Clarence Thomas Has Big Shoes to Fill to Become Supreme Court's Leading Conservative

Supreme Court Associate Justice Clarence Thomas surprised many seasoned Court watchers when he asked the first question of the 2021/2022 term earlier this month.

Thomas, now the Court's longest-serving member, has developed a reputation for reticence and often does not speak during the rapid-fire questioning period of oral arguments.

However, the conservative dove right into questioning counsel in a case dealing with a ground water dispute between Mississippi and Tennessee in what some viewed as a sign of the shifting balance of power on the court.

The nation's highest court now has a 6-3 conservative majority and Chief Justice John Roberts' influence has declined as a result.

A swing vote, Roberts was previously the decisive factor in close votes and famously sided with the liberals in some key cases but now that there are five other conservative justices, the chief justice appears increasingly sidelined.

Thomas may now feel more comfortable in his position as the potential intellectual leader of the court's conservatives. He is also the most senior associate justice.

As Thomas' views seem set to become more influential, some observers have suggested he may now be the leading conservative on the court. That was a role that was famously filled by the late Associate Justice Antonin Scalia. Like Thomas, Scalia was an originalist, meaning he believed the Constitution should be interpreted in the way it was originally intended.

Scalia is widely considered one of the most influential legal minds in recent history and was for many years perhaps the most prominent and best-known conservative on the court. He was also widely admired by conservatives in the legal profession and beyond, serving on the court from 1986 until his death in 2016. Experts told Newsweek how they thought Thomas compared to Scalia.

Bolder Than Scalia

Paul Collins, a legal studies and political science professor at the University of Massachusetts, in Amherst, told Newsweek there were similarities between the two men.

"We can certainly draw comparisons between Justices Scalia and Thomas. Both justices claimed to be strong advocates of the doctrine of originalism – the idea that judges should interpret the words in the Constitution according to how they would have been understood at the time they were written," Collins said.

"And both justices have ties to the conservative Federalist Society, a very powerful entity in the conservative legal movement. Moreover, both justices have very strong conservative voting records."

"Although they share much in common, I tend to view Justice Thomas as a bit bolder than Scalia was in terms of his willingness to overrule what he views as non-originalist precedent," Collins went on.

"It seems that Justice Thomas is very comfortable overturning the Court's previous decisions that he believes are not consistent with the doctrine of originalism. If he is able to convince four of his conservative colleagues that this is the appropriate approach to cases, this means that many of the liberal precedents set over the past 60 years will be under threat, including decisions involving criminal rights, business regulation, and civil rights and liberties."

Often an Outlier

Kent Greenfield is professor of law and Dean's Distinguished Scholar at Boston College of Law. He told Newsweek he did not believe Thomas would enjoy the kind of influence Scalia had.

"Justice Scalia was an important jurist because he was identified with his adherence to textualism and originalism," Greenfield said.

"His impact on judicial culture and on academic discourse was immense. As Justice Kagan has said, 'we are all textualists now.' But Scalia also cared about building coalitions, and he cared - at least sometimes - about precedent. So he at times ended up voting differently from how a strict textualist or originalist would have voted.

"Justice Thomas is less concerned with building coalitions and less concerned with precedent," Greenfield went on. "That means that Justice Thomas' jurisprudence has been more internally consistent than Justice Scalia's. But it also means that he is often an outlier, frequently writing opinions that express a solitary or idiosyncratic view.

Years Without a Question

"Another difference is that Justice Thomas has been famously quiet on the bench, asking only a handful of questions over his thirty-year tenure," Greenfield told Newsweek.

"Years have passed without a question from him. Scalia, on the other hand, was gregarious, combative, and often biting on the bench. He influenced the nature of the arguments in ways that Justice Thomas never has.

"For these reasons, I do not believe Justice Thomas can be seen as being the kind of intellectual or ideological leader on the Court that Scalia was," he said.

Oral arguments have concluded for the month of October and the justices will not have the opportunity to grill counsel again until November 1 when Thomas could surprise observers yet again or return to his more typical silence.

Clarence Thomas Sits for a Photo
US Supreme Court Associate Justice Clarence Thomas sits for an official photo with other members of the US Supreme Court in the Supreme Court in Washington, DC, June 1, 2017. Thomas is now the most senior associate justice on the court. SAUL LOEB/AFP/Getty Images