Clarence Thomas Stands Alone

United States Supreme Court Justice Clarence Thomas may not be Chief Justice John Roberts’s favorite colleague lately.

Chief Justice Roberts, in an apparent effort to depoliticize the public’s view of the Court, has worked hard to generate as much unanimity in the Court’s decisions as practicable. (Perhaps to a fault.) Justice Thomas, on the other hand, keeps on dissenting.

The Supreme Court released opinions in two important cases this week. In both EEOC v. Abercrombie & Fitch Stores and Elonis v. United States, the Court spoke with near unanimity.

Justice Antonin Scalia authored the opinion in Abercrombie, writing for the 8-1 majority. (Justice Samuel Alito concurred in the judgment.) The case involved a young Muslim woman who claimed that Abercrombie rejected her job application because she wore a headscarf for religious reasons.

Chief Justice Roberts wrote for the majority in Elonis, where the Court considered what level of criminal intent should be imputed to a threat statute. (Okay. Elonis is the “Facebook First Amendment case,” though on Fault Lines this week, I offered my analysis of Elonis and why that characterization irks me.) Justice Alito again concurred and dissented in part.

In both cases, Thomas dissented.

Justice Thomas’s contrarian ways, even if imperfect, reveal how threadbare many of his detractors’ most common criticisms are. If he was incapable of intellectual independence, or insincere, or flat-out stupid, Clarence Thomas would not be such a prolific dissenter.

Conservative Lap Dog?

Liberal critics frequently bash Thomas for haplessly following the lead of fellow conservative Justices such as Antonin Scalia, unable to form reasoned opinions on his own.

Thomas’s many dissents belie the criticism that he marches in lockstep. This Term, he holds the weakest voting relationships of any Justice with his or her fellow Justices. His rate of disagreement with Justice Sonia Sotomayor — currently 57% — is the weakest voting relationship of any two Justices on the Court. Even his agreement rates with Scalia and Roberts amount only to 77% and 66%, respectively — far cries from the 90+% relationships between some other Justices.

Thomas routinely parts ways with other conservatives on the Court, particularly in his dissenting opinions. He has agreed with Alito most frequently — but only at a relatively paltry 81%. Just this week, Thomas not only parted ways with his conservative colleagues, but he felt strongly enough about his disagreement to dissent alone from opinions not simply joined, but written, by Scalia and Roberts.

Insincere?

Similarly, critics accuse Clarence Thomas of being insincere, a shill for the Koch Brothers and other pals of his wife’s lobbying work. Does he really believe it all?

He evidently believes it enough to write about it, even when no one else on the Court agrees. Lone dissents suggest how strongly the dissenter feels. You can’t hide behind another author, and you can’t have the courage of company. The possibility that a lone dissent today might inspire upheaval and change tomorrow offers little satisfaction. If you haven’t got the courage of your convictions, what’s the point?

Mush-Minded?

Would it were so that people’s sincerity was always proportional to their good judgment. Maybe Clarence Thomas is sincere but stupid? Or, at least, sincere but wrong? Critics think so.

Settling on the wisdom of a Justice’s entire body of jurisprudence requires more than a sentence or two. I happen to think that Thomas gets it right more often than not. But I don’t expect to convince any Thomas haters here that he is, in fact, a bright legal mind.

Even if he is wrong, though, it’s unlikely that he’s stupid. Sure, he was the only dissenter this week in Abercrombie, an employment discrimination case that Antonin Scalia called “easy.” Bear in mind, though, that Clarence Thomas served as Chairman of the U.S. Equal Employment Opportunity Commission from 1982 to 1990, making him the longest-serving chairman in EEOC history. If he gets employment law wrong, he doesn’t get it wrong for lack of experience.

While dissenters may not have company on the rest of the Supreme Court, they usually are in pretty good company nonetheless. In cases where the SCOTUS majority reverses, dissenting opinions often track closely with a lower-court opinion. Beneath what may look like an unorthodox SCOTUS dissent is a circuit opinion that follows the same course. If a Justice and a panel of circuit judges err together, it’s no less an error in judgment. But it’s preposterous to think that when Justice Thomas holds out against an otherwise-unanimous decision that he is the only jurist who would or has ruled that way.

Lazy?

Jeffrey Toobin slammed Thomas last year in a New Yorker piece called “Clarence Thomas’s Disgraceful Silence.” (I defended Justice Thomas from Toobin’s criticism in my piece “A Conservative Case For Keeping Cameras Out Of The Courtroom.”) Toobin claimed that the Justice’s eight-year silence during oral arguments is “demeaning to the Court” and evidence that he is “simply not doing his job.” Toobin writes that Thomas looks like he is “not paying attention” in court. I’m pretty sure that Toobin took pains to avoid the word “shiftless” to describe the Justice, even if it came to his mind.

But lazy Justices don’t write dissents. Lazy Justices join majorities that they aren’t fully sure of. Lazy Justices sign on to majorities when they haven’t done the hard work of forming an independent view.

Writing separately from the majority takes work. It takes time. Even if the writing duties may be handed off to a clerk, that still means fewer man-hours from that clerk in other areas. While some dissents may start off as contenders for a majority that later shifts, that’s not likely to be true for opinions that end up with only the author signing on.

Furthermore, Thomas’s dissents often represent radical departures from the fundamental approach of the rest of the Court. He’s not quibbling over factual judgment calls. He’s often applying an entirely different method of deciding the case.

Sometimes Clarence Thomas isn’t even speaking the same language as the rest of the Court. For example, in Thomas’s dissent in Elonis, he refuses to use the same terminology for culpable mental states as does the rest of the Court. The Chief Justice’s majority and Alito’s concurrence adopt most of the vocabulary of the Model Penal Code. In his dissent, Thomas refuses to give up the common-law language of “general intent.” A few paragraphs in and you can easily forget that the Model Penal Code and its precise definitions ever happened.

Clarence Thomas is either unafraid of correcting bad precedent, or he is flagrantly disrespectful of stare decisis, depending upon how one looks at it. His fidelity to text might seem downright obsessive, even to a fellow originalist like Justice Scalia. Thomas has the tunnel vision of a man sure of his method, regardless of what his colleagues see.

Is Clarence Thomas and his willingness to crack apart unanimous decisions a thorn in the side of John Roberts? Is Thomas a threat to the legacy Roberts longs to leave as Chief Justice? Clarence and his wife Ginny may not be sitting at the Roberts dining table a whole lot lately. No matter where he’s sitting lately, though, Clarence Thomas seems perfectly content to stand alone.

---

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].