The Nine (18 page)

Thomas was engaged in a lonely, often solo, effort to restore the Constitution in Exile, the world of Supreme Court precedent before 1937. Even if he was rarely joined by his fellow justices, his chambers at least remained a controversy-free zone. Of all the justices, Thomas imposed the tightest ideological screen in the hiring of law clerks, deputizing a small group of former clerks to determine the views of prospective hires. Other justices hired clerks who generally shared their opinions; only Thomas imposed specific ideological litmus tests. Prospective clerks ran a three-stage gauntlet, which generally began with first interviews with John Yoo, a law professor, or Christopher Landau, a Washington lawyer and one of Thomas’s first clerks. (Yoo went on to work for President George W. Bush and wrote an infamous memo authorizing torture of detainees in the war on terror.) Finally, the current group of clerks would interrogate the applicant. They asked about ideology—abortion, federalism, Commerce Clause, death penalty, search and seizure—to make sure that the putative clerk shared Thomas’s (and their own) extreme views. Only after these interviewers reached a consensus on the applicant’s suitability did they permit an interview with Thomas, who generally limited himself to a low-key chat about the applicant’s family and interests. Asked about his ideological approach to the hiring of clerks at the National Center for Policy Analysis, a conservative think tank, Thomas said, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time and aggravates the pig.” Of Thomas’s first forty clerks on the Supreme Court, one was black.

Thomas’s extreme views extended well beyond the Commerce Clause. Throughout the 1990s, Rehnquist, Kennedy, and (as ever) O’Connor tried to revitalize the doctrine of states’ rights, ruling that several federal laws impinged on aspects of state sovereignty. These developments were sometimes called a “federalism revolution,” but that now seems an exaggeration. The changes the Court imposed on federal-state relations were, on the whole, rather modest. For example, the Court limited Congress’s right to pass laws that gave citizens the opportunity to sue state officials; similarly, they interpreted federal statutes so that they did not give citizens the right to sue states. These were important, but hardly revolutionary, limitations on federal power, with little practical impact on the lives of most people.

Thomas always joined these states’ rights rulings but often wrote concurring opinions urging the Court to cut back even more on federal authority. He asserted, for example, that he thought Congress had no right to make a federal crime of bribing state or local government officials—a kind of case that local U.S. attorneys had been bringing for decades. In 1997, the Court struck down part of the Brady Bill, the federal gun control law that directed state officials to conduct background checks on prospective handgun purchasers. Thomas signed on to Scalia’s majority opinion, of course, but in a brief concurrence suggested an even broader point, that all gun control was unconstitutional. He wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.” Thomas’s libertarian view of the original intent of the framers sometimes led him to broad definitions of freedom of speech—the one area where he tended to join the Court’s moderates—but his jurisprudence overall hewed predictably to a consistent conservative line. To prepare his law clerks for their chambers’ lonely crusade, Thomas required the new ones to watch the 1949 movie version of Ayn Rand’s classic homage to individualism,
The Fountainhead
, which concerns an architect’s struggle to maintain his integrity in a world of conformity.

Rehnquist rarely assigned important majority opinions to Thomas, because his extreme views made it difficult for him to persuade a majority of his colleagues to join him. In late 1999, the justices agreed to uphold a federal program that passed government funds to state and local agencies, which in turn lent educational equipment to public, private, and religious schools. The Court agreed that the law did not violate the Establishment Clause, and Rehnquist assigned the case to Thomas, who couldn’t even muster four other justices. Thus, Thomas’s opinion began with the embarrassing opening (under the circumstances) that he “announced the judgment of the Court,” rather than the customary “delivered the opinion of the Court.” In her separate opinion explaining why she could not join Thomas, O’Connor said she rejected his attempt to approve the “diversion of government aid to religious indoctrination.”

Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects—“dogs,” in the Court’s parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a “knuckle” between two cars. “It was a little case that didn’t matter to anyone,” Thomas said in a speech. “It’s almost inconsequential. It was a fun little opinion. I went back into the history of trains.” (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas’s opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)

Probably the greatest contrast between Thomas and his colleagues was that he fundamentally did not believe in stare decisis, the law of precedent. If a decision was wrong, Thomas thought it should be overturned, however long the case may have been on the books. As he wrote once, “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” All justices of the Supreme Court, from Brennan on the left to Scalia on the right, develop something close to reverence for the Court’s precedents; no one besides Thomas would have dismissed two hundred years of stare decisis in such a cavalier way. At an appearance at a New York synagogue in 2005, Scalia was asked to compare his own judicial philosophy with that of Thomas. “I am an originalist,” Scalia said, “but I am not a nut.”

So Thomas was ideologically isolated, strategically marginal, and, in oral argument, embarrassingly silent. He was also universally adored.

Fellow justices, law clerks, police officers, cafeteria workers, janitors—all basked in Thomas’s effusive good nature. His rolling basso laughter frequently pierced the silence of the Court’s hushed corridors. Unlike the rest of his colleagues, Thomas learned the names of all the new clerks every year, including those of his ideological adversaries, and he frequently invited the young lawyers into his chambers to chat, often for two or three hours. One year Thomas became friendly with a Stevens clerk, a lesbian whose partner was a professional snowboarder; Thomas liked the two of them so much that for a while he kept a photograph of the snowboarder on his desk. When the wife of one of his former law clerks lay dying in the hospital, Thomas and his wife spent several nights comforting the couple through the ordeal.

Thomas didn’t treat just law clerks this way. He would meet law students at moot courts, or people at ball games and auto races, and invite them to visit him at the Supreme Court. When they did, the conversations would also sometimes last into the evening. If there was a football game on television (especially Thomas’s beloved Dallas Cowboys), he would pass out cigars to anyone who wanted to watch with him. When he joined the Court, Thomas played basketball with clerks in the Court’s top-floor gym, the famous “highest court in the land.” But within a year the justice injured his knee and rarely played again.

Although Thomas asked almost no questions of the lawyers at oral argument, he wasn’t silent on the bench. Thomas sat to Breyer’s right, and the two of them often whispered and joked to each other, barely muffling their frequent laughter. Things sometimes got so raucous between them that Kennedy, who sat on the other side of Thomas, would lean forward, trying to get away from the noise. Breyer and Thomas passed notes, too, often mocking each other’s positions in good-natured ways. “States’ rights über alles,” Breyer might write, and Thomas, in another case, would jot, “Always for the criminal, eh?” This wasn’t feigned fellowship. It was a portrait of colleagues who genuinely cared for each other.

There was a new measure of joy in Thomas’s personal life as well in this period. In the midnineties, his son from his first marriage, Jamal, went off to college at the Virginia Military Institute. (For this reason, Thomas recused himself in 1996 when, in an especially satisfying moment for Ginsburg, she wrote the opinion holding that the state-funded school could no longer refuse to admit women.) The following year, Thomas’s six-year-old grandnephew, Mark Martin Jr., came to live with him. Mark’s father was in prison on cocaine trafficking charges, and his mother was struggling to raise four children on her own. Thomas was roughly the same age when his grandfather adopted him, saving him from similarly chaotic circumstances. New fatherhood, when he was close to fifty, invigorated Thomas and filled his home life with happiness.

It also changed Thomas’s approach to transportation. The justice had a long-standing obsession with Corvettes, the great American sports cars, and he often drove one on the twenty-four-mile trip to the Court from his home in remote Fairfax Station, Virginia. But shortly after Mark Junior’s arrival, Thomas purchased a custom-made forty-foot Prevost motor coach, with leather furniture, satellite television, and onboard galley—a “condo on wheels,” as he once called it. Thomas adored the vehicle, which he called “the bus,” and kept a photograph of it by his desk, near the portraits of Booker T. Washington, Frederick Douglass, and Winston Churchill. For vacations, even on many weekends, Thomas would pack up his wife and young Mark and simply take off. They would stay at campgrounds or parking lots near NASCAR races. Often, the justice would take advantage of Wal-Mart’s policy (well known in the RV world) of allowing such vehicles to remain overnight in their parking lots. In all these places, Thomas mixed easily with other “RVers,” some of whom would recognize him, many of whom would not. In 2004, Thomas received the “Spirit of America” award from the Recreation Vehicle Industry Association. “Being an RVer helps me do my job better,” he said in his speech to the group. “The world I live in is very cloistered. The bulk of my adult life has been spent in Washington, D.C. RVing allows me to get out and see the real America. In RV campgrounds, you wave at everybody and they wave back.”

Yet even in the friendly confines of his chambers, Thomas carefully tended the grudges held since his confirmation hearings. For years, he kept a list in his desk of the roll-call vote in his 52–48 confirmation. But his targets weren’t only the senators who voted against him. “When I left Georgia over twenty-five years ago, a familiar source of the unkind treatment and incivility were just bigots,” he said at a speech in Macon in 1993. “Today, ironically, a new brand of stereotypes and ad hominem assaults are surfacing across the nation’s college campuses, in the national media, in Hollywood, and among the involuntarily ordained ‘cultural elite.’ Who are the target? Those who dare to question current social and cultural gimmicks, those who insist that we embrace the values that have worked and reject those that have failed us, those who dare to disagree with the latest ideological fad.” This would become the theme of Thomas’s speeches over the following decade—his own courageous fight against the “elites” who were out to get him. Friends and associates would often claim that Thomas’s rage had mellowed, but that seems unlikely. In 2007 he told
BusinessWeek
, in a rare interview, that he thought the news media were “universally untrustworthy because they have their own notions of what I should think or I should do.”

Thomas never identified his enemies by name—the “smart-aleck commentators and self-professed know-it-alls,” as he once described them—but it was usually clear whom he meant. The list began, of course, with the senators who opposed his confirmation. Thomas also regarded most of the press as part of the elite, and a friend quoted him as saying the happiest day of his life was when he canceled his subscription to the
Washington Post
. Likewise, Thomas detested Yale Law School, his alma mater, and he had a “Yale Sucks” bumper sticker on the mantel of his chambers for a time. He believed that he was treated paternalistically while he was on campus and that the school abandoned him (in favor of another Yale law graduate, Anita Hill) during his confirmation hearings. Sneering references to Yale were a standard part of his speeches. As Thomas put it in a talk for
Headway
magazine, a now-defunct conservative publication, in 1998, “I couldn’t get a job out of Yale Law School. That’s how much good it did me. I think I’ll send the degree back, while I’m at it.” Six years later, as the commencement speaker at Ave Maria School of Law, a new institution grounded in Catholic legal principles, he accepted an honorary degree with the quip, “As the rift from my alma mater remains, I will need a degree from a law school.” Thomas frequently did moot courts and commencement addresses at small law schools and Catholic and evangelical colleges, but he never returned to Yale. For speaking engagements, he described his rule as “I don’t do Ivies.”

It was possible to interpret Thomas’s refusal to ask questions at oral argument as a sign of simmering resentment. Even as recently as the 1980s, such silence might have drawn little attention because several justices of that era—among them Brennan, Marshall, and Blackmun—asked relatively few questions. But the Court in the 1990s featured eight active interrogators, making the contrast all the greater. In his public appearances, Thomas was often asked about his reluctance to participate. His answers varied. Sometimes he said he asked questions only if other justices had not covered the subject of interest to him. Other times, he said he gained more from listening than he did by speaking. In private, he would sometimes express frustration with his colleagues for interrupting too much and showing off. In 2000, Thomas explained his silence to a student group by saying that as a youth he was self-conscious about speaking Gullah, a regional dialect of coastal Georgia, and so he “developed the habit of listening.” This last explanation was especially peculiar. It is possible that Thomas spoke some Gullah when he lived in Pin Point, Georgia. But from the age of six, Thomas lived with his English-speaking grandfather in Savannah, where Gullah was rarely spoken, and attended rigorous parochial schools, where he spoke only English and received excellent grades.