Nominated by President George H.W. Bush, Justice Clarence Thomas is arguably the greatest Supreme Court justice of the past century and its most consistent originalist.
by Richard Schulman
A number of the Supreme Court’s decisions in the final weeks of the 2019-2020 session were disappointing to Republicans. In several cases, justices appointed by Republican presidents departed from originalist interpretative principles preferred by most (though not all) Republicans and did so with arguably serious consequences. But the one justice who has consistently striven to hew close to originalist principles — both in the just-concluded session and during his twenty-nine-year tenure on the Court — is Justice Clarence Thomas.
The New York Times was pleased with the unexpected outcome of the season. It wrote, “In an era of stark partisan polarization, Chief Justice John G. Roberts Jr. steered the Supreme Court toward the middle, doling out victories to both left and right in the most consequential term in recent memory.” “The trend is clear,” it quoted Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “He [Roberts] is drifting left at a statistically significant rate — and at a rate roughly resembling Souter’s liberal turn in the 1990s.”
Chief Justice Roberts’ desire to avoid politicized 5-4 decisions is well-known. What surprised Republicans was Neil Gorsuch’s siding with progressives on two important cases, Bostock v. Clayton County and McGirt v. Oklahoma. After the second of these, the editorial board of the Wall Street Journal complained that Justice Gorsuch’s “textualism hands half of Oklahoma to Indian tribes.”
Desired outcome or judicial objectivity?
The reader may justly ask whether we are proposing to evaluate justices by the criterion of short-sighted partisans, namely, whether a case outcome aligns with progressive or conservative policy preferences. Or do we (as all should) evaluate judges by the acuity and objectivity of their legal reasoning and its conformance to the Constitution?
Strong originalists judge by the public meaning and context of the Constitution as written by the country’s founders and perfected by the 13th through 15th and 19th amendments. They do not give way, as faint originalists do, to wrongly decided precedents.
It is by his adherence to strong originalism that many, including the present writer, regard Thomas as the greatest justice not only of the present Court but also of the past century.
Randy Barnett and Richard Epstein weigh in
The constitutional scholar Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University, when prevailed upon to name the one justice he admired more than all others, answered:
Justice Clarence Thomas. My admiration for Justice Thomas stems from his unrelenting commitment to the text of the Constitution, which leads him to follow its original meaning, even where that meaning deviates from the interpretations adopted by previous justices….This judicial stance has distinguished Justice Thomas from originalism’s most vocal defender on the Court, the late Justice Antonin Scalia.
Scalia, along with Justice Samuel Alito, Jr., conceded that their originalism yielded when confronted with legal precedent, even where the precedent is flawed. That doctrine, stare decisis, is even more strongly adhered to by Chief Justice Roberts.
In a similar vein, Richard Epstein, the Laurence A. Tisch Professor of Law at New York University and Senior Fellow at the Hoover Institution, writes that
[A]ll of the conservative justices, with the possible exception of Justice Clarence Thomas, think that the courts should show extreme deference to legislative judgments on the proper way to regulate the economy. Similarly, on questions of federalism, it is only Justice Thomas, again, who rejects the modern synthesis that gives the federal government, under the Commerce Clause, the full power to regulate all economic activities within as well as among the several states.
Joined by John Yoo and Stephen Hayward
John Yoo, Emanuel S. Heller Professor of Law at the University of California, Berkeley writes that
Thomas thinks that the Constitution protects natural rights, economic freedom, and private civil society from government meddling. He rejects race-based affirmative action, controls on speech or property, and bureaucratic intervention into private conduct. He would allow religious groups more participation in public life while protecting them from the heavy hand of government regulation, and he would protect the Second Amendment right for civilians to bear firearms.
And lastly, Steven Hayward, a senior resident scholar at UC Berkeley’s Institute of Governmental Studies and a visiting lecturer at its Boalt Hall Law School, writes that
If you want to find a Supreme Court justice who holds to the view that the Declaration and its philosophy of natural law and natural right should be an authoritative source for interpreting the Constitution, you have to look to Clarence Thomas. It was not a surprise that at the time of Thomas’s nomination to the Supreme Court in 1991 the left would attack Thomas for his previous public speeches embracing the natural-rights philosophy of the founding. Among other things, it led to the comical Joe Biden, then chair of the Senate Judiciary Committee, lecturing Thomas on the distinction between “good” natural rights and “bad” natural rights — ”good” ones being the welfare rights beloved of the left, and “bad” ones being those that protect property and economic liberty. Biden opened Thomas’s confirmation hearing by holding aloft Richard Epstein’s fine book on property rights, Takings, and essentially demanding of Thomas, “Are you now or have you ever been a reader of this book?”
Biden didn’t want this Black life to matter
Thomas’s confirmation as a Supreme Court justice was a close thing. The Washington politician who did more than anyone in 1991 to try to prevent Clarence Thomas from becoming a Supreme Court justice was the young, arrogant, and ignorant Senate Judiciary Committee chairman Joe Biden, whose Senate mentor was Ted “Bork” Kennedy. Biden orchestrated the televised Anita Hill defamation circus against Thomas. A committed partisan of Roe v. Wade, Hill charged Thomas with making pornographic comments to her, two instances of which, it came out under cross-examination, she had imbibed, not from Thomas as claimed but from an EEOC case she had worked on, plus a line from the book or movie version of The Exorcist.Thomas electrified the nation by denouncing the Biden-Hill character assassination effort against him as “a high-tech lynching.” Public opinion turned strongly against the Democrats and Thomas was confirmed by a narrow partisan vote, 52-48.
Smears Kavanaugh, changes tune for Tara Reade
That was then. Thomas was merely accused of “dirty talk.” Democratic Party smear protocol escalated by the time of the 2018 Brett Kavanaugh nomination. Unsubstantiated charges of college sexual assault now became the order of the day. Biden, veteran of drive-by slanders against conservative judicial nominees, marched to the front of the progressive mob seeking to bring down Kavanaugh. Biden said, “For a woman [Christine Blasey Ford] to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.”
How quickly Biden and the Democratic media changed their tune a few months ago when Biden, now the presumptive Democratic nominee for President, was himself accused of sexually attacking a Senate staffer, Tara Reade. Now the response of major media was a press blackout and a new-found presumption of the innocence of the accused.
The Thomas difference
Thomas has been an outstanding jurist for two reasons: first, his willingness to set aside the precedents of previous Court decisions if they seriously violate a proper reading of the Constitution; second, his understanding of the important difference between textualism and originalism.
To clarify these distinctions, it’s useful to describe four tendencies operative in the present Court:
- living constitutionalism: the flexible, results-oriented jurisprudence of Justices Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor;
- originalism subordinate to precedent (stare decisis): the jurisprudence of Chief Justice Robert, Justice Alito, and the late Justice Scalia (the self-described “faint originalist”);
- textualism: Justice Gorsuch;
- originalism informed by the natural rights of the Declaration: Justice Thomas and perhaps Justice Kavanaugh as well.
Strong originalists judge on the basis of the Constitution written by the founders and perfected by the 13th through 15th and 19th amendments — with attention to the public meaning of the text when written and considered in its legal and historical context.
Living constitutionalism
Living constitutionalism was pioneered by the progressive Princeton professor and later US President, Woodrow Wilson. Its core tenet is that the original Constitution is an irremediably flawed document that must be continually modified to evolving political preferences. “The trouble with the theory [behind the Constitution],” Wilson wrote, is that “Living political constitutions must be Darwinian in structure and practice.” But “[t]he process of formal amendment of the Constitution was made so difficult by the…Constitution itself that it has seldom been feasible to use it.” The Court’s role, Wilson continued, is to clear away the Constitution as an obstacle to progress. “We have reached a new territory in which we need new guides, the vast territory of administration.” In modern times, he concluded, “The functions of government are in a very real sense independent of legislation, and even constitutions…. Administration cannot wait upon legislation, but must be given leave, or take it, to proceed without specific warrant in giving effect to the characteristic life of the State.”
Four-term progressive President Franklin Delano Roosevelt perfected Wilson’s beginnings into a full-blown administrative state during the Depression, with progressive judges alongside regulatory agencies making up laws and rules as they went along. Democratic presidents — from Lyndon Johnson’s “Great Society” to Barrack Obama’s environmental, health care, banking, and consumer finance laws and regulations — have added more stories to the Tower of Babel of the over-bearing administrative state.
Stare decisis and textualism
Originalism subordinate to precedent (stare decisis) affirms, reasonably, that a well-ordered society depends on the stability of its laws. But, as Justice Thomas has correctly noted, the Constitution itself is the ultimate precedent and that earlier decisions ignoring that truth should be overthrown in favor of decisions that do respect it.
Textualism is decision-making based on the public meaning of a legal text’s words when written, but deprived of the publicly understood context of that text.
Recent Court cases
Let’s look at several of the recent Court cases in the light of the distinctions above.
Textualism was an issue in two cases in which Justice Gorsuch joined the four progressive, “living constitution” oriented justices. In the first of these, Bostock v. Clayton County, his textualism went AWOL. The crux of the case is the meaning of the word “sex” in Title VII of the Civil Rights Act of 1964. The living constitutional justices, joined by Roberts and Gorsuch, construed that word to encompass employment protection for gays and LGBT persons. But when the law was written, “sex” clearly only referred to sex in the sense of the binary biological distinction between male and female. The majority, in short, reached their desired outcome — not by judging on the basis of the law Congress had actually passed, as judges are supposed to do — but by a legislative act of their own.
McGirt v. Oklahoma
In a second decision, McGirt v. Oklahoma, also authored by Gorsuch, his textualism was this time on full display. He ceded three million acres of land — half of the state of Oklahoma — to the Creek Indian tribe on the presumption that Congress had never formally dissolved the tribe’s title to that land. But this was ignoring history and context in favor of a Shylockian literalism. As a Wall Street Journal editorial noted, basing itself on the dissenting opinion written by Chief Justice Roberts and signed by Justices Alito, Kavanaugh, and Thomas:
Congress disestablished the Creek reservation through a series of laws…. Context is important. Lo, the Creeks and other tribes in the southeastern U.S. held 8,000 slaves and allied with the Confederacy. After the Civil War, the U.S. signed new treaties with the tribes declaring they had “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them” including lands.
Congress in subsequent decades leading up to Oklahoma’s statehood dismantled the tribal governments and courts, stripped tribes of taxing authorities, extinguished the Creek Nation’s title to the land and made members U.S. citizens….
Justice Gorsuch in McGirt has turned textualism into an idiosyncratic vanity project.
WSJ, July 11, 2020.
A bad precedent respected
Chief Justice Roberts’ recent decision in the Louisiana abortion clinic case, June Medical Services v. Russo, is a textbook example of originalism subordinate to precedent (stare decisis). Four years earlier, in a similar case involving a Texas abortion clinic, Whole Women’s Health v. Hellerstedt, Roberts had dissented from the 5-4 pro-abortion-clinic decision of the four progressives on the Court, joined by Justice Kennedy. Rather than dissenting again in the similar Louisiana case, Roberts joined the four progressive justices on the basis that however much he had disagreed with the earlier 2016 Whole Women’s Health decision, it was now settled law. He did not wish to revisit and contemplate the overthrow of the previous decision, despite the Court’s new majority.
To be sure, there were some modest victories from this year’s closing Court decisions, notably on behalf of freedom of religion (Little Sisters v. Pennsylvania and Our Lady of Guadalupe v. Morrissey-Berru), and reassertion of executive branch control over the CPFB (Seila Law v. CPFB). Our modest conclusion from this year’s experience with the Court’s decisions, however, is that the Federalist Society, which vetted President Trump’s judicial appointments, needs to deepen its understanding of the virtues of originalism — undiluted by textual literalism and undue fondness for stare decisis. A good reference point would be the jurisprudence of Justice Clarence Thomas and the writings of constitutional scholars Randy Barnett and Richard Epstein.
Minor corrections: 7/18/2020, 7/19/2020, and 7/20/2020.
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