Bench Memos

Defending Justice Thomas

In Slate, Doug Kendall and Jim Ryan question whether Justice Thomas is really a principled originalist. They consider three cases.

In the “Bong Hits 4 Jesus” case, they claim that Justice Thomas found that “students simply do not have any right to free speech in school” on the basis of “conducting an imaginary séance with 18th– and 19th-century Framers and ratifiers.” (As an aside: Their description of the holding is slightly better than the descriptions found elsewhere, from both supporters and opponents of the decision. Thomas did not conclude that students have no First Amendment rights; he concluded that their rights do not bear on the policies of public schools. The state legislature, presumably, could not pass a law restricting what protests public-school students can attend on the weekends.)

Kendall and Ryan point out, correctly, that there can be a distinction between how ratifiers expect a legal provision they’re ratifying to apply and the meaning of the provision they actually ratified. But it is reasonable to assume that most of the time there will be no such distinction, and the claim that there is one will depend on a pretty solid argument—which they do not provide, and which is hard to imagine.

Second, they take up the racial-integration case. They point out that Thomas does not engage in any sort of originalist analysis. Here I think they score a real point, although they seem to assume that Thomas’s opinion therefore cannot be justified on originalist grounds. His decision, however, seems to me to be consistent with a straightforward reading of the Civil Rights Act.

Third, they go after Thomas on campaign-finance reform. They want to assail his decision in the recent FEC v. Wisconsin Right to Life case. But their chosen means is to point out that Chief Justice John Marshall thought that a corporation is an “artificial being,” unlike a person. This is, for a variety of reasons, insufficient. Marshall’s comment is entirely compatible with the proposition that the government may not choose to regulate the financing of certain advertisements more stringently than others depending on their political content.

Justice Thomas may not be perfect, and it may be that nobody applies originalism with perfect consistency. But Kendall and Ryan are trying to show that Thomas is merely a political hack without real principles, and they fall far short of the mark.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg View, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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