Hitting His Stride

• Author: Mark Walsh
• Pages: 20-21

Justice Clarence Thomas is known for rarely speaking during oral

arguments at the U.S. Supreme Court. But it was a chatty and jovial

Thomas who appeared in the courtroom last month—several hours

after the day’s court session had adjourned—for a conversation with

an interviewer before members of the Supreme Court Historical Society.

“I really don’t have a lot of stress. I cause stress,” Thomas said with a laugh to

fi nancier and philanthropist David Rubenstein on June 3 .

20 || ABA JOURNAL JULY-AUGUST 2019

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‘Hitting His Stride’

After nearly 30 years on the court, Clarence Thomas’ supporters and detractors

are still debating who he really is

By Mark Walsh

Thomas has reason to smile. With Justice Anthony M.

Kennedy’s retirement last year and the confi rmation of

Brett M. Kavanaugh to fi ll his seat, the court is widely

perceived as having moved to the right, where Thomas

has been all along. And Thomas is now the longest-serv-

ing member of the court and the senior associate justice.

(Chief Justice John G. Roberts Jr. is considered most

senior because of his position, and he assigns opinions

when he is in the majority.)

President Donald J. Trump has nominated many of

Thomas’ former law clerks to federal judgeships or impor-

tant positions in the executive branch , including eight to

the federal courts of appeals .

And this past term, Thomas has continued to let his

judicial pen do most of the talking as he wrote provoca-

tive solo opinions in areas such as abortion , freedom of

the press and the right of criminal defendants to be repre-

sented by a lawyer .

“I would say he’s hitting his stride,” says Carrie

Severino, a former law clerk to Thomas who is the chief

counsel and policy director of the Judicial Crisis Network,

a conservative group focused on court nominations. “It’s

great to have someone of his stature and his ability on

the court, and a real leader of the originalist wing of the

court.”

RETIREMENT RUMORS

With all this going for him, could Thomas possibly be

considering retiring after nearly 28 years on the court?

That’s a theory that emerged this spring based on the idea

that stepping down now would give Trump the opportu-

nity to keep his seat occupied by a solid conservative for

another quarter-century or more.

Thomas, who turned 71 last month , emphatically told

a crowd at a Pepperdine University School of Law event

in Beverly Hills, California, in late March that he was not

retiring, not even in 20 years or 30 years.

At the Supreme Court Historical Society event, Thomas

said his wife, Virginia Thomas, informed him of a news

alert she had received that suggested he was retiring.

“Wow. Glad to know that,” was Thomas’ response, he told

Rubenstein. “I have no idea where this stu comes from.”

Unless Thomas pulled o a major head fake and

announced retirement plans at the end of the term

(after this column went to press), he is poised to help

shepherd the newly more conservative court in a right-

ward direction.

Thomas was active this term in fi ling separate opin-

ions—often solo concurrences or dissents, but sometimes

joined by new conservative colleagues such as Kavanaugh

or Justice Neil M. Gorsuch, who joined the court in 2017.

In February, Thomas concurred in the court’s denial of

review of a defamation case brought against Bill Cosby,

the comedian and convicted sex o ender. In that case,

a woman who alleged she was a victim of Cosby’s was

found to be a limited-purpose public fi gure under libel

law by the district court, and the Boston-based 1st Circuit

upheld. Thomas said in McKee v. Cosby that he agreed the

high court should not take up that “factbound question”

of whether she was a public fi gure.

But he went on to write 14 pages questioning a land-

mark Supreme Court free press decision, New York Times

Co. v. Sullivan, which set a standard limiting public fi g-

ures from winning libel suits unless the statements in

question were made with “actual malice,” meaning with

the knowledge they were false or made with reckless dis-

regard for the truth.

“There are sound reasons to question whether either

the First or Fourteenth Amendment, as originally under-

stood, encompasses an actual-malice standard for public

fi gures or otherwise displaces vast swaths of state defama-

tion law,” Thomas wrote.

“I write to explain why, in an appropriate case, we

should reconsider the precedents that require courts to

ask” whether libel plainti s should be classifi ed as public

fi gures, he wrote. The phrase “in an appropriate case” is

one Thomas uses often to invite litigants to follow up on

his theories.