Clarence Thomas takes the wheel as Supreme Court settles in for post-Roe term – Washington Times

Justice Clarence Thomas has been on the Supreme Court for more than three decades, and his judicial philosophy rooted in adhering to the original meaning of the Constitution is finally controlling big rulings.

Yet he is still cranking out opinions just like his days wandering in the legal desert of the liberal living Constitution era.

Hes always been one to kind of identify problems that maybe the court hasnt grappled with or issues that need to be brought up, said Carrie Severino, who clerked for the justice 15 years ago. Its taken decades. Hes been on the court over 30 years now, but the court has ultimately been like Oh, yeah, that is an issue we need to look at.

The difference between then and now, she said, is you now see a majority of justices joining him.

Justice Thomas will take the bench Monday for the start of the 2022-2023 term after his most influential year yet. He led colleagues in forcefully asserting Second Amendment gun rights and First Amendment religious free exercise rights and, of course, defenestrating Roe v. Wade.

That 1973 decision was the guiding star of liberal legal scholarship for decades but succumbed to Justice Thomas brand of originalism last year. Justice Samuel A. Alito Jr. wrote the chief opinion, saying it was time to reverse years of wrong legal reasoning that had led to and flowed from Roe.

Justice Thomas joined the ruling but wrote a concurring opinion to warn his colleagues that their job was not done. He said the same substantive due process right that Roe applied to establish a national right to abortion has been the basis for other decisions, such as federal constitutional guarantees of access to contraception and same-sex marriage.

Ms. Severino said thats typical of Justice Thomas.

She said he likens the courts use of precedent to engineers adding cars to a train.

Hes like, Look, you want me to add another car to this long train. I dont even know where this train is going, whos driving this train. So what we need to do is trace it back, go forward one car at a time, until we get to the very beginning, we find out what is going on, she said.

Sometimes, he says, youll find theres a chimpanzee driving it. We should not be adding more cases to this line of reasoning.

Thats one reason he is still writing prolifically when his philosophy is controlling more of the courts opinions.

Adam Feldman, who runs Empirical SCOTUS, said Justice Thomas writes a separate opinion for every five cases on which he votes. Thats a full opinion ahead of the runner-up, Justice Sonia Sotomayor, the closest Justice the liberal wing has to Justice Thomas.

Chief Justice John G. Roberts Jr. writes a separate opinion once in every 14.5 cases of his prevailing, Mr. Feldmans data shows.

Even when [Justice Thomas] agrees with the outcome, he will go further in asserting his own points of view, Mr. Feldman said.

Thats particularly true when it comes to the use of stare decisis.

In the hands of many justices, fealty to justice can be a shield to defend a position or a weapon to attack a colleagues position. For Justice Thomas, its usually just an academic question to be surmounted.

Thomas will go out and say, I dont think its just overturning the law in this case; I dont think theres a distinct place for stare decisis in our jurisprudence that requires our respect. If I dont agree with it, Im going to overturn it, Mr. Feldman said. He takes it a step further.

Over the past term, Justice Thomas wrote eight concurring opinions in which he agreed with the outcome but wanted to make particular points, including in the abortion ruling. He had the highest concurrence rate on the court.

Court watchers figure Justice Thomas will play a significant role in the upcoming term in cases involving voting rights, election procedures, affirmative action in college admissions and First Amendment challenges to laws that require service for same-sex marriages even when it conflicts with a business owners religious dictates.

I could see him having, just because where he sits on these issues of religious liberty and the right to exclude based on a religious perspective, I could see him having some further-reaching opinion than the courts willing to go, Mr. Feldman said.

That the 6-3 conservative court has tilted toward Justice Thomas is mostly a matter of math.

Justice Anthony M. Kennedys retirement and Ruth Bader Ginsburgs death opened slots that had been filled by more conservative-leaning members, tilting a court from moderately originalist to aggressively originalist.

Justice Thomas has found a new voice in oral argument during the pandemic.

He was famously reticent to take part in the back-and-forth during oral arguments and once went a decade without asking a question.

The New York Times sniffed that he had given various explanations for his silence but seemed to settle on one that it was rude to the litigants to interrupt and preen and prod, as has been the practice for oral argument in recent years.

When the pandemic struck, the court went to virtual hearings, and Chief Justice Roberts carved out specific time for each justice to ask questions. On a remote call, talking over one another would be a disaster. Justice Thomas, as the senior member of the court, got the first crack and began to engage again.

The court has gone back to in-person argument, but Chief Justice Roberts has maintained the structured format for each member to have a dedicated chance for questions, and Justice Thomas remains engaged.

I think his colleagues recognized the value that added, Ms. Severino said.

Justice Thomas success on the bench has led to a rocky summer.

George Washington Universitys law school, where he has co-taught a constitutional law seminar for years, faced a rebellion of sorts from students who demanded that he be fired.

The school rejected those calls. Although the justices views didnt represent the schools beliefs, it said, an open debate was part of the point of education. Still, Justice Thomas withdrew from teaching the class.

An online petition circulated over the summer demanded the impeachment of the justice and garnered more than 1 million signatures. Democrats on Capitol Hill dismissed the idea as a non-starter.

Justice Thomas wife, Virginia Ginni Thomas, has been under scrutiny for communications surrounding the 2020 election and her attendance at the pro-Trump rally on Jan. 6, 2021. She testified Thursday to the House committee investigating the mob attack on the U.S. Capitol later that day and reportedly told lawmakers she believed the election was stolen.

She also said Justice Thomas doesnt discuss his court work with her.

His detractors wonder whether the 74-year-old jurist will quit soon.

Ms. Severino doubts it.

No way, she said. On the Supreme Court, the mid-70s is like the new 40s.

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Clarence Thomas takes the wheel as Supreme Court settles in for post-Roe term - Washington Times