Giving Supreme Court Justice Clarence Thomas His Due

Brief Excerpts from an excellent, in-depth 6000 word plus article that should be read in its entirety.


The Weekly Standard

JULY 20, 2015

For political observers, the story of the Supreme Court’s recently concluded term was the clash of two great colliding forces. On one side stood the Court’s always-unified liberal bloc, fortified by the apostasies of Republican-appointed Justice Anthony Kennedy and sometimes Chief Justice John Roberts —most prominently in cases involving same-sex marriage and Obamacare.

On the other side stood Justice Antonin Scalia, a lion in winter, caustic and witty in his dissents. But for close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself for straying from the Constitution, failing to apply its own precedents evenhandedly, neglecting the separation of powers and federalism, and allowing itself to be manipulated by runaway executive agencies.

Behind the slings and arrows of politics and punditry, Justice Thomas has been this term’s workhorse, and not for the first time. According to SCOTUSBlog, he wrote more opinions than any other justice this term, 37 (Justice Samuel Alito was second with 30, Justice Elena Kagan last with 11); the most concurring opinions, 11 (Alito was second with 9, Roberts and Kagan last with 2 each); the most dissenting opinions, 19 (Scalia was second with 15, Justice Ruth Bader Ginsburg last with just 1); and the most total pages of opinions, 432.

This is the second time in three years that Thomas has written the most opinions, and they are not filled with breezy rhetoric, but thick with citation to the roots of our constitutional system, from the Magna Carta to John Locke to Blackstone’s Commentaries.

But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia—his closest colleague philosophically—are telling.

Justice Thomas’s opinions this term reflect his preoccupation with the administrative state’s tendency to transfer an ever-growing share of authority from Congress’s power to make the rules, the courts’ power and duty to say what the rules mean, and the president’s power and duty to enforce them. And that sometimes puts him in the seemingly surprising position of defending the courts. 

… This accumulation of governmental powers allows agencies to change the meaning of regulations at their discretion and without any advance notice to the parties. .  .  . To regulated parties, the new interpretation might as well be a new regulation. .  .  .

… Thomas often stands up for clear lines of separation of powers and consistent application of individual rights even when the outcomes may not be “conservative.”

… Thomas’s history as a son of Jim Crow-era Georgia may also explain his joining the majority (breaking with the Court’s other conservatives) in Walker v. Sons of Confederate Veterans, Inc., in which the Court held that Texas could properly refuse to sell Confederate flag vanity license plates. Thomas has a history of weighing in on one particular symbol, the burning cross in the hands of the Ku Klux Klan; he spoke up uncharacteristically at oral argument during 1995 and 2003 cases involving the Klan and the cross and wrote separately in both cases to emphasize the particular meaning of that symbol as a political statement of racist terror.

… Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth.

That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Clarence Thomas is an affable man, if one who does not forget his scars, and by all accounts he gets on well enough with his colleagues. But given that few of them other than Scalia bother responding to his lone opinions, one wonders if some of them look at him a little funny—“that guy who keeps going on about the Constitution.” He is known to prefer the company of almost anyone to the company of his fellow judges and lawyers; he meets more often than any other justice with groups of visitors to the Court and travels the country in his RV during the Court’s recesses.

But that distance makes him uniquely suited among the justices to look at this country not from the perspective of a member of the judicial high priesthood, but as a citizen ruled by it. Some critics suggest that he may be biased by the fact that his wife is active in Tea Party groups, but after his nearly quarter of a century on the Court, suggesting that Thomas’s view of the Constitution is influenced by the Tea Party is rather like suggesting that Newton’s physics were influenced by Einstein.

Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly.

Two strategies are available to a citizen confronted by such a government. One is to keep for himself as large a space as possible free of the government, in which to exercise true liberty. The other is to insist on the punctilious observance of the letter of the law. The whims of administrative agencies and the discretion of judges to fashion new rights and rules according to their own policy preferences threaten both of these strategies, to the detriment of whomever the people in power regard as beneath their concern. It is perhaps a supreme irony, but a fitting one, that the man most concerned with keeping alight the flame of these old concepts of liberty and dignity is the justice of the Supreme Court who grew up under a government that wished to accord him neither liberty nor dignity.

Dan McLaughlin is a lawyer in New York City.




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