A Sound Beginning for Thomas


Clarence Thomas did well. In his first term on the Supreme Court, he demonstrated a respect for old values that conservatives tend to admire. So far, those of us who supported his nomination have nothing to gripe about.

For Justice Thomas it was a year of feeling his way. The new members of any exclusive club are expected to be rarely seen and barely heard. The chief justice asked Mr. Thomas to write opinions for the court in only nine cases, and eight of these were dogs. The same fate awaited Justice David Souter a year ago. He got the dogs of 1990-1991.

If Justice Thomas felt oppressed by wearing a freshman's beanie, no such feeling appeared in his record for the term. He wrote seven dissenting opinions of his own and joined in 15 dissents by other members of the court. He seldom asked questions during oral argument, but reportedly he took an active part in the court's private deliberations. He was respectful, but he was not a potted palm.

During the term, a good deal was made of Mr. Thomas' supposed alliance with Justice Antonin Scalia. Too much was made of this. Mr. Thomas plainly admires his brilliant colleague, but he and Mr. Scalia are no more glued together than Justices Blackmun and Stevens are glued together. Justice Thomas is his own man.

Reporters covering the court also reveled in a "feud" between Justice Thomas and Justice Sandra Day O'Connor. Too much was made of this also. In a case involving habeas corpus, she lectured him in the fashion of an old professor putting down an upstart kid, but Mr. Thomas took the caning with a polite rejoinder of his own. In one case, involving the insanity defense, he found Ms. O'Connor's reasoning "quite odd."

Justice Thomas is no match for Justice Scalia as a stylist, but nobody else is a match for him either. Mr. Thomas' opinions are generally lucid, well-organized and to the point. Sometimes they are cluttered with the scholarship of his clerks, but Mr. Thomas' own hand is evident at the key points.

He dissented in a case involving the states of Oklahoma and Wyoming. Exhibiting his devotion to judicial restraint, he felt the court should not have taken the case at all. The real dispute was between the coal mining companies of Wyoming and the legislature of Oklahoma. Why weren't the companies litigating their own grievance? Mining companies are "hardly bashful litigants."

He went on to criticize the majority's opinion in the case as a "novel theory, both sweeping and troublesome." He predicted that his colleagues, by hearing the case, had invited more such tenuous litigation in the future. This would be "an exercise not of discretion, but of caprice."

Justice Thomas suffered sharp criticism from the bleeding-heart bleachers for his dissent in Hudson v. McMillian. This was the case involving a prisoner who was beaten by guards. The majority, speaking through Justice O'Connor, thought this was cruel and unusual punishment, hence a violation of the prisoner's constitutional rights.

Justice Thomas noted that the fact-finding magistrate had found the prisoner's injuries were "minor." The Court of Appeals for the Fifth Circuit had not disturbed that assessment. Said Mr. Thomas:

"In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal and it may even be remedial under other provisions of the federal Constitution, but it is not 'cruel and unusual punishment.' "

To expand the Eighth Amendment beyond all bounds of history and precedent, he added, is "yet another manifestation of the pervasive view that the federal Constitution must address all ills in our society."

In other cases in this term, Justice Thomas has stuck by strict adherence to the actual words of a statute. He is not much for applying his own guess at what legislators might really have meant to say. He is demonstrating a respect for state courts. In a Georgia case, involving allegations of extortion by a public official, Mr. Thomas objected that the court should not extend the federal Hobbs Act to the case. This was "repugnant to the basic tenets of federalism." For some of us in the conservative camp, this is music to our ears.

I said at the outset that "so far" Mr. Thomas looks good. Experience dictates the cautionary word. One term does not another Rehnquist make, but the court's most controversial nominee is off to a laudable start.

James J. Kilpatrick is a syndicated columnist.

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