Politics & Policy

Supreme Thomas

Steven Calabresi, former Thomas law clerks Wendy Long, Carrie Severino, John Yoo, and more.

This weekend marks the 20th anniversary of Clarence Thomas’s swearing in on the United States Supreme Court. National Review Online asked some experts, including some former clerks for Thomas, to discuss his record.

STEVEN CALABRESI

Justice Thomas has had a huge impact on American law during his 20 years on the U.S. Supreme Court. He writes beautiful and well-researched opinions brimming with historical information. Justice Thomas is a consistent originalist who always follows the text of the Constitution wherever it leads. His opinions combine the textualism of Justice Hugo Black with a thorough discussion of the original meaning of the constitutional clauses at issue in any given case. Justice Thomas has led the Supreme Court in the revival of federalism, of Second Amendment rights, and with respect to the Confrontation Clause. His concurrences and dissents have had an effect. I know from teaching Supreme Court cases to law students and college students that Justice Thomas’s opinions are always among the best. Justice Thomas has reshaped American law very powerfully.

— Steven G. Calabresi is a professor of law at Northwestern University who clerked for Justice Antonin Scalia and Judge Robert Bork.

#ad#MATTHEW J. FRANCK

When I think about the 20-year career of Justice Clarence Thomas, one word keeps coming to mind to characterize the whole man: fearlessness. Clarence Thomas has never been a trimmer, tacking this way and that for momentary advantage or the good opinion of others. Even Justice Antonin Scalia, who calls himself a “half-hearted originalist,” acknowledges Thomas’s more uncompromising devotion to the original meaning of the Constitution, which leads him (properly, in my view) to take a more skeptical approach to the force of the Supreme Court’s own precedents.

Allow me to highlight just a couple of Thomas’s recent opinions that show the quality of his mind and character. In 2007’s Morse v. Frederick (concurring alone) and in this year’s Brown v. Entertainment Merchants (dissenting alone), Justice Thomas recaptured a lost understanding of legal principles, once taken for granted, regarding the protected status of minor children under the tutelage of their teachers and, most importantly, their parents. In his Morse opinion, Thomas exploded a generation’s worth of errors regarding the “freedom of speech” of students in public schools, and in the Brown case, he cut through a fog of confusion to demonstrate that purveyors of violent video games have no right to “speak” to children “without going through the minors’ parents or guardians.” Solidly grounded in history and principle, these opinions are bound to look better and better over time.

Does Clarence Thomas care about the absurd caricatures that have long held him to be Scalia’s Sancho Panza? Does he care what silly people think about his characteristic silence during oral argument? Does he care that left-wing journalists are once again retailing the discredited accusations of Anita Hill after all these years? Of course not. Fearless as always, Thomas is bigger than his enemies, and altogether his own man.

If you want to know what was the school of his courage, read his powerful memoir, My Grandfather’s Son (better yet, listen to the audio version, which he reads himself). It’s a book that should be read alongside Frederick Douglass’s autobiographies, and Booker T. Washington’s Up from Slavery. It’s the one thing he has produced that may endure even longer than his contributions to jurisprudence.

— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J., and a regular blogger at NRO’s Bench Memos.

#page#CURT LEVEY

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. Other Justices share his colorblind reading of the prohibitions on racial discrimination, but none expresses it with the passionate voice and righteous indignation that infuse Thomas’s opinions on the subject. Largely because of that voice, Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

While race does not and should not influence Thomas’s decision making on the bench, it surely shapes his voice and the nation’s perception of his racial jurisprudence. Nowhere is that more apparent than in his 2003 dissent in Grutter v. Bollinger, in which he famously begins by quoting Frederick Douglass: “The American people have always been anxious to know what they shall do with us. . . . Do nothing with us! Your doing with us has already played the mischief with us.” “Like Douglass,” Thomas adds, “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

#ad#Thomas bristles at the demeaning “harm the [University of Michigan’s] racial discrimination visits upon its test subjects.” Noting the underperformance of those admitted under preferences, Thomas describes the school’s so-called compelling interest in diversity as merely an “aesthetic”: “the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.”

Thomas’s dissent resounds with a conviction born of hard experience. No one can question his painful observation that “when blacks take positions in the highest places . . . it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma.”

As I debated the defenders of racial preferences following the Grutter decision, it was apparent that their view of Thomas’s racial jurisprudence had softened a bit. The power of his dissent had forced them to acknowledge the genuineness of both his pride in the capability of blacks and his anger at those who demean that ability with preferences.

— Curt Levey is executive director of the Committee for Justice.

WENDY LONG

Bill Bennett summed it up: Justice Clarence Thomas is “the greatest living American.”

It sounds like friendly hyperbole. It isn’t.

Since his confirmation to the Supreme Court, Justice Thomas’s first-principles originalism has begun to win the battle of ideas and restore to the rule of law the principles of the Constitution and Declaration of Independence. This isn’t just a matter of being vindicated in legal or academic debates. Justice Thomas is painstakingly rebuilding, brick by brick, the very foundations of the American Republic, after a generation of assault left them crumbling almost beyond repair.

As Jan Crawford wrote in her book, Supreme Conflict, Justice Thomas was fiercely independent and began to lead from his very first day on the Court in 1991. Unlike some of his fellow practitioners of judicial restraint who adhere strongly to stare decisis, he takes the Constitution as “the ultimate precedent”: If a prior decision is wrong, it should be fixed, and the sooner the better. He reminds us that the passage of 60 years after Plessy v. Ferguson did not render that precedent more worthy of respect.

And his approach — to analyze and apply the principles of the Constitution (not, as commonly misunderstood, to stand defiantly on the dry words of literal text or to divine the intent of persons 220 years ago) — works. It avoids, he explains, the kind of capitulation on principle committed by Chief Justice Roger Taney in the Dred Scott case.

Twenty years of Thomas dissents and concurrences in important constitutional cases, as Jeffrey Toobin detailed in The New Yorker recently, have laid down markers for new majority decisions on the U.S. Supreme Court and in the U.S. Courts of Appeals, in areas such as the protection of anonymous political speech under the First Amendment, the individual right to bear arms under the Second Amendment, and the limited powers of the federal government under the Commerce Clause.

Justice Thomas is calling the Court, and the country, back to the Constitution’s unchanging principles — the unalienable rights of every human being to life, liberty, and property — and forging a new faithfulness to the document that protects those rights by binding and limiting government.

There’s not much greater than that.

— Wendy Long is an attorney in New York City and served as a lawclerk to Justice Thomas in 1997–98.

#page#CARRIE SEVERINO

Justice Thomas is to law what Nobel laureate Milton Friedman was to economics. Both staked out contrarian views that were highly unpopular when they first rose to public prominence, and both have been vindicated with the passage of time because of their rigorous and consistent defense of their views.

There are those who would say that refusing to compromise on principles — even around the edges — is hardly the way to influence the other justices whose votes are necessary for a majority. But Justice Thomas is surely no Justice Brennan. Brennan’s guiding principle was the “rule of five,” that is, constitutional law was no more and no less than the position which could garner five votes. Thomas could care less about the five, so long as his one vote is faithful to the Constitution.

#ad#Justice Thomas would probably say that it is not his job to bring other votes to his side by haggling or negotiation, but to explain his position clearly and let his opinions speak for themselves. Justice Thomas has taken the long view, and his opinions have spoken loudly enough to have framed the terms of debate for all subsequent confirmations. Supreme Court candidates nominated by Republican presidents now must show deference to Justice Thomas’ full-throated originalism, while Democratic nominees must at least pretend to respect the text, structure, and history of the Constitution. Over time this has subtly nudged the Court to the right.

In Friedman’s time, the debate was between socialism and capitalism. Justice Thomas sees the current debate about the Constitution as no less momentous, because our view of the Constitution determines “whether we will be ruled, or governed by consent.” The Nobel Prize committee may not have an award for jurisprudence, but if they did, Justice Thomas should be first in line.

— Carrie Severino, a former clerk for Justice Thomas, is chief counsel and policy director for the Judicial Crisis Network.

JOHN YOO

Historians will always record that Justice Thomas was the second African-American to serve on the Supreme Court, following the great Thurgood Marshall. But this symbolism is of secondary importance. Justice Thomas’s contribution to our Supreme Court is his powerful intellect and his unique commitment to the principle that the Constitution means what the Framers thought it meant.

This can make Justice Thomas unpredictable to those who view Supreme Court decisions through a partisan lens. He agrees, for example, that the use of thermal-imaging technology by police in the street to scan for marijuana in homes violates the Constitution’s ban on unreasonable searches. He opposes the Court’s effort to place caps on punitive damages as a violation of our federal system of government. He has voted to strike down literally thousands of harsher criminal sentences because they were based on facts found by judges rather than juries, as required by the Bill of Rights. He supports the right of anonymous political speech, and wants advertising and other commercial speech to receive the same rights as political speech, because he believes they are protected by the First Amendment.

No one, of course, would deny that Justice Thomas has strong conservative views on constitutional law. He rejects much of affirmative action, believes Roe v. Wade was wrongly decided, recognizes broad executive powers in wartime, and allows religious groups more participation in public life. But I have long thought that there is a deeper principle of political philosophy at work in Justice Thomas’s thought that goes beyond the close interpretation of disparate constitutional texts. What he brings to the Court as no other justice does is a characteristically American skepticism of social engineering promoted by elites — whether in the media, academia, or well-heeled lobbies in Washington — and a respect for individual self-reliance and individual choice. He writes not to be praised by professors or pundits, but for the American people.

As his memoir, My Grandfather’s Son, shows, Justice Thomas’s views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most. A man like this on the Court is the very definition of the healthy diversity that our misguided affirmative-action programs seek. As a result, Justice Thomas opposes affirmative action not just because it violates the guarantee of racial equality in the Equal Protection Clause, but because it subordinates individual energy, ambition, and talents to misinformed and misguided social planning.

#page#In a 1995 race case, Justice Thomas explained why he thought the government’s use of race was wrong. Racial quotas and preferences run directly against the promise of the Declaration of Independence that all men are created equal. Affirmative action is “racial paternalism” whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Justice Thomas speaks from personal knowledge: “So-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.” He argued that “these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”

#ad#One of the most admirable traits that I have witnessed in Justice Thomas is his focus on speaking honestly about his views, rather than concerning himself with the politics of winning votes on the Court. By foreswearing the role of coalition builder or swing voter, Justice Thomas has used his opinions to highlight how the latest social theories hurt those they are said to help. Because he both respects grassroots democracy and knows more about poverty than most people do, he dissented vigorously to the Court’s 1999 decision to strike down a local law prohibiting loitering in an effort to reduce inner-city gang activity. “Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes.”

Justice Thomas is an admirer of the work of Friedrich Hayek and Milton Friedman, both classical liberals. His firsthand experience of poverty, bad schools, and crime has led him to favor bottom-up, decentralized solutions for such problems. He rejects, for example, the massive, judicially run desegregation decrees that have produced school busing and judicially imposed tax hikes. A student of a segregated school himself, Justice Thomas declares that “it never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”

To Justice Thomas, the national government’s command-and-control policies have failed to make the poorest any better off. Rather, they have simply suppressed innovation in solving the nation’s problems. He believes that the Constitution allows not just states and cities, but religious groups, to experiment to provide better education. In a 2002 concurrence supporting the use of school vouchers, Justice Thomas quoted Frederick Douglass: Education “means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” Justice Thomas followed with the sad truth: “Today many of our inner-city public schools deny emancipation to urban minority students.”

“While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers,” Justice Thomas wrote, “poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society.”

These are not the words of an angry justice, or a political justice, but of a human justice. Justice Thomas’s personal story shows him to be all too aware of the imperfections in our society and mindful of the limits of the government’s ability to solve them. That kind of understanding and humility, and personal courage in the face of incessant unjustified attack, is what most Americans would want on their Supreme Court. Read a Thomas opinion on a subject like affirmative action, religion, crime, or free speech, and you cannot miss its authentic voice, unmistakable in its clarity, logic, and moving language.

During the administration of George W. Bush, in which I served, there was speculation that the president might elevate Justice Thomas to the chief justiceship to replace Chief Justice William H. Rehnquist. That position, of course, went to Chief Justice John G. Roberts. In the end, I believe that the president did Justice Thomas and the country an unintentional favor. I believe he can do more good for the country as an outspoken associate justice than he could as chief justice. Because he is not the chief justice, Thomas has more freedom to speak his mind — and he does so on a regular basis. Clarence Thomas, growing up in the segregated South, beating poverty and hardship to succeed in his education and survive in the political shark tank of Washington, brings a unique outsider’s perspective to the Court and the Constitution. Without the burden of the chief-justiceship, Thomas can pull aside the curtain of clever legal and intellectual argumentation to reveal the stark and real policy choices being imposed by the Court on the nation.

— John Yoo, a former clerk for Justice Thomas, is a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.

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