The Wall Street Journal today runs excerpts from Justice Clarence Thomas’s Wriston Lecture to the Manhattan Institute last Thursday.  He cuts to the chase: “there are really only two ways to interpret the Constitution–try to discern as best we can what the framers intended or make it up.”  Yeah, that’s about it.

There is one line in the speech on which I would love to hear Justice Thomas say more: “Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final arbiter of our Constitution.”  There’s an enormous iceberg floating just beneath the peak of those two words and two commas: “and, now,” . . .  When and how did that “now” happen in which the federal judiciary “assumed the role” of the “final arbiter of our Constitution”?  From what I see in these excerpts, he does not say.

The good news is that Justice Thomas seems to be aware that the role of “final arbiter” is not what Marbury originally stood for.  The subtlety of that “and, now,” is wholly absent from the Court’s declaration of judicial supremacy fifty years ago in Cooper v. Aaron.  And I’m sure that there are at least five justices on the Court today who, if they noticed that “and, now,” would have no clue what it’s doing there.