Supreme Court Justice Clarence Thomas moves to reverse the legacy of his predecessor, Thurgood Marshall

• As public attention focuses on Supreme Court Justice Clarence Thomas’ close personal and financial relationship with a politically active conservative billionaire, the scrutiny is overlooking a key role Thomas has played for nearly three decades on the nation’s highest court.
• Thomas’ predecessor on the court, Thurgood Marshall, was a civil rights lawyer before becoming a justice.
• In his concurrence with the majority decision in that case, Thomas declared his opposition to Marshall’s principle, lamenting that the court had not done more to pare back its prior work.

A shield for those in need

• At the root of Marshall’s jurisprudence was a hope that while law could be a powerful tool of oppression, it might also be a shield.
• While his Payne dissent criticized the court for reversing itself, Marshall was no stranger to calling for reconsideration of established law.
• The distinction between Marshall and Thomas is not really about whether the court should reverse past decisions but simply which ones.

Power as a key factor

• While last summer’s abortion decision is an obvious example, Thomas has led the court’s assault on precedent in other areas as well.
• Similarly, recent decisions have followed Thomas’ lead in weakening the vitality of the First Amendment’s Establishment Clause, which fortifies the separation between church and state.
• Those in need of constitutional protection in Thomas’ view are more likely to be property owners, corporations making campaign contributions or gun owners.

On affirmative action

• Perhaps no topic better captures the distinction between the two men’s views than affirmative action, which the court is considering in a pair of cases from Harvard and the University of North Carolina to be decided this term.
• He has railed against affirmative action, saying it brands Black people in prominent positions with a “stigma” about “whether their skin color played a part in their advancement.” Indeed, Thomas claims his position requiring colorblindness is a better path toward full Black citizenship.
• But this summer, the court may finally embrace a different vision on affirmative action, coming again to a position Thomas has been advocating for decades.