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Answer by Ty Doyle, lawyer:
I think there are a few major reasons, some of which are fair, others of which are not.
Justice Clarence Thomas replaced a liberal giant and trailblazer, Thurgood Marshall. It was galling to many that the first black justice and a fighter for Warren-era liberalism was replaced by an originalist who was strongly opposed to what he viewed as the Warren court’s excesses. It angered many on the left that Marshall was being replaced with someone who wanted to push back on his legacy.
There’s no reason the president can’t appoint another black justice while Thomas is sitting, but in 20-plus years, it hasn’t happened. Many people dislike the fact that the sole black justice is probably the court’s most conservative member, and commentary often suggests that Thomas is not representative of black interests, even though I would note that that’s not his job.
Finally, Anita Hill is inescapable. If you believe her, then Thomas is a sexual harasser and predator who was unfit for the bench. Most of us who are old enough to remember Thomas’ confirmation hearings—among the most controversial in the 20th century—made up our minds about Thomas back then. Either he was a creep or a victim of, in his words, “high tech lynching” because he did not hold the expected liberal views.
I think that all of the aforementioned are legitimate reasons for some to dislike Thomas’ presence on the court. However, this animus has fueled a number of additional charges against Thomas, none of which are even remotely accurate. The principal claims are that Thomas is dumb, a puppet of Justice Antonin Scalia, and lazy. Let’s talk about these claims in order.
I will readily concede that Thomas is in many respects the most conservative justice currently sitting on the court, and one can make a coherent case that he’s one of the most conservative justices to ever sit on the court. Therefore, it’s easy to understand why many left-of-center individuals find Thomas’ conclusions wrong—often deeply wrong. But that’s different from suggesting that Thomas is dumb or somehow bad at his job—I think that Justice Sonia Sotomayor’s legal reasoning is often sorely lacking, for example, but I would not deny that she’s an extremely intelligent and capable justice who is worthy of her position on the court.
The “Scalia puppet” theory seems to have come from the fact that love him or hate him, Scalia is a force of nature due to his big personality, his famously sharp and entertaining opinions, and his willingness to court attention and controversy. Scalia was the darling of legal circles in the 1980s and ‘90s, a justice who had to be acknowledged, even if people disagreed with him. Put differently, he was the one conservative who was acceptable for liberal commentators to have a “legal crush” on. Thomas, on the other hand, came into his job under fierce criticism, supra, and simply isn’t a “show horse” kind of personality. With Scalia already established as a star on the court and Thomas voting with Scalia a high percentage of the time (especially early in his career), many people (unfairly) accused Thomas of simply following Scalia, as though he couldn’t be a principled originalist on his own. The reality is far different: In fact, as Jeffrey Toobin noted in a New Yorker article, in the 21st century, Thomas—and not Scalia—ultimately emerged as the court’s right-wing intellectual leader, taking decisive (often lonely) positions in dissent and then doing the time-consuming work in the trenches to turn those dissents into majorities that would have been unfathomable even during the Rehnquist years. Any close follower of the Supreme Court could tell you that it is Thomas, not Scalia, who has been the most principled and often the boldest (and to his supporters, most courageous) conservative on the court today. Again, critics don’t have to like what Thomas has done, but to call him a dim bulb or another justice’s puppet has no basis in reality.
Finally, the “lazy” claim comes largely from the fact that Thomas rarely asks—and for several years never asked—questions during oral argument. It is indeed unusual (although not unprecedented) for a Supreme Court justice to ask so few questions of litigants. But it is not the outrage that some have reported: As a lawyer, I have to say that oral argument is generally overrated if you’re dealing with good judges who had a chance to do their homework (which describes all nine members of the court). Litigants in the Supreme Court get the opportunity to brief issues extensively. There are often numerous amicus briefs on top of that, and most Supreme Court practitioners are among the best legal writers in the country. Accordingly, oral argument rarely makes a big difference and often is wasteful. Further, a great deal of questioning in Supreme Court cases has little to do with a justice trying to understand a difficult issue: Rather, justices use questioning to try to influence other justices, play to the press, or simply hear themselves talk. It isn’t that Thomas can’t play this game; rather, he doesn’t want to, and has stated that he prefers to give the lawyers (who have worked very hard to get their cases before the court) one last chance to argue without excessive interruption, as there’s plenty of time for debate between the justices after this point. Again, one does not have to like this approach, but the idea that Thomas doesn’t ask questions because he hasn’t done his homework or can’t keep up intellectually is nonsense.
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