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.

Supreme Shift (Part 4): Final on Barrett's Past Record

As Nick raised his glass, Father Keller said out loud, "Finally."

—from WHERE HAVE YOU GONE WITHOUT ME, by Peter Bonventre

Yes, "Finally," Part 4.

Chip Somodevilla/Getty Images

Late last year, in the previous installments in this series, we saw a pretty clear pattern. We were looking at now-Justice Amy Coney Barrett's record while a judge on the 7th Circuit Court of Appeals. Specifically, we were reviewing the disagreements she had with her colleagues, in cases she felt so strongly about that she chose to go public, and to expend the time and effort to write a dissenting opinion.

In the dissenting opinions that we have reviewed, she argued against the majority's protection of inmates, in support of drastic restrictions on immigration, in favor of gun rights for convicted felons, and to overlook a prosecutor's constitutional violation, (See Part 2 and Part 3 in this series.) 

As noted previously, these are the positions to be expected of an immigration resistant, law & order, pro-gun rights, conservative politician or voter. Good or bad, that is what it is. Now let's finish with her other, revealing dissents.

Sentencing

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In U.S. v. Uriarte (2020), the defendant claimed that, under the so-called First Step Act (2018), the trial judge was wrong to impose an enhanced recidivist sentence. A majority of the 7th Circuit panel agreed because the defendant's previous sentence, which the trial judge considered as the predicate for determining recidivism, was illegal and had already been vacated. Judge Barrett, on the other hand, argued in dissent that the previous illegal sentence should still count and that the enhanced sentence in question should be upheld.

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In another case, United States v. Rutherford (2019). Judge Barrett similarly dissented to argue against reviewing a sentence. In that case, the defendant had asked the trial judge to reconsider his sentence. When the trial judge declined, the defendant appealed. The majority of Barrett's colleagues, applying the traditional rule that motions to reconsider extend the time to appeal, permitted the defendant to seek their review. But Barrett dissented, arguing that the traditional rule was no longer valid (under the Federal Rules of Criminal Procedure) and that any opportunity the defendant had to appeal had expired.

Right to Counsel

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Judge Barrett dissented in one other criminal case we have not yet discussed. Same result: against the defendant. In this case, Schmidt v. Foster (2018), the trial judge called the defendant and his attorney into chambers. The judge then proceeded to question the defendant about his defense, while not permitting the attorney to advise his client or to participate in the question and answer in any way. The majority of the appellate panel ruled that the judge had violated the defendant's right to counsel. But Barrett dissented, arguing that there was no right to counsel during the judge's questioning because it took place without the prosecutor and, therefore, it was not a "critical stage" of the criminal proceeding.

(Subsequently, the entire 7th Circuit [en banc] reconsidered the ruling and, in a deeply divided decision, held that the right to counsel might have been violated, but the violation was not so clear as to require reversing the trial judge.) 

Abortion

Judge Barrett dissented two more times while on the 7th Circuit. In each of these cases, she cast her vote to join a dissenting opinion written by one of her colleagues. Each of these two cases involved abortion. After what we've already reviewed about her record, is there any doubt which side she took on abortion rights?

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In Planned Parenthood of Indiana & Kentucky v. Commissioner of Indiana State Dept. of Health (2018), a panel of the 7th Circuit invalidated a state law that restricted the reasons for which the right to choose might be exercised. Because the law applied to early, as well as later-term abortions, the panel held that the law violated Supreme Court precedents that established a clear right to choose prior to viability. When the 7th Circuit as a whole (en banc) declined to reconsider that decision, Barrett dissented. She cast her vote with the dissenting opinion which urged a narrower view of pre-viability abortion rights.

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Similarly, the following year, in Planned Parenthood of Indiana & Kentucky v. Box (2019), a panel had invalidated a state law that required an ultrasound at least 18 hours prior to any abortion. The panel held that this 18-hour waiting period, together with the two trips to the facility that it would require, was an unjustified burden ("undue burden") on a woman's right to choose. The 7th Circuit declined to reconsider that ruling en banc, just as it had declined with regard to the ruling the year before. Barrett again joined the dissenting opinion, this time arguing that the state's law should be allowed to take effect because the issue was not clear.

We have now reviewed all of the dissents--opinions and votes--of Amy Coney Barrett while an appellate judge on the 7th Circuit Court of Appeals, just prior to her appointment to the Supreme Court. Remember, the purpose here is not to label her decisions and arguments right or wrong, wise or foolish, etc. But it is to connect the dots and discern any patterns. 

And one pattern could not be more clear: she took positions one would expect of a social and political conservative. Remember also, she took those positions when she felt so strongly that she was willing to disagree with the majority of her colleagues publicly, openly proclaim that they were wrong, expend collegial capital by risking offense and, when writing the dissenting opinion, expend the time and effort and resources of her chambers to do so.

Just consider a public official who took the opposite positions of then-Judge Barrett in all those cases. Consider a public official who sided with injured inmates against correctional officials, with an accused against a prosecutor who failed to disclose helpful evidence, with an accused against a judge who questioned him without the advice of counsel, with defendants who challenged harsh sentences, with restricting gun rights, but against restrictions on immigration, and against limitations on abortion rights. Clearly a social and political liberal.

There would be little hesitancy in so-labeling a politician who took those positions. And there is little reason for hesitancy in characterizing now-Justice Barrett's record as an appellate judge: it's just like that of a socially and politically conservative politician. 

It is of course possible that she will undergo some dramatic transformation--she would not be the first--or that there is some other reason to suspect that her past record is not necessarily prologue. Otherwise, the strong probability at this point is that Amy Coney Barrett will significantly increase the ideologically conservative direction of the Supreme Court.

Supreme Shift (Part 2): Barrett's Record

(Since the previous post, Amy Coney Barrett was confirmed by the Republican controlled Senate, without a single Democratic, and Republican President Trump who nominated her was defeated in the election by Democratic candidate Joe Biden.  Back to now-Justice Barrett.)

Yuri Gripas/Abaca Press/TNS

In her three years as a federal appellate judge, Amy Coney Barrett established a distinct record. That is--need it be said again--distinctly politically conservative.

And need I repeat, not judicially conservative, as in judicial restraint, strict interpretation, adherence to stare decisis, deference to the laws and policies of the elected branches and the states, textualism, originalism, etc. But politically conservative, as in voting like a conservative Republican politician would vote on the those "hot-button" issues like guns, abortion, immigration, criminal law, etc. Whether that's good or bad, right or wrong, wise or foolish is not the point. It's just what her record is.

From the time she was nominated by President Trump and confirmed by the Senate to the 7th Circuit Court of Appeals in 2017, Barrett disagreed publicly with the majority of her colleagues on that court several times. That is, she dissented either in a separate opinion of her own or, at times, she voted to join a dissent written by others. When she did dissent, it was uniformly for the politically conservative legal result. And as judicial scholars understand, dissents are extremely revealing.

Dissents tell us what it is that a judge thought--oftentimes, felt--was very important. So important that it justified going public with a disagreement. Consider that the dissenting judge is announcing to the world, "I lost." The judge is announcing that, despite having lost the majority vote, "I feel compelled to register a public disagreement."

A public disagreement, that is, instead of going along with the majority. Instead of going along to get along. It entails expending collegial capital. Irritating and, yes, sometimes antagonizing the majority by telling the world that my colleagues on the court are so seriously wrong, about something that is so seriously consequential, that the public must know just how wrong they are and how their decision is so harmful to the law, society, or both.

Beyond that, if the judge who disagrees with the majority is actually authoring a dissenting opinion--i.e., not just voting to join someone else's dissenting opinion--that judge is personally choosing to expend time and effort and the resources of her chambers to engage in a public act of protest. She is not required to do so. There's no institutional requirement or obligatory directive that she must do so. This is purely a matter of personal choice. So too is casting a vote to join another dissenting colleague, even if not as exacting as writing one's own dissenting opinion.

That's a long way of restating that dissents are very revealing. Voting in dissent and, even more so, writing a dissenting opinion.

So let's start looking at then-Judge (now-Justice) Barrett's dissents. Let's consider the common threads. You know: connect the dots. 

Immigration

In several cases, Barrett joined the majority of her colleagues or actually wrote the majority opinion, ruling against immigrants and immigration rights--e.g., approving deportation, despite issues of due process or equal protection or the likelihood of torture upon return to the home country.

But she dissented in one case, Cook County v. Wolf (2020). The majority had ruled for the immigrant.

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In that case, the majority of Barrett's court rejected the Trump administration's expansion of the "public charge" rule. That Trump expansion would deny entry to any immigrant who might need any public assistance at any time. That expansive restriction on immigration was held by the majority to be well beyond the authorized bounds of governing immigration law.

Barrett authored a dissenting opinion. She approved the Department of Homeland Security's restrictive rule. She argued that the immigration law should be read to bestow very broad regulatory discretion to the Department, enabling it to decide who should be considered a "public charge" and, therefore, inadmissible.

Gun Rights

Barrett dissented in several cases involving various issues of criminal justice. In her dissenting opinions, she always argued against the accused, or the criminal defendant, or the inmate, or the convict--except once. That one case involved the gun rights of convicted felons.

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In that one case, Kanter v. Barr (2019), the convicted felon, following his release from prison, challenged the constitutionality of laws that prohibit his possession of firearms. The court upheld the federal and state laws in question. The majority held such laws to be reasonable regulations consistent with a non-absolute 2nd Amendment right to bear arms. According to the majority, both Congress and the Wisconsin legislature found that persons who have committed felonies, whether their crimes were violent or not, were more likely to abuse firearms.

Barrett disagreed. In her dissenting opinion--again, the only dissenting opinion or vote in which she sided with a criminally accused, a defendant, an inmate, or a convict--she sided with the convicted felon. According to her, the federal and state laws were unreasonable restrictions on gun rights. Declining to defer to Congress or the state legislature, she argued that such restrictions should only apply to persons proven to be dangerous, not merely convicted of felony that was non-violent.

We'll continue with  other cases involving criminal justice in the next post. But it already bears repeating after discussing only two cases: the point is not whether then-Judge Barrett's positions were right or wrong, wise or foolish, etc., etc. The point is the common thread--i.e., politically conservative. Not judicially conservative or restrained.

In the immigration case, Barrett declined to give a strict reading to a federal statute and, instead, approved an extremely broad reading by an administrative agency. In the gun rights case, she declined to defer to the other branches of the federal government or to the state--both of which had adopted what they believed to be reasonable restrictions.

This is not strict construction or deference to the politically accountable branches and the states. Not judicial restraint. It's today's political conservativism.