buy a high-end RV. Eventually, mounting political pressure sparked discussions about his potential resignation from the Supreme Court; in response, Justice Thomas advocated, albeit unsuccessfully, for the lifting of restrictions on paid speeches by justices. This change was necessary, he argued, to alleviate the financial challenges faced by public servants like him, who he felt were paid significantly less than they could earn in the private sector for comparable roles. In reality, his perspective has indeed been valuable, but at what cost?
These late-life controversies all but ensure a miserable end for Thomas. As health challenges and ethical controversies cloud the twilight of his four-decade career, Thomas likely won’t leave with his held high, regardless of whether he retires due to infirmity or is forced to step aside. Nevertheless, his story — tragic though it might be — highlights the importance of genuine diversity in government, in thought and approach as well as background. For while his legacy will be a subject of intense debate and reflection, he has already ensured his place in the annals of American legal history as a common-man justice so silent on the bench that he almost wasn’t there — at least in the conventional sense, but profoundly present in every other. He will be replaced by another elite in disposition and background. And we can rest assured that we will never see his like again.
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Source: UnHerd Read the original article here: https://unherd.com/