Holding the Center : As Thomas and Scalia stake out the far right, O’Connor takes the moral high ground

The rift among conservatives on the Rehnquist Court is growing. Since joining the U.S. Supreme Court four months ago, Justice Clarence Thomas has consistently sided with Justice Antonin Scalia, the most articulate and hard-line conservative on the bench. Together, they make up the far-right-wing. They apparently have targeted Justice Sandra Day O’Connor in their war over rival theories of constitutional interpretation and their continuing battle to define the court’s role in American politics.

The rift developed well before Thomas took his seat. It is rooted in Scalia’s brow-beating efforts to convert others to his views. Tensions between Scalia and O’Connor went public in the 1989 decision, Webster vs. Reproductive Health Services. Scalia excoriated O’Connor for refusing to overturn the 1973 watershed abortion ruling, Roe vs. Wade.

Now, the fight is becoming increasingly personal, with each taking potshots at the other’s opinions. It may even further radicalize O’Connor. When handing down her recent opinion in Hudson vs. McMillian, O’Connor sharply rebuked her right-wing opposition for tough-minded insensitivity and disrespect for precedents.

O’Connor has not moderated her basic conservativism. But she is more vocal in opposing the right wing. Scalia, and now Thomas, appear too hard and bent on reconsidering major areas of constitutional law, overturning precedents and limiting the court’s role in protecting constitutional guarantees for individuals against government’s coercive powers.

Thomas contributed to the rift. What is striking about Thomas’ opinions is not that Scalia joined them but that they are largely gratuitous, offering no original analysis. They rehash arguments Scalia has advanced and the court has rejected.

Concurring in White vs. Illinois, for example, Thomas bluntly claimed that the Sixth Amendment guarantee for criminal defendants to confront their accusers does not apply to hearsay evidence introduced at trial. Yet the court had already rejected this. Writing for the majority, Chief Justice William H. Rehnquist rebuffed, again, such a “narrow reading.” Still, Thomas felt compelled--or was persuaded--to pursue this view of that constitutional guarantee. In doing so, he quoted from one of Scalia’s opinions.

So, too, at the heart of Thomas’s dissent in Hudson vs. McMillian was another opinion by Scalia that had earlier staked out his thinking on the Eighth Amendment’s bar against “cruel and unusual punishment.” Again, Scalia joined Thomas’ opinion and squared off against O’Connor. Writing for the majority in Hudson, O’Connor held that it was “cruel and unusual punishment” for prison guards to repeatedly kick and beat a handcuffed and shackled inmate, under the watchful eye of a supervisor who warned them “not to have too much fun.” She wrote that the Eighth Amendment does not sanction such excessive use of force.

O’Connor’s opinion, not the prison guards, however, went too far for Scalia and Thomas. Relying on an opinion written by Scalia last year, Thomas contended that inmates must show they suffer “significant harm.” He repudiated the idea that the Eighth Amendment even applies to prison conditions. He dismissed O’Connor’s analysis as having “cut the Eighth Amendment loose from its historical moorings” and as “yet another manifestation of the pervasive view that the federal Constitution must address all ills in our society.”

Rather impatiently, O’Connor blasted Thomas’ dissent as “unfounded” and based on a misapplication of precedents that “ignores the body of our Eighth Amendment jurisprudence.” Nor did O’Connor stop there. “To deny,” she asserted, “as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the ‘concepts of dignity, civilized standards, humanity and decency’ that animate the Eighth Amendment.”

Thomas may have aligned himself with Scalia in opposition to O’Connor and other moderate conservatives because, on an already conservative bench, his votes matter little in determining the outcome in most cases. So, he might as well aim at making a mark--and refute questions about his competence and abilities.

Thomas may also be striving to distinguish himself from President George Bush’s first appointee, Justice David H. Souter. Last year, Souter wrote only 12 opinions--all temperate. At this point a year ago, Souter had handed down only one opinion. By comparison, Thomas has already issued six--including three sharply worded opinions deriding the court’s majority.

Still, some court-watchers who doubt Thomas speculate that his strong allegiance to Scalia and embittered opinions reflect the influence of his law clerks. Clerks usually write first drafts of opinions. And one of Thomas’s four clerks is a holdover who worked for Scalia last year.

Thomas would not be the first to fall prey to the influence of law clerks or colleagues. More than 30 years ago, after clerking for Justice Robert H. Jackson, Rehnquist lamented that clerks wielded too much influence when drafting opinions. Justice Felix Frankfurter regularly sought to influence new colleagues by flattering them and courting their clerks. As Justice William O. Douglas recalled, he “used his law clerks as flying squadrons against the law clerks of other justices and even against the justices themselves. Frankfurter, a proselytizer, never missed a chance to line up a vote.”

Whatever the explanation, Thomas’ written opinions stand in bold relief to his performance during oral arguments. Whereas all other justices ask at least some questions, he rarely does. Scalia bombards attorneys with questions, occasionally irritating other justices. By contrast, questioning by O’Connor and most of the others is more respectful. Thomas alone has little to say. During a recent oral-argument session, Thomas sat silently for two hours, gazing at the ceiling.

For now, Thomas plays into Scalia’s hands. But that need not continue. For one thing, Scalia follows in the footsteps of Frankfurter. To be sure, Scalia harbors a conservative’s judicial activism rather than Frankfurter’s traditional self-restraint and deference to precedent. But both went to Harvard Law School and pursued academic careers before donning judicial robes. More important, each remained an academic at the core, enjoying robust debate. But like Frankfurter, Scalia tends to overplay his hand and turn manipulative, even vindicative. Frankfurter’s own ploys often backfired and he ended his career with the reputation of an “overbearing pest.”

Whether Thomas will become his own man, and O’Connor or Scalia prevails in the fight over abortion, remains to be seen. What’s clear, however, is that O’Connor is emerging as the commanding defender of traditional conservativism.