The Thomas court

WASHINGTON (CN) — Justice Clarence Thomas was in his first term on the Supreme Court when it upheld the constitutional right to abortion against his wishes. Now 30 years on, the conservative justice may get his chance at course correction.  

Thomas joined three of his colleagues to dissent in the 1992 case Planned Parenthood v. Casey, but the conservative justice sits on a court today that looks ready to overturn the constitutional right to abortion established in Roe v. Wade. Thomas may not only get his wish to overturn Roe — better yet, he may even get to decide who writes the opinion in Dobbs v. Jackson Women's Health if he is the most senior justice in the majority. This is a marked shift from a justice whose views were at one point seen as fringe. 

At the beginning of the month, the high court heard a challenge to the 50-year precedent from Mississippi. Dobbs concerns the state’s ban on all abortions after 15 weeks instead of 24 weeks, when a fetus is deemed viable, meaning it can survive outside the womb. Most of the conservatives on the court seemed to lean towards overturning Roe during oral arguments, and Chief Justice John Roberts was left out in the cold when he repeatedly suggested the court could move the viability line without completely overturning the precedent. 

Questions justices ask during oral arguments are not always indicative of how the rulings shape up, however, Thomas’ appearance as the possible leader in the majority opinion in this case demonstrates the shift the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have made on the court. It also shows how Thomas has shaped the conservative legal movement that’s views are now reflected in the majority on the high court. 

“If Justice Thomas writes the majority opinion for the court striking down Roe v. Wade, it will be the sort of quintessential example of how his non-mainstream ideas have taken over the Supreme Court,” Adam Winkler, a professor at UCLA School of law, said in a phone call.  

Thomas’ judicial philosophy is based on originalism and textualism. Originalism looks at the constitution as it was understood at the time when it was adopted, and textualism interprets the words of the constitution as they were written.  

“Justice Thomas is the quintessential originalist,” Carrie Campbell Severino, president of the Judicial Crisis Network and former law clerk for Thomas, said in a phone call. “He was an originalist before originalism was cool.” 

While not everyone believes Thomas’ actions always reflect his strong originalist thinking, there’s no doubt that he has been influential in the modern conservative legal movement. 

“I think Justice Thomas may be the foremost voice for originalism in conservative legal circles today,” Winkler said. 

Justice Antonin Scalia was once the darling of conservative legal circles, however, some thought he wasn’t as devout of an originalist. With Thomas, they have no doubts. 

“Even during Justice Scalia's lifetime, there were a lot of constitutional conservatives who thought that Scalia was only a fairweather originalist,” Winkler said. “He wasn't willing to stick with originalism come hell or high water, whereas many conservatives think Justice Thomas is more devout to originalism.” 

Thomas’ has often expressed views outside of mainstream legal thinking throughout his career. He was the first Supreme Court justice to suggest that the Second Amendment protects an individual right. Critics were then shocked when Thomas first related abortion to eugenics, but now that idea is more commonplace in the movement to ban abortion. He has also been influential in his thinking on how government regulation is administered. 

“There's definitely this pattern where Justice Thomas has become famous for taking what seems at the time kind of outlandish, certainly out of the mainstream, positions on legal issues, and then years later, we find the conservative legal movement rallying around those very ideas and them becoming mainstream,” Winkler said. 

One of the reasons for this pattern that legal scholars have cited is his persistence in expressing his strong views in his opinions — even if that meant being the lone dissent in a case. While the majority opinions shape the law, the dissents are often analyzed by legal scholars. A whole generation of law students has been shaped by Thomas’ writings. 

“His consistent relentless commitment to principle is something that has made just this whole next generation of law students and has been inspiring to them, has kept them interested and engaged with these issues of originalism and textualism,” Severino said. 

The three Trump nominees who solidified the conservative majority on the court are not immune to this influence either.  

“All of them are themselves heavily influenced by Justice Thomas's views,” Winkler said. “I mean, it's not like Justice Thomas has become powerful, just because of the force of his argument, he's gotten a lot more allies on the Supreme Court who have subscribed to his views.” 

Thanks to procedural guidelines from Covid-19, Thomas — who was once silent in arguments for 10 years — now asks the first question in every argument session. 

All of these factors align as the court embarks on a historic term packed full of important decisions on issues like voting, gun and abortion rights, and Thomas is in a position to be an influential player. 

“The more strong conservatives joining, coupled with his longevity on the court, and the respect that he is built up in the conservative legal community, all those things, give him more power or leverage or persuasive force within the court,” Mark Tushnet, a William Nelson Cromwell Professor of Law Emeritus at Harvard Law School, said in a phone call. 

The court’s decisions this term could very well be shaped by Thomas’ views that were once viewed as fringe but have now been embraced by the conservative legal movement. That could mean certain constitutional rights could be limited or rolled back, while others related to religious freedom and the Second Amendment could be advanced. 

“I think we are entering an era where privacy rights, rights related to sexuality, are going to be minimized, but rights relating to religious freedom and property rights are likely to be expanding,” Winkler said. “Certainly gun rights are going to be expanding.” 

It is in no way guaranteed that Thomas would write the opinion in Dobbs even if he has seniority in the majority, but the possibility is indicative of his new position of power on the high court and his influential career that has shaped the high court’s direction over the last 30 years. 

Follow @KelseyReichmann

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