John Roberts is the chief. But it’s Clarence Thomas’s court.
By James Romoser
on Oct 2, 2022 at 7:00 pmWhen the Supreme Court returns to the bench on Monday for its first oral arguments of the new term, Justice Clarence Thomas almost certainly will ask the first question.
Thomas, who was appointed in 1991, is the court’s longest-serving justice and was for many years its most taciturn member. He famously went a decade without asking a single question. But when the court tweaked its argument format during the pandemic, Thomas began speaking up. He now interrogates the lawyers during nearly every case, often marking the terrain on which the case will be fought.
The other justices have even agreed to defer to Thomas at the start of each argument before jumping in themselves. The rationale is that Thomas, a stickler for politeness, dislikes interrupting the advocates or his colleagues. But it’s hard not to view the arrangement as symbolic of Thomas’s remarkable ascendance. Long considered an outlier on the court’s right flank, Thomas is now the intellectual leader of a conservative transformation that the six Republican-appointed justices are ushering into American law.
Few would have predicted it. Perhaps not even Thomas himself. In his second term, he boasted that he was “proudly and unapologetically irrelevant and anachronistic.” Back then, his commitment to originalism — the idea that the Constitution’s language should be interpreted solely according to how the words were understood when they were written — made him an ideological oddity, even among many conservatives. And his no-compromises approach alienated moderates like former Justice Sandra Day O’Connor.
Now, as he enters his 32nd term, his critics surely still see him as anachronistic, but he couldn’t be more relevant. Lower courts, elite appellate law firms, and Republican congressional offices are stocked with former Thomas clerks. Under President Donald Trump, no other justice had as many clerks appointed to the federal judiciary or to senior administration positions.
And of course there’s his wife, Ginni, who has tried to establish her own sphere of influence. She lobbied top Trump officials and state lawmakers to overturn the 2020 election — an effort that landed her before the Jan. 6 committee on Thursday. Thomas has stayed mum on his wife’s activities, and even the staunchest critics of the Thomases don’t expect the revelations about Ginni to erode Clarence’s influence.
That’s in part because many judges (including several other justices) now consider originalism to be the default mode of constitutional interpretation, and even non-originalists frequently employ its history-focused methods. It’s become commonplace at the Supreme Court to lean on obscure 19th-century documents (even ahistorical ones) and appeal to the nation’s deep-seated “traditions.”
To paraphrase Justice Elena Kagan, we’re all Thomists now.
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https://www.scotusblog.com/2022/10/john-roberts-is-the-chief-but-its-clarence-thomass-court/
