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On the Supreme Court of the United States, where the nine judges often do not agree but try to merge their opinions into majority decisions, a justice emerges.
Clarence Thomas, the oldest member of the current court – and his only African American – has views that may perhaps be described as unique.
Some court observers, however, use other terms: idiosyncratic, eccentric, provocative, thoughtful and yes, extravagant.
"He went through all sorts of different ideologies in his life," observes Yale law professor, Akhil Amar. "In law school, he was a type of Black Panther, a black-power extremist of a certain type, now he defines the right wing of the United States Supreme Court."
As he has done in the past, Thomas used this term to draw a course that is sometimes incredibly different from his colleagues. While writing eight majority opinions for the court during this time, it was his 18 dissenting and competing opinions that raised eyebrows.
A series of extraordinary opinions
In Thomas's most captivating decisions at this time, he only occasionally attracted the vote of another justice. Here is a selection:
- He disagreed when the court invalidated the conviction of a black man tried six times for the same crime by the same prosecutor with juries that were either all white, or almost all white.
- He once again wrote that the prohibition of the constitution of the government religion does not apply to states – in other words, states are free to prefer or support a religion rather than another.
- He called twice in the courtroom to reverse his abortion decisions, in one case going further to link birth control and Planned Parenthood to the eugenics movement of a century ago.
- For the first time, he asked for the overturning Gideon v. Wainwright, the historic 1963 decision that requires criminal defendants who are too poor to pay for a lawyer to be procured by a lawyer paid by the government.
- In another first, he asked to overturn the reference freedom of the 1964 press decision New York Times v. Sullivan, establish rules to make it more difficult for public personalities to sue for libel without proof of knowingly publishing falsehoods.
The Trump-Thomas duo
Thomas's new objection to a historic defamation decision that has been reiterated countless times has not been combined with any other justice, but coincides with President Trump's views.
Trump, as a private citizen, tried repeatedly and unsuccessfully to sue his critics in the media. And he made no secret of his fury on the state of defamation laws of the nation.
At a campaign demonstration in 2016 Trump attacked the New York Times and the Washington Post, declaring, "I will open our defamation laws, so when they write deliberately negative, horrible and false articles, we can sue them and earn a lot of money."
It is a commitment that he has repeatedly repeated since then.
Trump was especially considerate of Judge Thomas and his wife Ginni, a conservative vocal activist. The Thomases dined with the Triumphs at the White House at the beginning of this year; Shortly thereafter, Ginni Thomas directed an hour meeting between the president and a group of his conservative socialist activist friends.
The Trump-Thomas report may have been responsible for retirement rumors, fueled by some conservatives, who apparently wanted 73-year-old Thomas to resign so that Trump could replace him with a younger conservative appointee for decades longer.
If that was the plan, it didn't work, as Thomas made clear during an appearance at Pepperdine University when he was asked what he could say at his retirement party in 20 years.
"But I will not retire," he told the interviewer, who asked, "Not in 20 years?"
"No," Thomas replied with a laugh.
"Not in 30 years?" the interviewer insisted.
"No," Thomas added with emphasis.
Now, nobody really thinks that Thomas will still be at the Supreme Court when he is 101, but in this and other appearances he clearly rejected the idea of retiring early.
Theories from black nationalism to originism
In each of his 28 years in the nation's highest court, Thomas has seen critics and supporters alike postulate different theories about his jurisprudence.
Brooklyn College Professor Corey Robin, author of the upcoming book, The enigma of Clarence Thomas, argues that Thomas's prevailing legal philosophy derives from his ideas of "black nationalist".
"The way I understand Thomas is that he believes the US state, in particular, is steeped in racial and racial conscience," said Robin, "and thinks it's a kind of commission to try to change it."
According to Robin, Thomas's dissent in the case of jury discrimination of this term fits perfectly. The solution to white prosecutors seeking to exclude black jurors because of their race is to allow defense lawyers to exclude white jurors because of their race.
A completely different view of Thomas comes from Ralph Rossum, a professor at Claremont McKenna College and author of Understanding Clarence Thomas. Rossum said that Thomas disdains previous Supreme Court rulings because they increasingly distance him from the original Constitution.
"If you have a finely crafted piece of furniture and put layers and layers of paint on it, very soon all the detail gets lost under the paint," said Rossum, "and what Thomas wants to do is go back to bare wood, to the text original "of the Constitution.
But also the man who popularized the originality, the late judge Antonin Scalia, did not have such a purist vision. Unlike Thomas, he done believe in the background. As he famously says, "I'm an original, but I'm not crazy."
The precedents of the Supreme Court are the constitutive elements of the law and of an orderly society, said the professor of law of the University of Baltimore, Garrett Epps. He sees the vision of Thomas's precedent as arrogant.
As an example, it refers to a concordant opinion of 1995 in which Thomas referred to James Madison's views on the separation of church and state as "extreme" and said that "in any case a man's opinions do not establish the original meaning of the First Amendment "religious clauses.
"Wait a minute," said Epps, raising his voice, "you just called James Madison, the father of the Bill of Rights … you just called him an extremist, particularly in the field of religious freedom, which is area that has is most identified with ".
Epps argues that if you read Thomas's jurisprudence, the opinions of one man count – his. Thomas "only knows the original meaning of these provisions," Epps said, "and even Madison, who wrote them, can be ignored."
Epps added: "Now, take a level of trust or megalomania that I find truly breathtaking."
The measure of success
However, it is important not to reject Thomas's opinions. Yale's Amar acknowledges that Thomas did not write many high-visibility majority opinions for the court, but that it may not be what matters most at the moment with a recently conservative court majority.
"If you think that the measure of the success of a justice is how many opinions of the majority it writes, well, then Thomas places himself in some way down," said Amar. "But if instead the game is marked by how many new ideas someone enters the conversation, and eventually wins, well, then Thomas is very high in the hierarchy."
Thomas, for example, in 2008 did not write the historic court decision, stating for the first time that the second amendment right to bear arms includes the individual right to own a weapon in his own house for self defense. Scalia wrote that decision, but the first justice to propose that idea was Thomas, in a concordant opinion 11 years earlier.
However, Amar draws a distinction between the decision on gun rights and other decisions that Thomas criticized this term. The right to a fair trial guaranteed by the Constitution is so "fundamental", said Amara, and so embraced by courts and scholars that it considers "unimaginable" that the Supreme Court can repudiate Gideon v. WainwrightIt is the right to recommend a decision or a line of decisions that exclude racial discrimination in the selection of the jury.
Likewise, he considers it "unimaginable" that the Supreme Court can repudiate its fundamental defamation decision, or that it would rethink its religious doctrine to allow state governments to prefer a religion rather than another.
But: "The area where Judge Thomas could very well have five votes is abortion," said Amar, adding, "This is the proverbial elephant in the room."
But if the new conservative majority of the Supreme Court begins to rethink important and consolidated precedents in other areas, Thomas will be at the forefront.