Note (3/5/12): Below, I say that Justice Thomas has never promulgated an interpretive theory. I was rightly called to account for this statement by one of his clerks (past, present, or future, to preserve anonymity). I did not mean to suggest that Justice Thomas doesn't have a comprehensive theory. Indeed, one of the reasons I admire him is his approach to judging. Thomas has written little in the way of law review essays or books while some of his brethren on the Court have spilled much ink on the subject. Justice Thomas has, however, demonstrated a cogent and correct interpretive theory in his writings from the bench. Lawyers would do well to imitate him.
Justice Clarence Thomas is sometimes confused for an errant Gargoyle during oral argument. So stony is his demeanor that when the man finally speaks, it occasions news no matter what he says. Today, he is reported to have interrupted an almost seven year streak of silence in order to crack wise about Ivy League lawyers.
Thomas's story is incredible, and the disrespect he gets is depressing.If you haven't read his autobiography, I highly recommend it. Like the man himself, it utterly lacks pretense. He is open about his discomfort with having things (admissions to Yale Law) handed to him because of his race. He is suitably humble about his respectable tenure at the EEOC, and suitably conscientious when discussing Anita Hill. One gets the impression that Thomas simply goes about his life's business, without much regard for the mold others wishes he would fit. Never speaking at oral argument is a part of that attitude.
As a student of originalism and a cultural conservative, I find Justice Thomas delightfully enigmatic. Although he is sometimes regarded as the most conservative justice on the Court, he has never articulated a theory of constitutional interpretation. Compare this with Antonin Scalia, who at least since the late 1980s has been actively promoting originalism (see, for example, his 1986 speech to the Department of Justice or his law review article, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1989)). Scalia and other prominent originalists are engaged in a self-conscious struggle for the meaning of the law. Thomas, like Tom Bombadil, seems unaffected by the sound and the fury, simply judging according to the law. In this respect, he channels the judges of antiquity - quietly demonstrating what many can only say.
To be sure, Thomas will often find himself at odds with political conservatives, originalist theorists, and even like-minded judges. And he can, of course, be wrong, just as Coke and Marshall and Learned Hand were sometimes wrong. If you want an example of what I consider a fine example of Thomas's Burkeanism, take a look at his concurring opinion[PDF] in Morse v. Frederick (Thomas's concurrence starts on page 19 of that file). I'll spare you the First Amendment analysis here, but suffice it to say he and Justice Alito get about as far apart as you can on the question of school speech without blatantly disrespecting the text.
His life would be the subject of celebrations and faculty symposia if he peppered his opinions with more leftist bromides, I'm sure. Instead, he was the subject of attempted character assassination before Senate Democrats started commenting on black politicians' "negro dialect." He has never been a partisan for racial causes, preferring instead, it seems, to serve as a role model for all Americans. That doesn't stop mainstream publications from lumping him with other "house negroes" (their words) solely on account of his skin color. Thomas is not ashamed of his race, nor is he ignorant of the abuses blacks have suffered in this country. He grew up in very poor, very rural Georgia, where Jim Crow was far from dead. What Thomas is not, however, a racialist. He would rather be known as a thoughtful jurist than a pathbreaking black man.
Were he to meet an untimely demise today, he would have already achieved that appellation. At 63 years old, he is twelve years younger than his more bombastic ally, Justice Antonin Scalia. Oliver Wendell Holmes, Jr. served on the Court until his ninetieth year, and that was in the early 1900s. Let's hope Justice Thomas gets close to that mark - he has much work left in undoing what Holmes and his generation wrought. In the meantime, Thomas will no doubt go about his task as one of the most important men in the world with characteristically stoic diligence.