After he took his seat on the U.S. Supreme Court 30 years ago this month, Justice Clarence Thomas assured his law clerks, “I ain’t evolving.”
What he meant was that he would not soften his sharp conservative edges or change ideological stripes as did some of his fellow justices, including Harry Blackmun and David Souter.
Justice Thomas has certainly kept his vow. Indeed, some legal analysts say he is the most consistently conservative member of the court since the 1930s. He has written a raft of concurring and dissenting opinions that are so far to the right that it is common for him to issue them solo, without any of his colleagues signing on.
Now, with a new term underway, what is remarkable is the extent to which the Supreme Court, with the addition of three Donald Trump nominees who create a 6-to-3 conservative majority, seems to be reshaping itself in Justice Thomas’s image. With hot-button social issues on the docket, including gun rights, abortion rights and religious freedom, as well as a decision on whether to hear another big affirmative action case, we may be witnessing the emergence of the Thomas court.
It’s fool’s work to predict how individual justices will vote, but it’s not hard to make an educated guess in Justice Thomas’s case. The restrictive Mississippi law that bans abortions after 15 weeks (long before fetal viability), which is being challenged in a case this term, aligns with his dim view of abortion rights, as did an unsigned ruling recently issued by the court that declined to block Texas’ punitive and even more restrictive abortion law.
In the last significant Supreme Court victory for abortion rights, Whole Woman’s Health v. Hellerstedt, decided in 2016, Justice Thomas wrote a separate dissent (joined by no other justice) denouncing the court’s past rulings that upheld a woman’s right to abortion. “I write separately,” he noted, “to emphasize how today’s decision perpetuates the court’s habit of applying different rules to different constitutional rights — especially the putative right to abortion.” Emphasis on “putative.”
His low opinion of Roe v. Wade, the 1973 decision that established the right to abortion, emerged soon after he joined the court, despite his claim during his confirmation hearings that he could not recall ever discussing the case. In 1992, during his first term, the court decided the second most-important abortion rights case, Planned Parenthood v. Casey, which upheld the constitutional right to abortion but allowed certain state restrictions. Justice Thomas signed on to separate dissenting opinions written by Justices William Rehnquist and Antonin Scalia. (Justice Rehnquist said there was no “right of privacy,” contesting a central contention in Roe v. Wade, and Justice Scalia said abortion was not a protected constitutional right.)
Justice Thomas has been a stalwart champion of gun rights, too, chastising the lower courts and his fellow justices for showing lower regard for the Second Amendment than for other rights, like abortion. On Nov. 3, the justices will hear arguments in a case testing whether the Second Amendment protects a right to carry a gun outside the home for self-defense.
It’s easy to imagine that Justice Thomas would want to protect such a right. In 2008 and in 2010, he voted with the majority to allow guns in the home for self-defense. In 2020, he was irate after the court declined to hear an array of gun rights cases, including one challenging New Jersey’s restrictions on handgun permits.
“One would think that such an onerous burden on a fundamental right would warrant this Court’s review,” he wrote in a dissent. “But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the court simply looks the other way.”
In religious freedom cases, Justice Thomas has stood out for his willingness to weaken the separation of church and state. Last year, he repeated his radical argument that the Establishment Clause doesn’t apply to the states. He even suggested that each state could establish an official state religion.
This term the court will decide whether it’s unlawful to prevent students participating in a financial-aid program from using the money to attend schools that provide religious instruction. Justice Thomas attended a variety of Catholic schools, and last month he spoke fondly of that education. “To this day I revere, admire and love my nuns,” he said in a talk at the University of Notre Dame. “They were devout, courageous and principled women.”
In another area where he has personal experience — he was admitted to Yale Law School after it adopted an affirmative action policy — the court could decide to hear a challenge to the admissions policy at Harvard. That case was brought by a group representing Asian American students who say that they were disadvantaged by the school’s consideration of race in admitting students.
It’s clear that Justice Thomas would take great satisfaction in writing an opinion eliminating affirmative action. In Grutter v. Bollinger, the 2003 case in which the Supreme Court upheld the use of race as a factor in student admissions, he wrote a dissenting opinion that said the policy, by discriminating on the basis of race, was a clear violation of the equal protection clause of the 14th Amendment.
Several years into his Supreme Court tenure, Justice Thomas told the National Bar Association, a network of predominantly African-American attorneys and judges, that as a justice he would always “think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m Black.”
Those defiant words echoed his frustration after his 1991 confirmation hearings, when the law professor Anita Hill’s allegations of sexual harassment nearly derailed his appointment. He’s been angry about those hearings ever since — he famously called them “a high-tech lynching” — and his opinions are noteworthy for the tone of outrage that suffuses them.
It is too early to know whether the members of the court’s conservative wing will vote as a bloc in any of the big cases this term, though in picking his new justices, Mr. Trump said that Justice Thomas was one of his models.
All eyes are on Chief Justice John Roberts, who may be emerging as the court’s swing vote. When a chief justice votes with the majority, he gets to pick who writes the decision; when he votes in dissent, he forfeits that prerogative, which goes to the senior justice in the majority. That would be Justice Thomas if Chief Justice Roberts sides with the three liberal justices in dissent.
Worried that the Supreme Court is seen as too political or ideological, a handful of justices, including Justice Thomas, fanned out before the current term began to make speeches insisting that they follow the law, not their personal beliefs. Recent opinion surveys show public trust in the court plummeting, in part because it is viewed as partisan.
That’s not likely to change if we’re entering the era of the Thomas court.