Thomas’ dissents rise in nixed cases
By Mark Sherman
Associated Press
WASHINGTON (AP) — One measure of Supreme Court justices’ rising frustration is the number of times they can’t recruit three colleagues to hear a case, then feel compelled to tell the world about it.
Justice Clarence Thomas did so nine times this past term, or about as often as he did in the four previous years combined. Most appeals are denied with no objection noted.
Thomas’ dissents generally came when he could not persuade enough of the other conservatives on the court to hear cases about guns, religious rights or campaign finance restrictions. Justice Samuel Alito was second with six noted dissents.
It was an especially trying term for conservatives after the death of Justice Antonin Scalia in February.
“First Amendment rights are all too often sacrificed for the sake of transparency in federal and state elections,” Thomas wrote last Tuesday, when the court refused to hear a conservative group’s challenge to disclosure requirements in a Delaware campaign finance law.
Alito wrote the same day to describe as “ominous” the court’s rejection of an appeal from Washington state pharmacists who hold religious objections to dispensing emergency contraception. Thomas and Chief Justice John Roberts joined the dissent, but they evidently could not win the vote of Justice Anthony Kennedy.
It takes four votes to hear an appeal and five to decide a case, even now, when there are only eight justices since Scalia’s death.
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Thomas’ supporters last week reflected on his time on the court in advance of the 25th anniversary of his nomination by President George H.W. Bush on July 1, 1991.
Bush tapped Thomas, the second African-American on the court, to replace Thurgood Marshall, the first black justice.
C. Boyden Gray, Bush’s White House counsel, said the president was so enamored of Thomas that he almost nominated him earlier, when Justice William Brennan retired in 1990.
Bush’s legal team knew a second high court opening was possible because of Marshall’s failing health, Gray said.
One reason Bush considered Thomas for Brennan’s seat was that he “didn’t want to have a black replacing a black,” Gray said during a telephone conference sponsored by the Federalist Society. Instead, Bush chose David Souter because Gray and others thought Thomas, in his early 40s and newly confirmed as an appellate judge, needed more experience on the bench.
Thomas’ nomination, contentious from the start, was nearly derailed by accusations from former colleague Anita Hill that he sexually harassed her.
Thomas adamantly denied Hill’s claims, which sparked a national debate about sexual harassment on the job. He called the nationally televised hearings a “high-tech lynching.”
Former law clerk Gregory Katsas said Thomas has never been afraid to speak out or go his own way. “Justice Thomas has the courage of his convictions and he has this incredible sense of duty to the country and to himself and to his oath to get cases right even if that means bucking his colleagues and bucking conventional opinion,” Katsas said.
Another former clerk, Carrie Severino, discounted talk that Thomas would soon retire, either with President Barack Obama still in office or during a Hillary Clinton presidency, if she is elected. Allowing either Democrat to name his successor “would be admitting defeat, and he’s not about to do that,” Severino said.
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Thomas is one of three justices traveling to the Europe this summer to teach or speak in desirable surroundings. He will be on the French Riviera, in Nice, as part of the San Diego-based Thomas Jefferson School of Law summer program. Scalia had been scheduled to teach a constitutional law class and Thomas stepped in after his friend’s death.
Alito also will be in France at Tulane Law School’s summer abroad program in Paris. Justice Ruth Bader Ginsburg heads to Venice where she will preside over a mock trial drawn from William Shakespeare’s “The Merchant of Venice.” The trial is part of a commemoration of the 400th anniversary of Shakespeare’s death and the 500th anniversary of the formation of the Jewish ghetto in Venice.
Three more justices are heading west this summer to take part in conferences with other judges and lawyers. Kennedy will speak at the mid-July conference of the 9th U.S. Circuit Court of Appeals in Big Sky, Montana. The circuit includes Montana and eight other Western states. Later in the summer, Justices Elena Kagan and Sonia Sotomayor will be in Colorado Springs, Colorado, for the 10th U.S. Circuit Court of Appeals conference. The circuit includes Colorado and five neighboring states.
