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After 25 Years on the Court, Justice Thomas's Impact Up for Debate

By Casey C. Sullivan, Esq. on October 27, 2016 6:58 AM

Justice Clarence Thomas celebrated 25 years on the Supreme Court this week. The justice joined the Court a quarter century ago, surviving a bruising nomination battle to become one of the Supreme Court's most consistent conservative voices.

Yet, after so many years on the Court, there is significant debate about Thomas's legacy and his impact on American law. Is he a voice in the wilderness? A herald of jurisprudential changes to come? Just an ineffective eccentric?

A Justice on the Margins?

If you disagree with Thomas's jurisprudence, his politics, or his simple refusal to engage in oral arguments, it's easy to negate his impact on the Court. The New Yorker's Jeffrey Toobin offers a prime example of how that's done. In a recent piece, Toobin wonders "What's the most important opinion Thomas has written for the majority during his tenure on the Court?"

His answer is, basically, none. Sure, he has a few significant decisions, but when it comes to the Court's most important issues, you'll never see him penning the majority. That's because, according to Toobin, "Thomas is not a conservative, but rather, a radical," an "extreme originalist" with an "antediluvian view of the Constitution." In Toobin's view, Thomas is so outside the norms on the Court's most weighty questions that he can't ever muster even a conservative majority.

Influencing the Court From the Side -- and Sometimes Getting to the Center

Of course, for Thomas, being outside the majority is just the price you pay for being right. And Toobin's take isn't without its critics -- plenty of them. In the Weekly Standard, Adam J. White points to Thomas's majorities in cases on state sovereignty, the First Amendment, and administrative law. (Sure, tweaking Chevron deference might not be as sexy as ruling on the Affordable Care Act, but it still has significant impacts on the federal government.)

But even discounting those decisions, Thomas still has a notable impact on the Court, White argues, by "building a majority by dissent." That point is taken up by Jennifer Brandy, a former Thomas clerk, who notes in the Federalist that Thomas's concurrences, not just his dissents, have shifted his colleagues' positions over time. His concurrence in White v. Illinois lead to Justice Scalia's majority in Crawford v. Washington, for example; his concurring opinion in Apprendi v. New Jersey laid the groundwork for Alleyne v. United States -- consequential criminal law opinions, both.

Thomas, himself, doesn't mind being a lone voice when necessary.

"I think that I may lose," he said in 2013, "but I think I'm obligated, in fact encouraged by my colleagues -- that if you believe that, you write it." To illustrate his point, he turned to Plessy v. Ferguson, the Supreme Court decision upholding "separate but equal" segregation laws. Only one justice, John Marshall Harlan, dissented. "I think someone should have kept writing that segregation was wrong," Thomas said.

"Regardless of what the precedent was, I think you have to say certain things."

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