WASHINGTON — When the Smithsonian National Museum of African American History and Culture opened last month, visitors soon expressed dismay at one striking oversight: Justice Clarence Thomas, the only black justice currently on the Supreme Court and the second to serve in the history of the nation, received no special recognition.
Instead, schoolchildren visiting the museum will come across Thomas’ name only in reference to the allegations of sexual harassment raised against him by Anita Hill, during his 1991 Senate confirmation hearings.
Museum officials insist that it wasn’t possible to include every significant black American and no disrespect was intended. But that argument hasn’t stopped the launch of a petition drive that calls for Thomas to be recognized by the museum. And even those who disagree with his jurisprudence say the omission raises questions about political bias regarding a justice who has served the court for 25 years.
“Many in the black community consider his positions injurious, but they reflect the diversity of thought in the community,” acknowledged Bankole Thompson, a columnist for The Detroit News, in a recent essay. “There are black conservatives who view Thomas as a hero. Their views are part of the collective of black history.”
The controversy offered further proof, if such evidence was needed, that Justice Thomas — a pro-life Catholic who bases his judicial decisions on the Founding Fathers’ original intent for the application of constitutional principles — remains a polarizing figure.
A lawyer who once benefited from affirmative action when he applied to Yale Law School, Thomas argued in his 2007 memoir, My Grandfather’s Son, and elsewhere that the practice creates a double standard that shakes the credibility and confidence of minority students who benefit from it.
Yet, in the wake of Justice Antonin Scalia’s death earlier this year, Thomas’ robust and consistent articulation of original intent has only deepened his influence. His judicial philosophy is studied in law schools and continues to inspire a cadre of jurists and legal scholars who embrace his criticism of activist judges who legislate from the bench.
“The most important lesson that Justice Thomas passes along, by example, is to stay true to your views,” said John Yoo, the Emanuel S. Heller Professor of Law at the University of California at Berkeley’s School of Law, who once clerked for Thomas.
“He is a living testament to the principle that every man and woman has the right to think for themselves, regardless of their gender, race, religion or other personal characteristics.”
“He also shows the wages of standing up for his beliefs, as he has been on the receiving end of outrageous criticism and attacks,” said Yoo, who served as deputy assistant attorney general in the George W. Bush administration.
Last year, when the Supreme Court redefined marriage to include persons of the same sex in Obergefell v. Hodges, Thomas wrote a strongly worded dissent that did not disappoint his many admirers.
“The court’s decision today is at odds not only with the Constitution, but with the principles upon which our nation was built,” read his dissent. “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”
Jennifer Bandy, who clerked for Thomas in October 2014 and now works as a lawyer in private practice, singled out that dissent as an excellent example of his judicial philosophy.
“In Obergefell, he wrote a separate dissent explaining why the Due Process Clause does not require states to issue marriage licenses to same-sex couples,” Bandy told the Register.
“The majority claimed that depriving same-sex couples of benefits afforded to married couples deprived same-sex couples of ‘liberty’ and ‘dignity,’” Bandy noted.
“Justice Thomas examined the historical record and concluded that the original understanding of ‘liberty’ in the Constitution was freedom from physical restraint. … It had nothing to do with marriage.”
He further argued that such laws could not deprive the couples of human dignity.
“Consistent with the Declaration of Independence, Justice Thomas explained that human dignity does not come from the government, and nothing that the government does can take it away,” explained Bandy.
Struggles, Doubts and Providence
Clarence Thomas’ journey from the Jim Crow South to the Supreme Court was marked by enormous personal struggle, constant self-doubt and unexpected gifts of Providence.
“We had always believed that we could do as well as whites if we were only given a fair shake — but what if it turned out that we weren’t good enough after all?” he writes in his memoir of his struggle to excel at an all-white high school.
Born in 1948, his father later abandoned his mother and their two sons. The family found refuge with his grandfather, a tough taskmaster and a Catholic who lived in Savannah, Georgia, and placed the boys in a segregated parochial school. Thomas’ memoir describes the inspirational power of the nuns’ belief in his inherent dignity and ability to succeed, no matter his skin color.
He became a Catholic and entered a college seminary. But when he overheard a fellow seminarian make a derogatory remark about the Rev. Martin Luther King Jr., after the civil-rights activist was murdered, he left and went to College of the Holy Cross in Worcester, Massachusetts.
“I was never interested in politics,” the justice told Bill Kristol in a recent video conversation. “The only goal I ever had was to be a priest. Everything else was by default.”
Still, Thomas had been intrigued by the law, a path that reflected the formative impact of To Kill a Mockingbird, Harper Lee’s classic novel that depicts a courageous lawyer standing up for a black man unjustly accused of rape.
After he earned a law degree from Yale University, stints in the federal government followed. By then, Thomas came to believe that the government’s social programs designed to help black people were actually counterproductive and self-reliance was the better path.
As a Republican appointee, he served from 1982 to 1990 as the chairman of the Equal Employment Opportunity Commission (EEOC). Before long, he found himself in the crosshairs of black civil-rights activists, who saw busing, welfare and affirmative action as necessary steps to overcome racial inequality.
In 1991, after the death of Justice Thurgood Marshall, the first black justice on the high court, President H.W. Bush nominated Thomas, by then a judge on the U.S. Court of Appeals for the District of Columbia.
Like Judge Robert Bork, another originalist jurist who faced fierce opposition when he was nominated by President Ronald Reagan to the Supreme Court, Thomas was attacked as an outlier who would sweep away Roe v. Wade.
“Justice Thomas, for whom the right to privacy may seem anathema, might seek to replace Roe, not with a system that strengthens states’ rights, but with a decree that abortion is murder and that its practice or counseling cannot be permitted by any state,” warned Lawrence Tribe, the influential Harvard law professor in a 1991 op-ed in The New York Times.
Amid the bruising Senate hearings for his confirmation, Anita Hill, a black lawyer who had worked under Thomas at the EEOC, came forward to accuse him of sexual harassment, claims that Thomas vehemently denied.
“We knew before we went in that the left would galvanize and throw everyting at him,” Ginni Thomas, the justice’s wife, told the Register, as she recalled the devastating impact of the accusations and the time she and her husband spent seeking solace in prayer and scriptural reading.
“I have never felt the power of other people’s prayers like we did back then.”
Thomas would describe the attack on his reputation as a “high-tech lynching.” And while Hill failed to convince the Senate of the veracity of her claims, the allegations have continued to cast a shadow over Thomas’ legacy.
Exhibit A is the Smithsonian museum’s depiction of Anita Hill as a trailblazer for women who encountered sexual harassment in the workplace. And earlier this year, HBO released Confirmation, a film that also took Hill’s side.
Yet those who are close to Thomas say he has gained much-needed perspective since the confirmation fight, in part, through the deepening of his Catholic faith.
“In his office he has a picture of St. Thomas More, and on the back of his door is the ‘Litany of Humility,’” noted Carrie Severino, another former clerk who now serves as chief counsel and policy director for the Judicial Crisis Network.
“He sees the importance of humility,” she said, even when people “ridicule him simply because they don’t like his opinions. That is what gives him the strength to continue fighting.”
Originalism and Natural Law
Over his many years at the high court, Thomas has joined his originalist jurisprudence with natural-law principles that affirm the inalienable dignity of each human being and the natural family as the fundament unit of society.
Teresa Collett, a professor at the University of St. Thomas School of Law, pointed to Thomas’ opinion in Troxel v. Granville, a case that involved grandparents’ rights, as a good example of his distinctive reliance on natural-law principles.
“There was a claim that there was a constitutional right to continue contact with the grandparents,” explained Collett. “The text of the Constitution does not protect parents’ right to direct the upbringing of their children or the extended family’s continued contact, and so, for Scalia, that was the end of any discussion on familial rights.”
“Thomas gave a much more robust description of the natural family and its place in the political structure,” Collett said, “being the smallest unit of society and the foundational building block [that exists] prior to government.”
In 2000, after the court struck down Nebraska’s partial-birth abortion ban in Stenberg v. Carhart, it was Justice Thomas who stood up to read a blistering dissent, which included graphic details of the late-term abortion procedure that “the court hesitates even to describe.”
Under Planned Parenthood of Southeastern Pennsylvania. v. Casey, he said, laws restricting abortion that did not place an undue burden on women’s access to the procedure could be found constitutional.
“But the court’s abortion jurisprudence is a particularly virulent strain of constitutional exegesis,” Thomas stated. “And so, today, we are told that 30 states are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.
“I respectfully dissent.”
In June, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down Texas’ laws restricting abortion businesses. But Justice Thomas, in his dissent, challenged the legal standard adopted by the majority and argued that “nothing but empty words separates our constitutional decisions from judicial fiat.”
A Principled Legacy
Hannah Smith, another former clerk of the justice and a senior counsel for the Becket Fund for Religious Liberty, a public interest group that represents EWTN, the parent company of the Register, in its legal challenge to the Health and Human Services’ contraceptive mandate, celebrated Thomas’ principled legacy.
“Justice Thomas’ most enduring contribution to the law is that he truly believes that we should interpret the Constitution as it was drafted, not as he would have drafted it,” said Smith.
While some legal scholars disparage the justice’s refusal to adapt his judicial philosophy to changing times, Smith applauded his record.
“His fearlessness as a frequent lone dissenter gave his clerks an example of standing on principle, even when it’s not popular,” she said.
“His example in this regard is something I have thought of often in my legal career defending religious liberty for all.”
During the court’s 2016-2017 term, the justices will likely address a number of cases of special interest to Catholics, including legal challenges to the HHS contraceptive mandate filed by religious nonprofits like the Little Sisters of the Poor. Last week the court also agreed to hear a transgender rights case that will be closely watched by church leaders and religious-freedom advocates.
If Hillary Clinton is elected president, and a liberal jurist joins the high court, Justice Thomas’ fortitude could be further tested as an ideologically divided court shifts decisively to the left.
Yet friends expect the deep sense of hope that has sustained him over the course of a tumultuous life will keep him on course.
“I am Catholic, and one of the great sins was to despair,” Thomas has said. “We have to be hopeful.”
Joan Frawley Desmond is the Register’s senior editor.
A Wife's Vew: Ginni Thomas: Discusses Her Husband and Her Version
Virginia “Ginni” Thomas is the wife of Justice Clarence Thomas and a Catholic convert. Since 2011, she has been a special correspondent for the Daily Caller News Foundation producing videos of emerging leaders and educators in the public square.
She spoke with the Register's Joan Frawley Desmond and discussed her husband’s 25 years on the U.S. Supreme Court, and her own conversion to the Catholic faith.
Your husband, Justice Clarence Thomas, has said that the women religious who educated him at a Savannah, Georgia, parochial school gave him the academic skills and self-confidence he needed to succeed. What made the difference?
The nuns conveyed love, as if his skin color didn’t matter, even though he was in a Deep South segregationist environment.
Sister Mary Virgilius Reidy [a member of the Institute of Missionary Franciscan Sisters] and the former principal of St. Benedict’s School in Savannah. Georgia, came to testify for him at his confirmation hearing. She was a part of his life for a long time. When he was in her classroom she’d tell him he was being lazy, instead of using his potential. That message from sister got him into a new place.
His grandfather was Catholic, and he hoped Clarence would be on the path to become a priest. He would always say, “I know you will be a lawyer or preacher because of how you argued with me.”
The justice has called the decision to send him to parochial school “providential,” an acknowledgement of the odds stacked against someone like him at that time.
One of the best and most remarkable things about Clarence is that when he is with disadvantaged young people they cling to him like flies to flypaper. One question they inevitably ask is, “How did you do this without a father?” They are struggling, and they cling to someone who is on a path [to success] and is one of them.
Initially, Justice Thomas wanted to be a priest and attended high school and college seminaries. What changed his mind?
He was at Conception Seminary College, a seminary in Missouri, when the Rev. Martin Luther King, Jr. was killed. He overheard a fellow student say something derogatory about King. He thought it was such an offense and expected something more from classmates who were becoming men of the cloth.
His grandfather was quite angry with him for leaving that path. So he was on his own and had to figure how to pay for the College of the Holy Cross.
What was it like to stand by his side during the 1991 confirmation hearings, when Anita Hill accused him of sexual harassment?
We knew before we went in that the left would galvanize and throw everything at him.
But after the allegations, which were completely false, it became something different, [like] spiritual warfare.
I was a Protestant then, and became a Catholic in 2002. Win or lose we were just trying to survive, and the prayers of the country and our own spiritual refocusing helped us.
At that time, we had been married for four years. It bonded us to go through that together. I have never felt the power of other people’s prayers like we did back then.
Why did you become Catholic?
He practices his faith every day, and reads the Litany of Humility often. I was inspired by his example of walking the walk as a Christian and being fed by mass. I am still in training.
Your husband had a close relationship with Justice Antonin Scalia. Can you tell us about it?
Both Nino and Maureen [Scalia] really loved and prayed Clarence back to the Church.
Nino and Clarence had a wonderful working relationship where they would buck each other up. They came at their jobs from completely different backgrounds, but were full partners. They didn’t always agree, and they handled the disagreements well.
Justice Thomas has spoken of his annual trips in a mobile home across the country, and he also uses takes his clerks on a trip to Gettysburg at the end of the court’s term. What started that?
A friend of ours told Clarence that he was missing the “flyover country,” and also told him about motor homes.
That was 17 years ago. We have been to 36 states. What he loves about it is that it allows him to be more anonymous and see the whole country. He came from a segregated place where he couldn’t travel, so he loves to be on the road and to tinker with his bus.
People come up and say, ‘You look familiar, are you a football player?”