As the high court returns next week for the 1992-93 term, Thomas will get more opportunities to distinguish himself for jurisprudential acumen. The court’s docket-one-third complete-includes cases on criminal rights, free speech, capital punishment and abortion protests. Those are ideological tinderboxes, and Thomas has shown great willingness to light a match to them. But his burden continues to be Sisyphean: to erase the public’s memory of him left by his lurid Senate confirmation hearings. One year ago this week, Anita Hill testified that Thomas had sexually harassed her in the early 1980s; Thomas vehemently denied the charge. “In the last year he’s had to put on a good face to hide the sears,” says a close friend. “If Thomas stays on the bench for 40 years, maybe by then people will have forgotten about Anita Hill,” says Indiana University law professor Craig Bradley, who clerked for Justice William Rehnquist in the mid-’70s. “But I don’t think it will happen any time soon.”
In addition to the glare on Thomas, the spotlight of the new term will be on the trio in the court’s emerging middle. Court geometry isn’t what it used to be: today’s center is far to the right of what passed for moderation, say, in the heyday of the Warren Court 25 years ago. The trio–Justices Anthony Kennedy, Sandra Day O’Connor and David Souter-co-wrote last June’s Pennsylvania abortion decision that narrowly upheld Roe v. Wade. In effect, they became the pivot of the court. That leadership and solidarity, though, will be tested as constitutional doctrines are revisited and new rules unfold. Now that the liberal justices have gone the way of the stegosaurus, the conservatives could go to war among themselves. “There are many different conservative principles, and they are often in tension with each other,” says Bruce Ennis, a Washington lawyer who practices frequently before the court.
For Thomas, the transition from TV soap star to cloistered jurist wasn’t smooth. Sure, there was support from wellwishers: 15,000 letters, potted plants, fruit baskets and a booklet of McDonald’s gift certificates. But he couldn’t have the anonymity most justices cherish. (John Paul Stevens was once shooed away from the courthouse steps by tourists who didn’t want him obstructing their photo.) Thomas can’t even cruise around in his black Corvette without being noticed. He recently lamented not being able to walk over to Union Station for “cheese fries or something.” To escape the Beltway fishbowl, Thomas and his wife, Ginny, recently began building a new home in far-suburban Virginia-more than an hour’s commute from downtown.
On the bench, Thomas displayed little freshman timidity. His many written opinions, while lacking the flair of an Antonin Scalia, reflected a boldness and confidence that belied the reticence of his confirmation hearings. Thomas told the senators he had “no quarrel” with the “Lemon test,” used for 20 years in freedom-of-religion cases; yet, as a justice, he called for Lemon’s demise. Thomas testified that he was sympathetic to defendants’rights because “but for the grace of God, there go I”; yet he has voted consistently for prosecutors. And for a man who claimed never to have discussed Roe v. Wade, he was remarkably happy to join a Scalia dissent that excoriated it. Lucky for Thomas there’s no truth-in-advertising requirement for court nominees.
Scalia is clearly the new justice’s juridical stablemate. The two voted together 85 percent of the time. That’s not unprecedented; retired liberal lions William Brennan Jr. and Thurgood Marshall routinely topped 90 percent. Yet Thomas seemed to share not just Scalia’s views but also his methodology. Both seek to construe constitutional text narrowly, read statutes literally and stake out fringe positions. “Thomas certainly has not been shy about placing himself at the extreme-right wing,” says Harvard law professor Laurence Tribe.
This term’s cases will force Thomas to defend and clarify his positions. In a key death-penalty case next week, for example, the justices will consider whether the appeals of innocence by state inmates should be heard by federal courts. Thomas will have to balance his stated racial sensitivity against his support of the death penalty, which is applied in a racially disproportionate way. In an abortion case that split 4-4 before Thomas was confirmed, he will have to decide if anti-abortion protesters who blocked a suburban D.C. clinic violated a pregnant woman’s civil rights.
As Richard Nixon learned with Harry Blackmun, justices sometimes change ideological lanes. But Thomas’s dogmatic bark suggests a jurist not likely to be making any U-turns. This, ironically, may help him. “If he were a milquetoast, Anita Hill would remain an issue,” says Clint Bolick, an old friend. “But he’s not and she won’t.”
For now, Thomas can’t leave it all behind. His problems have even touched the narcoleptic world of legal academe. Reconstruction magazine solicited an article from Bradley on Thomas’s first term. He wrote the piece, which was then rejected because the editor said it was “smarmy” and dwelt on pornography. Not to worry. Bradley then found a new publisher. In January, his jeremiad will be one of the few articles ever to appear in Playboy with footnotes.
