The Oath

by Jeffrey Toobin

  On occasion, especially in television interviews, Ginni was asked about her husband’s view of her activities. At a Dallas appearance, she said, “My husband and I do really different things, by the way, but there was a tornado over our wedding when we got married. God knew that we were both troublemakers coming together. I do policy, he does law, and I don’t understand that world and I’m glad God didn’t tell me to do that, because I don’t know how to do that.” Justice Thomas, too, often drew the same law-versus-policy distinction when he was questioned about his wife’s work. Actually, both Thomases overstated Ginni’s ignorance about legal matters. After all, she was a lawyer, and she, too, invariably invoked the Constitution as the authority for smaller government.

  As the midterm campaign of 2010 built toward its climax, Ginni Thomas’s activities became so prominent that she drew some journalistic scrutiny. On Saturday, October 9, the New York Times ran a front-page story headlined “Activism of Thomas’s Wife Could Raise Judicial Issues,” which was a straightforward account of Ginni’s political campaign.

  At 7:31 that morning, Ginni decided to make a phone call.

  19

  THE THOMAS COURT

  The Clarence Thomas–Anita Hill hearings remain one of the great set pieces of recent American history. Even two decades later, the facts are familiar. Anita Hill, also a graduate of Yale Law School, worked on Thomas’s staff at the Department of Education and then at the Equal Employment Opportunity Commission. According to her testimony, Thomas made a series of crude advances to her, which included references to pornographic movies starring Long Dong Silver and utterances like “Who has put pubic hair on my Coke?” Thomas denied her allegations categorically and denounced the hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.” On October 15, 1991, Thomas was confirmed in the Senate by a vote of 52–48.

  Neither the Judiciary Committee nor any other government office has seen fit to reexamine the controversy, although a good deal of evidence has since emerged about the protagonists and their testimony. Near the end of the hearings, several other women who had worked for Thomas were prepared to corroborate Hill’s testimony that Thomas had a history of making female subordinates uncomfortable with personal and sexual talk. The group included Angela Wright, Rose Jourdain, and Sukari Hardnett; other associates of Thomas’s, among them Kaye Savage and Fred Cooke, would have sworn to the nominee’s long-standing interest in pornography, again corroborating Hill’s account. But Joseph Biden, then the chairman of the Judiciary Committee, decided not to call these witnesses. In 2011, Lillian McEwen, a Washington lawyer who had a long-term romantic relationship with Thomas before he met Ginni, published a memoir, D.C. Unmasked & Undressed. She, too, remarked on the justice’s “strong interest in pornography.” She also said that Thomas had designated certain colleagues as prospective sexual partners. In short, virtually all the evidence that has emerged since the hearings corroborated Hill’s testimony.

  Over the last twenty years, Clarence and Ginni Thomas built their lives away from such troubling reminders. They conducted their social and political lives in protected spaces. Ginni made many speeches, but only in front of supportive conservative crowds. Justice Thomas spoke at law schools and Federalist Society events, where he generally received a warm welcome. In Washington, the couple was a pillar of the conservative movement, socially as well as professionally. They threw parties at their home for like-minded friends and acquaintances. The Thomases hosted at their home, and the justice officiated at, the third wedding of Rush Limbaugh. (Thomas attended, but did not preside at, Wedding No. 4.) Other friends included the radio talk show host Mark Levin. Thomas was also close to Harlan Crow, a Dallas businessman and supporter of conservative causes who funded a museum in Thomas’s hometown of Pin Point, Georgia. According to Politico, it was Crow who made the $500,000 contribution to Liberty Central, Ginni’s Tea Party organization. Justice Thomas apparently spoke to a Federalist Society event that was part of the conference of conservative funders sponsored by Charles and David Koch, who are leading benefactors of the Tea Party movement. In addition, the justice was also a regular at Bohemian Grove, the annual all-male conclave in Northern California. In his social life, Thomas clearly differed from his frequent ally Scalia, who was well known for his friendship with Ginsburg, his ideological opposite and a fellow opera buff. (“I’m not really a Washington-type person,” Thomas said at a law school appearance. “I don’t sort of like hanging out at the opera and that sort of thing.”) Even in the current highly polarized political environment, many members of Congress shared friendships across the aisle. But the Thomases chose to live in a bubble where everyone believed Thomas had told the truth in 1991. In fact, Ginni may have thought everyone else did, too.

  All of which may explain her telephone call on October 9, 2010. At 7:31 a.m., she left a voice mail for Anita Hill, at her office at Brandeis University, where Hill teaches. “Anita Hill, it’s Ginni Thomas. I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.” She went on: “So give it some thought. And certainly pray about this and hope that one day you will help us understand why you did what you did. O.K., have a good day.”

  Hill reported the call to the Brandeis police, and its contents soon leaked to the press. News of the bizarre voice mail revived interest in the Thomas-Hill matter, which had been dormant for years; much of the publicity noted the abundant evidence that Hill, not the future justice, told the truth at the hearing. Many in the media mocked Ginni’s phone call. In an interview with the Daily Caller, a conservative website for which she later became a “special correspondent,” she insisted her voice mail was “a private matter” that was “probably a mistake on my part.”

  The controversy, especially the ridicule of his wife, took a toll on Justice Thomas, as he made clear in an emotional appearance at a Federalist Society event at the University of Virginia School of Law, in February 2011. “This is about our country, and one of the things I want to do is I want to go to my grave knowing that I gave everything I have to trying to get it right. And all I ask of you all, especially those of you who are still in school, is you give it your best,” Thomas said. “I watch my bride who, in doing the same things, when she started her organization, she gives it 24/7 every day, in defense of liberty. You know, and maybe that’s why we’re equally young and we love being with each other because we love the same things; we believe in the same things. So, with my wife and the people around me what I see unreinforced is that we are focused on defending liberty. So, I admire her and I love her for that because it keeps me going.” In conclusion, he said, “My bride is with me, Virginia Thomas, and some of you may know her. But the reason that I specifically bring it up: there is a price to pay today for standing in defense of your Constitution.”

  For those whose picture of Thomas remains frozen at the time of his confirmation hearings more than two decades ago, the justice today is a startling sight. His jet-black hair is almost completely white. He has gained a great deal of weight. (An injury long ago ended his days on the basketball court.) His gait is weary, and he looks older than his sixty-five years.

  To the broad general public, Thomas was largely known only for two things. The first, of course, was the drama of his showdown regarding Hill. The second was his silence on the bench. Thomas last asked a question during oral argument in February 2006. No justice in the modern history of the Court has gone as long as a single year without asking a question; Thomas is well into his seventh consecutive year. In his public appearances, Thomas has often been asked about his silence; sometimes he has brought it up himself. Over time he has refined his answer, usually saying that he thinks the other justices ask too many questions and that the lawyers should be given a chance to speak for a time without interruption. At an appearance at a Hillsdale College dinner in Washington, in
2007, he said, “My colleagues should shut up!” At a law school talk in 2010, Thomas was asked what might change his mind about a case. “If my colleagues would let me talk,” he said with a small laugh, then added, “assuming that improbability.”

  Thomas had a point. During his tenure on the Court, the other justices became notably more aggressive, and lawyers sometimes had trouble getting a word in edgewise. Even the chief justice, at an appearance in West Virginia in 2011, expressed the view that he and his colleagues might be talking and interrupting too much. “I am probably one of the prime offenders,” Roberts said. Obviously, though, Thomas’s reaction to this problem was extreme. He would certainly be allowed to ask questions if he tried.

  What made his silence even more peculiar was his behavior in the courtroom, especially in recent years. The justices all sit in high-backed leather swivel chairs, and Thomas set his so that he can recline so far that he appears almost to be lying down. He stares at the ceiling. He rubs his face. He does not appear to be listening. He closes his eyes and looks as if he has fallen asleep. The overall effect is rude, if not contemptuous.

  The conventional view of Thomas is that he is silent because he has nothing to say. Many believe that he is just a cipher for his fellow originalist, Scalia. Others think Thomas is not up to the job.

  This stereotype is wrong in every particular.

  In 1993, during the early days of the Clinton administration, Congress passed the gun control law known as the Brady bill. The complex piece of legislation included an interim provision that directed state and local officials to conduct background checks for prospective handgun purchasers. That portion of the bill was challenged, and in 1997, by a vote of 5–4, the Court found that part of the law unconstitutional. Scalia’s opinion for the Court in Printz v. United States concluded that the law amounted to an impermissible federal intrusion on states’ rights.

  Thomas joined Scalia’s opinion for the majority but wrote a concurring opinion that examined the case in a different way. Thomas devoted his opinion to the Second Amendment, which had not been addressed by the Supreme Court since the Miller case in 1939; the parties in Printz had not raised a Second Amendment claim at any stage of the proceedings. But Thomas used the case to undertake an extensive discussion of the Second Amendment and to suggest that the Brady bill might well be unconstitutional because the “right to keep and bear arms” is “a personal right.”

  In his Printz opinion, Thomas caught—and propelled—the intellectual wave that was building for a new understanding of the Second Amendment. His prominent endorsement of the individual rights theory spurred other judges, as well as academics and politicians, to take that view more seriously. The judges who embraced it in the Emerson case in the Fifth Circuit cited Thomas’s opinion. Robert Levy and his colleagues who created the Heller case were also inspired, in part, by Thomas. In time, even Barack Obama followed Thomas’s lead on this issue. It took eleven years for the full Court to embrace Thomas’s interpretation of the Second Amendment. In 2008, Scalia wrote the opinion for the Court in Heller—which struck down the D.C. gun control law and adopted the new view of the Second Amendment—but it was Thomas who first put the issue on the Court’s agenda.

  He has played this role—as conservative intellectual pathbreaker—in many areas of the law. His hostility to campaign finance regulation, and his First Amendment absolutism, anticipated Citizens United. Like his intellectual heirs in the Tea Party, Thomas had a special hostility for government attempts to level the playing field in the political arena. For this justice, the Constitution mandated laissez-faire government. He first laid out his views on free speech in McIntyre v. Ohio Elections Commission, a case early in his tenure. In 1988, Margaret McIntyre distributed unsigned leaflets at public meetings in a small town in Ohio. According to Ohio election laws, she was required to put her name on any material she distributed, and McIntyre was ultimately fined a hundred dollars for breaking this rule. In a 1995 opinion by Stevens for a seven-justice majority, the Court overturned the fine as a violation of McIntyre’s right to free speech. For the Court, Stevens weighed the interest of the state in protecting the integrity of campaigns versus the individual’s right to express herself and concluded that the state’s restrictions went too far.

  Thomas wrote a concurring opinion that laid out a template that he and to some extent the Court have followed ever since. The opinion was an originalist tour de force, with extensive discussion of anonymous speech as conceived by the framers of the Constitution. “In light of the Framers’ universal practice of publishing anonymous articles and pamphlets,” Thomas wrote, it was clear “that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.”

  Thomas believed that the First Amendment prohibited regulation of campaign advertising, contributions, or expenditures. He put his position clearly in a dissent to a decision, in 2000, that upheld a Missouri law that limited individual contributions to local campaigns to a total of $1,075. “In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade,” he wrote.

  By 2010, in Citizens United, the opinion was Kennedy’s, but the victory was Thomas’s. Kennedy adopted several Thomas tropes—that corporations and people have the same rights to free speech under the First Amendment and that limitations on expenditures amounted to limitations on speech. Remarkably, Thomas wanted more. Kennedy’s opinion upheld the rule that directed corporations and others to disclose how much they had contributed to political campaigns; Thomas said such rules amounted to an unlawful intrusion on the First Amendment. Returning to a theme first expressed in McIntyre fifteen years earlier, Thomas said, in a separate opinion in Citizens United, that the First Amendment protected anonymity as much as speech itself. Ever alert to contemporary conservative political developments as much as to eighteenth-century history, Thomas asserted that harassment of contributors to Proposition 8 in California, which banned same-sex marriage in 2008, demonstrated the dangers of mandatory disclosures. “These instances of retaliation sufficiently demonstrate why this Court should invalidate mandatory disclosure and reporting requirements,” he wrote. On this issue, Thomas had not persuaded a majority of his colleagues—yet.

  He was not a conventionally influential justice. Unlike, say, Kennedy or O’Connor (or Roberts or Stevens), Thomas wrote few important opinions for the Court. Rehnquist and later Roberts recognized that Thomas’s views were so extreme that they could not assign controversial opinions to him and expect a majority of his colleagues to agree. Rather, Thomas’s influence was that he introduced new ideas to his colleagues. Through sheer doggedness and, of course, the arrival of like-minded justices, especially Roberts and Alito, Thomas saw his views (if not his exact words) pass into law.

  He relished outraging his ideological adversaries. His views on the Eighth Amendment’s ban on cruel and unusual punishment remained so eccentric that they found little favor even on this more conservative Court. In 2008, in Baze v. Rees, a badly splintered Court upheld lethal injection as a method of execution. In the lead opinion for the Court, Roberts said that the evidence in the case showed that lethal injection was not “cruelly inhumane” and thus not a violation of the Eighth Amendment.

  Thomas concurred, in an opinion that read like a treatment for a slasher movie. As always, he began by asserting that the relevant constitutional provision must be “understood in light of the historical practices that led the Framers to include it in the Bill of Rights.” To that end, Thomas surveyed eighteenth-century executions that were, apparently, cruel and unusual even in those days. There was burning at the stake, “ ‘gibbeting,’ or hanging the condemned in an iron cage so that his body would decompose in public view, and ‘public dissection.’ ” Thomas went on, “But none of these was the worst fate a criminal could mee
t. That was reserved for the most dangerous and reprobate offenders—traitors.” Their punishments involved “embowelling alive, beheading, and quartering.” One death sentence in England called for the condemned to be “drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters.”