Politics & Policy

A Model Justice

Morse v. Frederick, a Supreme Court case from the last term, concerned whether a principal could order a student to take down a banner reading “BONG HiTS 4 JESUS” at a school event, and suspend that student when he refused. Chief Justice John Roberts, writing for the Court, ruled that the principal was within her rights: She reasonably concluded that the banner promoted illegal drug use, and the gov­ernment has an interest in discouraging drug use. Justices Samuel Alito and Anthony Kennedy agreed with Roberts, but stressed that drugs were a special case, and that schools could not impose broader restrictions on speech. Three liberal justices, led by John Paul Stevens, said that the Court had done “serious violence to the First Amendment” by allowing the student to be punished.

Justice Clarence Thomas came at the case from a different angle. Instead of arguing about what the banner really meant, or whether it would have led to increased drug use, he went straight to a deeper question: What business of the Court is it what disciplinary policies schools adopt? Examining the historical record, Thomas found no evidence that the First Amendment was meant to involve the justices in policing the schools in this fashion. The amendment, that is, was never understood to create a right that students could assert against schools in federal court. The Supreme Court had created such a right in a 1969 case, called Tinker, that the other justices treated as canonical. Thomas dismissed that decision as “without basis in the Constitution.”

It was vintage Thomas. He was willing to stand alone: No other justice joined his opinion. He was willing to look at the historical record to establish the original meaning of the Constitution rather than just to look at the Court’s own precedents — and willing, as well, to discard precedents, however lauded, that conflicted with that original meaning. He was willing to be ignored: The other justices didn’t take on his argument. And he was willing to be misunderstood: Media accounts conveyed the impression that Thomas had endorsed draconian school policies. He didn’t impose a “conservative” policy on schools; he took the Court out of the picture. That, too, is a typical Thomas move, but one atypical for the justices.

Justice Thomas doesn’t bat 1.000 in our eyes. His opinions on racial preferences, while well-reasoned in important respects, would be stronger if they engaged in thorough historical analyses of the Fourteenth Amendment. But his jurisprudence has been, in general, courageous, thoughtful, and — not least — right. His new memoir, which covers his life up through his swearing-in as an associate justice, is inspiring; but it is his life since then that we honor. He is one of the best justices — if not the best — on the Court.


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