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Judging Thomas
15 years of one justice's greatest SCOTUS hits.


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Jonathan H. Adler

Since his nomination to the Supreme Court to replace Justice Thurgood Marshall in 1991, Justice Clarence Thomas has been a magnet for attention. His speeches and public appearances draw crowds and controversy, his principled jurisprudential philosophy both devotion and derision. After 15 years on the Court, he is already one of the most studied Supreme Court justices of all time. Thomas has been the subject of more profiles, biographies, and book-length treatments than all but the most prominent jurists. Among the titles currently available on Amazon are Scott Michael Gerber’s First Principles: The Jurisprudence of Justice Thomas, Ken Fostkett’s Judging Thomas: The Life and Times of Clarence Thomas, Andrew Peyton Thomas’ Clarence Thomas: A Biography, and the newly released Supreme Discomfort: The Divided Soul of Clarence Thomas by Kevin Merida and Michael Fletcher. Several more books were written about his epic confirmation battle, and more profiles are on the way. In 2003, Harper-Collins inked Thomas to a $1.5 million book contract for My Grandfather’s Son: A Memoir, due for release this October. This may seem a jaw-dropping sum for a Supreme Court justice’s memoir, but it was almost certainly a good investment.

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A new addition to the shelf of books on and inspired by Justice Thomas is The Supreme Court Opinions of Clarence Thomas: 1991-2006: A Conservative’s Perspective by Brooklyn Law School professor emeritus Henry Mark Holzer. Unlike other recent books, Supreme Court Opinions focuses exclusively on Thomas’s work on the Court, eschewing biographical details or pop psychoanalysis of what makes the most enigmatic and admired justice tick. Holzer provides a summary of the 300-plus opinions authored by Justice Thomas during his first 15 years on the Court (and includes a list of these opinions in an appendix), distilling Thomas’ jurisprudence to its essentials.

Supreme Court Opinions provides a useful survey of Justice Thomas’s judicial philosophy and its application to various issues, often through the language of Thomas’s own opinions. As such, it succeeds in providing a highly sympathetic introduction to the jurisprudence of Justice Thomas. Those hoping for a more rigorous academic treatment will be left disappointed, however, as the book lacks much critical commentary or analysis.

The book is organized by constitutional provisions, providing a tour of Thomas’ opinions, virtually clause by clause. It is filled with extensive quotations and descriptions of Justice Thomas’ opinions on various subjects. At times Holzer reproduces lengthy passages, or even whole paragraphs, “so that his words would, without need for anyone’s ‘interpretation,’ speak for themselves.” A consequence of this approach is that Supreme Court Opinions provides relatively little explication of Justice Thomas’s interpretive philosophy or its underlying rationale. For instance Holzer notes that Thomas’s dissent in U.S. Term Limits, Inc. v. Thornton provides the greatest insight into the Justice’s “sophisticated federalism jurisprudence,” yet his discussion of the lengthy opinion covers less than a page. Holzer’s elucidation or explication of Thomas’s reasoning is relatively sparse, even when he is presenting difficult cases or those exceedingly rare instances on which Holzer disagrees with his subject — and then such disagreement is only acknowledged in the endnotes where it is likely to escape notice of most casual readers. He also repeats himself at times, reproducing several paragraphs in later chapters rather than explain himself anew.

Holzer shares Thomas’s commitment to originalism, and is quite dismissive of alternative approaches to constitutional interpretation. Such alternatives are noted, but readily dismissed in the manner one would expect to read on a newspaper oped page. For instance, Holzer provides little more than strawman stand-ins for the substance of alternative views. Justice William Brennan’s theory of “living constitutionalism” is dismissed as “blather” and “an anti-democratic and intellectually dishonest way to interpret our Constitution and federal statutes” that produced such “pernicious” developments as the doctrine of “Incorporation.” One need not sympathize with Justice Brennan’s jurisprudential project to hope for a more substantive critique.



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