- The Washington Times - Sunday, October 2, 2022

Justice Clarence Thomas has been on the Supreme Court for more than three decades, and his judicial philosophy rooted in the original meaning of the Constitution is finally controlling big rulings.

Yet he is cranking out opinions just like he did while in the legal desert of the liberal “living Constitution” era.

“He’s always been one to kind of identify problems that maybe the court hasn’t grappled with or issues that need to be brought up,” said Carrie Severino, who clerked for the justice 15 years ago. “It’s taken decades. He’s been on the court over 30 years now, but the court has ultimately been like, ‘Oh, yeah, that is an issue we need to look at.’”

The difference between then and now, she said, is “you now see a majority of justices joining him.”

Justice Thomas will take the bench Monday for the start of the 2022-2023 term after his most influential year yet. He led colleagues in forcefully asserting Second Amendment gun rights and First Amendment religious free exercise rights and, of course, defenestrating Roe v. Wade.

That 1973 decision was the guiding star of liberal legal scholarship for decades but succumbed last year to Justice Thomas’ brand of originalism. Justice Samuel A. Alito Jr. wrote the chief opinion, saying it was time to reverse years of wrong legal reasoning that had led to and flowed from Roe.

Justice Thomas joined the ruling but wrote a concurring opinion to advise his colleagues that their job was not finished. He said the same “substantive due process” right that Roe applied to establish a national right to abortion was the basis for other decisions, such as federal constitutional guarantees of access to contraception and same-sex marriage.

Ms. Severino said that’s typical of Justice Thomas.

She said he likens the court’s use of precedent to engineers adding cars to a train.

“He’s like, ‘Look, you want me to add another car to this long train. I don’t even know where this train is going, who’s driving this train. So what we need to do is trace it back, go forward one car at a time, until we get to the very beginning, we find out what is going on,’” she said.

“Sometimes, he says, you’ll find there’s a chimpanzee driving it. We should not be adding more cases to this line of reasoning.”

That’s one reason Justice Thomas is still writing prolifically while his philosophy controls more of the court’s opinions.

Adam Feldman, who runs Empirical SCOTUS, said Justice Thomas writes a separate opinion for every five cases on which he votes. That’s a full opinion ahead of the runner-up, Justice Sonia Sotomayor, the closest justice the liberal wing has to Justice Thomas.

Chief Justice John G. Roberts Jr. writes a separate opinion once every 14.5 cases in which he prevails, Mr. Feldman’s data shows.

“Even when [Justice Thomas] agrees with the outcome, he will go further in asserting his own points of view,” Mr. Feldman said.

That’s particularly true when it comes to the use of stare decisis.

In the hands of many justices, fealty to justice can be a shield to defend a position or a weapon to attack a colleague’s position. For Justice Thomas, it’s usually just an academic question to be surmounted.

“Thomas will go out and say, ‘I don’t think it’s just overturning the law in this case; I don’t think there’s a distinct place for stare decisis in our jurisprudence that requires our respect. If I don’t agree with it, I’m going to overturn it,’” Mr. Feldman said. “He takes it a step further.”

During the past term, Justice Thomas wrote eight opinions in which he concurred with the outcome but wanted to make particular points, including in the abortion ruling. He had the highest concurrence rate on the court.

Court watchers figure Justice Thomas will play a significant role in the upcoming term in cases involving voting rights, election procedures, affirmative action in college admissions and First Amendment challenges to laws that require service for same-sex marriages when it conflicts with a business owner’s religious dictates.

“I could see him having, just because where he sits on these issues of religious liberty and the right to exclude based on a religious perspective, I could see him having some further-reaching opinion than the court’s willing to go,” Mr. Feldman said.

That the 6-3 conservative court has tilted toward Justice Thomas is mostly a matter of math.

Justice Anthony M. Kennedy’s retirement and Justice Ruth Bader Ginsburg’s death opened slots that were filled by more conservative-leaning members, tilting a court from moderately originalist to aggressively originalist.

Justice Thomas has found a new voice in oral arguments during the pandemic.

He was famously reticent to take part in the back-and-forth during oral arguments and once went a decade without asking a question.

The New York Times sniffed that he had given various explanations for his silence but seemed to settle on one that it was rude to the litigants to interrupt and preen and prod, as has been the practice for oral argument in recent years.

When the pandemic struck, the court went to virtual hearings and Chief Justice Roberts carved out specific time for each justice to ask questions. On a remote call, talking over one another would be a disaster. Justice Thomas, as the senior member of the court, got the first crack and began to engage again.

The court has gone back to in-person argument, but Chief Justice Roberts has maintained the structured format for each member to have a dedicated chance for questions, and Justice Thomas remains engaged.

“I think his colleagues recognized the value that added,” Ms. Severino said.

Justice Thomas’ success on the bench has led to a rocky summer.

George Washington University’s law school, where he co-taught a constitutional law seminar for years, faced a rebellion of sorts from students who demanded that he be fired.

The school rejected those calls. Although the justice’s views didn’t represent the school’s beliefs, GWU said, an open debate was part of education. Still, Justice Thomas withdrew from teaching the class.

An online petition circulating over the summer demanded the impeachment of the justice and garnered more than 1 million signatures. Democrats on Capitol Hill dismissed the idea as a non-starter.

Justice Thomas’ wife, Virginia “Ginni” Thomas, has been under scrutiny for communications surrounding the 2020 presidential election and her attendance at the pro-Trump rally on Jan. 6, 2021. She testified Thursday to the House committee investigating the mob attack on the U.S. Capitol later that day and reportedly told lawmakers she believed the election was stolen.

She also said Justice Thomas doesn’t discuss his court work with her.

Detractors wonder whether the 74-year-old jurist will quit soon.

Ms. Severino doubts it.

“No way,” she said. “On the Supreme Court, the mid-70s is like the new 40s.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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