As first term ends, Thomas' burden remains Imprint on high court's work not shown

THE BALTIMORE SUN

WASHINGTON -- It was only a single line of type, under a picture in a gossipy magazine. But it stood out like a too-obvious blemish on the brand-new career of Clarence Thomas as a justice of the U.S. Supreme Court.

That was six months ago, but the image that resulted from one quotation has not completely cleared up.

Underneath a picture of Justice Thomas and his wife, Virginia Lamp Thomas, posing informally with coffee cups in hand in their kitchen, the caption in People magazine read: " 'Clarence will give everyone a fair day in court,' says Virginia. 'But I feel he doesn't owe any of the groups who opposed him anything.' "

At the Supreme Court, where tradition hangs as heavy as the towering red drapes in the chamber, where decorum is assumed to be everybody's practiced habit and where private thoughts are guarded like state secrets, that very frank quotation rattled the sensibilities as few things could.

A longtime member of that cloistered and mannered little community remarked privately, across a lunch table: "What does she think she's doing? And what the hell does he think she's doing?"

A member of a justice's own household was perceived to be putting a whole class of future litigants -- specifically, civil rights groups who had opposed Justice Thomas' nomination -- on notice that their lawyers in cases yet to come would be heard skeptically by that justice.

Among the old hands behind the court's marbled walls, there is shared pain that every justice nowadays seems to have to run the gantlet to get on that bench. But, just as surely, there is a shared sense that, once a justice gets there -- for a life term -- the pain doesn't count anymore, the resentment is to be forgotten and the public display of private emotion is to end.

The magazine episode has acquired a symbolism of its own, a symptom of problems that the justice faced before he sat on that bench a single day, problems that linger.

Seldom has a justice arrived at the court with as heavy a burden as Justice Thomas seems to have about his legitimacy as one of the select, five-score judges ever to sit there. As his first term approaches its end, that burden remains.

While he seems to be the most conspicuous judge in the country, and the object of Supreme Court tourists' abiding fascination, he has not yet begun to put a conspicuous imprint on the court's work and remains at least partly an enigma. Of his seven opinions for the court so far, three have been about obscure bankruptcy issues, the others on rather narrow legal questions. New justices do not always make a noticeable impact in their first year, but other new justices have seemed to have been more involved in their early months.

Justice Thomas has sat through hearings in case after case, including some of the most important, and has said not a word, at times looking almost totally detached from the heavy forensic combat among his spirited colleagues.

There are some suggested explanations for why he has not been a more vivid, more involved member of the bench. Says one source: "He got absolutely no rest last summer, and he started the term exhausted -- he complains about that. He is just waiting for the term to end; he knows he won't get any rest until then."

One of his loyal supporters, Alan Slobodin, president and general counsel of legal studies for a conservative advocacy organization, the Washington Legal Foundation, disagrees with that assessment: "Like any first-year justice, he's getting his bearings, and he's doing it in a smooth fashion, in a modest way."

Within Justice Thomas' chambers, and around the courthouse, he is said to exude a friendly, almost glad-handing camaraderie. He gives off a noticeable air of masculine informality by smoking cigars in his chambers, and his now-famous booming laugh apparently can be heard through the secure walls.

"He goes out of his way to meet people," says a lower-ranking court staff member who would have no reason even to deal with a justice. And says that aide admiringly: "Shaking his hand is like grabbing a sledgehammer!"

Justice Thomas, who used to be an avid weight lifter, reportedly has given that up because "he bulks up when he does that," according to a court aide. Instead, he is exercising, alone, either in the room of the court's physical therapist or in the private gym on the top floor.

In December, at the court's holiday party, he was entirely accommodating when employees of the court eagerly asked to have their pictures taken with him.

But Justice Thomas also is reported to be so aware of the controversy that still pursues him that he is allowing a supposedly natural tendency to isolate himself take hold anew. He generally says no to all speaking engagements, even though he is quite heavily in demand. He sees small groups, mostly made up of students, in his chambers.

He grants no press interviews and reportedly insists that he reads no newspapers, ever.

The Anita Hill controversy and the sexual harassment debate it stirred goes on for him, as it apparently does for a good many American voters, who already this year have chosen two long-shot candidates for the U.S. Senate, both activist women whose candidacies were motivated by outrage over the Anita Hill-Clarence Thomas confrontation last fall.

Last week, that controversy came back for the justice when he learned of plans by female students to stage a candlelight vigil outside a hall where he was to judge a student practice-court competition at Seton Hall Law School in South Orange, N.J. He canceled the appearance.

One court aide suggested that this native of a tiny Georgia hamlet, aptly named Pin Point, is "still a country boy." But his desire for a remote home, when the center of attention so often beckons, seems also a part of the yearning to get away from curiosity's reach.

His reputation is constantly being assessed these days. And it is most often assailed by the unrelenting speculation -- raised within the court itself, and often by outside critics -- that he is the product of someone else's invention, or thinking, that he is not his own person.

Part of that, plainly, is a carry-over from his troubled days before the Senate Judiciary Committee. Those hearings showed, University of Virginia law Professor Pamela Karlan argues, "that he was someone who had not thought deeply and independently about the law at all." She says that "he picks a position and gloms onto it," suggesting that they are positions that originate with someone else.

She sees no change since he became a justice.

That is, of course, a negative assessment that Justice Thomas' strong and very loyal supporters dismiss. "How can anyone say lTC that Clarence Thomas doesn't think for himself?" asks the Washington Legal Foundation's Mr. Slobodin. "Anybody who knows anything about him must know that nothing could be further from the truth. He has always marched to his own drummer, a very independent man."

In some quarters of the Supreme Court, Justice Thomas is not judged to be as independent as that. The perception appears to have been strengthened during his six months on the bench. Informed sources pass around the word, from inside the justices' private conferences, that when the vote is called on a case, Justice Thomas is wont to say: "I'm with Nino" -- that is, Justice Antonin Scalia, the court's most energetic promoter of the most conservative judicial philosophy.

The justice's supporters concede, with some satisfaction, that he votes very much as Justice Scalia does, and they see absolutely nothing sinister in that. Mr. Slobodin, for example, says that "by and large, I think he's very receptive to the philosophical direction in which Justice Scalia moves. But I wouldn't say [pairing with Justice Scalia] is automatic."

RECORD SO FAR

Justice Clarence Thomas, in his first six months on the Supreme Court, voted on 43 final rulings.

* His alliances:

* With Justice Antonin Scalia, the court's most conservative member: 39 times, or 90.6 percent.

* With Justice Sandra Day O'Connor, usually the "bellwether" justice: 31 times, or 72.1 percent.

* With the court's two liberals: Justice Harry A. Blackmun, 24 times, or 55.8 percent; Justice John Paul Stevens, 23 times, or 53.5 percent.

* Most significant vote cast so far: He was the fifth justice, making a slim majority, for a ruling overturning the conviction of a Nebraska man who had been enticed for two years by government agents to buy a pornographic magazine through the mail.

* Most significant of his seven opinions for the court: A 6-3 ruling practically wiping out labor unions' right to go on company property to try to sign up workers.

* Most significant dissenting vote so far: He joined three others in protesting a 5-4 ruling giving federal prosecutors permission to withhold from grand juries evidence that the suspect was innocent.

* Most significant of his five opinions disagreeing with a majority ruling:

* A separate opinion, joined only by Justice Scalia, urging the court to give the narrowest possible scope to the constitutional right of a person accused of crime to face his accuser.

* A dissenting opinion, joined by Justice Scalia, arguing that the Constitution protects prison inmates from assaults by guards only if serious injury results.

* And a dissenting opinion, joined by no other justice, arguing that the Constitution should allow a jury considering a death sentence to take into account the fact that the murderer was a member of a violence-prone prison gang.

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