Bench Memos

New Politico Op-Ed Highlights Legacy Of Clarence Thomas

Law professor Richard Primus has published an op-ed in Politico highlighting how Associate Justice Clarence Thomas has often been unfairly tagged as the junior partner in the Scalia-Thomas partnership:

For more than a generation, Thomas has been widely dismissed as little more than Scalia’s sidekick. The two were in many respects the court’s most conservative justices, and most of the time they voted the same way. But as a matter of public perception, their partnership had a distinctly Batman-and-Robin quality: a tight team, yes, but with no doubt about who was the senior superhero and who the loyal ward. . . . When Thomas was nominated in 1991, he was widely derided as underqualified, and once on the court he generally sat silently through oral arguments while Scalia took a loud and central role. Quickly, the perception emerged that Thomas was tagging along behind the brilliant man whose opinions he generally joined.

That idea was always a canard. Scalia and Thomas agreed on many things, but they had their share of important disagreements as well. On a wide range of issues—federal power over medical marijuana, due process for enemy combatants, the scope of First Amendment protection for commercial advertising—Scalia went one way and Thomas went another. And when they parted ways, it was usually Thomas who took the more radical position.

Primus also has some ideas about how Thomas could use those unfair perceptions strategically:

Now that Scalia is gone[,] the legal community’s over-identification of Thomas with Scalia offers Thomas a weapon of enormous power. Scalia stood at the head of American legal conservativism, intellectually and symbolically. His death has left a vacuum in that role. Who is better positioned than Thomas to present himself as the inheritor of Scalia’s mantle? There he sits, already a justice of the Supreme Court, with an audience primed to think that his ideas and Scalia’s ideas are the same. When Thomas writes opinions, he can say that what he writes is not only his view but would have been Scalia’s view as well. Indeed, he doesn’t need to come out and say it. For years, the legal world has thought of Scalia and Thomas as a unit, so people will naturally think of Thomas now as the closest thing the court still has to Scalia himself. In short, Thomas holds the biggest megaphone for declaring what Scalia stood for.

It’s always good to see someone recognizing Thomas’s importance, but I think Thomas should take a pass on Primus’s recommendation. Justice Thomas has never let other people tell him how to think, and while there’s no doubt that Justice Thomas appreciates Justice Scalia’s legacy, Thomas has his own record of courageous, principled judgment to stand on. 

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