THE JUSTICES OF THE UNITED STATES SUPREME COURT
They are called "Justices" not "Judges" to differentiate themselves from lower court judges
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Morrison, 529 U.S. 598 (2000)
Gonzales v. Raich, 545 U.S. 1 (2005)
McDonald v. Chicago, 561 U.S. 3025 (2010)
Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004)
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
Grutter v. Bollinger, 539 U.S. 306 (2003)
Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009)
Doe v. Reed, 130 S. Ct. 2811 (2010)
Morse v. Frederick, 551 U.S. 393 (2007)
Board of Education v. Earls, 536 U.S. 822 (2002)
Safford Unified School District v. Redding, 08-479 (2009)
Brown v. Entertainment Merchants Association, 08-1448 (2011)
Virginia v. Black, 538 U.S. 343 (2003)
Lawrence v. Texas, 539 U.S. 558 (2003
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)
Justice Thomas was nominated to the bench on July 1, 1991 by President George H. W. Bush to replace retiring justice Thurgood Marshall (who retired because of health problems and would die a year and a half later). President Bush hesitated in nominating Justice Thomas because he did not want to appear to be replacing one black justice with another, but decided that Justice Thomas was the best choice for the position regardless. Justice Thomas took office on October 23, 1991 after surviving the most controversial nomination hearings in modern history.
Life Before the Court
Clarence Thomas was born on June 23, 1948, in a small, predominantly African American community in Pin Point, Georgia that was founded by freed slaves after the Civil War.
He was the second of three children (Emma, Clarence and Myers) born to his Father, M.C., a farm worker and his mother, Leola, a domestic worker, who, in turn, were the descendants of West African slaves who had worked on a three-thousand-acre rice plantation in Liberty County, Georgia. In his autobiography, Justice Thomas describes visiting the plantation for the first time and seeing an old barn where his family likely labored, which is now a bed and breakfast that was advertised as "a perfect honeymoon hideaway."
His parents spoke a creole language called Gullah (a combination of English and the West and Central African languages) (which can be heard here).
Justice Thomas described Pinpoint as:
[T]oo small to be properly called a town. No more than a hundred people lived there, most of whom were related to me in one way or another. Their lives were a daily struggle for the barest of essentials: food, clothing, and shelter. Doctors were few and far between, so when you got sick, you stayed that way, and often you died of it.
Thomas's father walked out on the family when Clarence was barely two years old. Without a father at home, his mother, who they called Pigeon, struggled to support her three children. Thomas described his family home:
The house in which I was born was a shanty with no bathroom and no electricity except for a single light in the living room. Kerosene lamps lit the rest of the house. In the wintertime we plugged up the cracks and holes in the walls with old newspapers. Water came from a nearby faucet, and we carried it through the woods in old lard buckets. They were small enough for us to fill up and tote home, where we poured the contents into the washtub or the larger kitchen buckets, out of which we drank with a dipper. We also kept a barrel at the corner of the roof to catch the rainwater in which our clothes were washed.
At the age of seven, after a fire left them homeless, the family moved to a two-bedroom apartment in Savannah, Georgia. Soon thereafter Thomas's mother sent Clarence and his younger brother to live with their maternal grandparents, Myers and Christine Anderson: "Without a word of explanation, she dumped our belongings into two grocery bags and sent us out the front door. We walked straight to our grandparents' house, passing by the places that were to become the landmarks of our childhood." At the Anderson home in Savannah, Thomas experienced indoor plumbing and regular meals for the first time and was raised Roman Catholic.
Thomas credits his grandfather with making him the man he is today and instilling in him a strong work ethic and self-reliance. His grandfather, a businessman with a fuel and ice delivery business, also impressed upon him the importance of education. Thomas would later title his autobiography, "My Grandfather's Son."
After two years at a black high school, his grandfather convinced him to pursue priesthood and helped him enroll as the only black in an all-white boarding school, St. John Vianney Minor Seminary. Thomas was subject to racism from his peers and excluded from social activities. He persevered, however, graduating with honors.
Continuing his pursuit of priesthood Thomas enrolled in the Immaculate Conception Seminary in Missouri. At Immaculate Conception, Thomas was subjected to more racism and met other black students, who introduced him to music and politics. They discussed the church's treatment of blacks. In his autobiography, Thomas suggests that he may have ended up a priest "had the church been as adamant about ending racism then as it is about ending abortion now."
Thomas became increasingly embittered by the racism of his church, fellow students, and school and began applying to other schools. One day he walked into a dormitory and heard someone shout that Martin Luther King, Jr. had been shot. He then heard another student reply, "That's good, I hope the son of a bitch dies." Thomas remembered: "His brutal words finished off my vocation—and my youthful innocence about race."
Thomas transferred to College of the Holy Cross in Worcester, Massachusetts. There, he was only one of six black students in a class of 550 and helped found the Black Student Union.
In his autobiography, Thomas relates an experience where the Black Students' Union voted to establish a black students living hall in one of the dormitories – known as the "black corridor." Thomas had voted against the idea and, even though he liked living with his white roommate, decided to move to the "black corridor" for the sake of solidarity. Thomas described his feelings living there:
I had already started to notice that many of my fellow blacks found it hard to relate to white students other than confrontationally, and I suspected that the existence of the corridor would make it harder for them to adjust to life at Holy Cross. . . . I was also troubled by the alacrity with which Holy Cross had yielded to our demands. Some blacks on campus already thought that the mere existence of racial oppression entitled them to a free pass through college, and the administration's apparent willingness to accommodate us now led black students to assume that they would always be able to get whatever they wanted. But I foresaw a time when it would no longer be fashionable to give blacks a helping hand, especially after the generation of whites who remembered segregation was gone, and it seemed just as clear to me that Hispanics and women would soon start making similar claims, thus putting them in competition with the blacks.
At Holy Cross, Thomas decided to eradicate the last bastions of the Gullah language from his speech, the remnants of which he believed made him sound unpolished. He decided to major in English literature and graduated ninth in his class.
The day after his graduation, on June 5, 1971, he married Kathy Ambush, his college girlfriend who attended a nearby Catholic women's college. Thomas was 23 years old, Kathy was 21. Thomas's grandfather refused to attend the wedding. Thomas and Kathy would stay married for nearly 13 years until their divorce in 1984.
Thomas would likely have been drafted to serve in Vietnam (receiving a low draft number), but he failed his medical exam due to curvature of the spine.
After graduating Holy Cross, Thomas applied to Yale Law School and was accepted. He graduated in the middle of his class in 1974. The same year Thomas and his wife Kathy gave birth to Thomas's only child, his son Jamal.
During law school Thomas befriended fellow student John Bolton (former ambassador to the UN) after Bolton had turned Thomas's wallet into the registrar's office after Thomas lost it. In his autobiography Thomas relates the following story about a conversation he had with Bolton as a law school student:
One of our most fateful discussions began when I mentioned to John that I supported mandatory motorcycle helmet laws and the then-new automobile seat belt requirement. Since society bears the cost of care for people who are injured, I argued, the government had the right, if not the obligation, to take steps to reduce the risk of injury. Naturally John thought otherwise, and we argued back and forth. Then he looked me in the eye and said, 'Clarence, as a member of a group that has been treated shabbily by the majority in this country, why would you want to give the government more power over your personal life?' That stopped me cold. I thought of what Daddy had said when I asked him why he'd never gone on public assistance. 'Because it takes away your manhood,' he said. 'You do that and they can ask you questions about your life that are none of their business. They can come into your house when they want to, and they can tell you who else can come and go in your house.' Daddy and John, I saw, we're making the same point: real freedom meant that you had to take responsibility for your own decisions. When the government assumes that responsibility, it takes away your freedom—and wasn't freedom the very thing for which blacks in America were fighting?
After graduation Thomas interviewed with potential law firm employers who believed that Thomas had only gotten into Yale Law School based on affirmative action. Unable to get a job at one of these firms, Thomas stated in his autobiography, "I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I'd made by going to Yale. I never did change my mind about its value." Thomas returned to Missouri and was admitted to the Missouri bar on September 13, 1974. In Missouri, Thomas landed a job that would ultimately lead him to Washington, D.C.
Back in Missouri, John Danforth, the then attorney general of Missouri, who would later become a U.S. Senator, offered Thomas an Assistant Attorney General position in his office. Thomas was the only black member of Danforth's staff. Thomas said that it was the best job he ever had. Thomas prosecuted criminal and civil cases for the State of Missouri. The future Attorney General of the United States, John Ashcroft, was also an Assistant Attorney General in Danforth's office at the time.
In his autobiography, Thomas speaks of this time in his life as being a formative time because for the first time he was treated as an equal in his work, was confronted by the societal malady of black on black violence in his prosecutions, and read influential books by other blacks who felt the way he did about the deficiencies of government programs that sought to help minorities by way of preferential treatment (such as Thomas Sowell's book Race and Economics).
When Danforth won a U.S. Senate seat in 1976, Thomas left his government job and became a corporate lawyer in the pesticide and agriculture division of the Monsanto Company in St. Louis, Missouri.
Two years later, however, Senator Danforth offered Thomas a job as his legislative aide handling energy issues for the Senate Commerce Committee. Thomas served in this position until 1981 when he joined the Reagan administration as an Assistant Secretary of Education for the Office for Civil Rights in the U.S. Department of Education. A year later he was nominated by President Reagan to be Chairman of the US Equal Employment Opportunity Commission ("EEOC"), where he served for eight years, the longest serving Chairman of the agency.
As Chairman of the EEOC, Thomas disfavored the use of class action lawsuits to pursue discrimination claims, preferring to pursue claims individually. Thomas believed that discrimination claims should only be pursued where claims could be proven on an individual basis. Thomas believed racial quotas and affirmative action programs that treated blacks as a class of people in need of special status and assistance to be patronizing and demoralizing. In a 1987 Yale Law Review article, he wrote, "I continue to believe that distributing opportunities on the basis of race or gender, whoever the beneficiaries, turns the law against employment discrimination on its head. Class preferences are an affront to the rights and dignity of individuals."
In 1983, Thomas's grandfather and father-figure, Myers Anderson, died. A year later, Thomas was divorced from his wife, Kathy. One of Thomas's biographers, Andrew Peyton Thomas, wrote, "The breakup of the marriage appears to have been by mutual desire. Their 'mismatch of ambition,' as one friend had put it, became accentuated as their political views diverged and Kathy pursued a career."
Two years after Thomas's divorce from Kathy, Thomas met a woman named Virginia Lamp at a conference on affirmative action. At the time, Virginia was a labor-relations lobbyist and lawyer for the United States Chamber of Commerce. A year later, in 1987, the two were married. While the two do not have any biological children, the couple took in Thomas's six-year-old great nephew in 1997 and raised him. Virginia Thomas founded the conservative lobbying organization Liberty Central and is currently the head of a conservative political consulting group, Liberty Consulting, Inc.
In June 1989 George H.W. Bush nominated Thomas to a seat on the U.S. Court of Appeals for the District of Columbia Circuit that had been recently vacated by Judge Robert Bork. He was confirmed without incident and spent 19 months on the federal court. On the DC Circuit he developed friendships with his fellow judges, including fellow judge Ruth Bader Ginsburg.
In 1991, Supreme Court Justice Thurgood Marshal retired from the court. Thomas had been considered for the high court in 1990 when Justice Brennan stepped down, but was not considered to have enough experience. This time, however, Thomas was President Bush's nominee.
Prior to Thomas's confirmation hearing, the American Bar association rated Thomas as qualified by a vote of 13 to 2. He was opposed by African American organizations such as the NAACP because of his already outspoken opposition to affirmative action. The National Organization of Women expressed concern over the fate of Roe v. Wade. It had only been four years since the failed Bork nomination hearings. Opposition to his candid answers had defeated Bork.
Prior to his nomination, Thomas had made clear his adherence to the natural law philosophy of the country's founders. A philosophy that focuses on the inalienable rights "given man by his Creator," which are enshrined in such documents as the Declaration of Independence. For example, Justice Thomas would argue that since our rights derive from our nature ("that all men are created equal") and not our race, laws should not classify people, rights or obligations based on race.
Justice Thomas had also praised a lone dissent by Justice Scalia in the 1988 case of Morrison v. Olsen, wherein the majority upheld the Independent Counsel Act. Justice Thomas believed Justice Scalia was correct for criticizing the law not just on separation of powers grounds (since Congress had created an independent office to wield executive power) but on natural law grounds since the individuals under investigation would be subject to an unelected, unaccountable agent. While many were critical of Justice Thomas's views in 1991, some came to better appreciate the views of Justice Thomas and Scalia on the subject of the independent counsel law when the Monica Lewinsky scandal caused independent counsel Kenneth Starr to spend $40 million and more than four years investigating President Clinton, leading ultimately to the impeachment of the President.
Justice Thomas's confirmation hearing began on September 10, 1991 and became the most controversial Supreme Court confirmation hearings of the Twentieth Century.
While questions at confirmation hearings tend to focus on policy issues, prior legal opinions and jurisprudence, many of the questions at Justice Thomas's confirmation hearing were of a more personal nature – such as whether he had spoken with a former co-worker about finding a pubic hair on a can of coke. These questions arose out of charges of sexual harassment that had been brought against him by a former co-worker, Anita Hill, who had been an employee under Thomas at the EEOC. While the charges were being investigated, a report was leaked to the press causing a national uproar and a media inquisition to ensue.
In response Thomas stated that he was being subject to a "high-tech lynching." The Republican administration and the African-American community rallied to Thomas's defense and his nomination was confirmed 52-48.
The fallout from the confirmation process was unprecedented. Thomas was vilified in much of the press, accused of lying and had salacious details printed about his intimate personal life. Others attacked these journalists and Anita Hill, accusing them of relying on fake evidence, doctored quotes and hearsay.
Randall Kennedy, a Harvard Law professor and African-American author who writes about race issues wrote in a book on the subject entitled Sellout: The Politics of Racial Betrayal that after the confirmation hearings Thomas was the "most vilified black official in the history of the United States." Randall Kennedy went on to argue that the vilification of Justice Thomas had more to do with Justice Thomas's position on affirmative action than it did with Anita Hill. As a commentator for the New York Times, Maureen Dawd stated: "It's impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself." Randall Kennedy explained, however, that in Justice Thomas's mind affirmative action programs are counterproductive since they institutionalize benign discrimination and teach that minorities have chronic and immutable handicaps that prevent them from competing without patronizing help.
On September 27, 1991, the Judiciary Committee split 7–7, sending the nomination to the full Senate without a recommendation. After extensive debate and hearing the testimony of Anita Hill, the full Senate ultimately confirmed Thomas with a 52–48 vote on October 15, 1991, the narrowest margin of approval in more than a century.
Justice Thomas On the Court
As a Supreme Court justice, Thomas has firmly established himself as a unique and principled jurist, who is beloved by his colleagues and staff. He has influenced the Court to focus on the original words and meaning our Constitution in light of the natural law principles the founders had in mind when they authored the Constitution. He is regarded by many as the most conservative justice on the Supreme Court.
The Original Meaning of the Commerce Clause
Thomas disagrees with the modern interpretation of the Commerce Clause, which has given Congress the power to regulate matters that substantially effect commerce (known as the substantial effects test). Justice Thomas noted in his concurring opinion in United States v. Lopez, the first case in 60 years to limit the Commerce Clause:
We have said that Congress may regulate not only "Commerce . . . among the several states," but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. . . . [I]t seems to me that the power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination.
Thomas goes on to argue in Lopez that the founders "treated commerce, agriculture, and manufacturing as three separate endeavors." Thomas explains that Congress has no power to regulate agriculture and manufacturing because those endeavors occur at a "discrete site," but commerce occurs when the articles of manufacturing and agriculture are trafficked interstate.
Thomas argues that if substantial effects test were the interpretation that the framers had in mind then "there is no need for the Constitution to specify that Congress may enact bankruptcy laws, or coin money and fix the standard of weights and measures, or punish counterfeiters of United States coin and securities, . . . . [or separately give Congress the] authority to establish post-offices and post-roads, or to grant patents and copyrights, or to "punish Piracies and Felonies committed on the high Seas, . . . . [or] to specify that Congress can regulate international trade and commerce with the Indians. . . . the power we have accorded Congress has swallowed Art. I, §8."
United States v. Lopez was a 5-4 case striking down a federal statute prohibiting the possession of a gun within 1,000 feet of a school.
Justice Thomas repeated his views on the commerce clause in a concurring opinion in United States v. Morrison (a 5-4 case striking down a federal statute that provided a federal civil remedy for the victims of gender-motivated violence).
Justice Thomas also expressed his Commerce Clause opinions in a solo dissent in the controversial Commerce Clause case of Gonzales v. Raich (2005). In a 6-3 decision joined by Kennedy, Scalia and the Court's more liberal justices, the Court in Raich held that the federal Controlled Substances Act could be used to seize and destroy marijuana plants possessed legally by residents of California for purely personal medical uses. Justice Scalia in concurrence wrote that the Commerce Clause could cast an even wider net than the substantial effects test: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."
Justice Thomas in a passionate solo dissent wrote:
Respondents  use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers. . . . The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. . . . Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens.
While Justice Thomas's position on the Commerce Clause is unique and not shared by other justices, Thomas has succeeded in introducing a well-argued counterargument into the Court's jurisprudence that has been applauded and expounded upon by conservative scholars and policymakers.
Many argue that Justice Thomas's position on the Commerce Clause would invalidate much of the work of Congress over the last century. Justice Thomas acknowledges this argument, "Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean." Still, Justice Thomas is willing to go it alone on this one (perhaps taking comfort in the knowledge that a majority will not likely follow).
Privileges or Immunities Clause and Substantive Due Process
Section 1, Clause 2 of the Fourteenth Amendment reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Many believed that the purpose of this language was to incorporate the rights set forth in the Bill of Rights (which expressly apply against the Federal Government) to apply to curtail State power as well. Five years after the 14th Amendment was adopted the Supreme Court in the Slaughter-House Cases, however, limited the Privileges or Immunities Clause to a very narrow set of rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws." Most of the rights in the Bill of Rights, the Supreme Court decided in subsequent cases, were not considered to "owe their existence" to the United States, but were said to exist long before the existence of the United States. As such, the Privileges or Immunities Clause was made largely defunct.
In the wake of the Slaughter-House Cases precedent the Court, nevertheless, found a way to incorporate (against the states) most of the rights contained in the Bill of Rights by way of the Fourteenth Amendment's Due Process Clause. Whereas many believed the Due Process Clause was originally intended to guarantee a right to fair legal process, the Court interpreted the clause to include substantive rights (such as the right to Free Speech) that were "fundamental," "essential to the American scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition." This included rights not explicitly mentioned in the Bill of Rights as well and gave the Court flexibility to incorporate other rights.
Justice Thomas has sought to resurrect the original meaning of the Privileges and Immunities Clause and do away with the substantive due process line of analysis. In McDonald v. Chicago (2010), Justice Thomas provided the fifth vote applying the "right to keep and bear arms" in the Second Amendment against the States, striking down a Chicago ordinance banning handgun possession. Justice Thomas, however, refused to join the lead opinion (converting it into a plurality opinion) and instead authored his own concurring opinion. Authoring a 56-page opinion that was nothing short of a comprehensive treatise on the history of the Privileges and Immunities Clause, Justice Thomas wrote: "All of this is a legal fiction. The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words." Neither the four-justice plurality nor the four justice dissent in McDonald addressed Justice Thomas's arguments.
Justice Thomas has explained that he would limit the rights protected by the Privileges or Immunities Clause to individual rights, including rights not in the Bill of Rights (such as the right to Habeas Corpus), but would not include those rights that "prevent federal interference in state affairs and are not readily construed as protecting rights that belong to individuals" (such as, according to Thomas, the Establishment Clause – see his concurring opinion in Elk Grove Unified School Dist. v. Newdow).
Justice Thomas has long opposed racial classifications of any kind, including affirmative action. He equates his position on affirmative action to that of the following words of Frederick Douglas:
What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.
In 1995, Justice Thomas issued a concurring opinion in Adarand Constructors v. Pena, holding that strict scrutiny applied to racial classifications, including the federal program at issue in Pena which gave financial incentives to government contractors to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, which was presumed to include minorities. Justice Thomas wrote: "I believe that there is a 'moral [and] constitutional equivalence,' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. . . . That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."
Eight years later in Grutter v. Bollinger (2003) the Court upheld an admissions policy at the University of Michigan Law School that used diversity as a plus factor, which included considering the applicant's race and ethnicity. Justice Thomas issued a dissenting opinion again outlining his position on affirmative action, but this time made reference to statistical evidence that he believed showed that affirmative action was harming black students. Justice Thomas wrote: "The Court's deference to the Law School's conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students." Justice Thomas points to evidence that blacks perform better at historically black colleges than those attending predominantly white colleges.
Justice Thomas continues:
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue–in selection for the Michigan Law Review, and in hiring at law firms and for judicial clerkships–until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared.
Justice Thomas's strongly held opinions on the subject of racial preferences has also led him to disapprove of the current use of Section 5 of the 1965 Voting Rights Act to single out states with a history of disenfranchising voters based on race for special treatment—requiring such states and the localities contained therein to obtain preclearance from the Department of justice prior to making any changes in their election process. In a concurring opinion in Northwest Austin Municipal Utility District No. 1 v. Holder, Justice Thomas explains that while Section 5 had its place in 1965, today "[t]he extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists." Justice Thomas points to evidence that black voter registration rates in the jurisdictions covered by Section 5 are approaching, meeting and in some cases exceeding the registration rates in non-covered jurisdictions. No other justice joined Justice Thomas's concurrence.
On February 21, 2012, the Court granted certiorari to the case of Fisher v. University of Texas at Austin in order to consider the use of race as a factor in undergraduate admissions at the University of Texas at Austin. While in Grutter race was not explicitly used a factor in college admission (rather "diversity" was), in Fisher the University of Texas explicitly used the word "race." Some believe that this will be a deciding factor in the case.
Justice Thomas has taken a unique position in an area of First Amendment jurisprudence concerning statutes (both state and federal) that require the public disclosure of the names of those supporting particular issues and candidates. In Doe v. Reed, the Court in an 8-1 decision held that a Washington State law that permitted opponents of a voter referendum to obtain the underlying signatures, including the names and addresses of the signatories, did not violate the First Amendment rights of those who signed the voter referendum. The court held that its decision did not preclude a more particularized showing that would warrant an exemption from disclosure requirements if the parties can show "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties"
Justice Thomas filed the sole dissent. He argued that compelled disclosure of the type in Doe v. Reed would severely burden the right of citizens to participate in the political process. He argued that those who wish to participate in the referendum process are entitled to associational privacy, which included the right to participate anonymously. Justice Thomas believed that the Court's precedence in McIntyre v. Ohio Elections Comm'n, wherein the Court struck down an Ohio law prohibiting anonymous political pamphleting on First Amendment grounds, was on point. While the majority opinion did not address McIntyre several justices in concurrence explained that McIntyre did not involve the mechanism of the electoral process (such as how a bill became law) but rather pure speech (advocacy on an issue).
Justice Scalia in a concurring opinion in Reed presented a position diametrically opposed to that of Thomas's—whereas Thomas believes in a right to anonymous political speech, Scalia believes no such right exists even in the political advocacy context of McIntyre. Justice Scalia writes: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave." Perhaps out of respect for their congruence on many other issues, neither Justice Scalia nor Justice Thomas acknowledged their disagreement in their opinions.
The Rights of Minors
Justice Thomas believes that the "fundamental right of parents to direct the upbringing of their children" instructs against extending constitutional rights to children and students as individuals (rather than as wards of parents or a school). Accordingly Justice Thomas has voted to uphold the suspicionless drug testing of school athletes (Vernonia School Dist. 47J v. Acton (1995)), authored the majority opinion approving of a program requiring all middle and high school students to consent to drug testing in order to participate in any extracurricular activity (Board of Education v. Earls (2002)), joined the majority opinion holding that a public school may prohibit speech advocating illegal drug use by suspending a student who held up a banner reading "BONG HiTS 4 JESUS" outside his high school as the Olympic Torch Relay passed by (Morse v. Frederick (2007)), dissented in a case that held that a search by a school nurse of a 13-year old girl’s underwear for pills without sufficient suspicion was unconstitutional (Safford Unified School District v. Redding (2009)) and dissented in a case that struck down a California statute restricting the sale of violent video games to minors on First Amendment grounds (Brown v. Entertainment Merchants Association (2011)).
Justice Thomas explained in both Morse v. Frederick and Brown v. Entertainment Merchants Association that our country's founders could not have intended the individual rights in the constitution to apply to children. Rather, he explained, the founders believed (in accordance with the writing of John Locke and Jean-Jacques Rousseau) that children are blank slates, incapable of reasoned decision, who rely on the instruction and discipline of their parents, and in some cases the school and the state, to properly guide them. As such, Justice Thomas explains, the founders lived in a time that granted nearly total control over children to parents. And the laws, literature and parental practices of the time mirrored this understanding. Justice Thomas writes:
The law entitled parents to "the custody of their [children]," "the value of th[e] [children's] labor and services," and the "right to the exercise of such discipline as may be requisite for the discharge of their sacred trust." Children, in turn, were charged with "obedience and assistance during their own minority, and gratitude and reverance during the rest of their lives.". . . [b]oys could not enlist in the military without parental consent. Many of those who did so during the Revolutionary War found, afterwards, that their fathers were entitled to their military wages. And after the war, minors who enlisted without parental consent in violation of federal law could find themselves returned home on writs of habeas corpus issued at their parents' request. . . . The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children.
When children were sent to school, Justice Thomas explains, it was believed that teachers assumed, by way of the doctrine of in loco parentis, "the 'sacred dut[y] of parents … to train up and qualify their children' and exercised the same authority 'to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.'" The law at the time of the founders, Justice Thomas explains, permitted corporeal punishment and only limited teachers in the imposition of excessive physical punishment (clearly excessive or causing permanent injury).
Justice Thomas explains that this was state of the law for nearly two hundred years until the landmark case, in 1969, of Tinker v. Des Moines Independent Community School Dist. In Tinker the Court held that a school infringed on the First Amendment rights of students when they punished several students for wearing black armbands to school to protest the Vietnam War. The Court held that "where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained." Justice Black, with whom Justice Thomas agrees, dissented stating that "[T]axpayers send children to school on the premise that at their age they need to learn, not teach."
Justice Thomas in Morse v. Frederick wrote:
Justice Black may not have been "a prophet or the son of a prophet," but his dissent in Tinker has proved prophetic. In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools. "Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools."
Thomas has stated on more than one occasion that if given the opportunity he would overrule Roe v. Wade and Planned Parenthood v. Casey. The abortion right, Thomas explains, is simply not in the Constitution and therefore is left to the province of the States to regulate.
Expressive Conduct Not Protected by the First Amendment
In addition to Justice Thomas's belief that minors do not possess First Amendment rights, Justice Thomas has also expressed his opinion that cross-burning and flag-burning are not protected by the First Amendment (see Virginia v. Black (2003)).
In 2003, a 6-3 majority in Lawrence v. Texas struck down a Texas statute banning same-sex sodomy. Justice Thomas joined justice Scalia's lengthy dissent on the ills of the Court's substantive due process jurisprudence. In a separate one-page dissenting opinion, however, Justice Thomas took the time to express his personal disagreement with the Texas statute. Justice Thomas wrote, "the law before the Court today 'is … uncommonly silly.' . . . If I were a member of the Texas Legislature, I would vote to repeal it." Nevertheless, Justice Thomas wrote, "as a member of this Court I am not empowered to help petitioners and others similarly situated. . . . like Justice Stewart, I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.'"
Federal Arbitration Act
Justice Thomas is steadfast in his opinion that the Federal Arbitration Act does not apply to state courts (as the Court held in Southland Corp. v. Keating (1984)) and can not force States to compel arbitration. Justice Thomas is the only justice on the Court that continues to express this opinion. While Justice Scalia once joined Justice Thomas in this opinion (see Allied-Bruce Terminix Cos. v. Dobson (1995)), Justice Scalia has since yielded to his perceived obligation under stare decisis and now applies the Federal Arbitration Act to state courts without objection.
Justice Thomas is a unique justice in many respects. Apart from being the Court's only Southerner and only African-American justice, Justice Thomas also grew up in abject poverty and faced more controversy in his lifetime than any other justice. Justice Thomas came to the Court with one of the more unique philosophies on constitutional jurisprudence (based on natural law) and is willing to part with his fellow justices more often to express a unique point of view. Unlike his fellow justices, Justice Thomas is least likely to yield to the doctrine of stare decisis when he believes a precedent to be in conflict with the Constitution. Justice Thomas is also the justice most willing to overturn federal laws. Justice Thomas has said: "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning." At oral arguments, Justice Thomas is known as the silent justice, who as of the closing day of oral arguments for the 2011 Term in April 2012 has not asked a question in six years. Justice Thomas published his memoir, My Grandfather's Son, in 2007, for which he received a $1.5 million advance. The book became a bestseller.