Clear Tendency To the Right For Thomas

His judicial temperament shows every sign of sticking close to the text of the Constitution

BASED on his early opinions, Supreme Court Justice Clarence Thomas is already showing clear tendencies.

Those who suspected he may emerge more liberal than his writings and political associations indicated have not yet found supporting evidence.

Instead, Justice Thomas has consistently aligned himself with the court's most activist and ideologically conservative member, Antonin Scalia.

His opinions point to a judicial temperament that seeks to stick very close to the text of the Constitution and interpret it narrowly.

"He looks as though he may be more text-bound than any justice in recent memory," says constitutional law professor William Van Alstyne of Duke University.

These are early signs in the career of an unusually young justice. Supreme Court justices frequently continue to evolve in their judicial philosophy through many years on the bench.

But Judge Thomas has also begun his career with an unusually fast start. At the same point in Justice David Souter's career, he had written only one opinion for the court majority. Thomas has written three, along with one separate opinion concurring with the majority vote, and two dissenting opinions.

In his own office politics, he has thwarted initial hopes among civil rights leaders that he would bring affirmative action to the top bench. Thomas, a black, hired four white male clerks, one of whom clerked for Justice Scalia last year.

If the early pattern holds, then Thomas - like Scalia - would be unlikely to find constitutional protections for abortion. The 1973 Roe v. Wade decision that protects the right to abort a pregnancy is based on a right to privacy, which is not explicitly stated in the Constitution.

Abortion rights are likely to be tested in the Supreme Court later this session.

The larger question pending over the direction of the court is which of two warring strains of conservatism will hold sway there.

Will it continue to adopt a judicial restraint that pulls back the power and reach of the court from the bold assertions of the 1960s? The effect of this approach would be to strengthen the hand of government and the popular majority that supports it.

Or will it adopt a more political conservatism that strengthens some rights more important to the affluent - such as property and contract rights - while pruning the rights of accused criminals or excluded minorities?

A series of property-rights cases are coming up that should help clarify how assertive the court's conservatism will be. The first was heard yesterday.

In it, the owner of two lots on the coast of South Carolina claims that the state owes him the value lost to his property because a state law bars him from building on them. A strong decision asserting that South Carolina has unconstitutionally seized the value of the lots could have vast repercussions on environmental regulations.

So far, Thomas has only established a tendency for narrow readings of the Constitution.

His most recent opinion, in Hudson v. McMillian last week, was also his most controversial. He and Scalia were alone in dissenting from a decision that a beating by guards of a Louisiana prisoner who was in restraints violated the constitutional ban on cruel and unusual punishment.

The thrust of Thomas's opinion was that the beating may have been immoral, criminal under state and federal law, and even unconstitutional in some way, but it was not cruel and unusual punishment under the Eighth Amendment.

Until 1976, the Eighth Amendment applied only to sentences doled out by statute or judges, not to whatever happened in prison.

In 1976, the court extended the reach of that amendment to include prison conditions or treatment that resulted in serious injury. Thomas did not deem the Louisiana inmate's injuries - a loosened tooth and cracked dental plate - serious.

THE decision showed Thomas's concern both with citing the original intent of the Constitution's framers and with applying it sparingly to modern life.

Mark Tushnet, a law professor at Georgetown University, says that Thomas was "reading precedents aggressively to achieve a narrow result. The choice he made was to regard the kind of thing that happened to Hudson as not very important."

Newspaper columnists have characterized his opinion as "disgusting" and "bizarre."

Michael McConnell, a more conservative voice on the University of Chicago's law faculty, finds Thomas's first few months on the court "pretty impressive."

"His first opinion for the court, I thought, was quite a skillful piece of work," says Professor McConnell, a former Supreme Court clerk. In that opinion, too, in which the court ruled that unions can not leaflet employees in a shopping center parking lot, Thomas gave previous court decisions a very narrow reading.

Professor Van Alstyne sees in Thomas "a very close affinity for the jurisprudence of Justice Scalia, which is to give a very close reading to the text of the Constitution." Thomas's approach aspires to be objective, he says, but these early tendencies may not hold. "Court experience changes people. A new Thomas could still be emerging six years from now," notes Van Alstyne.

One Thomas opinion that surfaced in recent weeks was not a Supreme Court ruling at all, but a case that Thomas heard as a federal appeals court judge. In it, he wrote that federal policy cannot favor women over men in issuing broadcast licenses. The opinion, inordinately slow in coming, would have made his confirmation more difficult if the court had released it before he was confirmed.

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