The Nine

by Jeffrey Toobin

  Rehnquist rarely assigned important majority opinions to Thomas, because his extreme views made it difficult for him to persuade a majority of his colleagues to join him. In late 1999, the justices agreed to uphold a federal program that passed government funds to state and local agencies, which in turn lent educational equipment to public, private, and religious schools. The Court agreed that the law did not violate the Establishment Clause, and Rehnquist assigned the case to Thomas, who couldn’t even muster four other justices. Thus, Thomas’s opinion began with the embarrassing opening (under the circumstances) that he “announced the judgment of the Court,” rather than the customary “delivered the opinion of the Court.” In her separate opinion explaining why she could not join Thomas, O’Connor said she rejected his attempt to approve the “diversion of government aid to religious indoctrination.”

  Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects—“dogs,” in the Court’s parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a “knuckle” between two cars. “It was a little case that didn’t matter to anyone,” Thomas said in a speech. “It’s almost inconsequential. It was a fun little opinion. I went back into the history of trains.” (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas’s opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)

  Probably the greatest contrast between Thomas and his colleagues was that he fundamentally did not believe in stare decisis, the law of precedent. If a decision was wrong, Thomas thought it should be overturned, however long the case may have been on the books. As he wrote once, “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” All justices of the Supreme Court, from Brennan on the left to Scalia on the right, develop something close to reverence for the Court’s precedents; no one besides Thomas would have dismissed two hundred years of stare decisis in such a cavalier way. At an appearance at a New York synagogue in 2005, Scalia was asked to compare his own judicial philosophy with that of Thomas. “I am an originalist,” Scalia said, “but I am not a nut.”

  So Thomas was ideologically isolated, strategically marginal, and, in oral argument, embarrassingly silent. He was also universally adored.

  Fellow justices, law clerks, police officers, cafeteria workers, janitors—all basked in Thomas’s effusive good nature. His rolling basso laughter frequently pierced the silence of the Court’s hushed corridors. Unlike the rest of his colleagues, Thomas learned the names of all the new clerks every year, including those of his ideological adversaries, and he frequently invited the young lawyers into his chambers to chat, often for two or three hours. One year Thomas became friendly with a Stevens clerk, a lesbian whose partner was a professional snowboarder; Thomas liked the two of them so much that for a while he kept a photograph of the snowboarder on his desk. When the wife of one of his former law clerks lay dying in the hospital, Thomas and his wife spent several nights comforting the couple through the ordeal.

  Thomas didn’t treat just law clerks this way. He would meet law students at moot courts, or people at ball games and auto races, and invite them to visit him at the Supreme Court. When they did, the conversations would also sometimes last into the evening. If there was a football game on television (especially Thomas’s beloved Dallas Cowboys), he would pass out cigars to anyone who wanted to watch with him. When he joined the Court, Thomas played basketball with clerks in the Court’s top-floor gym, the famous “highest court in the land.” But within a year the justice injured his knee and rarely played again.

  Although Thomas asked almost no questions of the lawyers at oral argument, he wasn’t silent on the bench. Thomas sat to Breyer’s right, and the two of them often whispered and joked to each other, barely muffling their frequent laughter. Things sometimes got so raucous between them that Kennedy, who sat on the other side of Thomas, would lean forward, trying to get away from the noise. Breyer and Thomas passed notes, too, often mocking each other’s positions in good-natured ways. “States’ rights über alles,” Breyer might write, and Thomas, in another case, would jot, “Always for the criminal, eh?” This wasn’t feigned fellowship. It was a portrait of colleagues who genuinely cared for each other.

  There was a new measure of joy in Thomas’s personal life as well in this period. In the midnineties, his son from his first marriage, Jamal, went off to college at the Virginia Military Institute. (For this reason, Thomas recused himself in 1996 when, in an especially satisfying moment for Ginsburg, she wrote the opinion holding that the state-funded school could no longer refuse to admit women.) The following year, Thomas’s six-year-old grandnephew, Mark Martin Jr., came to live with him. Mark’s father was in prison on cocaine trafficking charges, and his mother was struggling to raise four children on her own. Thomas was roughly the same age when his grandfather adopted him, saving him from similarly chaotic circumstances. New fatherhood, when he was close to fifty, invigorated Thomas and filled his home life with happiness.

  It also changed Thomas’s approach to transportation. The justice had a long-standing obsession with Corvettes, the great American sports cars, and he often drove one on the twenty-four-mile trip to the Court from his home in remote Fairfax Station, Virginia. But shortly after Mark Junior’s arrival, Thomas purchased a custom-made forty-foot Prevost motor coach, with leather furniture, satellite television, and onboard galley—a “condo on wheels,” as he once called it. Thomas adored the vehicle, which he called “the bus,” and kept a photograph of it by his desk, near the portraits of Booker T. Washington, Frederick Douglass, and Winston Churchill. For vacations, even on many weekends, Thomas would pack up his wife and young Mark and simply take off. They would stay at campgrounds or parking lots near NASCAR races. Often, the justice would take advantage of Wal-Mart’s policy (well known in the RV world) of allowing such vehicles to remain overnight in their parking lots. In all these places, Thomas mixed easily with other “RVers,” some of whom would recognize him, many of whom would not. In 2004, Thomas received the “Spirit of America” award from the Recreation Vehicle Industry Association. “Being an RVer helps me do my job better,” he said in his speech to the group. “The world I live in is very cloistered. The bulk of my adult life has been spent in Washington, D.C. RVing allows me to get out and see the real America. In RV campgrounds, you wave at everybody and they wave back.”

  Yet even in the friendly confines of his chambers, Thomas carefully tended the grudges held since his confirmation hearings. For years, he kept a list in his desk of the roll-call vote in his 52–48 confirmation. But his targets weren’t only the senators who voted against him. “When I left Georgia over twenty-five years ago, a familiar source of the unkind treatment and incivility were just bigots,” he said at a speech in Macon in 1993. “Today, ironically, a new brand of stereotypes and ad hominem assaults are surfacing across the nation’s college campuses, in the national media, in Hollywood, and among the involuntarily ordained ‘cultural elite.’ Who are the target? Those who dare to question current social and cultural gimmicks, those who insist that we embrace the values that have worked and reject those that have failed us, those who dare to disagree with the latest ideological fad.” This would become the theme of Thomas’s speeches over the following decade—his own courageous fight against the “elites” who were out to get him. Friends and associates would often claim that Thomas’s rage had mellowed, but that seems un
likely. In 2007 he told BusinessWeek, in a rare interview, that he thought the news media were “universally untrustworthy because they have their own notions of what I should think or I should do.”

  Thomas never identified his enemies by name—the “smart-aleck commentators and self-professed know-it-alls,” as he once described them—but it was usually clear whom he meant. The list began, of course, with the senators who opposed his confirmation. Thomas also regarded most of the press as part of the elite, and a friend quoted him as saying the happiest day of his life was when he canceled his subscription to the Washington Post. Likewise, Thomas detested Yale Law School, his alma mater, and he had a “Yale Sucks” bumper sticker on the mantel of his chambers for a time. He believed that he was treated paternalistically while he was on campus and that the school abandoned him (in favor of another Yale law graduate, Anita Hill) during his confirmation hearings. Sneering references to Yale were a standard part of his speeches. As Thomas put it in a talk for Headway magazine, a now-defunct conservative publication, in 1998, “I couldn’t get a job out of Yale Law School. That’s how much good it did me. I think I’ll send the degree back, while I’m at it.” Six years later, as the commencement speaker at Ave Maria School of Law, a new institution grounded in Catholic legal principles, he accepted an honorary degree with the quip, “As the rift from my alma mater remains, I will need a degree from a law school.” Thomas frequently did moot courts and commencement addresses at small law schools and Catholic and evangelical colleges, but he never returned to Yale. For speaking engagements, he described his rule as “I don’t do Ivies.”

  It was possible to interpret Thomas’s refusal to ask questions at oral argument as a sign of simmering resentment. Even as recently as the 1980s, such silence might have drawn little attention because several justices of that era—among them Brennan, Marshall, and Blackmun—asked relatively few questions. But the Court in the 1990s featured eight active interrogators, making the contrast all the greater. In his public appearances, Thomas was often asked about his reluctance to participate. His answers varied. Sometimes he said he asked questions only if other justices had not covered the subject of interest to him. Other times, he said he gained more from listening than he did by speaking. In private, he would sometimes express frustration with his colleagues for interrupting too much and showing off. In 2000, Thomas explained his silence to a student group by saying that as a youth he was self-conscious about speaking Gullah, a regional dialect of coastal Georgia, and so he “developed the habit of listening.” This last explanation was especially peculiar. It is possible that Thomas spoke some Gullah when he lived in Pin Point, Georgia. But from the age of six, Thomas lived with his English-speaking grandfather in Savannah, where Gullah was rarely spoken, and attended rigorous parochial schools, where he spoke only English and received excellent grades.

  One reason Thomas maintained his silence may simply be because the media called so much attention to it—and he wasn’t going to give his critics the satisfaction of seeing him change his ways. Among friends, he would mock the way the liberal press described justices who moved to the left as “evolving” and “growing” on the Court. “I ain’t evolvin’,” he would say.

  In public, Thomas would discuss over and over again the way anger has shaped his life. At a commencement speech in 1996 at Liberty University, which was founded by Rev. Jerry Falwell, Thomas departed from the usual pablum offered on such occasions to give an extraordinary self-portrait. He recalled his own graduation from college, at Holy Cross, twenty-five years earlier. He was something close to a radical in those days, an overall-wearing Black Power devotee with inchoate dreams of changing the world. “I thought I knew all the answers,” he said. “It was all so clear. I was just relieved to have completed my college education. I had often thought of giving up and going home. To my core, I was a swirling combination of frustration, of anger, of disappointment, of anxiety and perhaps there was a glimmer of hope, but it was well hidden. Mostly I was just confused. I had alienated my grandfather, and the dreams of my youth to become a Catholic priest had evaporated. It was indeed a dark night of my soul.” (In a lighter vein, he would sometimes recall that his Afrocentric worldview in those days inspired the name of his son. “We called him Jamal, so you can see where my head was in those days.”)

  Always, when recounting the pain in his life, Thomas would return to the subject of his confirmation hearings: “And it is only by God’s grace and on his mighty shoulders that my wife and I endured the unpleasantness of my confirmation. In the end, our strategy was to rely on him, to endure the agony and then transcend the aftermath of bitterness, and we as a team, an inseparable team, are so grateful to you who lifted us up in prayer.”

  Thomas appeared in public about as often as the other justices, but he picked his audiences with greater care. Only once in his first decade on the Court did he venture away from safe, sympathetic crowds where he could be guaranteed a warm reception. On that occasion, he decided to take on the most incendiary subject of all—race.

  Thomas’s views on the subject were clear. Like Scalia and Rehnquist, he believed in a “color-blind Constitution,” that is, that the Constitution forbade any consideration of race. Most notably, of course, he thought any kind of affirmative action or preferential treatment for blacks should be banned under the Equal Protection Clause. He was a proud heir to the civil rights tradition of Booker T. Washington, which focused less on government assistance to blacks than on self-help and up-by-the-bootstraps individual initiative. To the extent Thomas discussed discrimination at all, it was usually in the context of the vanished South of his youth—or of contemporary bias against Thomas himself. He had an understandable sensitivity to the common (and false) notion that he functioned as Scalia’s pawn on the Court. This idea was absurd not least because the two justices’ voting records were different, with Thomas well to the right of his senior colleague. What was notable, though, was that Thomas attributed this canard to racial, not political, bias. As he put it in a speech in Louisville, “Because I’m black, it is said that Justice Scalia does my work for me. I understand how that works. But I rarely see him, so he must have a chip in my brain that tells me what to do.”

  To say that Thomas opposed affirmative action is not to say that he fought all efforts to help poor people, especially blacks. He thought the traditional civil rights movement bred a culture of victimization in blacks and paternalism in whites. He believed that economics, not race, was at the root of poor people’s problems, and he opened his chambers to those who shared these views. He would read the names of striving black youngsters in the news and invite them in for pep talks. His friend Tony Welters, an African American health care entrepreneur, started a program at New York University Law School that awarded scholarships—without regard to race—to “outstanding J.D. students who are among the first in their immediate family to pursue a graduate degree.” Thomas liked the program so much that he allowed the school to conduct the final interviews each year at the Supreme Court.

  As Thomas himself would acknowledge privately, he benefited from affirmative action at every step of his life—in gaining admission to Holy Cross and Yale, in being hired for civil rights jobs in the Reagan administration, and in winning appointment to the Court. But he thought that, ultimately, these kinds of efforts to help people were self-defeating. (He’d always advise young black lawyers to focus on subjects like tax or property law and escape the ghetto of civil rights specialization.) Thomas thought integration was at best a mixed blessing for blacks; he loved the all-black world of the segregated Savannah of his childhood and thought that its replacement did African Americans no favors.

  Indeed, Thomas believed virtually all government efforts to help black people wound up backfiring. He liked to point out that the handful of black farmers left in South Carolina were often blocked from selling their land for the best prices by environmental regulations. His favorite quote from his idol Frederick Douglass summed up his view: “Th
e American people have always been anxious to know what they shall do with us…. I have had but one answer from the beginning. Do nothing with us!…If the Negro cannot stand on his own legs, let him fall.”

  Once, and only once, Thomas tried out this argument on a skeptical audience. In 1998, he accepted an invitation to speak at the annual meeting of the National Bar Association, the largest organization of black lawyers in the country. A month before his appearance, a group of board members of the NBA wrote to Thomas purporting to withdraw the invitation, but he decided to come anyway. The hotel ballroom was tense when Thomas took the podium in front of about two thousand lawyers and judges, many of whom disagreed with him passionately on issues of civil rights. That the meeting took place in Memphis in the thirtieth-anniversary year of the assassination of Martin Luther King Jr. gave the occasion even greater emotional weight.

  Thomas began by recalling King’s death and his sense that “the whole world had gone mad.” Since that time, though, King’s supposed heirs had decided that the “racial divide was a permanent state…. Some go so far as to all but define each of us by our race and establish the range of our thinking and our opinions not by our deeds but by our color.” In other words, to be black was to share the orthodoxy of the civil rights movement. “I see this in much the same way I saw our denial of rights—as nothing short of a denial of our humanity.”