No Doubting Justice Thomas
Jan. 22, 2007— -- Find candidates for the Supreme Court who'd resemble Justices Clarence Thomas and Antonin Scalia.
Those were the marching orders that President Bush gave his legal advisers in the earliest days of his administration.
Bush wanted justices like Thomas and Scalia. He wanted to nominate solid judicial conservatives who would reject the liberal line on abortion, affirmative action and presidential power, and not succumb to pressure from the left when negative reviews from The New York Times' editorial pages started rolling in.
On Bush's marquee, Thomas -- not Scalia -- got top billing, which contradicts the conventional wisdom on the often-maligned and most misunderstood justice. And a wealth of recently unearthed documentary evidence shows conclusively that the portrayal of Thomas as a dutiful understudy to Scalia is patently wrong.
In her new book, "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court," ABC News correspondent Jan Crawford Greenburg was allowed an unprecedented look at the highest court in the land, starting with the Rehnquist court and extending through the nominations of Samuel Alito and John Roberts.
Supreme Court Stereotypes
Noel Francisco, who clerked for Scalia a decade ago, said the misconception stems partly from the mistaken view that "all conservatives basically think alike. So they look at Scalia and Thomas, they see they're both conservatives they must think alike."
And if Thomas and Scalia think alike, the old storyline went, it must be Thomas following Scalia.
"The other thing you have is the very unfortunate and wrongheaded stereotype that for some reason Justice Thomas isn't smart," Francisco said. "And so they naturally assume that because Justice Scalia and Justice Thomas think alike that it must be Justice Thomas following in Justice Scalia's footsteps."
Thomas's supporters -- and Thomas himself -- believe that criticism has a racial subtext. So do some critics, including Julian Bond, chairman of the NAACP and a longtime opponent of Thomas.
"It may have been in some peoples' minds that Thomas, because he's black, wasn't up to speed, wasn't able to think in the same kind of way," Bond told "Nightline" in an exclusive interview.
Bond said he read the stories about "Thomas walking in Scalia's shoes" and believed them himself.
"I think it really had to do with Scalia's own brilliance, that this guy is so smart, he must be telling Thomas what to do," Bond said.
An Independent and Forceful Presence
Detailed notes and memos in the papers of the late Justice Harry Blackmun tell a different story. Those documents, which are housed in the Library of Congress, show that from his first days on the bench, Thomas was an independent and forceful presence.
Rather than Thomas following Scalia in voting on key cases, the documentary trail shows just the opposite. Thomas signaled a willingness to be a lone dissenter if necessary, and often, Scalia was persuaded to his view.
Helgi Walker, who clerked for Thomas 10 years ago, said "the idea that Justice Thomas was waiting to hear what Justice Scalia or any other justice thought first" was laughable. "Justice Thomas formed his own opinions early on, in his chambers."
Thomas and Scalia do agree on many things: They have voted to overturn abortion rights guaranteed by the landmark Roe v. Wade decision, to ban affirmative action and to allow prayer in schools. But they differ in important ways. Thomas, for example, is bolder than Scalia, and seems more willing to overturn old cases.
'Intellectual Vision'
Scalia's former clerk Francisco said Thomas had "helped ground the law much more in the text of the Constitution, in its history, and to start moving the Court back toward an understanding of the Constitution that is consonant with what it was at the time the country was founded."
That's an approach that Georgetown Universtiy law professor Neal Katyal, a liberal, disagrees with. But Katyal said Thomas' critics have underestimated his contribution to the law.
"This is a justice with enormous intellectual capability and intellectual vision," Katyal said.
Last year Katyal argued one of the most important cases on the limits of presidential power in a century before the Supreme Court. He represented Salim Hamdan, accused by the U.S. government of being Osama bin Laden's bodyguard and slated to be tried before a military commission. The Supreme Court ruled the military commissions were illegal. Thomas wrote a dissenting opinion.
"Justice Thomas' opinion is deeply powerful," Katyal said, noting that Thomas managed to come up with legal history "that the entire resources of the government, all of their months of research never found, in support of the government's position" in the case.
Katyal said he believes Thomas's opinion was wrong, but "one can't read that opinion without coming away with a deep respect for the man and what he's brought to the Court."
Continuing Criticism
Still, the portrayal of Thomas as a legal lightweight persists. Just two years ago, incoming Senate Majority Leader Harry Reid ridiculed Thomas during an appearance on NBC's Meet the Press, saying "he has been an embarrassment" to the Supreme Court.
"I think his opinions are poorly written," Reid said of Thomas. "I just don't think he's done a good job as a Supreme Court justice."
Yet, when asked about Scalia, Reid said, "I cannot dispute the fact, as I have said, that this is one smart guy."
The NAACP's Bond said that kind of criticism is off the mark.
"It's his opinions that I really object to, not his abilities," said Bond. "Nobody questioned his intelligence, his academic background, his law school background. It was the positions he held which were anathema to the civil rights community."
'Extreme to the Extreme'
Bond said that the documentary evidence of Thomas' influence on Scalia -- while surprising -- only reinforces his view that the Court's sole African-American justice is outside the mainstream. He calls Thomas "way outside the range of jurisprudence" and argues that the justice takes "an extreme position. Extreme to the extreme."
Bond said Thomas' approach to the law has been even more troubling to civil rights activists because Thomas replaced the liberal icon Thurgood Marshall.
"And along comes Thomas taking what people think of as 'the black seat,' and he does exactly the opposite of what Marshall had done in every conceivable way," laments Bond. "The effect of what he said and did and wrote was such a great break from what Justice Marshall had done it was just abhorrent to most people."
Thomas has said his critics assume all black people must think alike.
Bond, for his part, argues that on fundamental issues about civil rights, "all black people do think alike." Clarence Thomas, Bond said, "is a black person who doesn't think like most black people do," even though he has personally benefited from the greater opportunities forged through years of struggle.
Uninterested … Or Courteous?
Another criticism of Thomas, one also lodged against Thurgood Marshall, is that he is uninterested and unengaged. The evidence, accusers charge, can be seen during the oral arguments before the Court, where Thomas usually sits silently, while other justices pepper the attorneys with questions.
"It's just courtesy," said former clerk Walker in Thomas' defense. "It's also the way the Court used to function. It used to be that lawyers were allowed to present their cases on behalf of their clients to the Court, and Justice Thomas thinks you ought to let the lawyers talk."
Georgetown's Katyal agreed. "Some justices ask a lot of questions and others don't. That's just a matter of style."
Thomas' friends have begged him to ask a few questions just to dispel the notion that he's not engaged, but he steadfastly refuses and dismisses his critics. "They have no credibility," he said. "I am free to live up to my oath."
The bruising confirmation battle that led to his appointment -- and the unrelenting criticism in the 15 years since -- have inured Clarence Thomas to criticism. He has forged his own independent path, one that has made him today the Court's most conservative justice.
Bond said that the documentary evidence of Thomas' influence on Scalia -- while surprising -- only reinforces his view that the Court's sole African-American justice is outside the mainstream. He calls Thomas "way outside the range of jurisprudence" and argues that the justice takes "an extreme position. Extreme to the extreme."
Bond said Thomas' approach to the law has been even more troubling to civil rights activists because Thomas replaced the liberal icon Thurgood Marshall.
"And along comes Thomas taking what people think of as 'the black seat,' and he does exactly the opposite of what Marshall had done in every conceivable way," laments Bond. "The effect of what he said and did and wrote was such a great break from what Justice Marshall had done it was just abhorrent to most people."
Thomas has said his critics assume all black people must think alike.
Bond, for his part, argues that on fundamental issues about civil rights, "all black people do think alike." Clarence Thomas, Bond said, "is a black person who doesn't think like most black people do," even though he has personally benefited from the greater opportunities forged through years of struggle.
Uninterested … Or Courteous?
Another criticism of Thomas, one also lodged against Thurgood Marshall, is that he is uninterested and unengaged. The evidence, accusers charge, can be seen during the oral arguments before the Court, where Thomas usually sits silently, while other justices pepper the attorneys with questions.
"It's just courtesy," said former clerk Walker in Thomas' defense. "It's also the way the Court used to function. It used to be that lawyers were allowed to present their cases on behalf of their clients to the Court, and Justice Thomas thinks you ought to let the lawyers talk."
Georgetown's Katyal agreed. "Some justices ask a lot of questions and others don't. That's just a matter of style."
Thomas' friends have begged him to ask a few questions just to dispel the notion that he's not engaged, but he steadfastly refuses and dismisses his critics. "They have no credibility," he said. "I am free to live up to my oath."
The bruising confirmation battle that led to his appointment -- and the unrelenting criticism in the 15 years since -- have inured Clarence Thomas to criticism. He has forged his own independent path, one that has made him today the Court's most conservative justice.