Clarence Thomas

Thomas with President Ronald Reagan in 1986, while serving as chairman of the Equal Employment Opportunity Commission

Thomas was admitted to the Missouri bar on September 13, 1974.[26] From 1974 to 1977, Thomas was an Assistant Attorney General of Missouri under State Attorney General John Danforth, who met Thomas at Yale Law School. Thomas was the only African-American member of Danforth's staff.[27] As Assistant Attorney General, Thomas first worked at the criminal appeals division of Danforth's office and moved on to the revenue and taxation division.[28] Retrospectively, Thomas considers Assistant Attorney General the best job he has ever had.[29] When Danforth was elected to the U.S. Senate in 1976, Thomas left to become an attorney with the Monsanto Chemical Company in St. Louis, Missouri.[30] He moved to Washington, D.C. and returned to work for Danforth from 1979 to 1981 as a Legislative Assistant handling energy issues for the Senate Commerce Committee.[31] The two men shared a common bond in that they had studied to be ordained (although in different denominations). Danforth was to be instrumental in championing Thomas for the Supreme Court.

In 1981, he joined the Reagan administration, serving first as Assistant Secretary of Education for the Office for Civil Rights in the U.S. Department of Education, and then, from 1982 to 1990, as chairman of the U.S. Equal Employment Opportunity Commission ("EEOC"). Journalist Evan Thomas characterized Thomas as "openly ambitious for higher office" during his tenure at the EEOC. As Chairman, he promoted a doctrine of self-reliance, and halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing acts of individual discrimination.[32] He also asserted in 1984 that black leaders were "watching the destruction of our race" as they "bitch, bitch, bitch" about President Reagan instead of working with the Reagan administration to alleviate teenage pregnancy, unemployment and illiteracy.[33]

On October 30, 1989, Thomas was nominated by President George H. W. Bush to a seat on the United States Court of Appeals for the District of Columbia Circuit following the departure of Robert Bork,[34] despite Thomas's initial protestations that he would not like to be a judge.[35] Thomas gained the support of other African Americans such as former Transportation Secretary William Coleman, but said that when meeting white Democratic staffers in the United States Senate, he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights."[35]

Thomas's confirmation hearing was uneventful.[36] He was confirmed by the United States Senate on March 6, 1990, and received his commission the same day. He developed warm relationships during his 19 months on the federal court, including with fellow federal judge Ruth Bader Ginsburg.[35][37]

When Associate Justice William Brennan retired from the Supreme Court in July 1990, Thomas was one of five candidates on President Bush's shortlist for the position and Bush's favorite. Ultimately however, after consulting with his advisors, the president decided to hold off on choosing Thomas, and nominated David Souter of the First Circuit Court of Appeals instead.[35] A year later, Justice Thurgood Marshall, the only African-American justice on the Court announced his retirement, and President Bush nominated Thomas to replace him.[38] In announcing his selection on July 1, 1991, Bush called Thomas the "best qualified [nominee] at this time."[35]

U.S. presidents of that era submitted lists of potential federal court nominees to the American Bar Association (ABA) for a confidential rating of their judicial temperament, competence and integrity on a three-level scale of well qualified, qualified or unqualified.[39] However, as noted by Adam Liptak of The New York Times, the ABA has historically taken generally liberal positions on divisive issues, and studies suggest that candidates nominated by Democratic presidents fare better in the group's ratings than those nominated by Republicans.[40] Anticipating that the ABA would rate Thomas more poorly than they thought he deserved, the White House and Republican Senators pressured the ABA for at least the mid-level qualified rating, and simultaneously attempted to discredit the ABA as partisan.[41] The ABA did rate Thomas as qualified, although with one of the lowest levels of support for a Supreme Court nominee.[42][43][44][45][46][47] Ultimately, the ABA rating ended up having little impact on Thomas' nomination.[39][41]

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. Both liberal interest groups and Republicans in the White House and Senate approached the nomination as a political campaign.[48][49]

Attorney General Richard Thornburgh had previously warned Bush that replacing Thurgood Marshall, who was widely revered as a civil rights icon, with any candidate who was not perceived to share Marshall's views would make the confirmation process difficult.[50] Civil rights and feminist organizations opposed the appointment based partially on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of Roe v. Wade.[51]

Thomas's formal confirmation hearings began on September 10, 1991.[52] Thomas was reticent when answering Senators' questions during the appointment process, recalling what had happened to Robert Bork when Bork expounded on his judicial philosophy during his confirmation hearings four years prior.[53] Thomas's earlier writings had frequently referenced the legal theory of natural law; during his confirmation hearings Thomas limited himself to the statement that he regards natural law as a "philosophical background" to the Constitution.[54][55][56]

After the conclusion of the confirmation hearings, and while the full Senate was debating whether to give final approval to Thomas's nomination, an FBI interview with Anita Hill was leaked to the press. As a result, on October 8, the final vote was postponed and the confirmation hearings were reopened.[57] Hill was called to testify before the Judiciary Committee. She testified that Thomas had subjected her to comments of a sexual nature, which she felt constituted sexual harassment or at least "behavior that is unbefitting an individual who will be a member of the Court."[58][59][60][61] Hill's testimony included lurid details, and some Senators aggressively questioned her.[62]

Thomas was recalled before the committee. He denied the allegations, saying:[63]

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, as far as I'm concerned it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.[64]

Throughout his testimony, Thomas defended his right to privacy. He made it clear that he was not going to put his personal life on display for public consumption, permit the committee (or anyone else) to probe his private life, or describe discussions that he may have had with others about his private life. The committee accepted his right to do so.[65] In 2007, Thomas wrote My Grandfather's Son: A Memoir, in which he addressed Anita Hill's allegations and the caustic confirmation hearing.[66]

Hill was the only person to come forward and publicly testify that they had been sexually harassed by Clarence Thomas.[67] Angela Wright, who worked under Thomas at the EEOC before he fired her,[68] decided not to testify,[69] but submitted a written statement alleging that Thomas had pressured her for a date and had made comments about the anatomy of women. However, she said she did not feel his behavior was intimidating nor did she feel sexually harassed, though she allowed that "[s]ome other women might have".[70][71][72] Also, Sukari Hardnett, a former Thomas assistant, wrote to the Senate committee that although Thomas had not harassed her, "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female."[73][74]

In addition to Hill and Thomas, the Judiciary heard from several other witnesses over the course of three days, on October 11–13, 1991.[75] A former colleague, Nancy Altman, who shared an office with Thomas at the Department of Education, testified that she heard virtually everything Thomas said over the course of two years, and never heard any sexist or offensive comment. Altman did not find it credible that Thomas could have engaged in the conduct alleged by Hill without any of the dozens of women he worked with noticing it.[76] Reflecting the skepticism of some committee members, Senator Alan K. Simpson questioned at one point why Hill met, dined with, and spoke by phone with Thomas on various occasions after they no longer worked together.[77]

After extensive debate, the Judiciary Committee voted 13–1 on September 27, 1991, to send the Thomas nomination to the full Senate without recommendation. A motion earlier in the day to give the nomination a favorable recommendation had failed 7–7.[78] Anita Hill's sexual harassment allegations against Clarence Thomas became public after the nomination had been reported out from the committee.[75]

Clarence Thomas being sworn in as a member of the U.S. Supreme Court by Justice Byron White during an October 23, 1991, White House ceremony, as wife Virginia Thomas looks on

During debate on whether to confirm Thomas, the Senate asked the Judiciary Committee to further examine the nomination in light of Anita Hill's accusations. It was only the third time in the Senate's history that such an action had been taken (and had not been done since 1925, when the nomination of Harlan F. Stone was recommitted to the Judiciary Committee).[75]

Following testimony concerning sexual harassment allegations, the Senate, on October 15, 1991, voted to confirm Thomas as an associate justice of the Supreme Court by a 52–48 vote.[75] In all, Thomas won with the support of 41 Republicans and 11 Democrats, while 46 Democrats and 2 Republicans voted to reject his nomination.[79]

The 99 days that elapsed from the date Thomas's nomination was submitted to the Senate to the date on which the Senate voted whether to approve it was the second longest of the 16 nominees receiving a final vote since 1975, second only to Robert Bork, who waited 108 days;[75] and the vote was the narrowest margin for approval since 1881, when Stanley Matthews was confirmed 24–23.[80] Vice President Dan Quayle presided over the vote in his role as President of the Senate, prepared to cast a tie-breaking vote if needed for confirmation.[81][82]

Eight days after Thomas won Senate confirmation, on October 23, he received his commission and took the prescribed constitutional and judicial (set by federal law) oaths of office, and became the 106th member of the Court. He was sworn-in by Justice Byron White in a ceremony initially scheduled for October 21, but postponed due to the death of Chief Justice William Rehnquist's wife.[83][84]

Thomas is often described as an originalist, or textualist, and a member of the conservative wing of the Supreme Court.[5][94][95] He is also often described as the most conservative member of the Supreme Court,[16][96][97] although others gave Justice Scalia that designation.[98][99][100] Scalia and Thomas had similar but not identical judicial philosophies, and pundits speculate about the degree to which Scalia thought some of Thomas's views to be implausible.[101][102]

Thomas's jurisprudence has also been described as similar to that of Justice Hugo Black, who "resisted the tendency to create social policy out of 'whole cloth.'"[103] According to the same commentator, Thomas generally declines to engage in judicial lawmaking, and instead views the constitutional role of the court as being the interpretation of law, rather than the making of law.[103]

Thomas voted most frequently with Chief Justice Rehnquist and Justice Scalia in his early tenure on the Supreme Court.[85] On average, from 1994 to 2004, Scalia and Thomas had an 87% voting alignment, the highest on the court, followed by Ginsburg and Souter (86%).[104] Scalia and Thomas's agreement rate peaked in 1996, at 98%.[104] By 2004, however, other pairs of justices were observed to be more closely aligned than Scalia and Thomas.[105]

The conventional wisdom that Thomas's votes follow Antonin Scalia's is reflected by Linda Greenhouse's observation that Thomas voted with Scalia 91 percent of the time during October Term 2006, and with Justice John Paul Stevens the least, 36% of the time.[106] Jan Crawford asserts that to some extent, this is true in the other direction as well, that Scalia often joins Thomas instead of Thomas joining Scalia.[107] Statistics compiled annually by Tom Goldstein of SCOTUSblog demonstrate that Greenhouse's count is methodology-specific, counting non-unanimous cases where Scalia and Thomas voted for the same litigant, regardless of whether they got there by the same reasoning.[108] Goldstein's statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences. For example, in that same term, Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia. By the metric that produces the 91% Scalia/Thomas figure, Ginsburg and Breyer agreed 90% of the time. Roberts and Alito agreed 94% of the time.[109]

Crawford wrote in her book on the Supreme Court that Thomas's forceful views moved "moderates like Sandra Day O'Connor further to the left"[110] but frequently attracted votes from Rehnquist and Scalia.[111] Mark Tushnet and Jeffrey Toobin observed that Rehnquist rarely assigned important majority opinions to Thomas because the latter's views made it difficult for him to persuade a majority of justices to join him.[112]

From 1994 to 2004, on average, Thomas was the third most frequent dissenter on the court, behind Stevens and Scalia.[104] Four other justices dissented as frequently in 2007.[113] Three other justices dissented as frequently in 2006.[114] One other justice dissented as frequently in 2005.[115]

Thomas spoke favorably about the concept of stare decisis, or standing by precedent, during his confirmation hearings, stating that "stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."[116] However, according to Antonin Scalia, Thomas "doesn't believe in stare decisis, period."[117] This assessment is consistent with Thomas's record on the bench: factoring in length of tenure, Thomas urged overruling and joined in overruling precedents more frequently than any other justice during the Rehnquist Court.[118]

Also according to Scalia, Thomas is more willing to overrule constitutional cases than he was: "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."[119] Law professor Michael Gerhardt, however, says that Scalia's characterization of Thomas may be incorrect, given that Thomas has supported leaving a broad spectrum of constitutional decisions intact.[120] Thomas's belief in originalism is strong; he has said, "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."[121] Thomas believes that an erroneous decision can and should be overturned, no matter how old it is.[121]

Court of Appeals Judge Amy Coney Barrett maintains that Thomas supports statutory stare decisis. Her cited examples include Thomas's concurring opinion in Fogerty v. Fantasy, 510 U.S. 517 (1994).[122]

In Franchise Tax Bd. of Cal. v. Hyatt (2019), Thomas wrote the 5–4 decision along ideological lines overruling Nevada v. Hall (1979), the earlier decision which said states could be sued in courts of other states. Thomas stated that stare decisis “is not an inexorable command.” Thomas explicitly disavowed the concept of reliance interests as justification for adhering to precedent. In dissent from Franchise Tax Bd. of Cal., Justice Stephen Breyer asked what other decisions might eventually be overruled. Breyer suggested Roe v. Wade (1973) might be overruled. Breyer stated that it is best to leave precedents alone unless they are widely seen as erroneous or become impractical.[123][124]

In Flowers v. Mississippi (2019), a 7–2 decision, in a dissent from the ruling overturning Mississippi resident Curtis Flowers’ death sentence, joined only by Neil Gorsuch, Thomas wrote an opinion that suggests Batson v. Kentucky (1986), which forbids prosecutors from using race as a factor in making peremptory challenges in jury selection, was wrongly decided and should be overruled. Gorsuch, however, did not join the section of Thomas’ opinion suggesting Batson should be overruled.[125]

Thomas has consistently supported narrowing the court's interpretation of the constitution's Interstate Commerce Clause (which often is simply called the "Commerce Clause") to limit federal power. At the same time, Thomas has broadly interpreted states' sovereign immunity from lawsuits under the Commerce Clause.[126]

In United States v. Lopez and United States v. Morrison, the court held that Congress lacked power under the Commerce Clause to regulate non-commercial activities. In these cases, Thomas wrote a separate concurring opinion arguing for the original meaning of the Commerce Clause. Subsequently, in Gonzales v. Raich, the court interpreted the Interstate Commerce Clause combined with the Necessary and Proper Clause to empower the federal government to arrest, prosecute, and imprison patients who used marijuana grown at home for medicinal purposes, even where the activity is legal in that particular state. Thomas dissented in Raich, again arguing for the original meaning of the Commerce Clause.

Thomas and Scalia had rejected the notion of a Dormant Commerce Clause, also known as the "Negative Commerce Clause". That doctrine bars state commercial regulation even if Congress has not yet acted on the matter.[127]

In Lopez, Thomas expressed his view that federal regulation of either manufacturing or agriculture is unconstitutional; he sees both as outside the scope of the Commerce Clause.[128][129] He believes federal legislators have overextended the Commerce Clause, while some of his critics argue that Thomas's position on congressional authority would invalidate much of the contemporary work of the federal government.[129] According to Thomas, it is not the court's job to update the constitution. Proponents of broad national power such as Professor Michael Dorf deny that they are trying to update the constitution. Instead, they argue that they are merely addressing a set of economic facts that did not exist when the constitution was framed.[130]

Thomas speaks to Secretary of Agriculture Sonny Perdue in 2017

Thomas has argued that the executive branch has broad authority under the constitution and federal statutes. In Hamdi v. Rumsfeld, he was the only justice who agreed with the Fourth Circuit that Congress had power to authorize the president's detention of U.S. citizens who are enemy combatants. Thomas granted the federal government the "strongest presumptions" and said "due process requires nothing more than a good-faith executive determination" to justify the imprisonment of Hamdi, a U.S. citizen.[131]

Thomas also was one of three justices who dissented in Hamdan v. Rumsfeld, which held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay required explicit congressional authorization, and held that the commissions conflicted with both the Uniform Code of Military Justice (UCMJ) and "at least" Common Article Three of the Geneva Convention.[132] Thomas argued that Hamdan was an illegal combatant and therefore not protected by the Geneva Convention, and he agreed with Justice Scalia that the court was "patently erroneous" in its declaration of jurisdiction in this case.

In the United States Court of Appeals for the Ninth Circuit case East Bay Sanctuary Covenant v. Trump (2018), which placed an injunction on the Donald Trump administration's asylum policy, Thomas dissented from a denial of stay application. The Ninth Circuit imposed an injunction on the Trump administration's policy only granted asylum to refugees entering from a designated port of entry, ruling that it violates the Immigration and Nationality Act of 1952. Ninth Circuit Judge Jay Bybee’s majority opinion in an injunction order concluded that denial of the ability to apply for asylum regardless of entry point is "the hollowest of rights that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact." Thomas' Supreme Court colleagues Neil Gorsuch, Samuel Alito, and Brett Kavanaugh also dissented in the 5–4 Supreme Court decision to deny a stay to the Ninth Circuit's injunction.[133][134]

Federalism was a central part of the Rehnquist Court's constitutional agenda.[135] Thomas consistently voted for outcomes that promoted state-governmental authority, in cases involving federalism-based limits on Congress's enumerated powers.[135] According to law professor Ann Althouse, the court has yet to move toward "the broader, more principled version of federalism propounded by Justice Thomas."[136]

In Foucha v. Louisiana, Thomas dissented from the majority opinion that required the removal from a mental institution of a prisoner who had become sane.[137] The court held that a Louisiana statute violated the Due Process Clause "because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness."[138] Dissenting, Thomas cast the issue as a matter of federalism.[137] "Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter," he concluded, "but the Due Process Clause does not require the States to conform to the policy preferences of federal judges."[138] In United States v. Comstock, Thomas' dissent argued for the release of a former federal prisoner from civil commitment, again on the basis of federalism.[139] In U.S. Term Limits, Inc. v. Thornton, he authored the dissent defending term limits on federal house and senate candidates as a valid exercise of state legislative power.[140]

As of 2007, Thomas was the justice most willing to exercise judicial review of federal statutes, but among the least likely to overturn state statutes.[141] According to a The New York Times editorial, "from 1994 to 2005 ... Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer."[142]

In the 2009 Northwest Austin Municipal Utility District No. 1 v. Holder case, Thomas was the sole dissenter, voting in favor of throwing out Section Five of the 1965 Voting Rights Act. Section Five requires states with a history of racial voter discrimination—mostly states from the old South—to get Justice Department clearance when revising election procedures. Although Congress had reauthorized Section Five in 2006 for another 25 years, Thomas said the law was no longer necessary, pointing out that the rate of black voting in seven Section Five states was higher than the national average. Thomas said "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."[143] He again took this position in Shelby County v. Holder, voting with the majority and concurring with the reasoning which struck down Section Five.[144]

By 2002, Thomas was the second most likely among the nine justices to uphold free speech claims (tied with David Souter).[145] He has voted in favor of First Amendment claims in cases involving a wide variety of issues, including pornography, campaign contributions, political leafleting, religious speech, and commercial speech.

Thomas has made public his belief, that all limits on federal campaign contributions are unconstitutional, and should be struck down.[146] Thomas voted with the majority in Citizens United v. FEC.[147]

On occasion, however, Thomas has disagreed with free speech claimants. For example, he dissented in Virginia v. Black, a case that struck down part of a Virginia statute that banned cross burning. Concurring in Morse v. Frederick, he argued that the free speech rights of students in public schools are limited.[148] In Walker v. Texas Division, Sons of Confederate Veterans, he joined the majority opinion that Texas's decision to deny a request for a Confederate Battle Flag specialty license plate is constitutional.[149]

Thomas authored the decision in Ashcroft v. ACLU, which held that the Child Online Protection Act might (or might not) be constitutional. The government was enjoined from enforcing it, pending further proceedings in the lower courts.[150] Thomas wrote concurrences in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)[151] and United States v. Playboy Entertainment Group (2000).

In Elk Grove Unified School District v. Newdow, Thomas wrote: "It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause."[152] and in Cutter v. Wilkinson, Thomas wrote: "I note, however, that a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause."[153]

Thomas says "it makes little sense to incorporate the Establishment Clause" vis-à-vis the states by the Fourteenth Amendment.[154]

Thomas agreed with the judgment in McDonald v. Chicago (2010) that the right to keep and bear arms is applicable to state and local governments, but Thomas wrote a separate concurrence finding that an individual's right to bear arms is fundamental as a privilege of American citizenship under the Privileges or Immunities Clause rather than as a fundamental right under the due process clause. The four justices in the plurality opinion specifically rejected incorporation under the privileges or immunities clause, "declin[ing] to disturb" the holding in the Slaughter-House Cases, which, according to the plurality, had held that the clause applied only to federal matters.[155][156]

Since 2010, Thomas has dissented from denial of certiorari in several Second Amendment cases. He would have voted to grant certiorari in Friedman v. City of Highland Park (2015), which upheld bans on certain semi-automatic rifles, Jackson v. San Francisco (2014), which upheld trigger lock ordnances similar to those struck down in Heller, Peruta v. San Diego County (2016), which upheld restrictive concealed carry licensing in California, and Silvester v. Becerra (2017), which upheld waiting periods for firearm purchasers who have already passed background checks and already own firearms. He was joined by Justice Scalia in the former two, and by Justice Gorsuch in Peruta.[157][158][159][160]

Thomas dissented from the denial of an application for a stay presented to Chief Justice John Roberts in the United States Court of Appeals for the District of Columbia Circuit case Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives (2019), a case challenging the Donald Trump administration's ban on bump stocks. Only Thomas and Neil Gorsuch publicly dissented.[161]

In cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants. For example, his opinion for the court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and he wrote again for the court in Samson v. California, permitting random searches on parolees. He dissented in the case Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the case was controlled by the court's decision in Coolidge v. New Hampshire. In Indianapolis v. Edmond, Thomas described the court's extant case law as having held that "suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops." Although he expressed doubt that those cases were decided correctly, he concluded that since the litigants in the case at bar had not briefed or argued that the earlier cases be overruled, he believed that the court should assume their validity and rule accordingly.[162] However, he was in the majority in Kyllo v. United States, which held that the use of thermal imaging technology to probe a suspect's home, without a warrant, violated the Fourth Amendment.

In cases involving schools, Thomas has advocated greater respect for the doctrine of in loco parentis, which he defines as "parents delegat[ing] to teachers their authority to discipline and maintain order."[163] His dissent in Safford Unified School District v. Redding illustrates his application of this postulate in the Fourth Amendment context. School officials in the Safford case had a reasonable suspicion that 13-year-old Savana Redding was illegally distributing prescription-only drugs. All the justices concurred that it was therefore reasonable for the school officials to search Redding, and the main issue before the court was only whether the search went too far by becoming a strip search or the like.[163] All of the justices, except Thomas, concluded that this search violated the Fourth Amendment. The majority required a finding of danger or reason to believe drugs were hidden in a student's underwear in order to justify a strip search. In contrast, Thomas said, "It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not"[164] and that "reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed." Thomas said, "[t]here can be no doubt that a parent would have had the authority to conduct the search."[163]

In Doggett v. United States, the defendant had technically been a fugitive from the time he was indicted in 1980 until his arrest in 1988. The court held that the delay between indictment and arrest violated Doggett's Sixth Amendment right to a speedy trial, finding that the government had been negligent in pursuing him and that he was unaware of the indictment.[165] Thomas dissented, arguing that the purpose of the Speedy Trial Clause was to prevent "'undue and oppressive incarceration' and the 'anxiety and concern accompanying public accusation'" and that the case implicated neither.[165] He cast the case instead as, "present[ing] the question [of] whether, independent of these core concerns, the Speedy Trial Clause protects an accused from two additional harms: (1) prejudice to his ability to defend himself caused by the passage of time; and (2) disruption of his life years after the alleged commission of his crime." Thomas dissented from the court's decision to, as he saw it, answer the former in the affirmative.[165] Thomas wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role."[166]

In Garza v. Idaho, Thomas and colleague Neil Gorsuch, in a dissent, suggested Gideon v. Wainwright (1963), which established that indigent criminal defendants be provided counseling, was wrongly decided and should be overruled.[167]

Regarding capital punishment, Thomas was among the dissenters in Atkins v. Virginia and Roper v. Simmons, which held that the Eighth Amendment to the United States Constitution prohibits the application of the death penalty to certain classes of persons. In Kansas v. Marsh, his opinion for the court indicated a belief that the constitution affords states broad procedural latitude in imposing the death penalty, provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the court had reversed its 1972 ban on death sentences if states followed procedural guidelines.

In Hudson v. McMillian, a prisoner had been beaten, garnering a cracked lip, broken dental plate, loosened teeth, cuts, and bruises. Although these were not "serious injuries", the court believed, it held that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury."[168] Dissenting, Thomas wrote that, in his view, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment'. In concluding to the contrary, the Court today goes far beyond our precedents."[168] Thomas's vote—in one of his first cases after joining the court—was an early example of his willingness to be the sole dissenter (Scalia later joined the opinion).[169] Thomas's opinion was criticized by the seven-member majority of the court, which wrote that, by comparing physical assault to other prison conditions such as poor prison food, Thomas's opinion ignored "the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment".[168] According to historian David Garrow, Thomas's dissent in Hudson was a "classic call for federal judicial restraint, reminiscent of views that were held by Felix Frankfurter and John M. Harlan II a generation earlier, but editorial criticism rained down on him".[170] Thomas would later respond to the accusation "that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion ... no honest reading can reach such a conclusion."[170]

In United States v. Bajakajian, Thomas joined with the court's more liberal bloc to write the majority opinion declaring a fine unconstitutional under the Eighth Amendment. The fine was for failing to declare more than $300,000 in a suitcase on an international flight. Under a federal statute, 18 U.S.C. § 982(a)(1), the passenger would have had to forfeit the entire amount. Thomas noted that the case required a distinction to be made between civil forfeiture and a fine exacted with the intention of punishing the respondent. He found that the forfeiture in this case was clearly intended as a punishment at least in part, was "grossly disproportional", and was a violation of the Excessive Fines Clause.[171]

Thomas has written that in his view, the "Cruel and Unusual Punishment" clause of the Eighth Amendment "contains no proportionality principle", meaning that the question whether a sentence should be rejected as "cruel and unusual punishment" depends only on the sentence itself, and does not depend on what crime is being punished.[172] He was concurring with the Court's decision to reject a request for review from a petitioner who had been sentenced to 25 years to life in prison, under California's "Three-Strikes" law, for stealing some golf clubs, because the combined value of the clubs made the theft a felony, and he had two previous felonies in his criminal record.

Thomas believes that the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment. In Adarand Constructors v. Peña, for example, he wrote "there is a 'moral [and] constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. That [affirmative action] programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."[173]

In Gratz v. Bollinger, Thomas said that, in his view, "a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause."[174] In Parents Involved in Community Schools v. Seattle School District No. 1, Thomas joined the opinion of Chief Justice Roberts, who concluded that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."[175] Concurring, Thomas wrote that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," and charged that the dissent carried "similarities" to the arguments of the segregationist litigants in Brown v. Board of Education.[175]

In Grutter v. Bollinger, he approvingly quoted Justice Harlan's Plessy v. Ferguson dissent: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."[176] In a concurrence in Missouri v. Jenkins (1995), he wrote that the Missouri District Court "has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority."[177]

Thomas has contended that the Constitution does not address the issue of abortion.[178] In Planned Parenthood v. Casey (1992), the court reaffirmed Roe v. Wade. Thomas along with Justice Byron White joined the dissenting opinions of Chief Justice William Rehnquist and Justice Antonin Scalia. Rehnquist wrote that "[w]e believe Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."[179] Scalia's opinion concluded that the right to obtain an abortion is not "a liberty protected by the Constitution of the United States."[179] "[T]he Constitution says absolutely nothing about it," Scalia wrote, "and [ ] the longstanding traditions of American society have permitted it to be legally proscribed."[179]

In Stenberg v. Carhart (2000), the court struck down a state ban on partial-birth abortion, concluding that it failed the "undue burden" test established in Casey. Thomas dissented, writing: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."[180] He went on to criticize the reasoning of the Casey and Stenberg majorities: "The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States—a hostility that Casey purported to reject."

In Gonzales v. Carhart (2007), the court rejected a facial challenge to a federal ban on partial-birth abortion.[181] Concurring, Thomas asserted that the court's abortion jurisprudence had no basis in the constitution, but that the court had accurately applied that jurisprudence in rejecting the challenge.[181] Thomas added that the court was not deciding the question of whether Congress had the power to outlaw partial-birth abortions: "[W]hether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court [in this case] ... the parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."[181]

In December 2018, Thomas wrote a dissent when the Supreme Court voted against hearing cases brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood.[182] Justices Alito and Gorsuch joined Thomas’ dissent, arguing that the Supreme Court was “abdicating its judicial duty.”[183]

In February 2019, Thomas joined with three of the court's other conservative justices voting to reject a stay to temporarily block a law restricting abortion in Louisiana.[184] The law that the court temporarily stayed, in a 5–4 decision, would require that doctors performing abortions have admitting privileges in a hospital.[185]

In Box v. Planned Parenthood of Indiana and Kentucky, Inc. (2019), a per curiam decision upholding the provision of Indiana's abortion restriction regarding fetal remains disposal on rational basis scrutiny, but also upholding the lower court rulings striking down the ban on race, sex, and disability provision; Thomas wrote a concurring opinion comparing abortion and birth control to eugenics, which was practiced in the United States in the early 20th century, and by the Nazi government in Germany in the 1930s and 1940s; as well as comparing the Box decision to Buck v. Bell (1927), which upheld a forced sterilization law regarding people with mental disabilities. (In his opinion, Thomas quoted Margaret Sanger's support for contraception as a form of personal reproductive control which she considered superior to "the horrors of abortion and infanticide" (Sanger's wording, quoted by Thomas in his opinion)).[186] Thomas' opinion referred several times to the book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck by historian/journalist Adam Cohen; shortly afterward, Cohen published a sharply-worded criticism saying that Thomas had misinterpreted his book and misunderstood the history of the eugenics movement.[187] In Box, only Thomas, Sonia Sotomayor, and Ruth Bader Ginsburg publicly registered their votes. Ginsburg and Sotomayor concurred in part and dissented in part, stating they would have upheld the lower court decision on striking down the race, sex, and disability ban; as well as the lower court decision striking down the fetal remains disposal provision.[186]

In Romer v. Evans (1996), Thomas joined Scalia's dissenting opinion arguing that Amendment Two to the Colorado State Constitution did not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Colorado amendment forbade any judicial, legislative, or executive action designed to protect persons from discrimination based on "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships."[188]

In Lawrence v. Texas (2003), Thomas issued a one-page dissent in which he called the Texas statute prohibiting sodomy "uncommonly silly", a phrase originally used by Justice Stewart. He then said that if he were a member of the Texas legislature he would vote to repeal the law, as it was not a worthwhile use of "law enforcement resources" to police private sexual behavior. However, Thomas opined that the Constitution did not contain a right to privacy; therefore, he did not vote to strike the statute down. Accordingly, Thomas saw the issue as a matter for the states to decide for themselves.[189]