Clarence Thomas

Clarence Thomas
Nominated by	George H. W. Bush
Preceded by	Thurgood Marshall

Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. He is the second African American to serve on the nation's highest court, in addition to Justice Thurgood Marshall. Thomas's career in the Supreme Court has seen him take a conservative approach to cases and adhering to the postulates of originalism, alongside colleague Antonin Scalia.

Life

Clarence Thomas was born in Pin Point, Georgia, a small community outside Savannah. His father abandoned his family when he was only a year old, leaving his mother Leola Anderson, to take care of the family. At age seven they went to live with his mother's father, Myers Anderson in Savannah. He had a fuel oil business that also sold ice; Thomas often helped him make deliveries.

His grandfather believed in hard work and self-reliance and would counsel him to "never let the sun catch you in bed in the morning". In 1975, when Thomas read Race and Economics by economist Thomas Sowell, he found an intellectual foundation for this philosophy. The book criticized social reforms by government and instead argued for individual action to overcome circumstances and adversity. Thomas later said that the book changed his life.

Raised Roman Catholic (he later attended an Episcopal church with his wife, but returned to the Catholic Church in the late 1990s), Thomas considered entering the priesthood, attending St. John Vianney's Minor Seminary on the Isle of Hope near Savannah, and he briefly attended Conception Seminary College, a Catholic seminary in Missouri. Thomas told interviewers that he left the seminary (and the call for priesthood) after hearing racist comments there following the assassination of Martin Luther King.

Thomas later attended College of the Holy Cross, where he co-founded the school's Black Student Union and received an A.B., cum laude. He received a Juris Doctor (J.D.) degree from Yale Law School in 1974.

Thomas has one child, Jamal Adeen, from his first marriage. This marriage, to Kate Ambush, lasted from 1971 until their 1984 divorce. Thomas married Virginia Lamp in 1987.

Since joining the Supreme Court, Thomas requested an annulment of his first marriage from the Catholic Church, which was granted by the Tribunal of the Catholic Diocese of Arlington. He was reconciled to the Catholic Church in the mid 1990s and remains a practicing Catholic.

Thomas stated on one occasion that for a period of time he was influenced by Objectivism, the philosophy of Ayn Rand. He said that Atlas Shrugged is one of his favorite novels.

Early career

From 1974-1977 Thomas was Assistant Attorney General of Missouri under then State Attorney General John Danforth. When Danforth was elected to the U.S. Senate in 1976 Thomas left to become an attorney with Monsanto in St. Louis, Missouri. He returned to work for Danforth from 1979-1981 as a Legislative Assistant. Both men shared a common bond in that both had studied to be ordained (although Thomas was Catholic and Danforth was ordained Episcopalian). Danforth was to be instrumental in championing Thomas for the Supreme Court.

In 1981, he began his rise through the Reagan administration. From 1981-1982, he served as Assistant Secretary of Education for the Office of Civil Rights in the US Department of Education ("DOE"), and as Chairman of the US Equal Employment Opportunity Commission ("EEOC") from 1982-1990.

In 1990, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit.

Supreme Court appointment

On July 8, 1991 President George H. W. Bush nominated Thomas to replace Thurgood Marshall who had recently announced his retirement.[1] Marshall had been the only black justice on the court. While the selection of Thomas preserved the existing racial balance of the court, it was seen as likely to move the ideological balance to the right. While most recent Supreme Court nominees have been deemed "well-qualified" by the American Bar Association, the rating for Justice Thomas was split between "qualified" and "not qualified."

Organizations including the NAACP, the Urban League and the National Organization for Women opposed the appointment based on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of the Supreme Court judgment in Roe v. Wade. Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision.

Some of the public statements of Thomas' opponents foreshadowed the confirmation fight that would occur. One such statement came from noted feminist Florence Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to Robert Bork and the successful campaign against his Supreme Court nomination in 1987, she said of Thomas, "We're going to bork him." [2]

The Committee sent the nomination to the full Senate without a recommendation either way. Thomas was confirmed by the Senate with a 52-48 vote on October 15, 1991, making it the closest confirmation vote for a Justice in the 20th century. The vote was not strictly by party line; he received "yea" votes from 41 Republicans and 11 Democrats and "nay" votes from 46 Democrats and 2 Republicans (Jim Jeffords and Bob Packwood). Thomas took his seat on October 23, 1991.

Falling out with Yale Law School

Thomas’s confirmation became the source of great controversy due to unfounded claims by Anita Hill that he had sexually harassed her. “Yale Law Lacks Portrait -- And Thomas's Goodwill” Charles Lane and Michael A. Fletcher, Washington Post (October 10, 2004). This led to Thomas’s falling out with Yale law school. While his relationship had been already tenuous at best during the proceedings he felt betrayed by Yale’s lack of support for him. "I think Clarence's feelings about the law school all come from the confirmation, said Guido Calabresi, a federal appeals court judge who served as Yale's dean during the hearings.” Ibid. Thomas’s dislike of Yale Law School is has been demonstrated on many occasions. For example, in 1997, Thomas learned that a Supreme Court law clerk had copies of a bumper sticker reading, "Save America: Close Yale Law School." Thomas promptly asked for a copy and to this day proudly displays it in his office. Moreover he is the only Justice that graduated from Yale Law School not to have a portrait of him displayed in the school. This is at his insistence. Ibid.

Two former Supreme Court law clerks, who spoke on condition of anonymity because of their confidential relationships with Thomas, confirmed Calabresi's view. They said that, in chambers, the justice often laid out his bill of particulars against Yale -- noting that some professors testified against him and that Calabresi, who initially supported Thomas's confirmation, later declared that he thought Thomas and Hill were both telling the truth as they saw it. Ibid. —

Controversies

Toward the expected end of the confirmation hearings, based on a leaked Judiciary committee FBI report[3], NPR's Nina Totenberg reported that a former colleague of Thomas, University of Oklahoma law school professor Anita Hill, had accused him of sexually harassing her when the two had worked together at the DOE and EEOC. However, seemingly contradictory statements by Anita Hill and additional testimony for Thomas by former female associates weakened the case against him. In the end, the Committee did not find sufficient evidence to corroborate Anita Hill's claim. Hill's supporters later insisted that relevant testimony from Angela Wright, a PR director for the EEOC and a witness to the alleged offensive conduct, was suppressed, even though the Democrats controlled the Senate. (Democrats were reluctant to call Angela Wright as a witness after Thomas testified that he had fired her for calling another employee a 'faggot.')

Of the Committee's investigation of the Hill claims, Thomas said:

...as far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree. [4]

The content of the hearings, particularly Senator Orrin Hatch's questions "[D]id you ever say in words or substance something like there is a pubic hair in my Coke?" and "Did you ever use the term Long Dong Silver in conversation with Professor Hill?" rapidly became fodder for the nation's comedians.

Attacks on Thomas

This and his underlying conservative values have made him the target for attacks by liberal blacks and other left wing organization such as the ACLU and NAACP. He is commonly called Uncle Thomas by these groups. This refers to the derogatory term Uncle Tom which means a black person that sides with whites against his own race. Examples include the Reverend Jesse Jackson who is head of the Rainbow Coalition and a former presidential candidate. After Thomas voted to place limits on affirmative action Jackson called his vote as "a brutally violent act" that, "in effect, stabbed Dr. King . . . paving the way back toward slavery." “How the Left Trashes Black Conservatives” John Perazzo, FrontPageMagazine (July 10, 2002). The Reverend Al Sharpton and Jackson have harassed Thomas as well. For example, they staged a rally in front of Thomas’s personal home were he resides with his wife and child. Likening Thomas to a Klansman, Jackson said, "At night, the enemies of civil rights strike in white sheets, burning crosses. . . . By day, they strike in black robes." Ibid.

From the podium of a recent NAACP convention, Thomas was denounced as a "pimp" and a "traitor" to the black community. With comparable contempt, the Reverend Joseph Lowery of the Southern Christian Leadership Conference once said, "I have told [Thomas] I am ashamed of him, because he is becoming to the black community what Benedict Arnold was to the nation he deserted; and what Judas Iscariot was to Jesus: a traitor; and what Brutus was to Caesar: an assassin. Missouri Democrat William Clay labels Thomas and other black conservatives "Negro wanderers" whose goal is to "maim and kill other blacks for the gratification and entertainment of ultraconservative white racists." Ibid. Similarly, Mr. Clay described black conservative Gary Franks - when Franks was a Connecticut congressman - as a "Negro Dr. Kevorkian, a pariah," who exhibited a "foot-shuffling, head-scratching brand of Uncle Tomism." Ibid.

While his hecklers many of whom are men of the cloth use vulgar language and other actions anathema to the Christian faith to denigrate Thomas. Thomas rarely ever responds to these attacks. However when he does he keeps his statements intellectual and has never made personal attacks towards his hecklers. Perhaps his most eloquent response towards these groups is “Long gone is the time, when we [blacks] opposed the notion that we all looked alike and talked alike. [But] somehow we have come to exalt the new black stereotype above all and demand conformity to that norm. . . . [However], I assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black." Ibid.

°21:34, 31 January 2007 (UTC)21:34, 31 January 2007 (UTC)21:34, 31 January 2007 (UTC)~== == ==Judicial philosophy == In Thomas’s view the Constitution is a static document that can only be changed by legislative means. In order to properly analyze this view it is important to provide the framework for the theory of jurisprudence that Justice Thomas subscribes to, that being Originalism. Roy L. Brooks, Structures of Judicial Decision Making from Legal Formalism to Critical Theory p.61. This school of thought believes all cases should be determined through a logical device called syllogism. Ibid. This method was introduced to modern law by Max Weber a German political economist who was critical in forming this school of thought. Edward Shills and Max Rheinstien, Max Weber on Law in Economy and Society p.63.

A syllogism is an argument that consists of two premises and a conclusion e.g. all men can fly; Paul is a man; ergo Paul can fly. Within the legal context this means the judge determines the facts of a case (the first premise), then he determines what law is applicable to that set of facts (second premise) and then concludes a decision from this. In theory every case with the same two premises should result in the same outcome. For an Originalist, the role of the judge is to make judgments solely by determining the facts of the case and then determining which law is applicable to those facts. Brooks, 62.

For an Originalist, the two cardinal sins a judge can make is attempting to determine the intent of lawmakers as opposed to determining what the plain language of the statute means and to put personal feelings of equity into ones decision making. Ibid. The U.S. Constitution has delegated to the judiciary solely the power to interpret the law. It is not appropriate to determine intent because this allows for discretion on the part of judges. Since a being (the judge) is part of the world his perception is necessarily imperfect. Postulating that any judge’s perception is imperfect then it is reasonable to assume that he may, very likely unwittingly, come to a conclusion of a lawmaker’s intent that is esqued favorably towards his personal belief system because of his fallible perception. It is equally as bad to place feelings of equity into a decision because when a judge allows personal beliefs to shift a decision from what it would be if the appropriate law is strictly followed he is in effect making law since his decision does not have a basis in existing law.

This form of jurisprudence believes that the authority to change law should reside solely within the legislative branch as long as we wish to retain the U.S. Constitution and the form of republican democracy it mandates. The power to make law is given solely to the legislature in the U.S. Constitution and the legislature is a democratically elected body whereas judges are, for the most part, appointed by either the state or federal executive in the U.S depending on the court. For the judiciary to create and interpret law is contrary to the separation of powers doctrine that modern republican democracy is founded on. Montesquieu, The Spirit of the Laws.

Moreover, when judges make law through creative interpretation of statutes this detracts from the democratic nature of America by having individuals that have not been elected by the people create rules that govern the citizenry. To take from Justice Scalia (who also follows this school of jurisprudence) Judge made law “is a barnacle on the hull of American democracy”. Scalia, A Matter of Interpretation, supra note 6, at p. 89. The only legitimate law is that which has been made by the legislature

The role of the judiciary is simply to interpret laws by “giving words their ordinary meaning”. Ibid at p.16. This means that judges should determine which law governs a case and then apply the plain language of the law as it would be understood by the average man without regard for personal sentiment as to the propriety of the outcome because that is simply not the role of a judge in American democracy. In matters of statutory interpretation the aforementioned is the end of the matter. Constitutional interpretation differs because of the age of the U.S. Constitution. The plain meaning of the Constitution should be followed as well, but that should be the plain meaning as it was understood when drafted.

The plain meaning of words has changed significantly since the U.S. Constitution’s forming in 1791. It is sometimes necessary to use documents contemporary to it in order to garner how the U.S. Constitution was understood at its conception. For Thomas, the logical place to get a understanding of the plain meaning of the U.S. Constitution is in political writing contemporary to its drafting most notably The Federalist Papers. Brooks p. 65. A critic of Thomas might ask why the plain meaning of older statutes would not be discerned in a similar fashion if the rationale for using interpretive documents is solely age. The author surmises that Thomas would likely reply that since statutes are much easier to change than Constitutional provisions the legislature has likely left the statue unchanged for a reason and the courts should defer to it. The author concedes that this is not a perfect answer certain concessions must be made to the practicalities of the political.

Thomas believes, as mentioned earlier that the text, views judge made law as undemocratic and it goes against the idea of checks and balances that is a hallmark of modern republican democracy. First postulated by Montesquieu, having three branches of government able to check each others power is the surest method to prevent anyone group to gain absolute control over the government. Montesquieu, The Spirit of the Laws. When the judiciary is allowed to make law they usurp the power of the legislature. Taken to its logical extreme, the President who appoints the federal judges could in effect America’s democracy into an authoritarian regime if a complicit judiciary simply ignored all the decisions of the legislature.

In Thomas’s view the best safeguard to preserve democracy is to keep the checks put in place by the U.S. Constitution. Even without this admittedly extreme example, it is important to keep lawmaking in the hands of the legislature because they are directly accountable to the people. Appointed officials are insulated from accountability because they cannot be voted out of office of the citizenry. In essence, Thomas uses a syllogism in order to conclude his form of jurisprudence should be used. This being, republican democracy should be preserved; the best way to preserve it is to keep lawmaking in the hand of the elected legislature; therefore, the judiciary should not make laws.

Thomas’s Rebuttal of Stare Decisis

Due to his jurisprudence Thomas is the only member of the court that does not believe in stare decisis. Stare decisis is the judicial notion that previous court decisions should generally bind the courts rulings in present cases. This philosophy has generally been embraced by the court. However Thomas is the outlier because he believes that the text and the text alone govern the law. As Scalia has said Thomas "doesn't believe in stare decisis, period. Thomas believes in reading statues and the Constitution and just that. Anything thing else, in his opinion, is legislating from the bench. As Dylan Carp notes in “Out of Scalia's Shadow” FrontPageMagazine (August 10, 2005).notes"[I]n areas such as the First and Second Amendments, Federalism, and the Equal Protection Clause, Thomas has shown that he is significantly more comfortable than any other Justice, including Justice Scalia, in rejecting both tradition and judicial precedent in the search for the original understanding of the Constitution. . . . [I]n many areas of the law Justice Thomas, and not Justice Scalia, marks the front line of originalist jurisprudence."

Thomas on Affirmative Action Despite having been the victim of racism through much of his life the integrity of Clarence Thomas is such that he still remains true to the values that his grandfather instilled in him at an early age. Therefore he believes that people of all races should have an equal opportunity to gain success through hard work and self reliance. Due to this, he does not support programs such as affirmative action that use race as a factor in determining outcomes. He believes such programs are inherently racist. They are racist not only because they use race as a factor in determining outcomes but because for such a program to exist there must be an underlying notion that the preferred races are not as capable as those that are not. An opinion that illustrates his view is his dissent in Grutter v. Bollinger 539 U.S. 306 (2003).

Grutter involved a law school applicant to the University of Michigan who was rejected. She sued on the basis that she as a white person had been discriminated against by the school due to there admission policies which used race as a factor in the admission process. He began his dissent with a quote from a Fredrick Douglas speech given to a group of abolitionists.

“Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).” Justice Thomas follows with, “Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.” Grutter at 346. This rather compelling dissent clearly shows Thomas’s disdain for race based classification.

Thomas on the First Amendment

To illustrate Clark’s point it is helpful to present cases from each of the area that he notes Thomas is the “front line”. As to the first amendment he has been the champion of both commercial speech and religious tolerance. Three cases illustrate his belief rather succinctly. These are Mitchell v. Helms 530 U.S. 1296 (2000) and Good News Club v. Milford Central School 533 U.S. 98 (2001) and Rubin v. Coors Brewing Company 514 U.S. 476 (2001). In Mitchell, Thomas holds that it does not violate the establishment clause for the government to loan books and other educational material to religious schools as long as it furthers the government’s secular purposes for education. For Thomas, "the religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government's secular purpose. . . . If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious, and the irreligious, it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be. The pervasively sectarian recipient has not received any special favor, and it is most bizarre that the Court would, as the dissent seemingly does, reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children." Mitchell at 1302.

In Milford the case involved a school not allowing religious clubs to meet after school even though over clubs where allowed to. The school argued that they were only trying to not violate the establishment clause. Thomas response to this was "we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum." Milford at 105.

The previous a cases show how he has protected religious groups from harassment under the guise of protecting the Establishment Clause. Since Thomas is a man of faith this really is not that surprising. What is surprising has been his adamant support of treating commercial speech with the same protection as other forms of speech. Justice Thomas first assumed a prominent role in commercial speech jurisprudence when he authored the Court's unanimous 1995 decision in Rubin v. Coors Brewing Co. In Rubin the Court struck down the portion of the Federal Alcohol Administration Act (FAAA) that prohibited the display of alcoholic content on beer labels. "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech. Indeed, some historical materials suggest to the contrary. ... Nor do I believe that the only explanations that the Court has ever advanced for treating 'commercial' speech differently from other speech can justify restricting 'commercial' speech in order to keep information from legal purchasers so as to thwart what would otherwise be their choices in the marketplace." Rubin at 480.

To Justice Thomas, balancing freedom of speech against other governmental interests only encourages government to suppress information for the sake of manipulating consumer behavior. This goes against the fundamental policy of the First Amendment policy that the speaker and the audience, rather than the government, should assess the value of information. Though critics may disagree with him on this issue and others, there can be debate that Justice Clarence Thomas is the foremost protector of commercial speech in the nation's marketplace of ideas.

In regards to the Second Amendment he unfortunately has not had the opportunity to write binding case law. However in Printz v. United States, 521 U.S. 898 (1997), he did voice his opinion on the matter. Printz raised a nondelegation question due to state sheriffs were forced to carry out provisions of the Brady Bill. Second Amendment similarly appears to contain an express limitation on the government's authority. “That Amendment provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [n.1] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [n.2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833). Printz at 904. In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.”

When discussing United States v. Miller, 307 U.S. 174 (1939) he seems to believe that the second amendment confers a right to own military grade weaponry. “1 Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Ibid at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.” The obvious implication of this is that had the defendant had say a machine gun that obviously a military weapon his possession of such would be constitutionally protected.

On Thomas’s view of American federalism Whitman, Administrator of Environmental Protection Agency v. American Trucking Association 531 U.S. 457 and Cook v. Gralike 531 U.S. 510 (2001)

Taken together, Justice Thomas's writing in Cook v. Gralike and American Trucking Association show a very different view American government and federalism compared to the other Justices. In his view, state legislatures should be permitted to hold members of Congress on a short tether (by imposing term limits and directing their votes), while members of Congress must take full responsibility for the actions of the national government rather than delegating important decisions (such as to how much of a pollutant is too much) to administrative agencies, and thereby ducking accountability.

By contrast, all of the other Justices would allow much less direct control over the national agenda by legislatures — and even by voters. Members of Congress are, for these Justices, representatives but not delegates. They come to Washington as autonomous agents to represent their districts, not simply to carry out the will of the people that elected them into office. He wrote separately Cook v. Gralike to say that if Missouri had asked the Court to overrule the term limits decision — from which he and three other Justices dissented at the time — he would be willing to do so. But, as in American Trucking, he was unwilling to rule on an argument that was not raised.

The U.S. Court of Appeals for the D.C. Circuit had held that in the statute, Congress had unconstitutionally delegated some of its legislative power to the EPA. According to the lower court, the statute contained no "intelligible principle" by which the agency could determine how much of each regulated pollutant was too much. As a result, the lower court believed the statute unconstitutionally transformed the EPA into, in effect, a quasi-legislature.

Opinions that show Thomas strictly holds to his judicial philosphy

Many detractors of Thomas claim that he uses the originalism as a pretext to promote conservative values. However there are a string of cases where Thomas’s approach to jurisprudence has resulted in more liberal results than even those on the court that are deemed the left wing of the court. For example, in City of Indianapolis v. Edmon 531 U.S. 32 (2000) the Court held that it violated the Fourth Amendment's ban on unreasonable searches and seizures for a state to set up a roadblock to search drivers for illegal drug use. The Court distinguished two cases which on their face seemed on point Michigan Dept. of State Police v. Sitz 496 U.S. 444 (1990) (upholding roadblocks to search for drunk drivers) and United States v. Martinez-Fuerte 428 U.S. 543 (1976) (upholding roadblocks to search for illegal immigrants).

The pertinent point here is Justice Thomas's dissent, in which states two positions, this case was indeed controlled by Sitz and Martinez-Fuerte; and Sitz and Martinez-Fuerte should be overruled. "Indeed," says Thomas, "I rather doubt that the Framers of the Fourth Amendment would have considered "reasonable" a program of indiscriminate stops of individuals not suspected of wrongdoing." Edmon at 45. Here Thomas comes out with an outcome that is far harsher towards the government than his peers through his brand of jurisprudence.

United States v. Hubbell 530 U.S. 120 (2000)

This case concerned whether the government could subpoena documents and use them despite a Fifth Amendment challenge. The respondent, who happened to be an employee of then President Clinton, claimed that the documents were testimonial in nature because they were basically records he had written himself. Therefore, using the documents would in essence be forcing him to testify against himself which would violate the Fifth Amendment’s provision that no person shall be "compelled in any criminal case to be a witness against himself." Concerning Thomas, the important part of this case is that he wrote a concurrence that was joined in by Justice Scalia. This concurrence basically said the Fifth Amendment should protect against the production of any incriminating evidence that was personally made by the defendant. Whereas the rest of the court believed that subpoenaing documents often doesn't violate this provision, because “the production of documents is not "testimonial" in character and the witness was not compelled to create the documents in the first instance.” However they then created a test called that the "act of production doctrine” which could be used to exclude documents if the very act of production itself had a "compelled testimonial aspect”. Thomas believed that the compelled testimonial test was inappropriate because the determined that the term testimonial at the time of the framing referred to all written as well as oral speech. Many of Thomas’s detractors consider him overly tough on crime and yet in this case he found an outcome that is actually substantially more lenient on defendants.

Raich v. Gonzales 545 U.S. 125 (2005)

In one of the courts recent decisions the issue that was before the court was whether the federal government could enforce their prohibition against the medicinal use of marijuana when the action involved solely in state use and production. In ironic turn of events it was Thomas that championed the view that the federal government could not interfere with a wholly instate law. The majority disagreed and used a much attenuated argument based upon Wickard v. Fletcher 317 U.S. 111 (1942). Wickard is a case involving a wheat farmer that was growing wheat to feed his livestock solely for personal use. In that case the Court held that since the farmer was using the in lieu of purchasing wheat and more importantly “homegrown wheat is …the most variable factor. Wickard at 115. Consumption on the farm where grown appears to vary in an amount greater than 20 percent. The total amount of wheat consumed as food varies relatively little and as seed relatively constant.” The court was referring to the practice of using homegrown wheat to feed live stock which could fluctuate a great deal. This meant that the in house use could still affect the national market. Raich is clearly distinguishable because it only deals with private personal uses which like wheat that is consumed as food “varies little”. Wickard at 115. Moreover there is no (legal) national market for marijuana. Therefore as Thomas notes “in the early days of the Republic it would be unthinkable that Congress could prohibit the local cultivation, possession and consumption of marijuana.” Raich at 143.

Approach to oral arguments

Thomas is well-known for listening rather than actively participating during oral arguments of the Court. He has offered several reasons for this, the most strongly supported of which is that he developed a habit of listening as a young man. Thomas comes from the Gullah/Geechee cultural region of coastal Georgia and is a member of this distinct African American ethnic group; he grew up speaking the Geechee dialect, which is a hybrid of English and various West African languages. Late in life, Thomas began to acquire an enthusiasm for his heritage, writing about it in the December 14 2000 issue of The New York Times:

"When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it Gullah now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at your age, I was self-conscious, like we all are... So I...just started developing the habit of listening."[5]

Thomas has stated that he wishes to write a book about the culture. [6]

Though Thomas is silent during most arguments before the Supreme Court, he has spoken a few times each term. [7] During the oral argument for NASA v. FLRA, 527 U.S. 229 (1999), Thomas engaged in a seven-minute-long, uninterrupted colloquy - it is almost unheard of in recent years for this to happen without interruption by another justice. In Apprendi, Thomas raised an issue which would become important in the opinions ("the distinction . . . between an element of the offense and an enhancement factor"). In Capitol Square Review Board v. Pinette (1995), Virginia v. Black (2003), and Georgia v. Randolph (2006), Thomas presaged his eventual dissent with comments at oral argument.

Activities outside Supreme Court

• On May 27, 1994 Thomas performed, at his home, the wedding ceremony for conservative radio host Rush Limbaugh's third marriage, to Marta Fitzgerald. [8]

Sources

• Edward Shills and Max Rheinstien, Max Weber on Law in Economy and Society
• Roy L. Brooks, Structures of Judicial Decision Making from Legal Formalism to Critical Theory
• Foskett, Ken (2004) Judging Thomas : The Life and Times of Clarence Thomas, William Morrow, ISBN 0-06-052721-8
• Thomas, Andrew Peyton (2001) Clarence Thomas: A Biography, Encounter Books, ISBN 1-893554-36-8
• Supreme court official biography (PDF format)
• Supreme Discomfort
• Touting Thomas; The truth about America's most maligned justice, By Stephen B. Presser
• An Outline of the Anita Hill and Clarence Thomas Controversy
• Out of Scalia's Shadow
• U.S. Supreme Court Multimedia
• Transcripts of Senate Judiciary Committee Hearing on the Nomination of Clarence Thomas to the Supreme Court
• A Conversation with Justice Thomas
• Jane Mayer and Jill Abramson (1994) Strange Justice: The Selling of Clarence Thomas, Houghton Mifflin Company, ISBN 0-452-27499-0
• Brock, David (1994) The Real Anita Hill, Touchstone, ISBN 0-02-904656-4
• Angela Onwuachi-Willig, "Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity"
• "So, Guy Walks Up to the Bar, and Scalia says..."
• Yahoo - Clarence Thomas directory category
• The Justice Thomas Appreciation Page

External links

• October 11, 1991 evening session of U.S. supreme court confirmation hearings.
• Biography Clarence Thomas - Cornell Law School

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