- The Washington Times - Friday, October 26, 2001

Clarence Thomas no longer gets bad press. To the contrary, media treatments these days often are substantially positive. Consider that USA Today has described him as “the court's most fascinating member and its most undervalued.”

Plainly, a reconsideration of Justice Thomas is taking place. The question is why.

Part of the answer is that the story that for so long fouled perceptions of Justice Thomas the bitter one involving Anita Hill has lost traction. Until 1999, when legal scholar Scott Gerber wrote a book on Justice Thomas' jurisprudence, all 15 of the previous books about him concerned Miss Hill's charges of sexual harassment. With few exceptions, those books supported Miss Hill, though it couldn't be said the evidence did.

In 1998 and 1999, however, when the feminists so quick to support Miss Hill rallied in support of Bill Clinton, dismissing charges against him that were more credible than Miss Hill's and that had been made by no fewer than three women, the hypocrisy was palpable.

Yet it worked a positive effect for Clarence Thomas. In his biography of the justice, published this week to mark the 10th anniversary of the fateful confirmation hearings, Andrew Peyton Thomas (no relation) rightly observes that since the Clinton impeachment Miss Hill's allegations have ceased to be taken seriously.

The major reason for the changed perception of Justice Thomas, however, is the justice himself. Before he went to the court, there were doubts, borderline racist and publicly expressed, about his ability to do the job. During his first years, it often was said that his clerks did his work and that he simply followed where Justice Antonin Scalia led.

But those who closely watch the court know that Justice Thomas relies on clerks no more, and in some cases even less, than his colleagues do. And the idea that he is, as columnist Carl Rowan said in 1993, a “a clone” of Justice Scalia can't be sustained.

In his book, Mr. Gerber found that from 1991 through 1996 Justices Thomas and Scalia voted the same in 80 percent of the cases. But he also found that Justices Ruth Bader Ginsburg and Stephen Breyer voted together in 76 percent of the cases and that Justices Breyer and David Souter voted alike 84 percent of the time. The latter two pairings were of judicial liberals. Mr. Gerber's point is that jurists of similar outlook left or right tend to vote alike.

If you read the opinions of the justices, you learn something more important: That Justice Thomas' approach to judging, while akin to Justice Scalia's, is significantly different. “If my research about Justice Thomas has convinced me of anything,” writes Mr. Gerber, “it is that he has his own jurisprudence. This holds true for all areas of public law.”

On the court, Justice Thomas has become the leading advocate of originalism, an approach to constitutional interpretation that seeks the meaning of the Constitution by consulting its text and history. Justice Scalia also is an originalist but tends less to inquire into history than does Justice Thomas, who already has examined the background of the clauses pertaining to a speedy trial, cruel-and-unusual punishment, excessive fines, qualifications for Congress, privileges and immunities, commerce and free speech.

Justice Thomas' approach to judging has compelled him at times to part ways with Justice Scalia. Also, he hardly has been reluctant to press the logic of his positions. During his tenure, no justice has called for reconsidering, or outright overruling, as many of the court's precedents as Mr. Thomas has. In February, the court, with Justice Scalia writing, upheld the Environmental Protection Agency's air quality standards. Justice Thomas wrote separately to say he was willing to consider whether the EPA policy amounted to an unconstitutional delegation of congressional power.

That was a bold position, raising as it did the viability of a key premise of the New Deal. But, then, Justice Thomas also is the first member of the court ever to find fault with the reasoning in Brown vs. Board of Education. And one of the few to argue, as he did in the 1995 Adarand case, that “under our Constitution, government may not make distinctions based on race.”

Two months ago, legal historian David Garrow told American Lawyer that “the big news after 10 years is that Clarence Thomas has emerged as a reputable, independent justice.” He is proving his critics wrong, and, at age 53 still the youngest justice, he could have many more years to influence the court's deliberations, even to leave a unique stamp on our jurisprudence.

Terry Eastland is publisher of the Weekly Standard.

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