The New Yorker
By Jeffrey Toobin
August 29, 2011
It has been, in certain respects, a difficult year for Clarence Thomas. In January, he was compelled to amend several years of the financial-disclosure forms that Supreme Court Justices must file each year. The document requires the Justices to disclose the source of all income earned by their spouses, and Thomas had failed to note that his wife, Virginia, who is known as Ginni, worked as a representative for a Michigan college and at the Heritage Foundation. The following month, seventy-four members of Congress called on Thomas to recuse himself from any legal challenges to President Obama’s health-care reform, because his wife has been an outspoken opponent of the law. At around the same time, Court observers noted the fifth anniversary of the last time that Thomas had asked a question during an oral argument. The confluence of these events produced the kind of public criticism, and even mockery, that Thomas had largely managed to avoid since his tumultuous arrival on the Court, twenty years ago this fall.
These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”