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Justice Thomas Joins the Supreme Court<\/strong><\/em><\/p>\n The Honorable Gregory G. Katsas[*]<\/a><\/p>\n <\/p>\n I am delighted to offer a few memories of the nomination, appointment, and first Supreme Court term of Justice Clarence Thomas.\u00a0 At that time, I served as one of his law clerks.<\/p>\n * * *<\/p>\n At 3:25 P.M. on Sunday, June 30, 1991, the telephone rang in the D.C. Circuit chambers of Judge Clarence Thomas.\u00a0 I tensed up immediately.\u00a0 We almost never received weekend calls in chambers, and I had reason to hope this one would be special.\u00a0 I answered as calmly as I could: \u201cJudge Thomas\u2019s chambers \u2026.\u201d \u00a0My hope was not in vain.\u00a0 \u201cThis is the White House operator in Kennebunkport,\u201d the caller began.\u00a0 \u201cIs Judge Thomas available to speak with the President?\u201d<\/p>\n Three days earlier, Justice Thurgood Marshall had announced his retirement from the Supreme Court.\u00a0 Media reports immediately identified the Boss, as we law clerks fondly called Judge Thomas, to be a leading candidate to succeed Justice Marshall.\u00a0 As he returned from a late lunch, the Boss had not yet heard news of the retirement.\u00a0 I told him excitedly, but he remained calm.\u00a0 He nodded, betrayed no emotion, and said nothing about his own candidacy.\u00a0 Nor, of course, was I going to raise that topic with him.<\/p>\n Judge Larry Silberman, now my colleague on the D.C. Circuit, was the Boss\u2019s mentor and best friend on the court at the time.\u00a0 On Thursday afternoon, Judge Silberman summoned the Thomas clerks to his chambers.\u00a0 The Boss would be seriously considered for the Marshall seat, Larry told us.\u00a0 And while he was under consideration, we would need \u201ciron discipline\u201d in preserving confidences and avoiding any chambers faux pas<\/em>.<\/p>\n The Boss was away from the office late Thursday afternoon and all of Friday morning.\u00a0 The clerks hoped that was a good sign.\u00a0 We didn\u2019t know it at the time, but he spent Thursday afternoon at the Justice Department and Friday morning at the White House, interviewing for the vacancy.\u00a0 He returned to chambers on Friday afternoon, but still didn\u2019t mention anything.\u00a0 We still didn\u2019t want to ask.<\/p>\n By coincidence, I\u2019d planned to attend an Orioles game on Friday night with two law-school classmates who were finishing up clerkships with Justice Marshall.\u00a0 As peers, the three of us could talk more openly.\u00a0 We speculated about possible successors, and my friends wished the Boss and me good luck.<\/p>\n Saturday passed with no announcement, as did Sunday morning.\u00a0 One news story claimed that the President had considered naming the Boss on Friday afternoon, but then pulled back.\u00a0 Over the weekend, several stories claimed that another judge had emerged as a front-runner.\u00a0 So by Sunday afternoon, I\u2019d begun to fear that the opportunity had passed.<\/p>\n \u201cYes, let me get him for you,\u201d I said to the White House operator.\u00a0 The Boss and I were in the chambers alone, so that was the end of our don\u2019t-ask-don\u2019t-tell routine.\u00a0 I tried to appear calm, but apparently failed miserably.<\/p>\n \u201cKennebunkport is on the line,\u201d I clumsily tried to deadpan.\u00a0 Later, the Boss would write that I ran<\/em> into his chambers and blurted<\/em> this out \u201clooking every bit as excited as he\u2019d been when he told me of Justice Marshall\u2019s retirement.\u201d[2]<\/a>\u00a0 He also took to joking that whenever a place<\/em> is said to be trying to reach you by telephone, it\u2019s best not to take the call.<\/p>\n Fortunately, he did take this call.\u00a0 I waited outside his office, at the desk of our judicial assistant, watching intently as a red light on her phone marked the ongoing conversation.\u00a0 The Boss mostly listened and spoke softly.\u00a0 So I could not hear\u2014well, overhear\u2014the conversation, except for the Boss\u2019s final words: \u201cSee you tomorrow, Mr. President.\u201d<\/p>\n The Boss and I discussed next steps for the chambers.\u00a0 He\u2019d not been offered the job, but would be flying up to Kennebunkport on Monday morning to meet with the President.\u00a0 We were to keep the chambers door locked all day\u2014a common security precaution today, but rare at the time.\u00a0 We were to make no comments to the media.\u00a0 If any colleagues called for the Boss, as a few of them did, we were to say (truthfully) that he was in a meeting.<\/p>\n On Monday, we were optimistic.\u00a0 Things seemed promising when the White House scheduled a 2:00 press conference for the President to introduce his Supreme Court nominee from Kennebunkport.\u00a0 But then again, we wondered, maybe the President had interviewed more than one candidate on Monday morning before making his final decision.\u00a0 We didn\u2019t know for sure until President Bush began the press conference with the Boss at his side.<\/p>\n The Boss\u2019s remarks were short but compelling.\u00a0 He traced his rise from rural poverty in the segregated South to the brink of the Supreme Court.\u00a0 One comment particularly stuck with me.\u00a0 I quoted it 27 years later, at my judicial investiture, to describe my own family\u2019s rise from refugee camps to the D.C. Circuit in two generations: \u201cOnly in America<\/em> could this have been possible.\u201d[3]<\/a><\/p>\n * * *<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Boss joined the Supreme Court under difficult circumstances.\u00a0 He was confirmed on October 15, 1991, after a grueling and bitter fight.\u00a0 The Chief Justice, whose wife had just died, could not administer the judicial oath until October 23, less than two weeks before the Court\u2019s November sitting.\u00a0 And until the Boss took the oath, nobody could begin working on the cases.\u00a0 Around the same time, the Boss had to orchestrate a White House event to thank hundreds of family, friends, and supporters; it took place on October 18.\u00a0 He had to orchestrate his Supreme Court investiture ceremony, which took place on November 1.\u00a0 Planning for a judicial investiture, which is roughly equivalent to planning for a wedding reception, normally takes several months.\u00a0 He did it in a week.\u00a0 Unable to do any judicial work over the summer, he had to finish up the last few D.C. Circuit opinions.\u00a0 He had to review a dozen petitions in which three of the eight sitting justices had voted to grant certiorari<\/em>; in each of them, his vote would be decisive.\u00a0 And, of course, he had to staff up the new chambers.\u00a0 He was only 43 years old, and he\u2019d been a judge for less than two years.<\/p>\n Justices typically pick their law clerks over the course of a few months; the Boss had only a few days to select his.\u00a0 The first pick was obvious: Chris Landau, who\u2019d briefly clerked for him at the D.C. Circuit, and who\u2019d just finished up a clerkship with Justice Scalia.\u00a0 The Boss wanted at least two clerks with past Supreme Court experience, so he recruited Steve McAllister, who\u2019d just finished a two-year clerkship with Justice White.\u00a0 Steve could stay on only for the November and December sittings, but we were taking things one sitting at a time.\u00a0 The Boss later recruited Greg Maggs, who\u2019d recently clerked for Justice Kennedy, to take over Steve\u2019s slot for the latter part of the term.\u00a0 For the last two positions, the Boss asked Arnon Siegel and me, who were clerking for him at the D.C. Circuit, to come along with him.<\/p>\n There are no set rules for running a chambers, so we made them up as we went along.\u00a0 The Boss let us divide up the cases among ourselves.\u00a0 Today a Supreme Court sitting typically consists of ten to twelve cases; in November 1991, we had 20.\u00a0 Like most judges, the Boss wanted bench memos to help him work through the cases.\u00a0 We had no set format for those, so each of us ad-libbed<\/em>.\u00a0 By necessity, we wrote shorter memos because of the extremely limited time available.\u00a0 Steve mentioned that in his old chambers, opinion drafts were due twelve days after they were assigned.\u00a0 The Boss loved the rule and adopted it immediately.\u00a0 Some of us cursed Steve for bringing that up, but it was probably for the best.<\/p>\n * * *<\/p>\n If any new justice could be forgiven for starting slowly, it was the Boss.\u00a0 Yet he took the Court by storm.<\/p>\n His first sitting began on November 4, 1991.\u00a0 Today, a justice can expect to write about two opinions per sitting\u2014usually one majority and often one concurrence or dissent.\u00a0 From our November sitting alone, the Boss wrote seven<\/em> opinions\u2014two majorities, two concurrences, and three dissents.\u00a0 The majorities were relatively straightforward, as is normal for a justice\u2019s initial opinion assignments.\u00a0\u00a0 The concurrences were more noteworthy.\u00a0 One of them called for returning to the original understanding of the Confrontation Clause,[4]<\/a> and it proved pivotal when the Court later did just that in Crawford v. Washington<\/em>.[5]<\/a>\u00a0 The other concurrence addressed the legal standards for desegregating state colleges and universities.\u00a0 While his colleagues stressed the need to eliminate vestiges of segregation, the Boss also worried about preserving historically black colleges, which had \u201csucceeded in part because of their distinctive histories and traditions\u201d catering to blacks during the era of segregation.[6]<\/a>\u00a0 The themes struck in the Boss\u2019s opinion\u2014on the importance of self-help within the black community and the risk that government intervention may prove counter-productive\u2014are central to his thinking on issues of race.<\/p>\n The dissents were also noteworthy.\u00a0 In Dawson v. Delaware<\/em>,[7]<\/a> he argued that the First Amendment did not prohibit the government from introducing evidence, at the sentencing phase of a capital case, that the defendant belonged to the Aryan Brotherhood prison gang.[8]<\/a>\u00a0 In Hudson v. McMillian<\/em>,[9]<\/a> he argued that the Eighth Amendment addresses only those punishments formally imposed in criminal sentences, not guards\u2019 tortious assaults on prisoners.[10]<\/a> \u00a0And in Foucha v. Louisiana<\/em>,[11]<\/a> he argued that the government may require an individual found not guilty by reason of insanity to prove that he is no longer dangerous in order to be released.[12]<\/a>\u00a0 The United States Reports show these final tallies: five-to-four in Foucha<\/em>, seven-to-two in Hudson<\/em>, and eight-to-one in Dawson<\/em>.\u00a0 They do not show something else reflected in the now-public papers of Justice Blackmun\u2014at conference, the Boss was the sole<\/em> dissenter in each<\/em> of the three cases. \u00a0His Hudson<\/em> dissent persuaded Justice Scalia to change his vote.[13]<\/a>\u00a0 And his Foucha <\/em>dissent persuaded Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy all to change their votes.[14]<\/a>\u00a0 From the outset, the Boss was willing to stake out repeated solo positions.\u00a0 He immediately had an outsized, albeit behind-the-scenes influence on his colleagues, including Justice Scalia.\u00a0 Many ignorant commentators speculated that the Boss must have been taking marching orders from Justice Scalia.\u00a0 The Boss did admire and often agreed with Justice Scalia.\u00a0 But from the outset, the two of them batted about ideas as intellectual equals, and the Boss pulled Justice Scalia as often as Justice Scalia pulled him.<\/p>\n * * *<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Time after time, the Boss shifts the Overton window.\u00a0 Short-term losses lay the groundwork for long-term gains.\u00a0 An obscure habeas case from the term, Wright v. West<\/em>,[15]<\/a> illustrates this point.<\/p>\n At first glance, the case was narrow and straightforward.\u00a0 On habeas corpus review, the Fourth Circuit held that there was legally insufficient evidence to sustain the state-court larceny conviction of a defendant found to possess (and to have no good explanation for possessing) a slew of recently stolen items.[16]<\/a> \u00a0All nine justices agreed that there was ample evidence to sustain the conviction. \u00a0Of course, a sufficiency determination is the opposite of what the Court normally decides\u2014legal questions with broad significance across a wide class of cases.<\/p>\n The Boss saw more to the case.\u00a0 Both the state trial court, and the Supreme Court of Virginia on direct review, had determined that there was sufficient evidence to support the conviction.\u00a0 So why did the habeas courts get to reassess that question de novo<\/em>?\u00a0 According to conventional wisdom at the time, because Brown v. Allen<\/em>[17]<\/a> required federal habeas courts to conduct de novo <\/em>review of all state-court decisions applying federal law to the facts of all criminal cases.\u00a0 And did so even though habeas retroactivity law effectively prevented innovation with respect to pure legal questions[18]<\/a> and even though the habeas statute by its terms constrained review of pure factual questions.[19]<\/a>\u00a0 To the Boss, this made little sense.\u00a0 So, while he ultimately concluded that there was plenty of evidence to sustain the conviction even if the sufficiency question were reviewed de novo<\/em>, he also laid out his view that Brown v. Allen <\/em>did not compel de novo<\/em> habeas review and should be reconsidered if it did.[20]<\/a><\/p>\n The Boss\u2019s opinion generated significant internal divisions.\u00a0 Only two other justices joined it.[21]<\/a>\u00a0 Three others wrote separately to argue that Brown v. Allen<\/em> did compel de novo<\/em> review of mixed questions on habeas.[22]<\/a>\u00a0 One wrote separately to argue that retroactivity law cast no doubt on de novo <\/em>habeas review for mixed questions of law and fact.[23]<\/a>\u00a0 One wrote separately to contest that point.[24]<\/a>\u00a0 And one wrote separately simply to say that the evidence in the case was enough to sustain the conviction.[25]<\/a><\/p>\n Although the 3-3-1-1-1 fracture was frustrating at the time, the Boss\u2019s opinion proved more popular with Congress than it did with his colleagues.\u00a0 Four years later, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)[26]<\/a> \u00a0effectively codified the Boss\u2019s opinion, as the Supreme Court itself later recognized.[27]<\/a>\u00a0 And thus began what has become the current conventional wisdom, that federal habeas courts only deferentially review state-court determinations of legal, mixed, or factual questions.<\/p>\n * * *<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 For 30 years, the Boss has served the Supreme Court, and the Nation, with great distinction.\u00a0 As a former clerk, I\u2019ve received from him a lifetime of advice, friendship, and inspiration.\u00a0 At a recent clerk reunion, we all received swag bags containing, among other items, a thin plastic bracelet inscribed with the letters WWCTD\u2014what would Clarence Thomas do?\u00a0 I keep the bracelet prominently displayed in my chambers and, in my current job, I ask myself that question often.<\/p>\n <\/p>\n Other posts in this symposium:<\/p>\n Justice Thomas and Stare Decisis<\/a><\/p>\n Speaking Out on Justice Thomas<\/a><\/p>\n “Be Not Afraid”<\/a><\/p>\n Justice Thomas: Staunch Defender of Criminal Defendants\u2019 Fifth and Sixth Amendments Rights<\/a><\/p>\n Saying What the Law Is, Justice Thomas Style<\/a><\/p>\n What I Saw at the Daytona 500<\/a><\/p>\n <\/p>\n [*]<\/a>\u00a0 Greg Katsas served as a law clerk to Justice Thomas from 1990 to 1992, both at the D.C. Circuit and at the Supreme Court.\u00a0 He now serves as a judge on the D.C. Circuit, in the same chambers where he had previously worked as a clerk.<\/p>\n [2]<\/a> \u00a0Clarence Thomas, My Grandfather\u2019s Son<\/em> 211 (2007).<\/p>\n [3]<\/a> \u00a0Clarence Thomas, Judge, U.S. Ct. of Appeals for the D.C. Circuit, Remarks at News Conference Announcing Judge Thomas\u2019s Nomination to the Supreme Court (July 1, 1991); Gregory G. Katsas, Judge, U.S. Ct. of Appeals for the D.C. Circuit, Judicial Investiture (April 27, 2018).<\/p>\n [4]<\/a>\u00a0 White v. Illinois, 502 U.S. 346, 358\u201366 (1992) (Thomas, J., concurring in part and concurring in the judgment).<\/p>\n [5]<\/a> \u00a0541 U.S. 36, 51\u201352, 60\u201361 (2004) (discussing White <\/em>majority and concurrence).<\/p>\n [6]<\/a>\u00a0 United States v. Fordice, 505 U.S. 717, 745\u201349 (1992) (Thomas, J., concurring).<\/p>\n [7]<\/a> \u00a0503 U.S. 159 (1992).<\/p>\n [8]<\/a> \u00a0See id.<\/em> at 169\u201380 (Thomas, J., dissenting).<\/p>\n [9]<\/a> \u00a0503 U.S. 1 (1992).<\/p>\n [10]<\/a> \u00a0See id.<\/em> at 17-29 (1992) (Thomas, J., dissenting).<\/p>\n [11]<\/a> \u00a0504 U.S. 71 (1992).<\/p>\n [12]<\/a> \u00a0See id.<\/em> at 102\u201326 (1992) (Thomas, J., dissenting).<\/p>\n [13]<\/a>\u00a0 Jan Crawford Greenburg, Supreme Conflict<\/em> 119\u201320 (2007).<\/p>\n [14]<\/a> \u00a0Id. <\/em>at 117.<\/p>\n [15]<\/a>\u00a0 505 U.S. 277 (1992).<\/p>\n [16]<\/a> \u00a0Id.<\/em> at 283\u201384 (plurality opinion).<\/p>\n [17]<\/a>\u00a0 344 U.S. 443 (1953).<\/p>\n [18]<\/a>\u00a0 See <\/em>Saffle v. Parks, 494 U.S. 484 (1990); Teague v. Lane, 489 U.S. 288 (1989).<\/p>\n [19]<\/a>\u00a0 28 U.S.C. \u00a7 2254(d) (1988) (current version at 28 U.S.C. \u00a7 2254(d)).<\/p>\n [20]<\/a> \u00a0West<\/em>, 505 U.S. at 285\u201397.<\/p>\n [21]<\/a> \u00a0See id. <\/em>at 280.<\/p>\n [22]<\/a> \u00a0See id. <\/em>at 297\u2013306 (O\u2019Connor, J., concurring in the judgment).<\/p>\n [23]<\/a> \u00a0See id. <\/em>at 307\u2013310 (Kennedy, J., concurring in the judgment).<\/p>\n [24]<\/a> \u00a0See id. <\/em>at 310\u00ad\u201316 (Souter, J., concurring in the judgment).<\/p>\n [25]<\/a> \u00a0See id. <\/em>at 307 (White, J., concurring in the judgment).<\/p>\n