Clarence Thomas

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The Honorable Clarence Thomas (b. 1948) is an Associate Justice of the U.S. Supreme Court. He was born in Savannah, Georgia, which he often mentions in referencing his roots, such as in his book, My Grandfather's Son.

Justice Thomas is highly respected by legal scholars for adhering to an interpretation of the U.S. Constitution based on its original text, meaning and understanding, which has included limiting federal powers. His judicial doctrine finds no basis in the U.S. Constitution for abortion, Roe v. Wade, homosexual rights, federal interference with state sovereignty, the Dormant Commerce Clause and constitutional limits on punitive damages.

Justice Thomas has a straightforward writing style that presents his principled approach in a clear manner. His judicial temperament is undisputed. He has an unblemished record of service on the Court since 1991 and has never had to recuse himself from a case due to activity off the bench or investments. He has trained more conservative law clerks than any other Justice.

Early Life

Clarence Thomas was born on June 23, 1948. His earliest stages of life were in Pinpoint, Georgia, until his mother took him and his younger brother, Myers Lee Thomas, to live in Savannah. However, his mother couldn't afford to take care of them, so she gave them to her father, Myers Anderson. Anderson raised them up on his farm, where Thomas and his brother were raised to be very hardworking.[1]

Comparison with Justice Scalia

Justice Thomas is most often compared to Justice Antonin Scalia, both support overturning Roe v. Wade, both reject the existence of a Negative Commerce Clause, both feel that the only restriction on how prisons treat inmates is what actually constitutes Cruel and Unusual Punishment under the Eighth Amendment, and both support strong sovereign immunity for states by virtue of the Eleventh Amendment.[2]

But these Justices have significant differences. Through the 2006-2007 term, Justice Thomas had written 252 concurrences or dissents, of which Justice Scalia had joined about 2/3rds. Conversely, Justice Scalia had written 480 concurrences or dissents (he has served more years on the Court), of which Justice Thomas had joined about half.

Justice Thomas sided with free enterprise and wrote the opinion for the Court in upholding an FCC rule that placed broadband cable services outside of the regulatory definition for "telecommunications service", despite how the FCC rejected a contrary ruling by a Court of Appeals.[3] Justice Scalia dissented in a forceful manner, and thereby defended general judicial authority at the expense of free enterprise.

Justice Scalia typically rejects the use of legislative history more often than Justice Thomas does. Justice Scalia also rejects the important line of cases establishing a constitutional right of parents to direct the upbringing of their children, see Pierce v. Society of Sisters, while Justice Thomas has not rejected that line of cases or a constitutional right of parents in some limited cases.[4]

Justice Thomas takes a broader view of state sovereignty over intrastate activities against encroachment by the federal government. In Gonzales v. Raich, 545 U.S. 1 (2005), Justice Thomas dissented from the Court opinion that upheld a federal law that interfered with California's legalization of marijuana for alleged medical purposes. In other words, Justice Thomas felt that the federal government lacked the power to interfere with state sovereignty over this intrastate activity. Justice Scalia, in contrast, joined the majority of the Court in upholding application of federal law to destroy marijuana plants grown lawfully under California law.

Justice Thomas also has taken more conservative positions than Justice Scalia has. Justice Thomas alone embraced a conservative view of the Second Amendment. In Printz v. United States, Justice Thomas wrote a concurrence strongly suggesting a conservative, individual-rights view of the Second Amendment. No other Justice on the Court joined that concurrence. Only Justice Thomas has expressed disagreement with the "aggregation principle" used to expand federal power based on the Commerce Clause.[5]

Justices Thomas and Scalia differ on the issue of free speech and pornography. Justice Thomas provided the crucial fifth vote in United States v. Playboy Entm't Group, 529 U.S. 803 (2000), which rejected indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."[6] Justice Scalia dissented, expressly his view that the government has broader powers under the First Amendment to regulate indecency on cable television.

Justice Thomas again provided the key fifth vote in Ashcroft v. ACLU, 542 U.S. 656 (2004), which invalidated as unconstitutional a federal law criminalizing the posting on a commercial website of pornography harmful to minors unless there were protections against access by minors. The 5-4 Court placed the burden on parents to keep their children away from pornographic sites, rather than allowing Congress to place the burden on pornographers to limit access to their sites. Justices Scalia, Rehnquist, O'Connor and Breyer dissented.

Justice Thomas tends to oppose government power more often than Justice Scalia does. In a 5-4 decision written by Justice Thomas, from which Justice Scalia dissented, Justice Thomas held that the United States was wrong to seize $357,144 in cash from a traveler simply because he failed to report it as required by law. Justice Thomas, writing for the Court, held that such a forfeiture "would violate the Excessive Fines Clause of the Eighth Amendment ... because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense."[7]

Justice Thomas is more likely than Justice Scalia to enforce a statute that is wrong as a matter of policy, as Justice Thomas is more likely to hold that Congress alone can fix its own law.[8]

Justice Thomas has called for ending a right of free speech for students in public school, and stated his view that Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), "is without basis in the Constitution" and should be overruled.[9] Neither Justice Scalia nor any other conservative has yet supported this position of Justice Thomas.

On the Negative Commerce Clause, Justice Thomas is more reliable than Justice Scalia in defending state laws that discriminate against out-of-state companies. Justice Thomas, for example, wrote the dissent in the 5-4 decision invalidating a Michigan law that limited shipments by out-of-state wineries.[10] Justice Scalia split from Justice Thomas and surprisingly joined the more liberal majority in that case, which was presented using the issue of the Negative Commerce Clause but then decided based on slightly different grounds.

On the issue of compelled speech, Justice Thomas stronger than Justice Scalia in defending a First Amendment right not to pay for something with which one disagrees:[11]

I write separately, however, to reiterate my views that "paying money for the purposes of advertising involves speech," and that "compelling speech raises a First Amendment issue just as much as restricting speech." Id. at 504 (THOMAS, J., dissenting). Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.

Justice Scalia did not join Justice Thomas's concurrence above.

Former Clerks

As a U.S. Supreme Court Justice, Thomas has mentored over 60 clerks. They include:

Appointment to the United States Supreme Court

In 1991, upon the retirement of Justice Thurgood Marshall, President George H.W. Bush nominated Clarence Thomas to fill the newly vacant seat. Supporters of abortion desperately opposed his nomination.

Radical leftists attempted to block Thomas' nomination to the High Court through a persistent series of public guilt by association smears. Chip Berlet of Political Research Associates noted that Thomas was on the editorial board of the Lincoln Review, a quarterly black conservative publication of the Lincoln Institute. Berlet issued a rather dubious ad hominem attack which claimed "it is a far right group that has worked in coalition with… fascist and anti-Semitic groups," and goes on to "link" Lincoln Institute head J. A. Baker with the Indiana Ku Klux Klan by virtue that Baker is on the board of the Council for National Policy and another board member is supposedly a former Klan member. [14]

In a flagrant violation of the rules of the Senate[15], staff members[16] for a sitting Democratic member of the Judiciary Committee leaked a routine confidential FBI background report to Nina Totenberg of National Public Radio (NPR)[17] which contained a vicious defamatory smear intended to mar Thomas for life. The accusation was known to be false, and was concocted to publicly intimidate an African-American Republican from accepting an appointment to the nation's High Court, and derail his nomination. None of the allegations could be substantiated. The deliberate falsehoods did however persuade former Ku Klux Klan Democratic Senator Robert Byrd to change his vote from "yes" for confirmation to "no".

Thomas was confirmed by the Senate with a vote of 52-48, which was at the time the narrowest confirmation of a Supreme Court nominee in history.

Views on racism

ABC News wrote:

He is adamantly opposed to affirmative action, but for entirely different reasons than white conservatives who drive the debate by arguing it's unfair to white people. Thomas says affirmative action instead has hurt blacks. It not only sends them into environments in which they are doomed to struggle instead of soar, but it also perpetuates negative stereotypes that whites hold today that all blacks are inferior to them and don't belong — just as whites in the South assumed 50 years ago.[18]

Personal life

Clarence Thomas is married to Virginia Lamp Thomas.


  1. My Grandfather's Son, by Clarence Thomas, 2007, pp. 1 - 13.
  2. Cent. Va. Cmty. College v. Katz, 546 U.S. 356 (2006) (Thomas and Scalia, JJ., dissenting).
  3. Nat'l Cable and Telecomms. Ass'n v. Brand X Internet Servs.
  4. See, e.g., Troxel v. Granville (2000).
  5. United States v. Lopez, 514 U.S. 549, 600, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (concurring opinion).
  6. 529 U.S. at 822-23.
  7. United States v. Bajakajian, 524 U.S. 321, 324 (1998).
  8. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006).
  9. Morse v. Frederick, 127 S. Ct. 2618, 2630 (2007) (Thomas, J., concurring).
  10. Granholm v. Heald
  11. United States v. United Foods, 533 U.S. 405, 418-19 (2001) (Thomas, J., concurring)
  14. A Few Facts About Clarence Thomas, Chip Berlet, Political Research Associates, Cambridge MA, 1997.
  15. Congressional Record -Senate, 102nd Congress, October 7, 1991, Vol 137, Part 18, p. 25706.
  16. The Real Anita Hill, David Brock, Harper Collins, 1993.
  17. The Clarence Thomas Hearings, by William Boot, Columbia Journalism Review, January/February 1992.

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