In 1991, Clarence Thomas was confirmed as the first Black radical conservative Justice, in spite of opposition including credible allegations of sexual harassment lodged against him. His unprecedented confirmation evoked unprecedented reactions, including written ones. One such written action is the basis for this article. Our nation is now fast approaching the anniversary, not only of Thomas’ 25 ceremonial years on the Court, but also of almost 25 years since an unprecedented, published, pointed, open, publicly and widely circulated correspondence was sent to the newly confirmed Justice Thomas by another Black judge. Esteemed Federal Judge A. Leon Higginbotham, Jr., penned An Open Letter to Justice Clarence Thomas from a Federal Judicial Colleague. Higginbotham wrote this personal letter to Thomas, after the bitter confirmation process, to remind the new Justice, and perhaps chastise him, too, about the good, and the harm, Thomas could do toward underrepresented people, many with backgrounds similar to Thomas, from the bench with this life appointment. For over these 25 years, there is no evidence Justice Thomas ever wrote in response. Therefore, this essay is a construction of Thomas' implicit "response" to Higginbotham’s call in his open letter. This essay construes such by examining Thomas’ response from the bench. Thomas’ response, though not addressed in a return letter to Higginbotham, is directed to all who, like Higginbotham, are concerned with Thomas’ views as to his role on the Court. This essay is based on the premise that the best evidence of Thomas’ response is seen in the opinions he has written and the sides he has taken in constitutional disputes or, as his late judicial comrade may say, cultural wars over the constitutional meaning of equality in this country.
49 J. Marshall L. Rev. 925 (2016).