Charlie, I’ll add one more observation to yours: The Washington Post’s description — in its original and updated form — is simply untrue. Conceding that the “story imprecisely referred to Justice Clarence Thomas’s opinions as often reflecting the thinking of White conservatives, rather than conservatives broadly,” as the Post has done, doesn’t help its case, either.
The story has the relationship in reverse. The thinking of “conservatives broadly” on various matters of constitutional law tends to reflect that of Justice Thomas — quite often, long after he first began to publish opinions on them. He is, in other words, a jurisprudential pioneer.
Any day is a good day to read about his life and career: about the man, and the jurist. We published a handful of reflections last fall, celebrating his 30th anniversary on the Court. Now, it seems, is an especially good time to revisit them.
How about an excerpt on this very theme, from Notre Dame Law professor Nicole Stelle Garnett?
In September 1991, within days of the commencement of Clarence Thomas’s Supreme Court confirmation hearings, construction began on Boston’s ambitious “Big Dig” highway project. Justice Thomas’s confirmation a month later set into motion another big dig — his painstaking, careful, and relentless quest to unearth, clause by clause, issue by issue, the original meaning of the Constitution of the United States.
The two projects were animated by radically different goals. By relocating Interstate 93 into a subterranean tunnel, Boston’s Big Dig sought to bury the mistakes of the past. By excavating and removing layer upon layer of erroneous constitutional doctrine, Justice Thomas’s big dig has sought to expose them to the light of day.
Plagued with delays and billions of dollars over budget, Boston’s Big Dig was finally completed in 2007. Justice Thomas’s project continues. While other justices have been, and are, originalists, Justice Thomas stands out both for his persistent determination to lay bare the errors of past precedents — to which he has declared that he owes no fidelity — and for his commitment to offering a principled, historically grounded road map to restoring the Constitution as it was originally understood. Justice Scalia once quipped that Justice Thomas was a “bloodthirsty originalist.” Justice Thomas didn’t mind. He believes that “something has gone seriously awry with this Court’s interpretation of the Constitution” and he is determined to right the record. He cuts no corners and leaves no stone unturned.
Criminal procedure, sovereign immunity, the administrative state, separation of powers, cruel and unusual punishment, property rights, free speech, religion, equal protection, due process, foreign affairs, the scope of Congress’s power to regulate commerce, stare decisis . . . the list goes on and on. As John O. McGinnis and Michael Rappaport recently observed, “there are now few areas of constitutional law on which he has not left directions about recovering the original meaning of our fundamental law.”
These recovery efforts began during his early days on the Court, when he adopted the practice of flagging areas of settled constitutional law that he would reconsider in an appropriate case. Over time, Justice Thomas has developed these early missives into a full-blown originalist canon in scores of opinions rejecting established doctrine. Consider a few examples. . .