AMERICA'S LEADING CONSERVATIVE

...Granted, Scalia's straining continued...

...he is loath to subordinate his wicked pen to something as uninspiring as collegiality...

...Four centuries of organized subjugation in North America have made black Americans almost uniquely cohesive...

...Thomas was more likely to join Chief Justice William Rehnquist in dissent (twice) or other members of the court (thrice) than Scalia...

...In the same year, he and Rehnquist voted to gut the law banning "dial-a-porn" telephone operations—an anti-historical ruling rightly condemned by Robert Bork, among others...

...He added, "My review of the case law indicates that the substantial effects test [the liberal interpretation of the commerce clause] is but an innovation of the 20th century...

...Thomas is a firm believer in Jaffa's theory, presaged by Lincoln's Gettysburg Address, and accordingly has cited the Declaration as an authority in several opinions...

...v. Pena (1995), which involved federal set-asides for minority contractors, the majority applied the strict-scrutiny standard to all government classifications based on race...

...Andrew Peyton Thomas is an attorney in Phoenix and the coauthor of Reggie White's new book Fighting the Good Fight...

...He matured into a man zealous enough to train for the priesthood, yet autonomous enough to drop out of both the seminary and the Catholic Church after overhearing a white seminarian delight in the assassination of Martin Luther King Jr...

...He remains a jurist with conservative instincts, but one whose veneration for precedent—even ill-begotten precedent—leads him to accept the leftward ratchet of the Court's recent jurisprudence...

...He also has been the most aggressive advocate of overturning liberal precedents, some of which are now many decades old...

...From his very first term, he has written some of the Court's most impressive opinions of recent years...

...I come to state that I am a man, free to think for myself and do as I please...

...Jesse Jackson condemned him as a "traitor...

...Newt Gingrich and Kenneth Starr, for example, fared far worse...

...In the process, they squandered much good will among blacks and whites alike...

...Thomas hailed this decision in a concurring opinion that cited the Declaration of Independence...

...After taking some of the hardest, lowest blows ever delivered by the Left, he could easily have crumbled or compromised when he joined the Supreme Court in 1991...

...In Adarand Constructors, Inc...

...Scalia, in contrast, has the temperament—that word again—of a conservative radical capable of leading a counterrevolution...

...In this, he has proved himself uniquely qualified to be the next chief justice, should a Republican president select Rehnquist's successor...

...Thomas defied the poverty and racism of his youth by attending college in the northeast, at Holy Cross and Yale Law School...

...Old-guard civil rights leaders similarly elevated the Thomas hearings, making them—along with the Rodney King riots and the O.J...

...Thomas concurred in Scalia's opinion in Lewis v. Casey (1996), which vacated a lower court's injunction micromanaging Arizona's prison law libraries...

...In his concurrence in Holder, Thomas repeated his lifelong insistence that people should not be expected to "all think alike" simply because they belong to a given racial or ethnic group...

...Feminist leaders held up Anita Hill's dubious last-minute accusations of sexual harassment as establishing a standard that would henceforth disqualify boorish men from high office...

...In the most poignant speech of his career, delivered in July 1998 amid protests including a staged walk-out, Thomas told the mostly black National Bar Association that he had not come to defend his views...

...In opposing the anti-democratic jurisprudence of the "living Constitution," originalism is really shorthand for commitment to the rule of law...

...In 81 of the 107 cases, Thomas voted with the majority, as did Scalia a comparable percentage of the time (Thomas wrote the majority opinion in 11 cases...

...Scalia, in his concurring opinion in 44 Liquormart, cited his dissent in McIntyre the previous year, proclaiming: "I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of 'the freedom of speech,' and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people...

...Clarence Thomas has been doing this all his life, without wavering or complaint...

...In cases involving criminal justice, Thomas has urged the curtailing or overturning of criminals' rights invented by the Warren Court and subsequent court majorities...

...In his first full term, 1992-93, Thomas joined Scalia in five concurring opinions, one dissent, and one opinion concurring in part and dissenting in part—a very small fraction of the 107 total cases that yielded full court opinions...

...In the process, he has emerged as a man of unbreakable character and our greatest public servant...

...How does Thomas compare with the court's other two conservatives...

...as noms de guerre...

...In an opinion joined by Rehnquist and Scalia, Thomas argued, "I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery...

...Instead of buckling or appeasing his adversaries, he defiantly called the proceedings what they manifestly were—a "high-tech lynching"— and dared his foes to take their best shot...

...Without Thomas, Scalia's public soul-searching in this important area of the law simply would not have happened...

...In this age, however, when liberal precedents of relatively recent vintage flout the nation's older traditions, defenders of the Constitution are forced to rebel, combining humility with boldness...

...Except for Ronald Reagan, Clarence Thomas is arguably the only major figure in recent American public life to have collided full force with the liberal establishment and emerged the stronger...

...In his jurisprudence, Justice Thomas has revealed the extent of his own independence of mind—though you will not learn this from the media, who insist on diminishing him as one who merely follows the lead of Justice Antonin Scalia...

...In practice, this has led to some quirky outcomes...

...Thomas, by contrast, can survey the wreckage of political and ideological actors whose encounter with him left them reduced in credibility and power...

...In Coy v. Iowa (1988), for example, Scalia wrote the majority opinion in which the Court struck down an Iowa law permitting a screen to be placed at trial between an alleged pedophile and his two young accusers...

...He centered his opinion not on the "plain meaning" of the First Amendment but on tradition: He defended the law by noting that similar regulations exist in every state except California, and they have a "pedigree dating back to the end of the 19th century...

...Proving that "anonymous electioneering was used frequently is not to establish that it was a constitutional right," he conceded...

...Jaffa argues that the Constitution should be interpreted in light of the Declaration of Independence, notably its statement that "all men are created equal...

...Over the last eight years, Clarence Thomas has been the Court's most faithful and valiant defender of the intent of the Framers...

...He has authored some of the longest separate opinions in the history of the court, opinions that are sometimes longer than those of the majority...

...For Thomas, it meant being stamped "Uncle Thomas...

...In a Lincoln Day speech last February to a Claremont Institute gathering in Washington, Thomas repeatedly singled out Jaffa for his guiding work...

...This hypocrisy is not lost on the public—and how could it be, when feminists made the Thomas hearings so memorable...

...Thomas wrote six concurrences of his own...

...Thomas forced Scalia to confront his missteps by authoring an opinion that held up Scalia's contradictory views in stark terms...

...The Supreme Court struck down the law on First Amendment grounds...

...The case pitted tough-on-crime sentiment versus concerns for genuine civil liberties, in this case the Sixth Amendment right to "confront" one's accuser at trial...

...In McIntyre, the state of Ohio had prohibited the distribution of anonymous literature in political campaigns, and had fined a person $100 for violating the law...

...In one area, civil rights, Thomas's originalism has been more complicated...

...Thomas has both in abundance...

...Both now are in obvious decline, in part because of the fight they picked with Thomas...

...He denied flatly the majority's contention that the "asserted 'freedom to loiter for innocent purposes' " was " 'deeply rooted in the Nation's history and tradition.'" Thomas went so far as to question the court's 1973 ruling in Papachristou v. City of Jacksonville, which overturned the nation's vagrancy laws...

...Eight years after his confirmation, Thomas is the most steadfast conservative on the Court...

...He ridiculed the dissent for finding Dean Wigmore's famous treatise on evidence more persuasive than these offbeat citations...

...Simpson trial—one of the defining events of the decade in race relations...

...In unusually strong language, he accused the court of acting like "Platonic guardians" and a "politburo" in prior civil rights cases...

...This is a vexing realm of jurisprudence, for the inescapable reason that the Framers of the Constitution and, later, of the Fourteenth Amendment did not fully share our current commitment to racial equality...

...In subsequent terms, Thomas has further established his identity as an independent thinker and the court's most rigorous conservative...

...Generally, he shows little stomach for the fight that such upheaval would provoke in the High Court and in American society...

...And what of the long-standing laws against flag-burning, which, under Scalia's reasoning in McIntyre, seemingly should have been upheld rather than swept away...

...A recurring theme of his speeches and court opinions is individuals' God-given right to think for themselves...

...The Court held that the law exceeded Congress's authority to regulate under the commerce clause...

...Yet the same feminists now apologize for a president whose twenty years of gross sexual misconduct make Hill's assertions look more trivial than ever...

...these are irrelevant to our analysis," he reminded the majority, "because [they shed] no light on what the phrases 'free speech' or 'free press' meant to the people who drafted and ratified the First Amendment...

...Thomas, 50, merely signed on...

...More fundamentally, Scalia has not been as consistent an originalist as Thomas...

...In his speeches across the country and, most important, in his jurisprudence, Thomas has staked a credible claim to being nothing less than the leading conservative in America today...

...Thomas excoriated the majority for warping the Constitution "beyond all bounds of history and precedent...

...Thomas concluded that "after reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion...

...This dissent, which Scalia joined, is one of the most devastating critiques of prisoners'-rights jurisprudence ever written...

...Not for another Term, not until the next case, not for another day...

...To honor the intentions of long-deceased leaders is normally an act of humility...

...Yet the manner in which he endured that fate calls to mind the observation that misfortune nobly borne is good fortune...

...He reminded them, "The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation...

...By 1995, according to an analysis by the St...

...Thomas's concurring opinion in Holder v. Hall (1994), which Scalia joined, exhorted the Court to roll back another liberal precedent, the 1986 ruling in Thornburgh v. Gingles...

...But Scalia decided the case without even consulting the intentions of the Framers...

...But the strained distinction he drew in his dissent—he maintained that the "bedrock principle" at the heart of the First Amendment safeguarded flag-burning but not anonymous pamphleteering—did not seem to persuade even him...

...There are several possible reasons...

...Originalism typically squares off against the "living Constitution" theories of the Left, which hold that judges must update the Constitution by interpreting it in line with contemporary liberal theories of justice...

...In my view," he remonstrated, "our current practice should not continue...

...Many also see him as a tragic figure, a man whose views, combined with his race, doomed him to a nationally televised humiliation...

...For his opinion in Hudson, the New York Times branded Thomas "the youngest, cruelest justice...

...After Thomas joined the Court, Scalia's jurisprudence in this critical area began to move back toward originalism, or at least traditionalism...

...In McIntyre v. Ohio Elections Commission (1995) and 44 Liquormart, Inc...

...Scalia has endorsed a doctrine of "plain meaning" for interpreting the Constitution...

...Those who would carry the conservative banner in the judicial arena need not only guts but a spirit of rebellion...

...In Thomas's early years, she explained, "he let Scalia hold the pen: Whatever their joint views, Scalia, 63, tended to write them up...

...Thomas joined the majority but filed a concurring opinion, in which he chastised the majority for its breezy history lessons...

...A weaker man might have been forever intimidated by this clash...

...In fact, the opposite is true: He has nudged Scalia back toward the conservative fold...

...But perfection is not an attribute of human justice...

...He grew up black and Catholic in rural Georgia...

...To be sure, there have been instances when Thomas has departed from originalism...

...The problem with Scalia's treatment, as Thomas recognized, is that such statutes date back only one hundred years, not to the framing of the First Amendment...

...The stubborn fact, however, is that this assertion about Thomas is untrue, yet another falsehood besmirching the black conservative who got away...

...To both of the philosophical camps that battled so fiercely over his nomination, Thomas has shown that he was worth the fight...

...By any reasonable measure, political literature is far more central to freedom of speech than flag-burnIN THEIR FIRST AMENDMENT SKIRMISHES, THOMAS HAS EFFACED ANY PERCEPTION THAT HE IS A CLONE OF SCALIA...

...This was the High Court's first departure from 60 years of rulings upholding the federal government's power to regulate the nation virtually as it pleases...

...It is hard for whites to appreciate the courage required of blacks who, like Thomas, defy the reigning orthodoxy of their group...

...In 1989, Scalia joined the majority in Texas v. Johnson in finding a new constitutional right to burn flags...

...and he wrote one dissent, which Scalia joined...

...This marked a dramatic break for Scalia, for such "long accepted practices" do not include any trendy right to burn flags...

...A federal magistrate described these injuries as "minor...

...With the Cold War behind us, the most momentous political battles of our time occur in the judiciary, an arena liberals have dominated for 40 years...

...Thomas has been extraordinarily faithful to origi-nalism, the theory that judges should abide by the original intentions of the Framers of the Constitution...

...tracts that conscripted the names of great Romans (Publius, Cato, Brutus, et al...

...Here, Thomas has espoused the theory advanced by Professor Harry Jaffa of the Claremont Institute...

...Not Clarence Thomas...

...Such a statement, penned on the eve of the 21st century, was a remarkable and—to conservatives— charming declaration...

...In United States v. Lopez (1995), for example, the High Court struck down the federal Gun-Free School Zones Act, which made it a federal offense to knowingly possess a firearm within a school zone...

...But in these First Amendment skirmishes, Thomas has effaced any perception that he is a clone of Scalia...

...Unlike Thomas, whose opinions are spirited but not strident, Scalia clearly enjoys promulgating feisty opinions...

...Throughout his life, Thomas had shown the very independence and integrity they dreaded...

...He argued that the Court should consider returning to the commerce clause jurisprudence that held sway prior to the New Deal...

...he later served in two high-profile posts in the Reagan administration...

...Thomas offered instead an impressive history of the treatment of anonymous pamphlets from the time of the Constitution's adoption, including a discussion of the many revolutionary and early U.S...

...What is often overlooked, furthermore, is the extent of his ultimate triumph...

...Yet he has not gained acceptance in this role...

...Rather, he had accepted the group's invitation to speak, despite the resulting controversy, in order "to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black...

...An inmate had brought suit over injuries inflicted by prison guards...

...As a black conservative lawyer, Thomas challenged his foes' hegemony over the judicial branch...

...The price rose higher still when the opponents of his confirmation set out publicly to mortify and destroy him...

...A brilliant intellect and the best writer on the Court since Oliver Wendell Holmes, Scalia was blessed with all the mental tools necessary to spearhead a conservative rebellion against baleful precedent...

...He joined the majority in Reno v. ACLU (1997), which unanimously struck down the Communications Decency Act, a federal law prohibiting transmission of obscene or indecent communications over the Internet to children, on First Amendment grounds...

...Gingles had begun the Court's descent into the quagmire of racial gerrymandering, holding that the Voting Rights Act guarantees not merely equal access to the ballot but also something approaching proportionate representation based on race...

...Rehnquist almost always can be counted on to resist further liberal judicial activism...

...He talked of the "wrong turn" made "in the 1930s from a century and a half of precedent...

...But he has produced or signed onto very few opinions advocating the reversal of liberal precedents...

...Thomas was willing to pay this price because the alternative was philosophical surrender...

...Louis Post-Dispatch, Thomas had become the second most prolific opinion writer on the court...

...Thomas prevailed for the same reason he now prospers on the Court...

...Still, Scalia's dissent proffered extensive legal history, erected good guideposts for future decisions, and rightly questioned the validity of a new right that could have been envisioned and protected explicitly at the time of the framing...

...Thomas offered an early taste of things to come in his dissenting opinion in Hudson v. McMillian (1992...

...Yet Thomas used the occasion to call for scrapping altogether Bounds v. Smith (1977), the Burger Court ruling that created the bogus right to prison law libraries in the first place...

...Scalia was honest and humble enough to deal directly with this discrepancy...

...Even so, Thomas is scarcely a liberal activist in civil rights, and he continues to draw the ire of liberal black organizations...

...ing, and flag-burning is hardly a tradition of long standing...

...In short, Scalia was implicitly forced by Thomas to reckon with a blunder in his own earlier jurisprudence...

...Scalia's First Amendment jurisprudence has also been puzzling...

...v. Rhode Island (1996), Scalia stated that in interpreting the First Amendment, he would consult above all the "long accepted practices of the American people...

...He criticized its reliance on Shakespeare, Mark Twain, and Voltaire in stitching together a constitutional history...

...Whatever his reasons, this holding was divorced from the relevant constitutional history...

...His first job out of law school was working for the Republican attorney general of Missouri, John Danforth...

...At least in regard to the First Amendment, which has generated jurisprudence greatly befouling the culture, Thomas's presence seems to have pricked Scalia's conscience...

...Both were at the acme of their political influence when the hearings began...

...In a concurring opinion, Thomas complained that the majority in Lopez did not go far enough...

...Thomas, in short, was not a likely recruit for People for the American Way...

...history would have remembered him merely as a martyr of the culture wars, a sort of Nathan Hale of modern conservatism...

...Today, conservatives admire Thomas for the moral courage he has displayed, both in his confirmation hearings and in the case law he has authored...

...In working so feverishly to ruin Thomas, grand old civil rights groups like the NAACP appeared intolerant and hidebound...

...In a concurring opinion in Missouri v. Jenkins (1995), he became the first justice to criticize aspects of the landmark Brown v. Board of Education decision directly, questioning the social science on which it famously relied...

...In his dissenting opinion in Thompson v. Keohane (1995), which Rehnquist joined, Thomas scolded the majority for its expansion of Miranda rights...

...But in the end, a majority of blacks supported Thomas's confirmation...

...Thomas has been the court's most consistent origi-nalist—more so than Scalia or Rehnquist...

...Before Thomas joined the Court, Scalia's rulings on the First Amendment could have been written by almost any Ivy League law professor...

...His opponents rightly feared a jurist whose commitment to conservative principles was unyielding...

...They did, and he still stands...

...Thomas is a staunch defender of commercial free speech, and perhaps this tendency, combined with his passion for liberty, motivated his decision...

...Indeed, the critics who insisted on closely scrutinizing his "temperament" during the confirmation process were onto something, for temperament can serve as a rough surrogate for character...

...Last term, in City of Chicago v. Morales (1999), Thomas dissented from the majority's decision to invalidate a Chicago ordinance prohibiting gang members from loitering in public places...

...For a black lawyer to oppose the old-line civil rights establishment—which still pretends to the leadership of black America—means professional and personal ostracism...

...He added, however, "A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality...

...Last May, a front-page article in the Washington Post repeated the mantra: "For the past eight years," asserted reporter Joan Biskupic, "Supreme Court Justice Clarence Thomas has walked in the shadow of Antonin Scalia...

...Consider feminists and liberal black organizations, the most formidable interest groups to oppose his confirmation...

...The majority voted to repeal the requirement that an inmate prove a "significant injury" before being able to sue for violation of the Eighth Amendment's ban on cruel and unusual punishment...

...Only recently, Biskupic said, has this subservience begun to wane...

...In a dissent joined by Rehnquist, Scalia said he would have upheld the Ohio law because there is no constitutional right to anonymous electioneering...

...A certain deference to like-minded fellow justices would be understandable in any freshman on the Court...

...Freedom of conscience, fount of the subsidiary rights in the First Amendment, is the liberty that Thomas seems to value above all others...

...Instead, he sought the plain meaning of "confront"—by parsing the Latin roots of the word and invoking authorities as diverse as Shakespeare and President Eisenhower's description of folkways in Abilene, Kansas...

...Instead, he held his ground...