Editor’s Note: Today marks 25 years since President George H. W. Bush nominated Clarence Thomas to serve on the Supreme Court. In recognition of this milestone, NR asked friends and colleagues to weigh in on the justice and his legacy.
When I am asked which Supreme Court justice I most admire, I usually decline to answer and insist that I don’t look for heroes among Supreme Court justices, past or present. Indeed, I do not care much for most of the justices who are viewed by others as heroes, such as “the great chief justice” John Marshall or “the great dissenter” Oliver Wendell Holmes Jr. But sometimes I relent and identify one justice I admire more than all the others: Justice Clarence Thomas.
This judicial stance has distinguished Justice Thomas from originalism’s most vocal defender on the Court, the late Justice Antonin Scalia. Justice Scalia freely admitted that he was more committed to the doctrine of stare decisis — standing by legal precedents — than was his good friend Clarence.
Justice Thomas’s stance also distinguishes him from Justice Alito, who, in a recent appearance at Georgetown Law School, identified himself as an “originalist” when the Court is interpreting the Constitution in the absence of controlling precedent. As an example of this, Justice Alito cited the 2014 case of National Labor Relations Board v. Noel Canning, which concerned the meaning of the phrases “the recess of the Senate” and “that may happen during” in the Constitution’s recess-appointments clause. Because no previous Supreme Court case had dealt squarely with this interpretive question, Alito thought that originalism was the appropriate method of interpretation to employ. But he suggested that if there had been a Supreme Court precedent on the matter, the Court would have been bound to follow that rather than original meaning.
Of course, Justice Thomas has also been quite willing to publish an originalist opinion in dissent. I have a soft spot in my heart for his dissenting opinion in the 2005 medical-marijuana case of Gonzales v. Raich, which I argued in the Supreme Court on behalf of Angel Raich and Diane Monson. Whereas Justice Scalia crossed over to join Justice Kennedy and the liberal justices in upholding the application of the Controlled Substances Act to the possession and use of marijuana for medical purposes as authorized by state law, Justice Thomas joined with Chief Justice Rehnquist and Justice O’Connor in dissent, while filing his own originalist opinion.
Perhaps Justice Thomas’s most significant deviation from Justice Scalia, as well as from Chief Justice Roberts and Justice Alito, came in the 2010 case of McDonald v. City of Chicago, in which a five-justice majority recognized that the 14th Amendment protects the individual right to keep and bear arms — and that states may not infringe this right. Justice Scalia joined Justice Alito’s plurality opinion, which was based on modern substantive-due-process doctrine, but Justice Thomas refused. Instead, he concurred in the judgment and provided the fifth vote for the result in his own separate opinion, which was based on the original meaning of the Constitution’s privileges-or-immunities clause. In the name of getting the text right, Justice Thomas embraced this “lost clause” of the Constitution, which has been discarded by the Court since the Slaughter-Houses Cases in 1873, which he was prepared to restore. In contrast, the other conservative justices shrank from its original meaning in favor of modern substantive due process, probably because they feared that a renewal of the clause could be used to protect not only the enumerated right to keep and bear arms but other unenumerated rights as well.
Justice Thomas has seemed less fearful than his conservative brethren of protecting unenumerated rights.
Indeed, Justice Thomas has seemed less fearful than his conservative brethren of protecting unenumerated rights. In the 2000 case of Troxel v. Granville, he joined the majority of the Court in recognizing a right of a parent to raise her child as she sees fit. Mull that one over. If you believe that judges may protect only those rights that are expressly mentioned in the text of the Constitution, then you do not believe you have a constitutional right to raise your own children. And you then must concede that a majority of a state legislature could, for example, remove all children from the custody of their parents to be raised by the state. But Justice Scalia, true to his convictions about avoiding the protection of unenumerated rights, dissented in Troxel.
This is not to say that I agree with all of Justice Thomas’s decisions — I do not. But today is the day to remember that no judge or justice has done more to put originalism into practice, without fear or favor, than Clarence Thomas. For that he has my admiration and respect.
On a personal note, I have greatly enjoyed my private interactions with the justice, who has warmly welcomed me into his chambers. But he much prefers the company of young people to that of old guys like me. In May, I brought 30 students and recent law graduates attending the inaugural “Originalism Boot Camp,” sponsored by the Georgetown Center for the Constitution, to meet with him at the Court. He not only stood and spoke to the attendees for an hour in the Lawyers’ Lounge, but he then summoned the Supreme Court photographer to take a photo of himself with the group in the courtyard outside. After that, he volunteered to pose for a selfie with each and every student. And not only did he pose, but he chatted individually with each one, which took close to another hour. For the students, it may have been the most unforgettable moment of their lives.
So I thank National Review for inviting me to participate in this symposium in tribute to Justice Thomas. For me, he stands alone among all the justices in our history. For me, I confess, he is a hero.
— Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown Law School, where he directs the Georgetown Center for the Constitution. His most recent book is Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.
Justice Clarence Thomas’s quarter century on the Supreme Court has been defined by a principled devotion to understanding the Constitution’s original meaning and applying it to modern-day cases. His fidelity to text and history is embodied in a phrase he has used in 16 concurring or dissenting opinions: In “an appropriate case,” he would be willing to reconsider the Court’s longstanding precedents that cannot be reconciled with originalism. An example from his very first week on the bench illustrates his steadfast commitment to the Constitution.
After a bruising confirmation battle, Justice Thomas was sworn in to the Court on October 23, 1991. By that point, he had already missed all of the October cases and had to scramble to prepare for the next batch, which would be heard ten days later. On November 5, Thomas’s second day on the bench, the Court heard arguments in White v. Illinois. The facts were unsavory. A four-year-old told her babysitter that Randall White, who had just fled her bedroom, “touch[ed] her in the wrong places.” During White’s trial, the toddler was unable to testify due to “emotional difficulty,” so the state introduced as evidence the babysitter’s out-of-court statement. The trial court overruled the defendant’s objection that, under the Sixth Amendment, he had the right to confront his accuser. With the babysitter’s statement as evidence, White was convicted.
A few days after White was argued, Justice Thomas attended his first conference. The majority of the Court voted against White. Under settled precedent, the babysitter’s statement was admissible because it was “reliable.” Only a few days into the job, it would have been easy enough for Thomas to simply go along to get along. But from the very beginning, Thomas pursued the original meaning of the Constitution, even if that history conflicted with the Court’s settled precedents. This was true regardless of his personal preferences. Even though the law-and-order justice likely had little sympathy for a child molester, the procedural protections of the Sixth Amendment prevailed on him.
In an eight-page dissenting opinion, joined by Justice Scalia, Justice Thomas wrote that his colleagues’ “Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself.” Realizing that he was only in dissent, Thomas wrote that he would reconsider this doctrine “in an appropriate case.” In the meantime, lawyers, scholars, and judges can study and consider the persuasive arguments from Thomas and Scalia. Thirteen years later, that “appropriate case” would arrive. In Crawford v. Washington, the Court voted to restore the Confrontation Clause’s original meaning and jettison the postmodern “reliability” framework.
From his first week on the bench, Justice Thomas understood that a single opinion cannot right the law right away. But given reason, logic, and time, “in an appropriate case” the Constitution will ultimately prevail. Thomas’s fidelity to the rule of law and the power of courts should inspire us all, and hopefully several more of his colleagues, for another quarter century to come.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law, Houston. He is the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.
Richard A. Epstein
One recent story in the New York Times charts the political positions of the justices on a left-to-right axis and concludes that the Court is moving left, even as Justice Clarence Thomas and Justice Samuel Alito continue to remain to the right. It is easy to note the gap among the justices, but more difficult to explain. The usual efforts stress the large theoretical and structural issues that lie behind the need for judicial restraint or the legitimacy of the modern welfare state. But in Justice Thomas’s case, another factor is very much at work. He tends to take a narrow, rigid view of language and is thus reluctant to go beyond the literal meaning in order to embrace some larger position, when other justices are more willing to do so.
One instructive illustration is close at hand in Voisine v. United States, decided just this week, which raises a neat question of statutory construction that forces all the justices to come to grips with the common-law rules, both civil and criminal, on the relationship between key concepts that have long caused every substantive-criminal lawyer trouble. Section 922 of the United States Code imposes a prohibition on firearm possession against any individual who has been convicted “of a misdemeanor crime of domestic violence.” The federal law goes on to provide that this offense necessarily “has, as an element, the use or attempted use of physical force.” This statute ties into the Maine domestic-violence law, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another person.
Mr. Voisine was convicted under the Maine law for domestic abuse in assaulting his girlfriend. The conviction did not specify which of the three mental states mentioned above was involved — although ordinary intention to harm a specific person is by far the most likely alternative, given their intimate face-to-face contact. Some years later, Voisine was found in possession of a rifle, and was thus charged with a federal criminal offense. The simple question before the Court was whether it was sufficient under the federal statute for Voisine to have been convicted of reckless assault, when the conviction in the Maine case did not disclose a specific intention to do harm.
In dealing with this issue, Justice Kagan noted rightly that modern criminal law equates recklessness with intention in many contexts. Under the received wisdom, the dividing line between criminal and ordinary civil responsibility is the line between ordinary negligence — the failure to take reasonable care under the circumstances — and recklessness that involves knowingly acting in ways likely to harm another, even with indifference to whether the harm occurs to some known or unknown person.
Justice Thomas looks at the words in the federal statute and notes that its reference to the use of force does not seem to embrace reckless indifference to its use. The majority is willing to read the general approach toward criminal responsibility into the law. Justice Thomas comes from a different statutory tradition and argues with some power that there is a vast difference between specific intention and general recklessness, so this federal statute should not be extended beyond cases where the use of force was directed, intentionally, toward its stated end.
In my view, he could have strengthened his argument by putting more stress on the words “attempted use of force,” because it is well settled in the criminal law that in a conviction for a criminal attempt, recklessness will not do. Instead the law requires specific intention to bring about a particular act. It thus becomes odd to rule out recklessness as a predicate on the attempt side while allowing it back in with the use of force. The discontinuity is just too jarring. He might have also noted that the cases of recklessness put forward by Kagan — the husband’s throwing a plate in anger at a wall near his wife — are in fact examples of knowing intimidation that surely counts as the use of force. Thomas might also have raised the argument that the rule of lenity should apply to a criminal statute whenever its intention is unclear. Justice Kagan brushed that argument aside by insisting that there was no genuine ambiguity in the statute — which seems clearly wrong given that Justice Thomas (with Justice Sotomayor concurring on this issue) offers his own set of hypotheticals that rightly stresses that people who intend to do one bad thing may well be recklessly indifferent to the occurrence of another. It is nice to see the high-level reenactment of a debate that normally happens in a first-year classroom spill over to the Supreme Court.
What is more critical for jurisprudential purposes is that Justice Thomas’s attitude on statutory interpretation easily carries over to constitutional interpretation, where, once again, he will be reluctant to go beyond the text in order to cover closely analogous situations that are not caught by the literal language of a particular provision. This attitude in turn makes him skeptical about any effort to read, for example, notions of privacy into the Bill of Rights when the term is not there, and thus presages his view that Roe v. Wade is necessarily a constitutional impostor. That attitude in turn explains his dissent in Whole Woman’s Health v. Hellerstedt, where Justice Thomas makes clear his continued opposition to Roe v. Wade.
I am quite confident that Justice Thomas does not use these matters of language and interpretation as some opportunistic shield for his own disguised political preferences. I think that he means what he says and says, very forcefully, what he means. The harder question is whether he is right or wrong. My own rough view is that he is half right and half wrong. In dealing with a technical statute, such as that in Voisine, with lots of moving parts, his close textual analysis is often more likely to get you to the heart of the matter. Recklessness does not seem to be a predicate offense for the federal statute. But constitutions, as I have long argued, are drafted in a very different system: Unless and until there is some way to cover analogous cases, the system will fall apart. As an early student of Roman law, I quickly learned that the Romans did not hesitate before saying that a statute that forbade killing by force had, by way of analogy, to cover cases in which poison was administered by guile. So it is really a matter of which interpretive attitude should apply when. It is a problem that does not face only Justice Thomas. Every member of the majority in his or her own way has to face this same question of interpretive approach, in case after case. Getting it right matters. The point here is not to attack originalism, let alone embrace a theory of linguistic relativism that leads to some living/left-leaning constitution. But it is to insist that originalism must also embrace this interpretive position, which helps explain why constitutional law remains a difficult and confused subject.
— Richard A. Epstein is the Lawrence A. Tisch Professor of Law at New York University, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and a senior lecturer and the James Parker Hall Distinguished Service Professor of Law at the University of Chicago. He is the author of many books, including, most recently, The Classical Liberal Constitution: The Uncertain Case for Limited Government.
Orrin G. Hatch
Twenty-five years ago, Justice Clarence Thomas took his seat on the Supreme Court. His appointment followed an unprecedented smear campaign by liberals who sought to discredit an honorable man with unsubstantiated allegations about his personal conduct. That these charges were demonstrably false, as a number of us exposed at Thomas’s hearings, did not dissuade opponents from trying desperately to use them to block his confirmation.
I came to know Justice Thomas well during his confirmation process, when I served as one of his principal defenders in the Judiciary Committee. He is a man of impeccable character who treats all people — regardless of their position or background — with courtesy and respect. It’s an open secret that he’s the favorite justice among many Court employees because he doesn’t put on any airs. He’s just as happy to talk football with the Court janitor as he is to debate the finer points of constitutional theory with a fellow justice.
Those of us who were intimately involved in Justice Thomas’s confirmation knew from the very beginning why the Left was so determined to prevent his confirmation: Justice Thomas is judicial activism’s worst enemy.
Clarence Thomas possess a rare combination of intellectual brilliance and steadfast devotion to principle — specifically, the principle that under the Constitution, the role of a judge is “to say what the law is,” not what the judge wishes the law would be. Combined with his natural charisma and compelling personal background, these qualities have made him the conservative legal movement’s leading practitioner on the bench and its essential evangelist to all who are willing to consider taking the Constitution seriously.
In his 25 years of service, Justice Thomas has distinguished himself by his unwavering commitment to fulfilling the proper role of judge in the American Republic. Though his opinions have not always commanded a majority, they have laid out a clear and consistent vision for constitutionally legitimate jurisprudence:
His revolutionary defense of individual rights in McDonald and Kelo. His call to revive the structural protections against federal power in Lopez and Raich. His moving expositions on race and Equal Protection in Peña and Grutter. These and many other opinions have made Justice Thomas’s jurisprudence a North Star for those who rightly believe that the words of our laws and Constitution have a fixed and discernible meaning that binds our courts.
As the past two terms have shown — from his clarion calls for originalism in administrative law to his indictment of the Court’s unmoored jurisprudence on abortion — Justice Thomas’s work has never been more powerful or more necessary. Indeed, along with many others, I sincerely hope that my dear friend Clarence continues his service to this nation for many years to come.
— Orrin G. Hatch is the senior U.S. senator from Utah.
“Judicial restraint!” Hardly are those words out when a vivid image out of Senate confirmation hearings troubles my sight: a man with a head like our current vice president’s, holding aloft at copy of Richard Epstein’s Takings, while all about him reel shadows of indignant progressives. The man thunders: “What do you mean when you say economic rights are protected as much as other rights in the Constitution? What do you mean by that?”
After a studied preamble, and with an air of steadfast calm, the young descendant of American slaves responds: “Certainly the right of my grandfather to work deserves protection.”
Then the darkness drops again, but now I know what “judicial restraint” means. Some think “judicial restraint” means that judges should never impose any sort of constitutional restraint on legislative or executive action — but that is not what it means. Some think it means that a Supreme Court justice should show absolute deference to the decisions of prior Courts that showed no deference at all to the precedents that time had handed to them — but that is also not what it means.
Judicial restraint means legal stability and clarity. There is no stare decisis more stare decisis than the Constitution. That was the deeper significance in the classic concurring opinion by Justice Clarence Thomas in the case of United States v. Lopez (1995), just four years into his tenure on the Court. In what is still to this day the most important commerce-clause case since the New Deal, he wrote:
Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.
At issue in the case was a federal law that criminalized gun possession near schools, and the question was: What specific constitutional power does Congress have to do this? If you had asked almost any Americans alive during the ratification of the Constitution or for much of the next 150 years, the answer would have been, “None.”
If Thomas’s position were ever to command a majority of the Court, it would repeal most of the federal government as we know it today.
Alas, the Supreme Court decisions of the New Deal era expanded the federal commerce power from its small box out to the ends of the earth. Though admittedly it was poorly suited to the task, the federal commerce power was originally conceived as a means of enforcing a free-trade-area among the states. But after the New Deal, Congress could suddenly rearrange every transaction within the territorial jurisdiction of the United States. It quickly became a catch-all for all kinds of “social justice” stuff, chiefly — and sadly — in the form of sweeping deprivations of property rights and freedoms of association, for the benefit of rent-seeking special interests.
He was only in his fourth year on the bench, yet took the unusual position of concurring in the Court’s decision while almost completely undermining the majority’s reasoning. Chief Justice Rehnquist’s legal acrobatics, necessary in order to “explain” how the New Deal decisions could be “right” and still exclude gun possession from federal reach, left Thomas unconvinced. The New Deal decisions were wrong, and Thomas calmly explained why.
Nobody “joined” his concurrence, not even Scalia. But according to Greg Katsis, who clerked for Justice Thomas, the unassuming judge would often be the lone vote in dissent against a particular result in the first round of voting (“in conference”), and then it would turn out that his dissent had moved several votes toward his position, often changing the result. That did not happen in the case of the commerce clause, because if Thomas’s position were ever to command a majority of the Court, it would repeal most of the federal government as we know it today.
Then things really would fall apart. But Justice Thomas would be calm, measured, and steady through it all.
— Mario Loyola is a contributing editor of National Review and a senior fellow at the Wisconsin Institute for Law and Liberty.
I love Justice Thomas because he’s a radical.
He is more willing than any living justice (and probably most of the dead ones) to reconsider the Court’s precedents — to go back to constitutional roots — rather than join a game of legal “telephone” in which today’s rulings would be unrecognizable to the Framers of our nation’s charter.
Frustrated with the legal landscape they inherited from FDR’s New Deal justices and from the Warren Court’s unbridled activism, conservative legal minds nonetheless often find themselves thinking inside the box. Not so Justice Thomas.
Some have calculated that every term he suggests overturning at least two different lines of Supreme Court precedent. As he said in an interview once, legal precedent holds force for him “but not enough to keep me from going to the Constitution.”
Unfortunately, Thomas often makes his calls for constitutional fidelity alone, like a Biblical prophet crying out in the wilderness. But that doesn’t bother him, first because he didn’t take an oath to try to create coalitions, to make friends on the Court, or to please the chattering classes. He took an oath to “support and defend the Constitution.” And second, while his penchant for telling the unvarnished truth is not a strategy for winning votes, even in the long term, his written opinions often are a bellwether of constitutional thought.
In 1997, for example, he wrote a concurrence in Printz v. United States, raising the question whether the Second Amendment protects an individual right to bear arms. Ten years later the Court handed down its landmark decision holding that it does, in District of Columbia v. Heller. Justice Scalia gets well-deserved credit as the author, but Thomas was the first to throw down the gauntlet on that issue.
On many other occasions, Thomas’s powerful arguments not only foreshadowed but changed his friend’s position. Indeed, if Scalia’s own career hadn’t been cut short this term, we could easily have seen him voting to overturn some of his own administrative-law decisions, on grounds that Thomas has long advanced.
Thomas has had much more to say about the administrative state. In a brilliant trilogy of separate writings last term, he called into question the very constitutionality of what has been called our government’s “fourth branch.” And on the final day of the most recent term, his dissent in the Hellerstedt case unmasked the “tiers of scrutiny” fiction, invoked in major constitutional cases, as being both without constitutional basis and prone to misuse as a fig leaf for decisions based on politics. Both lines of thought cut through decades, if not centuries, of misguided cases to our legal system’s solid constitutional bedrock.
Greg Katsas, one of Thomas’s first clerks, put it best in a conversation we once had: The justice’s greatest legacy is that he has showed us what is possible. We can only hope that, in his next 25 years on the Court, Justice Thomas’s radical vision of a Court that is faithful to the Constitution will become a reality.
— Carrie Severino is chief counsel and policy director of the Judicial Crisis Network and clerked for Justice Thomas during the 2007 term.
As a law clerk for Justice Scalia 25 years ago, I’m grateful to have been present at the beginning of Justice Thomas’s outstanding career on the Court. During a first term replete with high-profile contentious cases — including, most prominently, Planned Parenthood v. Casey — Justice Thomas might have been tempted to take cover and hide or even to try to find opportunities to curry favor with his detractors. Instead, in case after case he consistently displayed his fidelity to the Constitution and his moral courage, even as his enemies were falsely maligning him as Scalia’s puppet and viciously distorting his positions.
Over the course of his career, Justice Thomas has, together with Justice Scalia, been a powerful expositor of original-meaning jurisprudence, the central principle of which is that the various provisions of the Constitution (and of other legal texts) are to be interpreted in accordance with the meaning they bore at the time they were promulgated. He has stood steadfast against the, alas, still-dominant “living constitutionalist” approach, whose adherents invent and revise legal meaning on the fly to impose their own preferred policy preferences.
Some critics claim that Justice Thomas’s commitment to principle has marginalized him and reduced his influence on the Court.
Originalism is not algebra, and although Justice Scalia and Justice Thomas most often reached the same originalist answer, there were some differences in their approaches. Perhaps most markedly, Justice Thomas has shown himself more willing to revisit supposedly settled questions and to apply his originalist thinking to those questions. In the process, he has built a remarkable corpus of work on a broad range of constitutional provisions, including the commerce clause, the First Amendment’s freedom of speech, and the 14th Amendment’s privileges or immunities clause. His separate opinions, both concurrences and dissents, stand as an enduring legacy.
Some critics claim that Justice Thomas’s commitment to principle has marginalized him and reduced his influence on the Court. I can see Justice Thomas rolling his eyes and asking what part of his oath of office these critics don’t understand. Why should he want to craft majority opinions for propositions he doesn’t believe? Doesn’t his vote count the same as that of any other justice? Why would he ever deliberately try to position himself as the swing vote?
Thank you, Justice Thomas, for your first 25 years of extraordinary service on the Court. I eagerly look forward to the next 25.
— Ed Whelan, the president of the Ethics and Public Policy Center, is a regular contributor to National Review Online’s Bench Memos blog.
Once a party of ideas, the GOP has degenerated into being a party of personalities. Nothing shows this more clearly than the career of Clarence Thomas, whom a Republican president of moderate sensibilities nominated to the U.S. Supreme Court 25 years ago this month. Whereas Donald Trump has taken liberal positions on everything from the minimum wage to the Second Amendment, Thomas has over the years articulated a robust version of conservatism rooted in our nation’s founding principles and in the natural rights of the individual. Trump appeals to raw passions; Thomas talks to hearts and minds.
Thomas’s quarter century on the Court stands for a few simple propositions: The Constitution means today what it meant at the time of its ratification. It creates a limited national government bound strictly by a separation of powers and a balance with the authority of sovereign states. Thomas rejects social engineering in favor of individual liberty grounded in natural law. In his dissents, he has held true to this understanding of the Constitution even if it has meant casting aside fashionable opinion and decades of judicial precedent and earning the criticism of political and media elites.
No official in any branch of the federal government holds more-deeply-considered conservative values. 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.
By recalling our nation to its founding principles, Justice Thomas will continue to lead the battle for a renewal of fundamental limits on government and for the protection of the natural liberties of the individual.
— John Yoo is the Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. This contribution is excerpted from his article on Justice Thomas in the July 11, 2016, issue of National Review.