Justice Thomas, Candle in the Darkness

I had never met Justice Clarence Thomas. The occasion for our meeting was a private ceremony at the United States Supreme Court last year. The ceremony honored a scholar of law and leader in his profession, who happened to be a friend of mine. There were perhaps eight in his office. We stayed for nearly an hour, after which he met with a room of young scholars. That day, I got a shock.

To me, having been a U.S. Court of Appeals clerk for a Reagan appointee and admirer of Justice Scalia, I imagined -- I am not sure what I imagined. My preconceptions of Justice Thomas gave me to think he was humble and self-effacing, but naturally a man of few words. Every indication from the bench reaffirmed this. While Justice Scalia regularly demonstrated his saber wit, infinite and ironic humor, knack for incisive questions, and indefinite recall of legal precedent, my expectations of Justice Thomas were different. 

Too well, I recalled the extraordinary unfairness visited on him during confirmation hearings, a scalding experience for all who watched. They still dragged my heart down, almost 25 years later. They had been a travesty, a secular crusade to undermine a good man’s integrity -- turning first this way, then that, anything to prevent America’s first Black conservative jurist from taking a seat on the High Court. 

This travesty, ironically enough, was led by two senators who espoused an interest in juridical thinking and egalitarian principles -- but hardly treated their distinguished nominee with the respect due his depth, training and record. The two accusatory senators were Joseph Biden and Ted Kennedy. The memory of that painful process quieted me every time I thought about it. I imagined it left scars on the justice, a man who already kept his own counsel. No wonder he requested appellants exhaust their reasoning in written briefs, and he asked few questions from the bench.

As I sat there in Justice Thomas’ chambers, I knew that questions from the bench -- by any justice -- had been rare prior to Justice Scalia’s appointment in 1986. At that time, a sudden shift occurred. Justice Scalia evinced a willingness to mix it up, verbally and intellectually jousting with contenders for his concurrence. He was willing to shake and uncap the bottle, testing the reasoning of appellate litigants, probing their nimbleness of mind, depth of knowledge and application of case law. Scalia brought life to the court’s oral arguments. By contrast, Justice Thomas was -- like many before him -- a listener who avoided verbal duals, demurred to briefs. 

Naturally, that is what I expected -- a quiet, listening justice, a man of few words, counsel closely kept. That is not what I encountered. Not at all. From the get-go, Justice Thomas was a tour-de-force, opening with boundless energy, Scalia-like wit, and a deep reservoir of good humor. He was crisp, alive to each question and comment, focused on the background of everyone in the room, deferential and quick to extend the thread, and surprising in another way. 

Asked about a wide range of cases, crossing many and obscure areas, he took us on the adventure of a lifetime, case by case, in some instances winding back through the detailed common law and the origins of our rights, back to the Magna Carta. His mental flexibility, verbal fluidity and depth of knowledge on how, when, in what sequence, by what historical forces, and why our Constitutional rights holds us together was powerful, even spellbinding. I had not expected anything like this. 

Mentally, I struggled to keep up with him, scrambling to follow complex fact patterns and clever comparisons, logical explanations for controversial cases, interlocking syllogisms and what these implied, important case connections, and an agility with philosophy, history, principle, and the distillate of our vast past. His grasp of our Constitution was rooted in mastery of case and statutory law, American and British history, and his frank ability to place each case -- without prejudice or revisionism -- in historical context. Forget narratives, he had facts. And he explained why meaning was imputed to the facts.

Clearly, this was a thinker whose still waters ran deep. His past, earliest days in poverty, raised by a strong mother and principled grandfather, gifted him with unusual insight, a thoughtful blend of patience and passion, inner peace and aspiration for the truth, doggedness, strength of character, and intergenerational perspective. 

To see these qualities in a justice expected to be quiet was amazing. To understand that, along with Justice Scalia, Justice Alito, and flashes by others, there sat on the High Bench a mind profoundly grounded in historic understandings and timeless conservative principles, compelling in the way he graciously conveyed them to us, was a cool breeze on a stifling day, water in the desert. Behind those big closed doors, another powerful, compelling, conservative voice sounded.                               

To hear Justice Thomas answer hard questions, see him prod with proportion and kindness, hear him unpack and handle assumptions, watch his facility with historical reference points, was impressive. He shamed no one, accommodated everyone, but let nothing slip past. He educated without officiousness, enlightened with timely details and analogies, enlivened our little discussion with self-deprecating good humor. He was suddenly not the justice but one of us, helping us to see the light.

To cap his tour-de-force, he offered a playful exercise. In a second room, filled with perhaps 50 young scholars, he offered not only an open hand, mind and smile, but also a unique connection to their respective worlds. He asked many where they were from. Invariably, a given state would come back, and then he would ask where in the state, eventually working down to township or part of a given city. Then he would tell them how he knew that place, a general store across from the church, a gravel parking lot adjacent a specific intersection, something about their hometown. It was startling to the point of funny. Only it was real, since he travels the country and has for years, coast to coast, north to south, every summer. And why? To stay connected. 

So what does this add to? Just this. This week, for the first time in almost 30 years, justices of the United State Supreme Court heard arguments without the great jurist, Justice Antonin Scalia. His loss is palpable to everyone who follows the Court, but it must be profound to those who knew the man. For thirty years, he asked those penetrating, incisive, probing and humorous questions. 

No one can replace Justice Scalia, as justice, jurist, or man. But he did set an example, the example of mixing it up, stirring appellate litigants to think on their feet, asking them questions -- some simple, some layered -- which live on. And by odd coincidence, this week, his good colleague and no doubt decades-long friend, Justice Thomas, asked his first open court question -- a constitutionally focused inquiry -- in many years. 

As a common citizen, with no interest or case before the High Court, that fact made me look up, suddenly happy. I know the extraordinary power of Justice Thomas’ uncommon mind and extraordinary command of case law, statutory law, their nexus and context. I have seen his reverence for our Constitution and for the people he serves. 

So, I hope this is the beginning of a new chapter. I hope that he may consider offering more probing questions now, no doubt on the unspoken encouragement of his friend’s absence. Perhaps his banner may more fully unfurl, his light shine more brightly.  We could use that sort of wisdom in the open court these days. The bible says, “Neither do men light a candle, and put it under a bushel, but on a candlestick. And it giveth light unto all that are in the House.” The High Court is a big house, but if there was ever a time for more light in that house, it is now. Thank you, Justice Thomas.   

Robert Charles is a former U.S. Court of Appeals clerk, litigator, instructor at Harvard University extension school in law and congressional oversight, and former Assistant Secretary of State under Colin Powell. 

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