Magazine October 31, 2011, Issue

Thomas at Twenty

Celebrating a remarkable Supreme Court tenure

‘I was put on the Court to interpret the Constitution, not to make stuff up.” If you can imagine those words filling the room with a deep baritone and coming from a man who is both confident in his thoughts and comfortable in his own skin, then you will have an accurate portrait of Justice Clarence Thomas. As a law clerk to Justice Thomas for a year starting in July of 2007, I was privileged to see firsthand how he has remained faithful to the Constitution despite enormous pressure to abandon his principles. Because Justice Thomas will celebrate 20 years on the Supreme Court come October 24, now is a fitting time to ask what he has achieved by steadfastly refusing to “make stuff up” when it comes to our nation’s laws. The answer is that he has furthered the cause of liberty so profoundly that he has become a beacon for conservative jurists, has received the grudging respect of his liberal detractors, and, what he considers most important, has earned the thanks of ordinary Americans. His tenure has been truly remarkable.

Along with Justice Scalia, Justice Thomas has been an intellectual leader on the Court in advancing the jurisprudence of “originalism.” Thomas staked out his principles early in his career and often alone. Originalism entails a consistent fidelity to the text of the Constitution as the founders intended it to be read, and as it was understood in public discourse at the time it was adopted or amended. This commonsense approach was anything but common in academic circles when Justice Thomas came to the Supreme Court. But in the ultimate sign of vindication, it is the Supreme Court that has been moving in his direction and not vice versa.

From his first term on the Court in 1991–92, Justice Thomas has never shied away from controversial positions. Not that he had the opportunity. Although issues considered at the Supreme Court level are always important, that first term saw an impressive number of landmark decisions. In a few short months, Justice Thomas had the opportunity to weigh in on seminal cases concerning abortion, school prayer, race-based redistricting, hate speech, cruel and unusual punishment, regulatory takings, and constitutional standing.

Justice Thomas balances his respect for the institution of the Court with a humble view of his role on it. Some justices walk down the halls like VIPs, with security personnel clearing staff out of their way. Justice Thomas befriends everyone he interacts with — from the marshals and the administrative staff to the janitors and the elevator operators. He asks them how their parents are doing, remembers how their favorite teams fared in the playoffs, and jokes with them, laughing his trademark belly laugh. His approachability and gregariousness have made him not only a favorite among staff but a coveted speaker at law schools and conferences across the country. Unique among the justices, Thomas both visits a wide range of non–Ivy League law schools and hires clerks from them. Unlike the first lady, who “sneaks” into Target for photo-ops, Justice Thomas actually spends nights in Walmart parking lots as he drives cross-country in his RV to see “real America” on his summer vacations.

The early knock on Justice Thomas was that he would be a clone of Antonin Scalia, or that he would be a conservative legislator in black robes, but his insistence on principle has confounded those assumptions. The idea that he merely follows Scalia was put to rest the minute Justice Harry Blackmun’s papers were made public after his death; they showed just how often Scalia would switch his vote to follow Thomas’s lead, right from the beginning of Thomas’s tenure on the Court. Scholarly articles examining Thomas’s record often claim to shatter the “myths” about Thomas by showing how his decision-making has been coherent and principled, as opposed to blindly partisan, in case after case.

For example, Justice Thomas is perhaps the strongest proponent of free speech on the Court. This fact is particularly impressive considering that one of his colleagues, Ruth Bader Ginsburg, once served as general counsel of the American Civil Liberties Union. He doesn’t protect speech only when it is convenient, or helpful, or even only when it is no more than minimally harmful. Convinced that the framers of the Constitution meant what they said, he consistently accords speech the strongest constitutional protection available — the protection reserved for fundamental rights.

The only apparent exception is speech by or to minors, which he is convinced was not a part of the framers’ understanding of free speech. Hence his dissent in a case last term, in which he would have allowed California to regulate sales of violent video games to minors, and his concurrence in Morse v. Frederick, in which he argued that schools might ban their students from holding up signs that arguably promoted drug use, including the plaintiff’s “BONG HiTS 4 JESUS” sign. In both cases, Thomas wrote separately to explain the historic importance of parents’ right to direct the upbringing of their children, effectively setting minors outside the original protections of the First Amendment. On this point he stands in agreement with Justice Hugo Black, an FDR appointee also known for being a free-speech absolutist.

An early concurrence by Thomas illustrates his uncompromising approach to the free speech of adults. An Ohio woman had been fined for violating a state ban on anonymous leafleting. Seven members of the Court agreed that the fine violated her right to free speech, and the majority opinion authored by Justice John Paul Stevens cited important unsigned works of literature through the centuries to underscore the value of anonymous speech. Stevens found that the prohibition of anonymous speech was not narrowly tailored to further any serious government interest, and therefore violated the First Amendment.

Justice Thomas agreed with Justice Stevens that the speech was protected, but wrote a concurrence addressing what he felt was the central issue: “whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights.” Having concluded that they did, Thomas determined that no further legal analysis was necessary to balance the value of speech against the government’s interests. The framers of the Constitution had already balanced those interests and had come down in favor of speech. So, regardless of how narrowly tailored the law, or how compelling the government interest, such regulations were in violation of the First Amendment.

This preference for clear, easily applicable rules over the multifactor balancing tests that populate the world of constitutional law is evident throughout Justice Thomas’s jurisprudence. Multifactor tests may appear precise and rigorous in their seemingly algebraic application. But in practice they often resemble a Potemkin village: Under the surface, there isn’t anything of substance. They are notoriously difficult to apply consistently, and they often become little more than a mechanism for structuring arbitrariness.

Take another example in the free-speech context: the four-factor test for determining when advertisements — “commercial speech” — are covered by the First Amendment. It balances the government interest in regulation against the value of the speech that is being restricted, and also factors in the question of whether the regulation is restricting more speech than necessary.

Justice Thomas took this test to task in his concurring opinion in a case about bans on the advertising of alcohol prices. He noted how inconsistent the Supreme Court’s own application of the test had been, not to mention its application by other courts across the country. Indeed, the test gives a court ample legal cover for either upholding or overturning nearly any speech restriction, depending on the value the court places on each of the interests at stake.

Thomas’s concurrence instead went back to the fundamental question: Is commercial speech protected under the First Amendment as it was originally understood? Noting historical support for the idea that commercial speech was viewed no differently from non-commercial speech, Justice Thomas concluded that commercial speech should be entitled to the same First Amendment protections that other kinds of speech are.

The same straightforward approach has led Justice Thomas to the forefront of protecting political speech. After a 1976 opinion, political speech had occupied a curious limbo in which political expenditures by candidates constituted protected speech under the First Amendment, but contributions by citizens did not. When Justice Thomas joined the Court, he started a campaign to replace that uneasy compromise with a more consistent protection of political expression that the Court had agreed “occupies the core of the protection afforded by the First Amendment.”

Over a series of decisions, Thomas brought Justices Scalia and Kennedy progressively closer to his position. In a characteristically direct opinion he stated: “Because the Court errs with each step it takes, I dissent.” He concluded that the existing precedent was “in error, and I would overrule it.” Court-watchers are familiar with the genre of Thomas concurrence and dissent. Once he has decided on a position, he maintains it. And, in the rare cases when he changes his mind, he doesn’t bury it in a footnote or simply ignore his prior decision. He explains out in the open why his logic has changed, so there’s no need to wonder what he’s thinking.

Another of Thomas’s characteristic concurrences has provided the intellectual underpinnings of the current fight to repeal the Patient Protection and Affordable Care Act — commonly referred to as “Obamacare.” In the 1995 case United States v. Lopez, a student who had been arrested under a federal law criminalizing the carrying of guns within a school zone challenged the law as exceeding Congress’s authority under the commerce clause. That clause gives Congress the authority to “regulate commerce . . . among the several States.” But the mere carrying of a gun into a school zone has no direct tie to commerce, intrastate or interstate. The government, as the Court noted, was willing to “pile inference upon inference” to explain how school violence impacts the national economy. Perhaps it does, but hardly more than any other crime traditionally addressed by state law.

The majority opinion, written by Chief Justice Rehnquist, acknowledged that some of the Court’s precedent had “taken long steps down [the] road” toward converting the federal government’s limited commerce-clause power into “a general police power of the sort retained by the States.” But the majority was willing simply to draw a line declaring, “Thus far and no further.”

Justice Thomas wrote a concurrence that showed he was prepared to take the next logical step. He observed “that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”

There followed a lengthy analysis of the founders’ understanding of commerce as well as an analysis of constitutional structure, in which Thomas argued that the broad reach of 20th-century commerce-clause jurisprudence makes the other delegations of power to the legislature redundant, and therefore cannot have been what the framers intended.

In his Lopez concurrence, Justice Thomas also criticized Justice Stephen Breyer’s dissent for the same reason Obamacare opponents criticize supporters of that law: The logic of their argument eliminates any real limits on government power. “The one advantage of the dissent’s standard is certainty: it is certain that under its analysis everything may be regulated under the guise of the Commerce Clause,” Thomas wrote. That critique has been central to the discussion every time the Obamacare case has come before a court, and stands as a warning for those who want to stretch the commerce clause even further.

For those who suggest that Justice Thomas would take a position on the constitutionality of Obamacare because he doubts the wisdom of the law (or, even more bizarrely, based on his wife’s advocacy of the view that Obamacare is unconstitutional), Lopez also stands as a marker of Thomas’s long-held, unwavering position. Even those arguing in support of the law are compelled to admit this fact, as Charles Fried did at a recent debate on the subject. He predicted that Thomas was the only sure vote against Obamacare “because Justice Clarence Thomas has been for a decade urging a definition of commerce which is a very narrow one. He’ll be perfectly principled and perfectly consistent and perfectly incorrect.”

Thomas’s legacy on the Court is distinguished by his insistence on placing principle ahead of politics or personal feelings. That at times leads him to surprising results — surprising, at least, for those who can’t conceive of a “conservative” judge’s reaching a “liberal” conclusion. For example, Justices Thomas and Scalia are central to two movements expanding the rights of defendants, a cause many would consider to be a liberal objective. They formed part of a narrow majority that overturned federal sentencing guidelines that had allowed a judge to singlehandedly decide questions that could increase a convicted criminal’s sentence. They have also been articulate in defense of the constitutional right of a defendant to confront the witnesses against him. This may have made it more difficult for prosecutors to use DNA evidence, but for Thomas, the impracticality and cost that constitutional rights impose on the prosecution do not justify watering down those rights.

And his devotion to the Constitution has made Justice Thomas an advocate even of the forgotten clauses of the document. He does not believe that any aspect of the Constitution should be ignored or minimized. In another of his signature concurrences, Justice Thomas breathed new life into the Second Amendment in 1997’s Printz v. United States when he ruled on a challenge to the Brady Act. Scholars had all but declared dead the concept of an individual right to bear arms. But a decade after Thomas’s concurrence, a majority of the Supreme Court agreed with Thomas that the founders intended the Second Amendment not only to allow states to raise militias, but also to allow individuals to protect themselves. That same prescient concurrence emphasized the importance of the Tenth Amendment as a buttress for the states against encroachments of federal power. The specter of a revitalized Tenth Amendment now haunts the big-government Left.

In the Court’s most recent Second Amendment case, Thomas wrote an extensive concurrence discussing the privileges-and-immunities clause of the Fourteenth Amendment, which guarantees to citizens a basic set of fundamental rights that state and local governments cannot violate — and which judges have largely been ignoring for over a century. If anyone can revive it, he can.

Justice Thomas takes his clerks to Gettysburg at the end of each term. He wants to give them a perspective on what this nation has gone through — how people have fought to maintain our freedom and our country itself. The challenges of working at the Court, including, in his case, enduring scorn and abuse, are nothing in comparison with the challenges faced by those who gave their lives for the nation. And the trip is a reminder of Lincoln’s own call to dedicate ourselves to “a new birth of freedom” so that the dead of Gettysburg and of all this country’s struggles should not have died in vain. Lincoln would ask us, “Are we earning the right to be free?”

Justice Thomas invoked the Gettysburg Address at a recent appearance at Stetson University College of Law, in Gulfport, Fla.:

I’m with Lincoln, I don’t think I will be long remembered. But the work that we do, the Constitution that we preserve, the country that we preserve will be long remembered. The people who sacrifice so that we can be here in peace will be long remembered. Our little job, while we’re here, is to make their sacrifices worthwhile.

It is heartening to have a member of the Supreme Court who takes that long view, and has spent 20 years tirelessly defending our Constitution. May God grant him 20 more.

– Carrie Severino is chief counsel and policy director for the Judicial Crisis Network ( She served as a clerk to Justice Thomas during the 2007–08 term.

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