By Ben Goad - 04/04/14 06:00 AM EDT
Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a crucial campaign finance restriction.
And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking.
But Thomas, seen by many as the court’s most conservative justice, wrote a concurring opinion that both represented the decisive vote in the 5-4 decision and beckoned the justices to go further.
Thomas used his opinion to argue in favor of scrapping individual contribution caps altogether by reversing the court’s post-Watergate decision known as Buckley v. Valeo, which held that limits are justified as a measure to stave off corruption.
“This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment,” Thomas wrote. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.”
Thomas is the only Justice calling for the total elimination of individual contribution caps so far, but Wednesday’s ruling in McCutcheon vs. the FEC could give him hope that the court’s majority will eventually reach his conclusion.
It’s familiar terrain for Thomas, who experts said has often staked positions outside of the mainstream, even of the court’s conservative wing, during more than two decades on the bench.
“He is not one for half-measures,” said Tom Goldstein, an appellate advocate who has argued dozens of cases before the Supreme Court. “He, on more questions than most justices, he is willing to stake out the strongest position.”
For Thomas, that has often meant standing alone. But there have been cases — on Second Amendment and criminal justice issues, for instance — where Thomas started out alone in dissent, only to watch the court “cohere around that once lonely position,” Yale law professor Akhil Reed Amar said.
Thomas famously remains silent during oral arguments before the court, as other justices spar and pepper the attorneys before them with questions. Amar, who described himself as a liberal admirer of Thomas, scoffed at suggestions that he takes his cues from the court’s other conservatives or cedes any of the power that comes with his robe.
"You could make a case that he’s been the most influential,” he said. “The game isn’t talking at oral arguments.”
Amar likened Thomas to former Justice John Marshall Harlan, the only dissenter in the landmark 1896 Plessy v. Ferguson decision backing racial segregation, and former Chief Justice William Rehnquist, who was dubbed as “the lone ranger” before the court gradually coalesced around him.
Whether that happens for Thomas will depend in part on the future makeup of the court, as well as the evolution of the law. In that sense, Thomas is taking an “intergenerational” approach to the court’s business, Goldstein said.
“This is the long view, and the long game for what the law is going to be like in 50 or 100 years," he said.
In the meantime, Thomas is subtly pulling the court in his direction simply by virtue of the positions he takes, Goldstein said. In McCutcheon, for example, Thomas’s push to overrule the Buckley ruling altogether likely made the court more inclined to weaken it, he said.
In other words, the justices need not adopt Thomas’ ideology to be influenced by it.
Goldstein, who publishes the SCOTUSblog providing Supreme Court analysis, said he believed that the court, as currently constructed, would be unlikely to toss aside contribution limits entirely. But he and other observers of the court said the Roberts court could further loosen restrictions incrementally, perhaps raising the threshold for individual contributions to a candidates.
Still, Thomas’s call to end all contribution limits entirely is not without backing. For instance, a Wall Street Journal editorial in response to the McCutcheon ruling embraced Thomas's position.
“But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress,” the Journal said. “Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.”