Politics: Making Sense of Clarence Thomas

TORONTO, ONTARIO - United States Supreme Court Justice Clarence Thomas was for some time dismissed by some as a clone of conservative "firebrand" Antonin Scalia, as the two seemed to vote the same way on case after case. As Thomas' eighteen years on the court have progressed, however, it has become clear that Thomas does not vote in lock step with Scalia. In fact, Thomas is arguably the most conservative member of the court, to the right even of Scalia. Some have found his dissent from the other eight justices on the 1965 Voting Rights Act in a 8-1 decision this June as the ultimate symbol of Thomas' conservatism.

At some level, the explanation for Thomas' opinion in the Voting Rights Act case is not hard to understand. In his written opinion, he makes it clear that he believes that "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains." He does believe that such circumstances existed in 1965, and hence the law was originally constitutional; he just doesn't believe that circumstances justify it anymore.

On the other hand, the other justices did not face that constitutionality issue head-on--they did not offer an opinion of the constitutionality of Section 5, and instead ruled more narrowly on the specific issues of the case. That's what Antonin Scalia did. From that perspective, it is perplexing why Thomas felt the need to face the "difficult" question when the case didn't require it, and none of his colleagues wanted to "go there," as we like to say colloquially these days.

Listening to coverage of Supreme Court Justice nominee Sonia Sotomayor on NPR's On Point, I finally heard something that caused it all to potentially make sense. Wendy Long, who had served as a clerk for Thomas, mentioned that one of the things Thomas likes to do in reasoning out a case is to reverse it. Flip the parties involved, apply the same logic, and see if one's opinion still makes sense. If it doesn't, then the opinion is likely wrong and needs to be revisited; if it still works, then it probably is right.

It's not hard to see how that might have applied in the Voting Rights Act case. Ask whether faced with the same facts if white people might need the protections involved and just about anyone would probably answer no. Thus, the logic behind the law doesn't make sense by the Thomas methodology, and he felt he had no choice but address its constitutionality. Whether one agrees with that methodology or not, it's possible to understand it.

What remains perplexing to me is that the methodology of reversing the parties in the case and evaluating an opinion on that basis is fundamentally a method of removing context. It's basically saying that if context matters, then something is wrong with the law or opinion. That's hogwash--of course context matters. It matters if a crime is a first offense or part of a long pattern of crime. It matters if the majority is trying to squelch the rights of a minority instead of squelching everyone.

Thomas clearly believes that himself--his explanation in the Voting Rights Act case is all about context, changed context in his opinion. I guess the explanation is that Thomas must simply have a much higher standard for introducing context as a justification that most people (as demonstrated by his methodology), rather than simply rejecting context out-of-hand.

One thing is for certain--Thomas is not a clone of Scalia, or someone whose ideology is predictable and easily understood. While I may disagree with most of his opinions, I can't dismiss them as lightweight or unsound. I just don't see the world the same way that he does.