Thomas Leads Court's Lean To the Right

Conservative axis emerges, shaping issues from race to federal powers

FOUR years after the most wrenching Supreme Court confirmation in modern times, a strong conservative axis is emerging - surprisingly epitomized in this term by its most controversial and enigmatic member: Clarence Thomas.

Twinned with conservative soul mate Justice Antonin Scalia, Mr. Thomas has put some spark into what many thought would be a sleepy term. But Thomas, who prepared for his 1991 Senate confirmation with a Scalia law clerk, has become a bolder presence than even his senior associate, with a series of strong opinions not only on race but on limiting fundamental powers of the federal government.

The result is a new voice and a serious challenge to the court's still-forming moderate block. "He has done more to enliven the court in a shorter period of time than anyone in 20 years," says Notre Dame University scholar Douglas Kmiec.

If nothing else, Thomas's emergence will make this week interesting. Today, and this coming Thursday, justices are likely to release some of the toughest decisions facing them this term.

Liberals, for their part, have been scathing about the new Thomas-Scalia axis. Some normally reserved officials and scholars break into epithets about the direction the two are trying to push the court. A Justice Department official points out that Scalia and Thomas are the only two justices who feel race has no place in the law.

"It's a little strange since Thomas has taken advantage of affirmative race policies at every point in his career, from his place at Yale Law School, to heading the EEOC at an incredibly young age [33]," he says.

Time Magazine columnist Jack White last week penned a scorcher on Thomas' opinions titled, "Uncle Tom Justice."

When he first joined the high bench after his painful confirmation, Clarence Thomas was something of an echo of Scalia, using the more senior justice's decisions as a way to oriented himself to the court.

Now Thomas is coming into his own. A black man, he is the first high court justice to question the basis of the landmark 1954 "Brown v. Board of Education" on school desegregation.

"The mere fact that a school is black does not mean that it is a product of a constitutional violation," he wrote.

In May, Thomas challenged 60 years of jurisprudence in a decision on the ability of Congress to extend federal power via regulation of interstate commerce. This month, he agreed with the court's decision to curb affirmative action. He concurred in a separate opinion that, "The programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences."

A GOP Senate Judiciary staff member says: "He's now writing major decisions, making major statements. He's saying things that conservative lawyers and theorists believe. But no one on the court has had the guts to say."

The personas of the two justices on the firm right could not be more different. Scalia is gregarious and always ready for a verbal spar on the bench. He has spoken more than any other justice in recent years. Thomas is reserved, and nearly invisible. He has spoken the least of any justice in recent years, going for almost two years at one point without asking a single question.

Yet Scalia, brilliant but independent, has disappointed some conservatives. Many hoped he would build coalitions and a majority consensus. Instead, his approach has put other justices off at times; he has taken them on by name. "He is the epitome of a lone wolf with a sharp pen," says one conservative critic. "He doesn't mince words."

Both justices agree the court's role is to interpret the Constitution's "original intent," a philosophy set out by President Reagan's Attorney General Edwin Meese and carried on by failed Supreme Court nominee Robert Bork.

The court, under original intent, has no separate voice from the legislative branch. In this sense, both Thomas and Scalia are literalists who believe the court has gone past its powers as enumerated in the Constitution.

This term, for example, the two were lone dissenters in an Eighth Amendment ruling where the court affirmed prisoners' rights to demand a standard of treatment that does not conflict with the amendment's cruel-and-unusual-punishment clause.

Justice Thomas, joined by Scalia, argued the majority ruling was "another manifestation of the pervasive view that the federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable ... But that does not mean that it is invariably unconstitutional."

Both men also have strong majoritarian streaks. Their major decisions this term are articulations of opinions often held by a majority of Americans.

Curbing desegregation and affirmative action are now popular. Both men dissented when in May the court overturned an Arkansas term-limits referendum. Some 40 states have approved term-limit laws.

The justices differ mainly on race. Scalia takes a strictly literal position; Thomas draws from a Jeffersonian philosophy of natural rights.

For Scalia, race doesn't figure in the Constitution and he sees it as a corruption for the court to try to make it matter. In the so-called Adarand case on affirmative action, he wrote separately: "Individuals who have been wronged...should be made whole. But under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the constitution's focus on the individual."

Thomas, however, comes to race speaking of equal rights derived from the Declaration of Independence that guarantee equality. The natural rights articulated in the Declaration themselves derive from what he has called "higher law."

These rights are "inalienable ones, given to man by his Creator," Thomas wrote in a Harvard law journal in 1989. In the affirmative-action decision this month, Thomas again cited the Declaration, saying the "paternalism" of affirmative action "is at war" with the principles underlying the Constitution and Declaration.

In this sense, Thomas distinguishes himself from Scalia and strict constructionists like Bork. He argues the Constitution is embedded in a set of natural rights understandings; for Thomas, say scholars, the Declaration's role in creating the Constitution means the court can invervene in matters of race to ensure a standard of equality is met.

Natural rights theories are undergoing a small renaissance in conservative legal circles. Natural rights allows Thomas to remain wedded to the original intent school that explains the Constitution under slavery - and explain the civil war and 19th century race decisions like Dredd Scott as simple aberrations from natural law.

Other scholars say that simply invoking the principles of equality as abstract absolutes allows Scalia and Thomas to leapfrog over the central historical dramas of America out of which the laws themselves emerged.

Mark Tushnet of the Georgetown School of Law feels it is really the last 60 years of liberal expansion of federal power and rights that those on the right want to tackle.

Liberals such as Laurence Tribe of the Harvard Law School feel the two justices represent a dangerous trend: "All it would take in some instances is one more vote for the extreme views they take to become the law of the land."

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