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Clarence Thomas’s Unprecedented America

The Justice has always shown a disregard for precedent, but with a shift in Supreme Court personnel, undoing progress could be the law of the land.

Chip Somodevilla/Getty

The Supreme Court began this week by correcting an injustice. A local prosecutor in Mississippi tried and convicted Curtis Flowers six times for allegedly murdering four people at a furniture store in 1996. Two of those trials ended in hung juries; courts tossed out three of the convictions for prosecutorial misconduct or racial discrimination in jury selection. The Mississippi Supreme Court upheld the sixth conviction of Flowers, who is black, because the prosecutor let a single black person onto the jury after striking all other potential African Americans.

Writing for the majority, Justice Brett Kavanaugh found that the Mississippi high court had misapplied Batson v. Kentucky, the 1987 case that banned racial discrimination in jury selection. He cited numerous instances where the prosecutor questioned black jurors far more intensely than white jurors to find reasons to exclude them. The 7–2 decision transcended the usual ideological lines. Justice Samuel Alito, who rarely sides with criminal defendants, wrote separately that the “totality of the circumstances” meant that Flowers’s conviction “cannot stand.”

Only two justices disagreed. Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote that the court had misapplied Batson and distorted the facts of the case. Then he took aim at Batson itself. To Thomas, the 1987 case “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury.” He wrote that he favored returning the court to “to our pre-Batson understanding” of racial bias in jury selection, which he wrote would be more effective at fighting prejudice. (Gorsuch did not join this part of the dissent.)

It’s been a busy term for Thomas, who is always one of the court’s most prolific writers. His concurring opinions and dissents have long offered an unorthodox view of the court’s precedents and practices that set him apart from his colleagues. As the court’s conservative bloc reasserts itself after Anthony Kennedy’s retirement, Thomas is reasserting his constitutional vision as well—one that points toward a society that’s radically different than the one experienced today.

Since joining the court in 1991, Thomas has never shied away from identifying the precedents with which he takes issue. But the 2018–2019 term stands apart for the magnitude of his calls. In February, the court declined to hear McKee v. Cosby, a defamation case brought against Bill Cosby by Katherine McKee, who accused him of rape in 2014. The dispute turned on whether McKee’s decision to come forward made her a “limited-purpose public figure,” which would make it harder to prove Cosby had defamed her. Thomas agreed with his colleagues’ decision not to take up the case, but wrote a concurring opinion to call upon them to reconsider the 1964 decision New York Times Co. v. Sullivan, which is the touchstone of modern American libel law.

Sullivan raised a high threshold for litigants to win defamation cases by requiring them to prove that the publisher acted not just with recklessness or in error, but with “actual malice” against the defamed party. The landmark 1964 ruling helped shield newspapers from frivolous lawsuits filed by Southern officials who sought to quash civil-rights coverage by the press. Thomas wrote that there was “little historical evidence suggesting that the [Sullivan] actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.” Scrapping Sullivan would make it easier for wealthy and powerful Americans to suppress unfavorable news coverage with onerous legal proceedings.

The following week, he dissented from the court’s ruling in Garza v. Idaho. The six-justice majority sided with the defendant who argued his lawyer had violated his Sixth Amendment rights by not filing a particular motion. Thomas, joined by Alito and Gorsuch, explained why he thought the ruling was in error—and then he kept going. The decision, according to Thomas, “moves the Court another step further from the original meaning of the Sixth Amendment.”

“That provision ‘as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel,’” Thomas wrote, quoting the late Justice Antonin Scalia. “Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.” He stopped short of calling for the reversal of Gideon v. Wainwright and related cases that required states to provide lawyers for defendants who can’t afford them. Instead, Thomas wrote that he would “proceed with far more caution than the Court has traditionally demonstrated in this area.” Though Alito declined to join this part of Thomas’s dissent, Gorsuch was all in.

The list goes on. Last year, Thomas questioned the validity of Mapp v. Ohio, the 1961 case where the court held that the Fourth Amendment required states to exclude illegally obtained evidence from criminal trials. In a major death-penalty case in 2015, he joined a concurring opinion by Scalia that suggested overturning a broad swath of the court’s Eighth Amendment rulings since 1958. One legal scholar told The New York Times this spring that Thomas has written at least 250 concurring or dissenting opinions calling for the court’s past decisions to be revisited.

Why is the court’s quietest justice so outspoken about the court’s perceived mistakes? There are two key factors. One is his approach to precedent, one of the building blocks of the American legal system. State and federal judges rely on past decisions to maintain a degree of predictability and uniformity to the law. And while any other court’s ruling can be persuasive, the Supreme Court’s precedents generally carry the most weight.

In theory, five justices could change those precedents whenever they want. But they typically avoid the temptation. Justices from across the ideological spectrum often point to the legal doctrine of stare decisis, a Latin phrase meaning “to stand by things decided.” It’s not enough for a justice to think a precedent is simply wrong; it must be extraordinarily flawed or unjustifiable in some way for the court to reverse itself. That doctrine allows the court to issue decisions like Brown v. Board of Education—which overturned the “separate but equal” standard established by the High Court nearly 60 years earlier—without reversing itself at every opportunity, rendering the rule of law arbitrary and unaccountable.

Thomas takes a different view of stare decisis than many of his colleagues: He doesn’t seem to believe in it. “Stare decisis doesn’t hold much force for you?” a federal judge asked Thomas during a Federalist Society event in 2013. “Oh, it sure does,” he replied. “But not enough to keep me from going to the Constitution.” That leads to the other reason why he’s so outspoken, which is ideological. Thomas identifies as an originalist, meaning that he interprets the Constitution based on what he views as the original public meaning of its clauses and amendments when they were drafted.

Thomas is not the only originalist on the court, of course. For many years, he served with Antonin Scalia, who helped establish that school of legal thought in the 1970s and ‘80s. But Thomas is uniquely aggressive in taking it to its logical conclusion, even if those conclusions would upend decades (or sometimes centuries) of settled law and practice in pursuit of the One True Interpretation. “Look, I’m an originalist,” Scalia once said when asked about his colleague’s legal philosophy, “but I’m not a nut.”

Some of Thomas’s efforts to reconsider American law could lead to positive outcomes. In recent years, he has urged his colleagues to reconsider a 1950 decision where the Supreme Court held that veterans can’t sue the federal government for injuries that arose during their military service. In 2017, he wrote a concurring opinion in an unremarkable civil-forfeiture case that questioned the legitimacy and legality of the practice. More recently, he also joined a growing revolt in the legal community against the court’s qualified-immunity rulings, which makes it harder for Americans to sue public officials for violating their civil rights.

But while his calls for reconsideration don’t always align with conservative policy priorities, they often do. His view that there is no constitutional right to obtain an abortion, for example, enjoys wide support among pro-life groups who hope to see Roe v. Wade overturned. Thomas frequently criticizes his colleagues for refusing to hear Second Amendment cases over the past decade, writing recently that the “right to keep and bear arms is apparently this Court’s constitutional orphan.” And his views on the Commerce Clause and the administrative state would sharply reduce the federal government’s power to regulate the national economy.

For most of his tenure, Thomas’s approach to high-profile cases rarely won over his colleagues. That may be changing with Justice Anthony Kennedy’s 2018 retirement. In May, the Supreme Court ruled that states couldn’t be sued in the courts of other states without their permission, overturning a landmark decision from 1979. “Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution,” Thomas wrote for a 5–4 court that split along ideological lines. “Stare decisis does not compel continued adherence to this erroneous precedent.”

Thomas’s treatment here of stare decisis, and the factors traditionally cited by the justices when setting it aside, was cursory at best. “The law has not changed significantly since this Court decided Hall, and has not left Hall a relic of an abandoned doctrine,” wrote Justice Stephen Breyer in a dissent joined by the court’s liberals. “Nor has our understanding of state sovereign immunity evolved to undermine Hall.” Breyer also raised alarms about the court’s newfound approach to precedent. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” he concluded, in a paragraph quoting from the court’s 1992 reaffirmation of Roe v. Wade.

Thomas’s fellow conservatives might not be willing to carry out his counterrevolution in full, of course. But even a partial adherence to it could be seismic. In Clarence Thomas’s America, states could ban abortion outright, poor defendants might not receive a lawyer if they can’t afford one, racist prosecutors would face fewer hurdles to creating all-white juries, and wealthy Americans could more easily sue critical news outlets into submission. The country that springs from his reading of the Constitution would be foreign to millions of Americans.