‘I was put on the Court to interpret the Constitution, not to make stuff up.” If you can imagine those words filling the room with a deep baritone and coming from a man who is both confident in his thoughts and comfortable in his own skin, then you will have an accurate portrait of Justice Clarence Thomas. As a law clerk to Justice Thomas for a year starting in July of 2007, I was privileged to see firsthand how he has remained faithful to the Constitution despite enormous pressure to abandon his principles. Because Justice Thomas will celebrate 20 years on the Supreme Court come October 24, now is a fitting time to ask what he has achieved by steadfastly refusing to “make stuff up” when it comes to our nation’s laws. The answer is that he has furthered the cause of liberty so profoundly that he has become a beacon for conservative jurists, has received the grudging respect of his liberal detractors, and, what he considers most important, has earned the thanks of ordinary Americans. His tenure has been truly remarkable.
Along with Justice Scalia, Justice Thomas has been an intellectual leader on the Court in advancing the jurisprudence of “originalism.” Thomas staked out his principles early in his career and often alone. Originalism entails a consistent fidelity to the text of the Constitution as the founders intended it to be read, and as it was understood in public discourse at the time it was adopted or amended. This commonsense approach was anything but common in academic circles when Justice Thomas came to the Supreme Court. But in the ultimate sign of vindication, it is the Supreme Court that has been moving in his direction and not vice versa.
From his first term on the Court in 1991–92, Justice Thomas has never shied away from controversial positions. Not that he had the opportunity. Although issues considered at the Supreme Court level are always important, that first term saw an impressive number of landmark decisions. In a few short months, Justice Thomas had the opportunity to weigh in on seminal cases concerning abortion, school prayer, race-based redistricting, hate speech, cruel and unusual punishment, regulatory takings, and constitutional standing.
Justice Thomas balances his respect for the institution of the Court with a humble view of his role on it. Some justices walk down the halls like VIPs, with security personnel clearing staff out of their way. Justice Thomas befriends everyone he interacts with — from the marshals and the administrative staff to the janitors and the elevator operators. He asks them how their parents are doing, remembers how their favorite teams fared in the playoffs, and jokes with them, laughing his trademark belly laugh. His approachability and gregariousness have made him not only a favorite among staff but a coveted speaker at law schools and conferences across the country. Unique among the justices, Thomas both visits a wide range of non–Ivy League law schools and hires clerks from them. Unlike the first lady, who “sneaks” into Target for photo-ops, Justice Thomas actually spends nights in Walmart parking lots as he drives cross-country in his RV to see “real America” on his summer vacations.
The early knock on Justice Thomas was that he would be a clone of Antonin Scalia, or that he would be a conservative legislator in black robes, but his insistence on principle has confounded those assumptions. The idea that he merely follows Scalia was put to rest the minute Justice Harry Blackmun’s papers were made public after his death; they showed just how often Scalia would switch his vote to follow Thomas’s lead, right from the beginning of Thomas’s tenure on the Court. Scholarly articles examining Thomas’s record often claim to shatter the “myths” about Thomas by showing how his decision-making has been coherent and principled, as opposed to blindly partisan, in case after case.
For example, Justice Thomas is perhaps the strongest proponent of free speech on the Court. This fact is particularly impressive considering that one of his colleagues, Ruth Bader Ginsburg, once served as general counsel of the American Civil Liberties Union. He doesn’t protect speech only when it is convenient, or helpful, or even only when it is no more than minimally harmful. Convinced that the framers of the Constitution meant what they said, he consistently accords speech the strongest constitutional protection available — the protection reserved for fundamental rights.