Judging Thomas

By THOMAS SANCTON

On the desk in Clarence Thomas' Supreme Court chambers sits a framed sign that reads: "There's no limit to what you can do or where you can go if you don't mind who gets the credit." There is some irony in that. From the moment Thomas was nominated last July through his dramatic confirmation hearings, critics attributed his meteoric rise to affirmative action, tokenism or the narrow political calculations of George Bush. But now that the term is finished, Thomas alone can claim credit for one of the more obstreperous first-year performances on the Supreme Court in recent memory.

Though he told friends after his confirmation that he wanted to be out of the spotlight for a while, Thomas' first-term rulings were pugnacious, blunt and, for a new Justice, relatively numerous. He wrote nine opinions for the majority, four concurrences and eight dissents. "Thomas hit the ground running," says University of Michigan law professor Yale Kamisar. "He's in there mixing it up."

That may have been his way of demonstrating that he was undaunted by Anita Hill's sexual-harassment charges and the Senate's lukewarm 52-48 confirmation vote -- one of the thinnest margins in court history. As in the abortion ruling last week, he has linked up with the court's hard-line conservatives, , Chief Justice William Rehnquist and Associate Justice Antonin Scalia. These three have often combined with Byron White and three more moderate conservatives, Anthony Kennedy, Sandra Day O'Connor and David Souter, thus giving the court a conservative majority in most important cases last term.

No sooner had Thomas arrived than he gravitated to Scalia. The pair not only voted alike in 56 out of 90 decisions, but Thomas can write in language that brings to mind Scalia's occasional let's-you-and-me-scrap tone. "Jurors do not leave their knowledge of the world behind when they enter a courtroom," Thomas scolded the other Justices in one dissent. "And they do not need to have the obvious spelled out in painstaking detail."

If Thomas is taking cues from Scalia, it is not during long tete-a-tetes; associates say the two rarely talk. But they clearly share a judicial philosophy. Both take a narrow view of the Constitution. Rights not spelled out explicitly in the text, such as the right to abortion, are not recognized, and both men want to cut back the role of the federal judiciary, leaving more authority to the President, Congress and the state legislatures. Perhaps most significant, they don't approach precedent on tiptoe. Thomas and Scalia are happy to challenge -- with dynamite -- the decisions of earlier, more liberal courts.

Which is why Thomas causes such pain to women's groups, liberals and above all black leaders. In a remarkable snub, Thurgood Marshall, the civil rights pioneer whom Thomas replaced on the court, did not attend Thomas' swearing-in ceremony last November. Later in the fall, Thomas quietly sought out Marshall in his chambers, where he took notes for two hours while Marshall held forth. Not long after, Thomas got some unsolicited -- and angry -- advice from another prominent black jurist, A. Leon Higginbotham Jr., chief judge emeritus of the Third Circuit Court of Appeals in Philadelphia. In a November letter to Thomas that he published two months later in the University of Pennsylvania Law Review, Higginbotham wrote that the young Justice displayed "a stunted knowledge of history and an unformed judicial philosophy." He proceeded to give Thomas a lengthy lecture on the civil rights struggle that had helped land him on the high bench.

That did not stop Thomas from outraging the black leadership in one civil rights case, Presley v. Etowah County Commission, in which he joined a 6-to-3 majority in allowing two Alabama counties to strip powers from black officials - after their election. Then came Hudson v. McMillian, a case that involved a shackled and handcuffed black convict who was beaten by two Louisiana prison guards in a punch-out that loosened teeth, cracked a dental plate and left his face bruised and swollen. The court majority concluded that this was cruel and unusual punishment forbidden by the Eighth Amendment. But not Thomas' Eighth Amendment: In a dissent joined only by Scalia, he wrote that while the guards' behavior was deplorable, the majority ruling was "yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society . . . The Eighth Amendment is not . . . a National Code of Prison Regulation."

"I cannot, to save my life, understand that vote," says N.A.A.C.P. executive director Benjamin Hooks. "I don't think Thomas is dumb; I think he is wrong." Such criticism may explain why in some of his writing Thomas has appeared anxious to signal that he is mindful of black struggles. In a major integration case, U.S. v. Fordice, the court ruled 8 to 1 two weeks ago that because of continuing evidence of racial segregation in its state university system, Mississippi must continue efforts to attract more blacks to its mostly white campuses and more white students to its three traditionally black colleges. But though it would ordinarily offend his notion of color-blind laws, Thomas wrote a separate concurrence to stress the importance of finding some way to preserve the black-student majorities at historically black campuses -- a significant goal for some blacks. "It would be ironic, to say the least," Thomas wrote, "if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges."

In another case, Georgia v. McCollum, the court examined the constitutionality of excluding potential jurors on the basis of race. Though the practice was outlawed for prosecutors in 1986, defense attorneys continued to exercise this means of eliminating jurors who might be biased against their clients, whether black or white. The court voted 7 to 2 to ban these so-called peremptory challenges on racial grounds. Citing a 1991 precedent, Thomas voted with the majority. But in an opinion that read more like a dissent, he wrote: "I am certain that black criminal defendants will rue the day that this court ventured down this road that inexorably will lead to the elimination of peremptory strikes . . . Today's decision, while protecting jurors, leaves defendants with less means of protecting themselves."

The flip side of Thomas' courtroom activism is his almost cloistered personal life. Friends say the Anita Hill episode left him "shattered" and "guarded," leading him to shun public appearances. He is now instinctively so averse to the press, they say, that he's no longer much of a newspaper reader. "An experience like that leaves scars," says a friend. "Clarence and his wife have both had to go through a healing process."

Religion has been an important part of the process. Thomas, a onetime Catholic seminarian, and his wife Virginia regularly attend Sunday services at Truro Episcopal Church in Fairfax, Va. Unlike the Scalias, and O'Connor and her husband, they are absent from the Washington social scene. Since he joined the court, Thomas has attended only two public events, a Horatio Alger Awards dinner and a state dinner at the White House. In May he canceled an appearance at New Jersey's Seton Hall law school after he was warned of a possible demonstration against him. Remembering her own embarrassment when she was booed during an appearance at New York University, O'Connor called Thomas to offer support.

Thomas doesn't have much time anymore for personal pleasures like reading Louis L'Amour novels and tooling around in his jet-black Corvette. His life revolves almost entirely around workdays at the court that can run from 5 a.m. to 7 p.m. He is usually in bed by 8. On a court where the Justices communicate largely by memos, he is forging friendships with White and Rehnquist. His most frequent personal contact is with his clerks, reputed to be among the court's most conservative.

Most Justices say they need at least five years to settle fully into their role. Many have found their positions shifting during that transitional period: Nixon appointee Harry Blackmun, for example, drifted to the liberal end of the court, while Byron White, a Kennedy appointee, moved the other way. Don't look for any such lurch from Thomas. "My impression is that Thomas arrived on the court knowing where he belonged," says University of Virginia law professor A.E. Dick Howard.

Indeed, conservatives can barely conceal their glee over Thomas' performance. "The court no longer sees itself as the moral conscience of the nation bent on improving on the state of mankind," says Bruce Fein, a conservative legal scholar, approvingly. On the wall of Thomas' chambers is a Harriett Erlich drawing titled Freedom that shows three black children with outstretched arms. Thomas might ponder its message; his own liberation from the poverty of Pin Point, Ga., and his rise to the court would have been unthinkable without the body of liberal jurisprudence he now casts into doubt.

With reporting by Julie Johnson/Washington and Andrea Sachs/New York