Splinters in the 6-3 Supreme Court (Part 4: Clarence Thomas)

Credit: Evan Vucci/AP

Clarence Thomas is a different story from Amy Coney Barrett.

We've been seeing how Justice Barrett has emerged as an increasingly moderate voice on the Court. In some of the Court's most important cases, she has disagreed with the more politically conservative positions taken by the majority or by justices in dissent, and she has even sided with the Court's liberals.

[As mentioned in Part 3 of this series, this is now being noticed by other commentators, and some political conservatives are distressed. See the several commentaries cited in that post, as well as in another recent one: David Lat, Amy Coney Barrett Is the Most Interesting Justice on the Court, Bloomberg Law, July 2, 2025, https://news.bloomberglaw.com/litigation/amy-coney-barrett-is-the-most-interesting-justice-on-the-court .]

In sharp contrast, there seems to be no flexibility from Justice Thomas. If anything, his record demonstrates a deepening political conservatism and suggests a contempt for other political conservatives on the Court who sometimes stray from the party line.

One need only take a look at some of the cases in which Thomas wrote a dissenting opinion. Sometimes, one or two of the Court's other most politically conservative justices joined his dissent. Oftentimes, no one did.

Just connect the dots of Thomas's dissenting opinions in these recent cases:

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Dissenting alone in U.S. v. Rahimi, Thomas argued that the federal law, prohibiting firearm possession by someone subject to a restraining order for domestic violence, violated the 2nd Amendment. Thomas had written the majority opinion for the Court two years earlier in New York State Rifle and Pistol Assn. v. Bruen. There, he asserted that a gun restriction was invalid unless it had a historical antecedent at the time the 2nd Amendment was ratified. This domestic violator law had none.

Thomas's Bruen test differed from the so-called "strict scrutiny" test that the Court typically applies to protect a fundamental constitutional right--i.e., is the law necessary for a compelling reason? [Think mandatory smallpox vaccinations during an epidemic despite personal religious objections.] In Rahimi, the next major gun rights case after Bruen, Thomas lost the majority. In Rahimi, he protested that the rest of the Court was disregarding his historical test from Bruen. [As could well have been expected.] Alone in applying his Bruen test literally, Thomas insisted that prohibiting firearm possession by a domestic abuser was unconstitutional because such a law did not exist in 1792.

Writing for the Court in Rahimi, Chief Justice Roberts reasoned that there were analogous laws applicable to violent persons in existence historically. Moreover, such laws were confirmed by "common sense." That was not sufficient for Thomas.

Another gun rights case:

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In VanDerStock, as in Rahimi, Thomas dissented in a solo opinion. (Justice Alito also dissented, but he did not join Thomas's opinion.) Thomas insisted on a narrower meaning of "firearm" that would be subject to the congressionally authorized regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In Thomas's view, it could not include weapons parts kits or "ghost guns."

Thomas protested that only an object that is already a “weapon” could constitute a regulable "firearm." Disagreeing with the majority opinion authored by Justice Gorsuch [Who is not exactly an enthusiast of gun restrictions.], Thomas argued that a weapon parts kit could not be viewed as a "firearm" until after it was converted into an operable gun--i.e., until it is “something to fight with.” Consequently, according to Thomas, the ATF had no authority under the Gun Control Act of 1968 to regulate "ghost guns" or anything else that was not already a functioning weapon.

In yet another gun case:

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Thomas issued another lone dissent in Snope. (Justices Alito and Gorsuch did not join Thomas; they simply noted that they dissented.) He would have granted certiorari in order to review the "surprising conclusion" of the 4th Circuit Court of Appeals that there was no fundamnetal right to possess so-called "assault rifles." Thomas argued that AR–15s are unquestionably “arms" within the meaning of the 2nd Amendment. There was no “historical regulation” that was sufficiently like Maryland’s ban which could serve as a constitutionally valid 2nd Amendment exception. 

In Thomas's view, "assault rifles" like AR–15s easily fall within the category of protected arms. He reasoned that "[t]ens of millions of Americans own AR–15s, and the “overwhelming majority” of them “do so for lawful purposes, including self-defense and target shooting.” That settled the question for Thomas. Accordingly, he would have reviewed and reversed the 4th Circuit's decision and invalidated the Maryland law.

As in Snope, Thomas wrote some of his most revealing dissenting opinions when the majority simply rejected a petition for certiorari--i.e., choose not to hear an appeal. Here's another one:

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Again in Allstates, Thomas wrote a lone dissenting opinion. Gorsuch noted that he also dissented, but neither he nor anyone else joined Thomas's dissent.

Allstates, a nationwide industrial general contractor that is required to comply with the workplace safety standards set by OSHA (the Occupational Health and Safety Administration)--and has been fined in the past for violations--challenged the agency's authority. Its legal claim was that Congress violated the Constitution by creating an agency to exercise legislative powers--i.e., to promulgate regulations.

The federal circuit court below upheld OSHA's authority to set workplace safety standards, and a 7-2 majority of the Justices rejected Allstates' petition to appeal. Congress's authority to delegate powers to independent agencies has been settled in numerous Court decisions since the New deal era. But it has recently come under attack by anti-regulatory groups, by their Republican allies, and even by some justices. Thomas is one of them.

He argued in dissent that the Court should hear the appeal and limit OSHA's workplace safety authority. According to Thomas, the Court's precedents violate "the Constitution’s allocation of legislative power to Congress." Hence, the Court needed to take the case to "reconsider [its] approach" to delegating regulatory authority to agencies such as OSHA.

Around the same time that Thomas sought to undo OSHA's workplace safety regulations, he dissented from the majority's generosity toward military veterans:

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In Rudisill, Thomas's dissenting opinion was joined by Alito. The Court's 7-2 majority, speaking through Justice Jackson, held that the governing statutes allowed veterans who are eligible for educational benefits under both the earlier "Montgomery" and later "Post 9/11" GI Bills to switch from the former to the more generous latter. Additionally, for those veterans being eligible under each of these GI Bills, the benefits would extend from the 36 month limitation appilicable to each one to a total aggregate period of 48 months. Jackson added that, in any event, the "pro-veteran canon" would apply if the statutory provisions were ambiguous.

Thomas, while on the one hand saying that "the statute’s text [is] complicated," nevertheless insisted that it was "ultimately unambiguous" in denying a veteran's entitlement to a 48 month benefit period. Wading through the different subsections of the governing provisions, Thomas argued that, under §3327(d)(2)(A), a veteran who switches to Post 9/11 benefits is entitled only to "the amount [of time] he had remaining for his Montgomery benefits"-- despite separate entitlements to both GI Bills due to multiple periods of service.

Thomas concluded with the additional argument that, even if the statute were ambiguous--in his view it categorically was not [Does the 7-2 divide suggest otherwise?]--the pro-veterans canon of interpretation should not apply. He took issue with "whether this purported canon should ever have a role in our interpretation."

Thus far, in the five cases discussed, we've seen Thomas opposing laws that prohibit firearm possession by domestic violators, opposing the regulation of weapons parts kits or "ghost guns," opposing laws prohibiting the possession of assault rifles, opposing OSHA's workplace safety regulations, and opposing a generous interpretation of the GI Bills. Let's be clear, in none of these cases was there an unequivocal dictate that he take the positions he did. That being so, why?

This hardening ideological jurisprudence--which has increasingly separated Thomas to the right of other political conservatives on the Court--will be equally evident in the next installment in this series. We'll look at his dissenting opinions in several criminal cases and one involving a claim of religious discrimination. No one who follows the Court will be surprised at Thomas's positions in these cases.