The Nine [56]
Rehnquist rarely assigned important majority opinions to Thomas, because his extreme views made it difficult for him to persuade a majority of his colleagues to join him. In late 1999, the justices agreed to uphold a federal program that passed government funds to state and local agencies, which in turn lent educational equipment to public, private, and religious schools. The Court agreed that the law did not violate the Establishment Clause, and Rehnquist assigned the case to Thomas, who couldn’t even muster four other justices. Thus, Thomas’s opinion began with the embarrassing opening (under the circumstances) that he “announced the judgment of the Court,” rather than the customary “delivered the opinion of the Court.” In her separate opinion explaining why she could not join Thomas, O’Connor said she rejected his attempt to approve the “diversion of government aid to religious indoctrination.”
Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects—“dogs,” in the Court’s parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a “knuckle” between two cars. “It was a little case that didn’t matter to anyone,” Thomas said in a speech. “It’s almost inconsequential. It was a fun little opinion. I went back into the history of trains.” (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas’s opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)
Probably the greatest contrast between Thomas and his colleagues was that he fundamentally did not believe in stare decisis, the law of precedent. If a decision was wrong, Thomas thought it should be overturned, however long the case may have been on the books. As he wrote once, “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” All justices of the Supreme Court, from Brennan on the left to Scalia on the right, develop something close to reverence for the Court’s precedents; no one besides Thomas would have dismissed two hundred years of stare decisis in such a cavalier way. At an appearance at a New York synagogue in 2005, Scalia was asked to compare his own judicial philosophy with that of Thomas. “I am an originalist,” Scalia said, “but I am not a nut.”
So Thomas was ideologically isolated, strategically marginal, and, in oral argument, embarrassingly silent. He was also universally adored.
Fellow justices, law clerks, police officers, cafeteria workers, janitors—all basked in Thomas’s effusive good nature. His rolling basso laughter frequently pierced the silence of the Court’s hushed corridors. Unlike the rest of his colleagues, Thomas learned the names of all the new clerks every year, including those of his ideological adversaries, and he frequently invited the young lawyers into his chambers to chat, often for two or three hours. One year Thomas became friendly with a Stevens clerk, a lesbian whose partner was a professional snowboarder; Thomas liked the two of them so much that for a while he kept a photograph of the snowboarder on his desk. When the wife of one of his former law clerks lay dying in the hospital, Thomas and his wife spent several nights comforting the couple through the ordeal.
Thomas didn’t treat just law clerks this way. He would meet law students at moot courts, or people at ball games and auto races, and invite them to visit him at the Supreme Court. When they did, the conversations