WASHINGTON — Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, "But for the grace of God, there go I."
During his confirmation hearing, Thomas explained that he would identify with defendants: "So I can walk in their shoes and I could bring something different to the court."
It is now clear that to Thomas, those remarks did not mean he necessarily would empathize with defendants. During two decades as the court's most consistent conservative, he has taken a tough approach to criminal defendants' cases, showing a disdain for hard-luck tales of bad childhoods and a conviction that defendants accept responsibility.
As several cases this term have shown, criminal law is one area in which Thomas — who almost never speaks during public court sessions — is making his mark. He often writes alone, yet with strong rhetoric that gets attention — particularly in light of his difficult background and professed concern for men who took the wrong path.
"When he steps in the shoes of people," says Stanford University law professor Jeffrey Fisher, "he's more likely to say tough-love is necessary and you have to take responsibility."
It has been almost two decades since President George H.W. Bush nominated Thomas and his Senate confirmation hearings rocked the nation.
Thomas' first set of hearings, when he addressed questions related to the law and why he wanted to be a justice, were eclipsed by the second round that was called after law professor Anita Hill claimed Thomas had sexually harassed her when she worked for him at the Equal Employment Opportunity Commission and Department of Education.
Thomas denied the claim and the Senate eventually approved his nomination, 52-48. Yet Hill's accusations endured as fodder for dinner table conversations and campus debates, as well as late-night comedians. The Thomas-Hill ordeal also became a force in the congressional elections of 1992, when a record number of women were elected to the U.S. House and Senate.
Now, Thomas is the third-longest serving justice on the current nine-member bench. At the time of his confirmation, he was 43. If he serves to the age of his predecessor Thurgood Marshall, who was 83 when he retired, Thomas, who turns 63 this month, could have another 20 years on the bench.
Hill's claims linger in the news, revived last year when Thomas' wife, Virginia, telephoned Hill and asked her to apologize to her husband. Hill declined.
As much as such off-bench activities draw headlines, Thomas is establishing a significant legacy on the law, notably on cases involving prisoners. This spring, he dissented alone when the court threw out a harsh re-sentencing order for an Iowa drug dealer who earlier had won leniency, entered rehabilitation and turned his life around.
Thomas also wrote the court's opinion reversing a $14million civil rights judgment for a New Orleans death-row inmate whose prosecutors had concealed blood evidence that could have helped him prove his innocence. And Thomas wrote a recent opinion against a California convict who claimed his lawyer was ineffective because the jury was never told about his childhood brain injuries, abuse and deprivation.
In that case, Thomas referred disapprovingly to an "infatuation with 'humanizing' the defendant."
"He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them," says George Washington University law professor Orin Kerr , who like Fisher specializes in criminal cases. "The themes you see in his criminal law cases are the themes that you see elsewhere. He says, 'If you do wrong, you have to take the consequences.'"
After two decades, Thomas remains the most controversial justice, and most conservative. He is more to the right than Justice Antonin Scalia in interpreting the Constitution, and Thomas can be the most aggressive of the court's nine members in seeking to overturn past rulings.
In a major 2009 voting-rights case, only Thomas wanted to throw out a provision of a landmark 1965 law that requires states to clear any changes in voting procedures with the Justice Department to ensure changes don't hurt blacks or other minorities traditionally kept from the polls. As he alone dissented, Thomas wrote, "The extensive pattern of discrimination that led the Court to previously uphold (the provision of the 1965 Voting Rights Act) … no longer exists."
Thomas also was the only justice in the 2010 case of Citizens United v. Federal Election Commission who said federal disclosure rules for campaign spending violate First Amendment free speech rights. His dissenting statements have no force of law, but they draw wide attention on law school campuses and in the media. While they often become fodder for his critics, the statements also give Thomas a high-profile way to lay out a counter argument and if not persuade his colleagues, influence others.
In criminal law cases, the conservatism of the court's only African-American justice has been striking.
Thomas signaled his approach early four months after his October 1991 confirmation. He dissented in a case involving a Louisiana prisoner who had been shackled and punched by guards as a supervisor looked on. The beating loosened the inmate's teeth and cracked his dental plate.
The court majority in Hudson v. McMillian ruled the beating violated the Eighth Amendment 's ban on cruel and unusual punishment. Thomas, joined only by Scalia, argued that the Eighth Amendment was not violated by the "insignificant" harm the inmate suffered. The New York Times blasted Thomas' dissenting opinion in an editorial titled, "The Youngest, Cruelest Justice."
Thomas contended the history of the Eighth Amendment limits the scope of its protection for prison life. "Surely prison was not a more congenial place in the early years of the Republic than it is today; nor were our judges and commentators so naïve as to be unaware of the often harsh conditions of prison life," he wrote in the case. "Rather, they simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment."
A decade later, in 2002, Thomas dissented from a decision against Alabama's practice of chaining prisoners to outdoor hitching posts and abandoning them for hours without food or water. At the outset of his opinion, he quarreled with the court majority's use of the term "hitching post." Rather, he wrote, "the apparatus to which (the prisoner) was handcuffed is a restraining bar."
Thomas, joined by Scalia and then-Chief Justice William Rehnquist, dissented from the majority's decision that guards should have known the punishment was unconstitutionally cruel and that the prisoner had grounds to sue.
Now, nearly a decade later, Thomas' pattern of ruling against criminal defendants is only deeper.
" Justice Thomas is probably the most conservative on matters related to crime and punishment, followed closely by Justice (Samuel) Alito" says Cornell law professor John Blume . He notes that Alito, who joined the court in 2006, is a former federal prosecutor.
Thomas often separates himself from fellow justices with his lack of consideration for a defendant's plight. "Some of his opinions reveal a failure to appreciate the facts and circumstances of (a defendant's) life," Blume said, "and a myopic focus on the crime itself."
Thomas declined to be interviewed.
A series of cases this term have shown Thomas' inclinations and overall approach to go it alone.
In the Iowa case, Pepper v. United States , testing trial judges' discretion in sentencing, Thomas dissented from the majority view that a drug dealer's assistance to law enforcement and later rehabilitation could lead to less prison time than U.S. sentencing guidelines dictate.
Breaking from his colleagues on whether the convict should have gotten 24 months, rather than 65, behind bars, Thomas said he believed the longer sentence was required by law. "Although this outcome would not represent my own policy choice," Thomas wrote, "I am bound by the choices made by Congress and the Federal Sentencing Commission."
When Thomas is in the majority with other conservatives on a criminal case, Stanford professor Fisher notes, Thomas often is assigned the opinion for the court. (The most senior member of the majority, typically Chief Justice Roberts , makes the assignment.)
Thomas "doesn't flinch from writing blunt opinions," Fisher says, "even when there may be a feeling among some of the others that something went wrong in a case."
That was the situation in a March case from Louisiana, when the conservative majority ruled that a former death row convict could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence in a separate armed robbery and led him to testify on his behalf in a murder trial.
Thomas dispassionately recounted John Thompson 's situation, brushing past how prosecutors had railroaded him and how close Thompson came to execution. Thomas said that while prosecutors in the New Orleans district attorney office had been caught burying evidence in four prior cases, there was no significant pattern of violations and the district attorney could not be sued for failing to properly train his assistants.
Prosecutors are trained in law school, Thomas emphasized. "Before they may enter the profession and receive a law license," Thomas wrote, "all attorneys must graduate from law school or pass a substantive examination."
The four liberal justices dissented, and Justice Ruth Bader Ginsburg was so provoked that she read portions of her statement from the bench. She stressed the injustice to Thompson and responsibility of former district attorney Harry Connick . She noted that prosecutors have a constitutional obligation to reveal evidence that might exonerate a person: "That obligation was dishonored in this case. Consequently, John Thompson spent 14 years isolated on death row before the truth came to light."
Justice Thomas took the lead in another ideologically divided criminal case this spring, rejecting an appeal from a California murder convict who said his lawyer failed to present evidence of his troubled background that might have gotten him a life, rather than death, sentence.
As Thomas stated in the first sentence of his opinion in Cullen v. Pinholster , Scott Pinholster and two other men broke into a home and fatally beat and stabbed two men who interrupted a burglary.
Thomas played down the facts of Pinholster's childhood that the convict said should have been presented to jurors. Thomas' emphasis contrasted with that of dissenting Justice Sonia Sotomayor.
Thomas wrote: "When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster's stepfather moved in and was abusive, or nearly so."
In her rendition of the facts, Sotomayor noted that it was Pinholster's mother who ran him over as child. Regarding the stepfather, Sotomayor offered no "nearly so" caveat: "Pinholster's stepfather beat him several times a week, including at least once with a two-by-four board," she wrote. "There was so much violence in the home that Pinholster's brother dreaded coming home each day. Pinholster's half-sister was removed from the home as a result of a beating by his stepfather."
She said the majority ignored critical details of Pinholster's case and asserted that "fair-minded jurists could not doubt that," based on the new record, at least one juror would have opposed a death sentence, which would have blocked imposition of the ultimate punishment.
But Thomas, in his opinion, stressed that even if the jury had heard the full story of Pinholster's family problems, he still might have gotten death: "(T)he jury might have concluded that Pinholster was simply beyond rehabilitation."
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