Clarence Thomas has been on the Supreme Court for a quarter-century. And Jeffrey Toobin has loathed him for nearly all twenty-five of those years. For more than two decades, the New Yorker author and CNN pundit has written of Thomas time and time again in only the most contemptuous terms.
In 1993, just three years into Justice Thomas’s tenure on the Court, Toobin wrote that “his jurisprudence seems guided to an unusual degree by raw anger.” Thomas’s “objective,” Toobin asserted, may be to devote “every vote—even his every public utterance, written or spoken—[to] outrage the liberal establishment that so venerated [Thurgood] Marshall”; to “utilize the Supreme Court itself” to “strik[e] back at his liberal critics.” And he accused the young justice of being effectively incompetent, calling him “more than usually dependent on his clerks.”
Toobin even complained in 1993 that Thomas read the wrong newspapers: “He has, for the most part, stopped reading the Times and the Washington Post . . . ‘[but] is always very well informed about what’s on the Wall Street Journal editorial page.'”
More recently, in a journalistic screed titled “Justice Thomas’s Disgraceful Silence,” Toobin lampooned Thomas as lethargic. “These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called ‘not paying attention.'” Toobin accused Justice Thomas of treating all of his colleagues and the lawyers appearing before him “with disrespect”—with a “petulance,” a pattern of “ludicrous behavior,” that “is demeaning the Court.”
Those are just two examples. Toobin has poured bile on Justice Thomas over and over again, complaining that Thomas “seems to go out of his way to find reasons to disagree,” or that he’s simply “disgraceful,” full of “contempt and hostility.” In his book, The Nine, Toobin ridiculed Thomas as “embarrassingly silent,” and chastised the Court’s second African-American justice for hiring too many white clerks.
Toobin also likes to criticize Justice Thomas’s wife, Ginni Thomas: by Toobin’s telling, she’s “as bitter as her husband about his confirmation hearings.” Elsewhere he’s suggested that the long road trips that she takes with her husband leave her ignorant of her husband’s critics: “the Thomases live in a world where, it seems, everyone believed Thomas’s testimony [at his Senate confirmation hearings], and Ginni might well have got the impression that everyone else did, too.”
Given Toobin’s long history of criticizing, denouncing, and belittling Justice Thomas, Toobin surprised no one when he marked Thomas’s 25th anniversary on the Court with another critical article. But on this occasion, Toobin focused exclusively on a rather specific criticism: namely, the fact that Thomas doesn’t write enough significant majority opinions.
Of course, Thomas has written dozens and dozens of majority opinions. But Toobin simply brushes them aside and declares that Thomas has never written an “important” majority opinion for the Court. Worse still, Toobin asserts, this actually reflects an utter lack of “trust” that Chief Justices Williams Rehnquist and John Roberts have had in their colleague: “The truth is that Rehnquist and Roberts never trusted Thomas to write an opinion in a big case that could command a majority of even his conservative colleagues.”
I might note at the outset that Toobin’s premise is wrong, or at least I’d dispute it. Thomas has written majority opinions in cases that I consider important, on questions of state sovereignty, the First Amendment, antitrust, and (close to my own heart) two of the most significant administrative law cases in recent decades, on Chevron deference.
But let’s take Toobin’s criticism at face value. Justice Thomas has not written a majority opinion in the sort of hot-button cases that attract Toobin’s attention, such as Citizens United or the abortion cases or the same-sex marriage cases. Instead, he joins the majority opinions that other Justices write, and often writes concurrences spelling out his own legal reasoning. In those concurrences, and in his famous dissents, Thomas has done more than any other justice, save the late Antonin Scalia, to explain and exemplify a constitutional jurisprudence centered upon the Constitution’s originally understood meaning, and rooted in deeper principles of natural law. Still, Toobin criticizes these solo opinions as evidencing Thomas’s place on the Court’s “distant fringe.”
What a cramped view of a justice’s legacy and influence. Even when Toobin concedes perfunctorily that Thomas’s solo opinions have “introduced certain conservative ideas into the bloodstream of Supreme Court opinions that have later commanded majorities,” he’s selling the justice short. Thomas’s larger body of dissents and concurrences have carved a path for an entire generation of originalist (or “textualist”) judges writing opinions in the federal and state courts, not to mention a generation of conservative lawyers who write the briefs and argue cases before them.
Moreover, Thomas’s and Scalia’s originalism has had an impact well beyond the courtroom—especially on Capitol Hill, where Congress is once again learning to think, debate, and legislate in constitutional terms again.
But even in the Supreme Court, Justice Thomas’s influence has been significant. As Justice Elena Kagan recently reflected at Harvard Law School, all of the justices now think about cases in “originalist” or “textualist” terms, even when they ultimately depart from Thomas’s and Scalia’s preferred approach or outcome. “We’re all textualists now,” she explained. As Kagan made this point at Harvard’s annual “Scalia Lecture,” she rightly ascribed much of the credit to the late Justice Scalia. But Justice Thomas deserves no less credit (a point that Justice Kagan would almost certainly endorse).
Toobin’s attempt to minimize Thomas’s impact, on the occasion of his anniversary, is all the stranger when one notes that Toobin previously conceded Thomas’s influence. In a 2011 article attacking Justice Thomas (and his wife) as a threat to the Affordable Care Act, Toobin quoted Yale’s prominent constitutional scholar, Akhil Reed Amar, who praised Thomas in the strongest possible terms:
Toobin quoted Amar’s effusive praise in 2011; just five years later, he seems to have forgotten all of it. Now he tells readers that Thomas’s opinions have had effectively zero influence on the Court. It’s not the first time that Toobin has conspicuously changed his story for the sake of politics (as I’ve noted here before). Nevertheless, it’s a stark, telling contrast.
And so is the contrast between Toobin’s uncharitable view of Thomas’s solo opinions and the effusive praise that he showered upon Justice Ruth Bader Ginsburg’s dissenting opinions in a 2013 essay. The difference is evident from the outset, in the essays’ respective headlines: where Toobin’s essay this week is titled “Clarence Thomas’s Twenty-Five Years Without Footprints,” his essay on Ginsburg’s dissents was titled, simply, “The Heavyweight.”
Noting that Ginsburg’s liberal jurisprudence “has left her as a dissenter in many of the most important cases,” Toobin presented Ginsburg’s minority status as a mark of bravery, and stressed that Ginsburg’s influence was felt much more significantly outside of the Court. “During the past five years, she’s written more dissents than any other Justice. It is perhaps fitting, then, that Ginsburg’s greatest triumph as a Justice came in a case that she lost.” Toobin was referring to Ginsburg’s dissent in Ledbetter v. Goodyear Tire, where Ginsburg’s failure to persuade a majority of justices to expand the federal statute of limitations for pay-discrimination cases led Congress and the newly inaugurated President Obama to change the law legislatively. Far from chastising Ginsburg for failing to win a majority, Toobin saw the value of her dissenting voice.
“Supreme Court Justices can become influential in different ways,” Toobin wrote in his 2013 essay honoring Ginsburg. On that point, even Toobin can’t be wrong. It’s unfortunate that he suddenly forgot that point on the occasion of Thomas’s 25th anniversary—unfortunate, but not surprising.
I doubt that Justice Thomas cares either way. He isn’t writing to impress journalists and pundits, not even Jeffrey Toobin. As he explained in his new Conversation with Bill Kristol, he writes his concurrences and dissents simply for the sake of principle. To the extent that Thomas thinks about his audience, he takes the longer view, keeping in mind the example of the Court’s first “Great Dissenter,” John Marshall Harlan, who famously stood alone in dissent from the Court’s infamous pro-segregation opinion, Plessy v. Ferguson (1896). As Thomas explained:
Adam J. White is a research fellow at the Hoover Institution.
