Justice Thomas: Principled Conservative Originalist

For many years, liberal critics of Justice Clarence Thomas portrayed him as an evil and unintelligent justice.  He was just a conservative hack, who was not smart enough to ask a question to the learned attorneys who argued Supreme Court cases.

But that portrayal is increasingly being replaced by one of the justice as a principled conservative originalist — one who will often follow his principled judicial philosophy to decide cases in ways that liberals like. The most recent example of this attitude is expressed in Slate by freelance writer Mark Joseph Stern. The article starts with a positive description of Thomas as a principled conservative:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

The body of the essay then reviews Thomas’s cases — from a liberal political, non-legal vantage point.  There is plenty to disagree with on how Stern characterizes Thomas’s votes and opinions, but still Stern makes sure to suggest that Thomas has a principled side.

The conclusion of the piece is a bit less favorable to Thomas’s conservative originalism than the introduction.  Still, it keeps with the overall message:

On the whole, of course, Thomas remains a rock-ribbed conservative, and the surprise that greeted his opinion in Alleyne and last week’s DNA-patenting case is entirely understandable. But just because Thomas’ votes track a generally right-wing pattern does not mean they are preordained by party politics, or even predictable. The principles Thomas follows—unwavering dedication to his own interpretation of the ideas of dead men—may not make much sense to most. But they are principles nonetheless. And Thomas remains dedicated to them, no matter how far left they take him

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    I would suggest, to his Honor Justice Thomas, that he stay his course on the Constitutional requirements of the Supremacy Clause — and remind himself that philosophy should not enter into any determination beyond the express enumerations of the Constitution — diversity, where it belongs, within the Ninth and Tenth Amendments.

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