The Nine [55]
Thomas was engaged in a lonely, often solo, effort to restore the Constitution in Exile, the world of Supreme Court precedent before 1937. Even if he was rarely joined by his fellow justices, his chambers at least remained a controversy-free zone. Of all the justices, Thomas imposed the tightest ideological screen in the hiring of law clerks, deputizing a small group of former clerks to determine the views of prospective hires. Other justices hired clerks who generally shared their opinions; only Thomas imposed specific ideological litmus tests. Prospective clerks ran a three-stage gauntlet, which generally began with first interviews with John Yoo, a law professor, or Christopher Landau, a Washington lawyer and one of Thomas’s first clerks. (Yoo went on to work for President George W. Bush and wrote an infamous memo authorizing torture of detainees in the war on terror.) Finally, the current group of clerks would interrogate the applicant. They asked about ideology—abortion, federalism, Commerce Clause, death penalty, search and seizure—to make sure that the putative clerk shared Thomas’s (and their own) extreme views. Only after these interviewers reached a consensus on the applicant’s suitability did they permit an interview with Thomas, who generally limited himself to a low-key chat about the applicant’s family and interests. Asked about his ideological approach to the hiring of clerks at the National Center for Policy Analysis, a conservative think tank, Thomas said, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time and aggravates the pig.” Of Thomas’s first forty clerks on the Supreme Court, one was black.
Thomas’s extreme views extended well beyond the Commerce Clause. Throughout the 1990s, Rehnquist, Kennedy, and (as ever) O’Connor tried to revitalize the doctrine of states’ rights, ruling that several federal laws impinged on aspects of state sovereignty. These developments were sometimes called a “federalism revolution,” but that now seems an exaggeration. The changes the Court imposed on federal-state relations were, on the whole, rather modest. For example, the Court limited Congress’s right to pass laws that gave citizens the opportunity to sue state officials; similarly, they interpreted federal statutes so that they did not give citizens the right to sue states. These were important, but hardly revolutionary, limitations on federal power, with little practical impact on the lives of most people.
Thomas always joined these states’ rights rulings but often wrote concurring opinions urging the Court to cut back even more on federal authority. He asserted, for example, that he thought Congress had no right to make a federal crime of bribing state or local government officials—a kind of case that local U.S. attorneys had been bringing for decades. In 1997, the Court struck down part of the Brady Bill, the federal gun control law that directed state officials to conduct background checks on prospective handgun purchasers. Thomas signed on to Scalia’s majority opinion, of course, but in a brief concurrence suggested an even broader point, that all gun control was unconstitutional. He wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.” Thomas’s libertarian view of the original intent of the framers sometimes led him to broad definitions of freedom of speech—the one area where he tended to join the Court’s moderates—but his jurisprudence overall hewed predictably to a consistent conservative line. To prepare his law clerks for their chambers’ lonely crusade, Thomas required the new ones to watch the 1949 movie version of Ayn Rand’s classic homage to individualism, The Fountainhead, which concerns an architect’s struggle to maintain his integrity