The Nine [54]
By 1995, O’Connor could slough off Scalia’s tirades. After fourteen years on the Court, she had come to feel great self-confidence in her judgments, and if her views didn’t always give perfect guidance to the lower courts, she thought it was better to be right than consistent. “We’re a common law court,” she would say, without a trace of defensiveness. “Of course, we ‘make’ law as we go along.” O’Connor was perfectly content each year to watch the parade of crèches, crosses, menorahs, and the like passing through the Court’s docket, awaiting her thumbs up or thumbs down.
The next subject on the horizon was what would become known as faith-based initiatives—government programs handed over to be run by private and religious organizations. As Sekulow and other litigators planned their litigation strategies, the question would usually come down simply to: “What will Sandra do?”
8
WRITING SEPARATELY
Few lawyers anticipating their appearances before the Supreme Court spent much time asking, “What will Clarence do?” As O’Connor relished her place at the center of the Court’s decisions, Thomas embraced an alternative model of judging, one where he viewed himself as a principled outsider who cared little whether his opinions commanded a majority or even a single additional vote. He was a justice neither influenced by nor with influence upon his colleagues.
Thomas rarely spoke in oral arguments. He was the only justice who suffered through a brutal confirmation fight. He was the only African American. He was more than a decade younger than most of his colleagues. He traveled in an entirely different milieu, socializing at recreational vehicle campgrounds and NASCAR tracks (where few people recognized him) and in the salons of right-wing activists (where he was revered). He was the friendliest, warmest justice, and he was full of rage. He denounced self-pity and pitied himself. There was no one on the Court remotely like him—philosophically, jurisprudentially, or personally.
As Thomas approached the completion of his first decade on the Court, he had established the most distinctive judicial perspective among the justices. He was by far the most conservative member of the Rehnquist Court, probably the most conservative justice since the Four Horsemen, FDR’s nemeses, retired during the New Deal. Thomas’s opinions, if they ultimately commanded a majority, would create not only new precedents—Roe overturned, virtually all religious displays allowed, virtually no executions stopped—but a transformed nation. His opinion in Lopez, the Commerce Clause case, offered a clue to the shape of that possible new world. Thomas joined Rehnquist’s majority opinion striking down the Gun-Free School Zones Act, but in a concurring opinion he said he thought the Court should have gone much further.
“I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause,” Thomas stated, before beginning a lengthy analysis of what the term “commerce” meant in 1789, noting, for example, his view that “manufacturing and agriculture” were outside the eighteenth-century understanding of that word. Accordingly, Thomas said, he thought any federal regulation of manufacturing or agriculture was unconstitutional. To Thomas, the change in the nation over two centuries mattered less than honoring the intent of the framers. “Even though the boundary between commerce and other matters may ignore ‘economic reality’ and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.” That no justice had expressed views like his for decades—and that his approach would invalidate much of the work of the contemporary federal government—disturbed Thomas not at all. As he said, “Although I might be willing to return to