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                                                                                U.S. SUPREME COURT, Page 30

Judging Thomas


Clarence Thomas disgusted civil rights activists with an obstreperous
first year in which he let the world know just how conservative
he could be

By THOMAS SANCTON -- With Reporting by Julie Johnson/Washington
and Andrea Sachs/New York



    On the desk in Clarence Thomas' Supreme Court chambers
sits a framed sign that reads: "There's no limit to what you
can do or where you can go if you don't mind who gets the
credit." There is some irony in that. From the moment Thomas was
nominated last July through his dramatic confirmation hearings,
critics attributed his meteoric rise to affirmative action,
tokenism or the narrow political calculations of George Bush.
But now that the term is finished, Thomas alone can claim credit
for one of the more obstreperous first-year performances on the
Supreme Court in recent memory.

    Though he told friends after his confirmation that he
wanted to be out of the spotlight for a while, Thomas'
first-term rulings were pugnacious, blunt and, for a new
Justice, relatively numerous. He wrote nine opinions for the
majority, four concurrences and eight dissents. "Thomas hit the
ground running," says University of Michigan law professor Yale
Kam isar. "He's in there mixing it up."

    That may have been his way of demonstrating that he was
undaunted by Anita Hill's sexual-harassment charges and the
Senate's lukewarm 52-48 confirmation vote -- one of the thinnest
margins in court history. As in the abortion ruling last week,
he has linked up with the court's hard-line conservatives, Chief
Justice William Rehnquist and Associate Justice Antonin Scalia.
These three have often combined with Byron White and three more
moderate conservatives, Anthony Kennedy, Sandra Day O'Connor and
David Souter, thus giving the court a conservative majority in
most important cases last term.

    No sooner had Thomas arrived than he gravitated to Scalia.
The pair not only voted alike in 56 out of 90 decisions, but
Thomas can write in language that brings to mind Scalia's
occasional let's-you-and-me-scrap tone. "Jurors do not leave
their knowledge of the world behind when they enter a
courtroom," Thomas scolded the other Justices in one dissent.
"And they do not need to have the obvious spelled out in
painstaking detail."

    If Thomas is taking cues from Scalia, it is not during
long tete-a-tetes; associates say the two rarely talk. But they
clearly share a judicial philosophy. Both take a narrow view of
the Constitution. Rights not spelled out explicitly in the
text, such as the right to abortion, are not recognized, and
both men want to cut back the role of the federal judiciary,
leaving more authority to the President, Congress and the state
legislatures. Perhaps most significant, they don't approach
precedent on tiptoe. Thomas and Scalia are happy to challenge
-- with dynamite -- the decisions of earlier, more liberal
courts.

    Which is why Thomas causes such pain to women's groups,
liberals and above all black leaders. In a remarkable snub,
Thurgood Marshall, the civil rights pioneer whom Thomas replaced
on the court, did not attend Thomas' swearing-in ceremony last
November. Later in the fall, Thomas quietly sought out Marshall
in his chambers, where he took notes for two hours while
Marshall held forth. Not long after, Thomas got some unsolicited
-- and angry -- advice from another prominent black jurist, A.
Leon Higginbotham Jr., chief judge emeritus of the Third Circuit
Court of Appeals in Philadelphia. In a November letter to Thomas
that he published two months later in the University of
Pennsylvania Law Review, Higginbotham wrote that the young
Justice displayed "a stunted knowledge of history and an
unformed judicial philosophy." He proceeded to give Thomas a
lengthy lecture on the civil rights struggle that had helped
land him on the high bench.

    That did not stop Thomas from outraging the black
leadership in one civil rights case, Presley v. Etowah County
Commission, in which he joined a 6-to-3 majority in allowing two
Alabama counties to strip powers from black officials after
their election. Then came Hudson v. McMillian, a case that
involved a shackled and handcuffed black convict who was beaten
by two Louisiana prison guards in a punch-out that loosened
teeth, cracked a dental plate and left his face bruised and
swollen. The court majority concluded that this was cruel and
unusual punishment forbidden by the Eighth Amendment. But not
Thomas' Eighth Amendment: In a dissent joined only by Scalia,
he wrote that while the guards' behavior was deplorable, the
majority ruling was "yet another manifestation of the pervasive
view that the Federal Constitution must address all ills in our
society . . . The Eighth Amendment is not . . . a National Code
of Prison Regulation."

    "I cannot, to save my life, understand that vote," says
N.A.A.C.P. executive director Benjamin Hooks. "I don't think
Thomas is dumb; I think he is wrong." Such criticism may explain
why in some of his writing Thomas has appeared anxious to signal
that he is mindful of black struggles. In a major integration
case, U.S. v. Fordice, the court ruled 8 to 1 two weeks ago that
because of continuing evidence of racial segregation in its
state university system, Mississippi must continue efforts to
attract more blacks to its mostly white campuses and more white
students to its three traditionally black colleges. But though
it would ordinarily offend his notion of color-blind laws,
Thomas wrote a separate concurrence to stress the importance of
finding some way to preserve the black-student majorities at
historically black campuses -- a significant goal for some
blacks. "It would be ironic, to say the least," Thomas wrote,
"if the institutions that sustained blacks during segregation
were themselves destroyed in an effort to combat its vestiges."

    In another case, Georgia v. McCollum, the court examined
the constitutionality of excluding potential jurors on the
basis of race. Though the practice was outlawed for prosecutors
in 1986, defense attorneys continued to exercise this means of
eliminating jurors who might be biased against their clients,
whether black or white. The court voted 7 to 2 to ban these
so-called peremptory challenges on racial grounds. Citing a 1991
precedent, Thomas voted with the majority. But in an opinion
that read more like a dissent, he wrote: "I am certain that
black criminal defendants will rue the day that this court
ventured down this road that inexorably will lead to the
elimination of peremptory strikes . . . Today's decision, while
protecting jurors, leaves defendants with less means of
protecting themselves."

    The flip side of Thomas' courtroom activism is his almost
cloistered personal life. Friends say the Anita Hill episode
left him "shattered" and "guarded," leading him to shun public
appearances. He is now instinctively so averse to the press,
they say, that he's no longer much of a newspaper reader. "An
experience like that leaves scars," says a friend. "Clarence and
his wife have both had to go through a healing process."

    Religion has been an important part of the process.
Thomas, a onetime Catholic seminarian, and his wife Virginia
regularly attend Sunday services at Truro Episcopal Church in
Fairfax, Va. Unlike the Sca lias, and O'Connor and her husband,
they are absent from the Washington social scene. Since he
joined the court, Thomas has attended only two public events,
a Horatio Alger Awards dinner and a state dinner at the White
House. In May he canceled an appearance at New Jersey's Seton
Hall law school after he was warned of a possible demonstration
against him. Remembering her own embarrassment when she was
booed during an appearance at New York University, O'Connor
called Thomas to offer support.

    Thomas doesn't have much time anymore for personal
pleasures like reading Louis L'Amour novels and tooling around
in his jet-black Corvette. His life revolves almost entirely
around workdays at the court that can run from 5 a.m. to 7 p.m.
He is usually in bed by 8. On a court where the Justices
communicate largely by memos, he is forging friendships with
White and Rehnquist. His most frequent personal contact is with
his clerks, reputed to be among the court's most conservative.

    Most Justices say they need at least five years to settle
fully into their role. Many have found their positions shifting
during that transitional period: Nixon appointee Harry Blackmun,
for example, drifted to the liberal end of the court, while
Byron White, a Kennedy appointee, moved the other way. Don't
look for any such lurch from Thomas. "My impression is that
Thomas arrived on the court knowing where he belonged," says
University of Virginia law professor A.E. Dick Howard.

    Indeed, conservatives can barely conceal their glee over
Thomas' performance. "The court no longer sees itself as the
moral conscience of the nation bent on improving on the state
of mankind," says Bruce Fein, a conservative legal scholar,
approvingly. On the wall of Thomas' chambers is a Harriett
Erlich drawing titled Freedom that shows three black children
with outstretched arms. Thomas might ponder its message; his own
liberation from the poverty of Pin Point, Ga., and his rise to
the court would have been unthinkable without the body of
liberal jurisprudence he now casts into doubt.