Will Clarence Thomas Be the Court's Next Chief Justice?
Why It's Very Unlikely That Bush's Advisors Will Ultimately Recommend His Nomination

By EDWARD LAZARUS
Thursday, Jan. 06, 2005

With Chief Justice Rehnquist's continued absence from the Court, speculation is mounting over whom President Bush may choose to be Rehnquist's successor, if Rehnquist retires. In recent weeks, this speculation has focused with increasing sharpness on Justice Clarence Thomas -- the youngest member of the current Court, its only African-American, and the justice who is farthest to the right in terms of legal ideology.

Conservatives are quite enamored with this idea. Indeed, they have taken to fueling the rumor mill with laudatory Op-Ed columns and some fairly unsubtle encouragement.

Meanwhile, liberals are increasingly apoplectic. They have a hard time even contemplating that Thomas - whom they deride as an intellectual troglodyte who perjured himself regarding Anita Hill in order to get onto the Court -might preside over the world's most powerful judicial body.

Despite all the talk, however, I think it is relatively unlikely that President Bush will fulfill the hopes of archconservatives or the fears of their liberal counterparts.

It's not a concern about controversy that will cause Bush to hesitate: Indeed, Bush seems to delight in confronting Democrats with controversial and politically vexing appointments. (Just witness his recent decision to re-nominate all the Court of Appeals nominees that Senate Democrats successfully filibustered in the last Congress).

But Bush will nevertheless pass over Thomas. Why? Because, I believe, he and his advisors will ultimately decide that, ironically, appointing Thomas to be the next Chief Justice would probably disserve their goal of advancing a more conservative agenda at the Court.

A look at Thomas's views, and at the role of an effective Chief Justice, reveals why.

Don't Believe the Hype: Many Liberals' Views of Thomas Turn Out to Be Inaccurate

To see Thomas, as a Justice, clearly, it's first necessary to put aside many of the inaccurate claims that have been made about him.

In liberal circles, Thomas is often derided as an intellectual lightweight whose deep resentments fuel a passionate but unprincipled conservative judicial record. Often, liberals dismiss Thomas as a Scalia clone who can't think for himself.

As evidence for their claim, liberals almost universally point to his habitual silence at the Court's oral arguments. Surely, they say, this silence must be a sign of Thomas's indifference, his ill-preparedness, or his inability to engage in intellectual sparing with the lawyers who appear before him.

Much of this description of Thomas, however, has little grounding in reality. Court insiders (including ex-clerks who don't like Thomas's views) tend to agree that Thomas is plenty smart and intellectually engaged in the Court's work. They concede that Thomas's clerks do much of the heavy lifting in his opinions. But there is also no denying that Thomas has produced a body of incisive, provocative opinions that merit (and are increasingly receiving) serious attention.

In other words, whatever the reason for Thomas's consistent silence at oral argument, it isn't a lack of ability, nor is it any shirking of his duties. Those who suggest otherwise conveniently forget that, like Thomas, some of their own heroes (including very conscientious justices such as Harry Blackmun) only rarely contributed to oral argument.

Additional Years on the Court Have Proven Thomas Is Not a "Scalia Clone"

It is also wrong to suggest that Thomas is a Scalia clone (though this description was more apt in Thomas's first few years at the Court). To the contrary, in recent years, Thomas seems very self-consciously to have staked out a position distinctly to the right of Scalia on numerous issues.

Last term, for example, in Elk Grove Unified School District v. Newdow (the Pledge of Allegiance case), Thomas broke from Scalia's already conservative position favoring a more modest separation of Church and State. Thomas's view is much more extreme - so much so, that no other justice in the modern era has taken this view.

Thomas declares that the First Amendment's Establishment Clause (which creates the Church/State separation) applies only to the federal government, and not to the fifty states. As a result, according to Thomas's view, states are not prohibited from establishing a religion, as long as they do not violate citizens' rights - such as their First Amendment rights to the free exercise of their religion in doing so.

Thomas's View on Stare Decisis: Refusing To Give Court Precedent Weight

The growing distinction between Thomas and Scalia, moreover, is not merely that they reach some different substantive conclusions. Rather, Thomas and Scalia diverge over one of the most basic issues of judicial philosophy - the issue of stare decisis. ("Stare decisis" - Latin for "let the decision stand" -- is the legal term for the deference a judge should give to past decisions, even those he deems erroneous, in order to maintain continuity in the law.)

In a recent biography of Clarence Thomas, Scalia himself made the point. Thomas, Scalia commented, "doesn't believe in stare decisis, period." If Thomas thinks a decision is wrong, that's the end of the analysis; it should be overturned. "I wouldn't do that," Scalia continued.

Thomas's record on the Court bears out Scalia's observation. Thomas has authored a slew of solo opinions (thirty-five, by one count) expressing a willingness to re-examine a wide range of well-established precedents.

The best known example is Thomas's 1995 concurrence in United States v. Lopez. There, Thomas indicated his interest in reversing the sixty years of Commerce Clause jurisprudence - despite the fact that these precedents undergird the federal government's protection of civil rights, worker safety, and the environment.

No precedent is untouchable under Thomas's approach. A few years ago, Thomas even questioned Calder v. Bull, a touchstone of retroactivity law since 1798.

Thomas's approach to stare decisis, and the positions to which this approach leads him, make Thomas an outlier on this Court. His conservatism - which leads more liberal justices to decline to join his opinions - is well-publicized. But his idiosyncrasy - which leads even his conservative colleagues to force him to write alone - is much less remarked.

There is nothing intrinsically wrong with such fierce independence in a justice. But it does make Thomas a dubious choice to become Chief Justice.

A Justice Who Is An Outlier Is Likely to Be A Poor Choice for Chief

Bush and his advisors will doubtless take Thomas's idiosyncrasy in account in considering whether he will make a good Chief Justice. They will probably conclude that it will be a severe impediment to his potential effectiveness in that role.

Within the Court, neither the Chief Justice's vote nor his jurisprudential views technically carry any more weight than those of the other justices: He is still just one vote out of nine. Nonetheless, a Chief Justice does possess several powers that give him or her a unique ability to influence the other justices -- and, over time, to affect the ideological direction of the Court.

In particular, the Chief Justice hosts the secret conference at which the justices vote on cases. At this Conference, he or she is the one who speaks first in the discussion of every case, thereby setting the agenda and tone of the discussion.

Even more important, when the Chief votes with the majority, he gets to choose which justice will write of the majority opinion. If he wants to, he can choose himself. Or he can choose among his similar-minded colleagues, with a view to the kind of opinion he predicts each of them will write.

The most influential Chief Justices - the John Marshalls and Earl Warrens - have mixed a wise use of these powers with a keen sense of diplomacy to move the Court in their preferred direction. But a key ingredient has always been the Chief's willingness to compromise his own views at times. This willingness is crucial, for it allows the Chief to create majorities that would not otherwise exist, and to prevent other justices from taking the court too far in the wrong direction.

Even as strong-minded a Chief as Rehnquist has resorted to these methods at times. For example, he strategically choose to author the opinion in Dickerson v. United States, which re-affirmed Miranda - the Warren Court decision that required police to read suspects their rights.

Doubtless, Rehnquist would have preferred that Miranda be overruled. But he simply did not have the votes for his position. So he switched his own vote, used his power as Chief to assign the opinion to himself, and wrote a tepid re-endorsement of Miranda.

From his point of view, the alternative was far worse: letting the far more liberal Justice John Paul Stevens write what undoubtedly would have been a much more resounding re-affirmation of Miranda that would have further embedded the precedent, and invited others like it.

If a Chief Justice Must Be A Compriser, Thomas Is Unlikely to Fit the Bill

Such strategic compromise would hardly seem to be Thomas's strong suit. To the contrary, the evidence suggests that, unlike the most effective Chief Justices, Thomas may refuse to ever vote against his own sincerely-held views. To him, it seems, his vote must express his view completely and totally; it is not also sometimes a form of leverage to achieve the best long-term outcome.

It is said that Thomas's favorite movie is "The Fountainhead" - a film based on the Ayn Rand novel in which the protagonist, an architect, blows up his own building rather than compromise the purity of his architectural vision. Indeed, Thomas's allegiance to this story is so strong that, each year, he requires his new law clerks to attend a screening that he hosts.

As Chief, Thomas would frequently face the unpalatable choice of either compromising his own views, or letting the real lawmaking at the Court fall to other justices. Either way, his influence would be muted. A Chief Justice who frequently writes alone - as Thomas seems bent on doing - and whose view of the law is idiosyncratic - as Thomas's plainly is - may be Chief in name only.

In short, from the conservative perspective, it would be far more effective to keep Thomas as an associate justice. There, he can stake out his relatively radical views unencumbered.

For now, he may be speaking for himself. But over time, his opinions still give weight and credibility to legal positions that have been long neglected in history's dustbin. Indeed, it is this prospect, rather than Thomas's possible elevation to Chief Justice, that should be giving liberals real fits.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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