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Clarence Thomas is his own man

After 20 years on the high court, the justice is known for standing alone in dissent.

July 03, 2011|David G. Savage

WASHINGTON — Each summer, Supreme Court Justice Clarence Thomas invites his four new law clerks to his home to watch a movie.

Not just any movie, but the 1949 film version of the classic of libertarian conservatism, Ayn Rand's "The Fountainhead."

The movie's hero, played by Gary Cooper, is an idealistic but stubborn architect, who, as Rand wrote, "stood alone against the men of his time." A character, it might be said, a lot like Thomas himself. "If you think you are right, there is nothing wrong with being the only one," he said last year in explaining his fondness for the movie. "I have no problem being the only one."

For The Record
Los Angeles Times Thursday, July 07, 2011 Home Edition Main News Part A Page 4 News Desk 1 inches; 48 words Type of Material: Correction
Clarence Thomas: A July 3 article in Section A on the 20th anniversary of Justice Clarence Thomas' nomination to the Supreme Court said that justices heard oral arguments in the case of a Louisiana prisoner two months after Thomas was sworn in. It should have said one month.
For The Record
Los Angeles Times Sunday, July 10, 2011 Home Edition Main News Part A Page 4 News Desk 1 inches; 48 words Type of Material: Correction
Clarence Thomas: A July 3 article in Section A on the 20th anniversary of Justice Clarence Thomas' nomination to the Supreme Court said that justices heard oral arguments in the case of a Louisiana prisoner two months after Thomas was sworn in. It should have said one month.

Twenty years ago last Friday, President George H.W. Bush nominated Thomas to the nation's highest court. In the years since, Thomas has routinely been referred to as a member of the court's conservative bloc. But the label hardly captures the distinctiveness of his record. In an institution where the ability to decide the law depends on creating a five-vote majority, no other justice is so proud of standing alone.

He strictly avoids the give-and-take among justices during oral arguments; he has not asked a question or made a comment in more than five years.

And his most provocative opinions have been solo dissents. Among them, he has declared that the Constitution gives states a right to establish an official religion. Prisoners, he wrote, have no constitutional right to be protected from beatings by guards. Teenagers and students have no free-speech rights at all, he said in an opinion Monday, because in the 18th century, when the Constitution was written, parents had "absolute authority" over their children.

Two years ago, the court ruled that a school official could not strip-search a 13-year-old girl to look for two extra-strength ibuprofen pills. Thomas -- alone -- dissented, calling the search of her underwear "reasonable and justified."

Alone, he voted to strike down a key part of the Voting Rights Act that is credited with giving blacks political power in the South. And he was the lone justice to uphold the George W. Bush administration's view that an American citizen could be held as an "enemy combatant" with no charges and no hearing.

He is seen as a sure vote to strike down President Obama's healthcare law and its insurance mandate because he already has called for striking down a wide range of 20th century federal laws that regulate business, saying they go beyond Congress' power.

Conservative scholars who admire Thomas say he, more than any justice, exemplifies the legal theory of "originalism" -- the idea that the Constitution must be interpreted solely as its words would have been understood by those who approved it 222 years ago.

"He looks to how the Constitution was understood at the time of the ratification. He goes to first principles. And he is willing to challenge precedents that deviate from the original understanding," said John Eastman, a Chapman University law professor and former Thomas clerk.

His critics see a justice out of step with the court and the country.

"He is the most radical justice to serve on the court in decades," said Erwin Chemerinsky, dean of the UC Irvine Law School and a liberal constitutional scholar. He "would change the law dramatically and give little weight to precedent. It's easy to overlook how radical [he is] because his are usually sole opinions that do not get attention."

During most of his tenure, Thomas rarely has written major opinions for the court. Because his views did not sit well with the moderate justices needed to form a majority, former Chief Justice William H. Rehnquist often assigned him tax and bankruptcy cases.

But this year, under current Chief Justice John G. Roberts Jr., he has spoken for the court's conservative majority in significant decisions that limited the rights of prisoners, which has become his signature issue. In March, he announced a 5-4 decision that threw out a $14-million jury verdict in favor of a black Louisiana man who had been convicted of murder and nearly executed because prosecutors hid evidence that could have proven his innocence.

A month later, Thomas said a state's "sovereign immunity" barred inmates from suing for damages when their freedom of religion had been violated.

Still, it is Thomas' willingness to go solo that most defines his career. It is a tendency that was almost certainly reinforced by his bitter and ugly confirmation fight in the Senate, which was dominated by questions about his qualifications and allegations that he had sexually harassed former aide Anita Hill. Bruised, he withdrew to a closed circle of loyal friends and clerks.

The relationship with his clerks remains close. "They're my little family. They're my kids, and I just really like having them around," Thomas told legal editor Bryan Garner in 2007. The clerks take the lead in writing and editing opinions, he said.

"Nothing comes to me that hasn't been through aggressive editing" by all of the clerks, Thomas said.

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