Politics & Policy

Judging Thomas

15 years of one justice's greatest SCOTUS hits.

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.

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.

Some of Holzer’s claims are defensible, but they would have benefited from a substantive defense. For instance, in the context of freedom of speech, Holzer asserts that “the First Amendment has never had a stronger champion than Justice Thomas.” Holzer may be right — Thomas has certainly been the Court’s most outspoken defender of commercial speech — but this claim not self-evident from reading Thomas’s opinions in isolation. A more thorough treatment would have explained what speech the First Amendment protects, and how Thomas views differ from other paladins of free expression. In his ranking of the Supreme Court justices’ protection of speech, UCLA law professor Eugene Volokh ranked Justice Anthony Kennedy ahead of Thomas. Perhaps Holzer is correct and Thomas should claim first prize, but it would have been nice for him to acknowledge contrasting scholarly opinion and substantiate his claim.

Holzer oddly ascribes to Thomas an atextual and highly subjective intent in United States v. Bajakajian, a case in which Thomas joined the Court’s four liberals to invalidate a $357,144 forfeiture as an excessive fine under the Eighth Amendment. According to Holzer, “Thomas could easily have joined” Justice Kennedy’s “strong dissent,” but was likely swayed, at least in part, by his belief Bajakajian was “clean.” Perhaps. An alternative explanation is that Justice Thomas recognized such a forfeiture as excessive for Hosep Bajakajian’s crime of failing to disclose the cash in his possession to U.S. Customs officials.

I was particularly disappointed in Holzer’s cursory discussion of Justice Thomas’s view of stare decisis. It is here that the differences between Justice Thomas and his closest ally on the Court, Justice Scalia, are perhaps most evident. Yet without consulting the endnotes, one would not likely know how often the two most conservative justices disagree, or how Holzer believes originalists should evaluate these disagreements. Holzer acknowledges that Thomas and Scalia disagree “about the role of precedent in judicial decision-making and the methodology of constitutional interpretation,” but fails to elucidate the point.

Holzer attributes to Thomas the views that “stare decisis is an important limitation on judicial activism that cautions hesitancy in overruling prior cases” and the “belief that conservative adjudication normally requires respect for precedent.” This is an odd way to characterize the least-precedent-bound justice currently sitting on the Court, particularly since, as Holzer acknowledges elsewhere, Thomas has often “invited litigants, and the Court itself, to reconsider earlier decisions and overrule them if necessary.” As Holzer himself later explains, the belief that “cases erroneously decided need to be at least revisited, and perhaps overruled” is a core element of Justice Thomas’s jurisprudence.

Justice Thomas’s opinions are remarkable for their philosophical and interpretive consistency. More than any other justice on the Court — or in recent memory — Justice Thomas eschews silent acquiescence in opinions that do not track his jurisprudential views. Instead, he regularly authors short concurring opinions to qualify his support for his colleagues’ interpretive conclusions. Whether one subscribes to Thomas’s brand of originalism, his collected opinions have substantial jurisprudential force, and are worthy of more searching analysis than Holzer provides. To probe and question Justice Thomas’s opinions is not to diminish or demean his contribution to the Court. Rather it is to acknowledge the power and importance of his judicial philosophy and contribution to American law.

Holzer accurately describes Thomas as a “thoughtful conservative” whose “reputation among laypersons is not commensurate with his achievements.” Justice Thomas has indeed distinguished himself on the Court as an able and articulate explicator of the original meaning of the Constitution. Thomas fans will not doubt enjoy Holzer’s overview and summary of Thomas’s unique contribution to the Court, and its hint at the further contributions that are yet to come. The substance of his distinctively conservative jurisprudence is worthy of more critical treatment and discussion, however. Supreme Court Opinions is a good reference work regarding the justice’s body of work — something like an annotated greatest hits — and should please Justice Thomas’s many fans, but ultimately more work will be needed to earn more converts to his cause.

Contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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