When Clarence Thomas Does Speak

Justice Clarence Thomas has not spoken from the bench in nearly four years, and his silence regularly leads to questions from the public. When I’m asked, as happened twice last week, I usually repeat some of the reasons Thomas has given, including (as he told C-SPAN in 2009) he would rather let the lawyers talk on and explain their cases. Then I add that in interviews I’ve had with Thomas he has been unusually candid in his assessments of colleagues and open about his views. He provided some of the more vivid descriptions of Justice Scalia and Justice O’Connor, and he offered impressions of the confirmation process for Sonia Sotomayor last summer.

As we approach another anniversary of Justice Thomas’s silence on the bench (in February), here are two comments that I thought revealed as much about Thomas as the justice we were discussing:

When I spoke to him about the then-pending nomination of  Judge Sotomayor, I noted that she had been subjected to some inaccurate and rancid stereotyping. Thomas experienced some stereotyping, too, when he was nominated in 1991. I asked whether that caused him to have some sympathy for Sotomayor. In response, Justice Thomas focused on the fact that many of her liberal supporters had been his critics. “I don’t know her,” he said. “I had dinner with her once. She was nice to me. … I’ve always found it fascinating that people get upset with me because they think that because I’m black I have to have a particular point of view. But the people who have presumed that about me cannot now object if the same thing happens to Sotomayor. You see what I’m saying? A bigot cannot yell too loudly about bigotry.”

When I asked Thomas years earlier about Justice O’Connor, he openly recalled their differences in his first term on the Court, particularly in Wright v. West, the 1992 case regarding procedures for prisoners seeking a federal hearing. He wanted to go much further than O’Connor in curtailing the writ of habeas corpus. O’Connor made clear, behind the scenes and then in a published opinion, that she believed Thomas was misconstruing precedent. Thomas told me: “At first I thought, ‘Whoa, she’s a tough cookie.’ … But they had been working on these [habeas corpus] problems for years and I come marching in like this.” Thomas pumped his arms aggressively for effect. “I was the new kid on the block. I was brash…. I just took it like the rookie football player who gets clobbered by the linebacker: ‘Welcome to the NFL.’”

Makes me wonder what he was thinking during last week’s oral arguments in American Needle v. National Football League.