Sowing the Seeds of an Originalist Future

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?”

I suppose there are worse ways that Justice Thomas could be remembered, but the meme that he is a passive presence on the bench is now widespread. This perception is, no doubt, a generalization from the oft-noted fact that Thomas rarely asks questions during oral arguments. Like Calvin Coolidge, whose historical reputation as “Silent Cal” has been commingled with the thought that he was a do-nothing president, Thomas’s silence on the bench is taken as an indication that he is a do-nothing justice. Unlike his fellow conservative justice, Antonin Scalia, Thomas does not seek the limelight of public controversy through visible speaking engagements and provocative exchanges with undergraduates and law students. Thomas is among the least likely of the justices to have his name appear in the newspapers. When he is cited, it is as likely to observe that he is one of the most conservative justices on the Court as for any particular action that he had taken.

Jeffrey Toobin recently penned for the New Yorker the strongest reaction to the justice’s practice. For Toobin, Thomas’s “behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” Oddly, Toobin admits that Thomas “has made important contributions to the jurisprudence of the Supreme Court,” and yet insists that “there is more to the job of Supreme Court Justice than writing opinions” and suggests that the public would “lose all faith in the Supreme Court” if the justices did not exchange witty banter with the lawyers during oral argument. This is a dubious proposition, and Toobin would be hard pressed to produce any evidence that the way in which oral arguments are conducted has any consequence for either judicial decisionmaking or public confidence in the Court.

Most of the current justices are quite talkative during oral arguments. Indeed, they may be even more talkative than their immediate predecessors, and attorneys often have difficulty getting a word in edgewise for all the cross-talk on the bench. But this appears to be a distinctly modern innovation, and it would seem that the Court has not always operated this way.

Transcripts and contemporary accounts suggest that the justices said little during oral arguments in the nineteenth century. Daniel Webster was perhaps the most successful and famous Supreme Court litigator in American history. He was most known for multi-day orations, to which the justices listened with rapt attention along with other members of the audience. Justice Joseph Story recounted that Webster’s audience “dissolved in tears” as the lawyer worked his way toward the close of his three-day argument in the Dartmouth College case. “It was some minutes before anyone seemed inclined to break the silence” when Webster finally sat down.

These perorations did not always make such a good impression. William Pickney, whose reputation as a litigator rivaled Webster’s own, once began a speech to the Court by suggesting that he would not tax the patience of the justices the way his opponent, constitutional convention delegate Luther Martin, had done with his overly long and “remarkably redundant” argument. When not weeping at Webster’s eloquence, Story used his time during oral arguments to compose poetry. Chief Justice Taney admitted that his “attention was apt to be fatigued and withdrawn” by attorneys who droned on about “unimportant points.” By the end of the nineteenth century, lawyers and justices both expressed some regret at the passing of great oratory and rhetorical flourishes at the Court, though what they saw taking its place was less judicial interrogations of advocates at the bar than clear, compact analysis by lawyers who were relying more heavily on their written briefs.

As late as the 1920s, descriptions of oral arguments at the Court characterized the justices as attentively listening to lawyerly presentations, only occasionally interrupting to ask for clarification of a point. But this silent attention was viewed as something of a break from tradition, when the justices were more likely to catch up on their correspondence or read a good book as the lawyers below diligently laid out their case. One is tempted to say that if silence on the bench during oral argument was good enough for Chief Justice John Marshall, then it is good enough for Justice Clarence Thomas.

To those who follow the Court, there is little doubt that Thomas lets his written opinions do his talking. Over his more than two decades on the bench, Thomas has carved out a reputation as a careful and original thinker. Scalia has sometimes suggested that he writes for the casebooks and the history books as much as for the current legal intelligentsia. By dint of both personality and purpose, Scalia plays for the audience and his opinions are long on rhetoric and artful jibes. Thomas is a more straightforward writer, but one who is no less interesting. Like Scalia, Thomas is an avowed originalist, and though he has written little about constitutional interpretation in extrajudicial venues, he has shown himself to be perhaps even more aggressively focused on original meaning than Scalia himself.

Like Scalia, Thomas has been one of the most conservative justices on the recent Court. When first appointed, Thomas was unfairly maligned as a kind of satellite of the more senior and outspoken Scalia. But Thomas is not unique in sharing a voting record with a close ideological colleague on the Court, compared to Justices William Brennan and Thurgood Marshall or Justices Ruth Bader Ginsburg and Sonia Sotomayor. To the left, Thomas and Scalia are sometimes paired as exemplars of all that is wrong with Republican judicial appointments. But Thomas is sometimes subjected to special scorn. The actor Samuel Jackson took the occasion of promoting his movie Django Unchained to compare his particularly vile Uncle Tom character to Clarence Thomas. New York Times columnist Maureen Dowd suggested that Justice Thomas “has been driven barking mad by the beneficial treatment he has received” and foreswears legal research and argument in favor of unleashing his “id” on the pages of the U.S. Reports.

Ralph Rossum notes that Thomas and Scalia are alone on the bench in their clear embrace of an originalist approach to constitutional interpretation. Professor Rossum suggests that there are some differences in their approach to originalism, with Thomas adopting a distinctive “original general meaning” approach and incorporating principles of natural equality derived from the Declaration of Independence into his understanding of founding-era thought. I look forward to seeing a longer vindication of these claims in the book.

I think the other notable difference in how Scalia and Thomas approach originalism, however, lies in their attitude toward stare decisis, or the strength of deference to established precedent. It is an open question how seriously any justice takes stare decisis. As a court of last resort, the justices are free to revise inherited precedents at will, and they frequently do. Appeals to stare decisis are often an argument from convenience for justices who otherwise favor the rule in question. Nonetheless, judicial attitudes toward stare decisis can indicate larger attitudes toward the current state of the law and the desire for change.

Scalia famously characterized himself as a “fainthearted originalist” precisely because he valued constitutional stability over constitutional fidelity and thought some policy outcomes were too far outside contemporary norms to be acceptable. Pure originalism might be “too bitter a pill” to accept unconditionally. More recently, Scalia has “repudiate[d]” that position, declaring his aspiration to be “an honest originalist” willing to “take the bitter with the sweet,” but his body of work still differs from the one that Thomas has put together.

Thomas has never shown much inclination toward fainthearted originalism. There remains a significant debate among originalist scholars over how much accommodation the Court should give to clearly erroneous precedents. Opinions range from those who would defer to established precedents even in the face of discoverable contrary constitutional commands to those who would demand rigid adherence to the requirements of the originalist constitutional text regardless of the subsequent development of doctrine. Justice Thomas seems to favor the latter camp. He has suggested that doctrines like stare decisis have less significance for the Supreme Court than for lower courts and that the justices on a court of last resort should look to limit judicial discretion in other ways, such as by tying themselves to the original meaning of the constitutional text.

In his opinions, Thomas has repeatedly emphasized the need to go back to “first principles” when addressing constitutional questions. Thomas has compared existing precedents as “a caboose on a train.” For most justices, most of the time, the Court should simply tie on to the caboose and follow the lead of established doctrine. Thomas expresses a different inclination; “Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it through.” Rather than taking on faith that the train of legal doctrine is headed in the right direction, Thomas worries that upon investigation we might discover “there’s nobody in the engine.” Thomas is frequently willing to write in dissent or in concurrence in order to emphasize the need to reevaluate existing doctrine and to lay out the originalist foundations for a better case law. While others are willing to perform the contortions required by existing doctrine, Thomas is often optimistic that a recurrence to original meaning would provide clearer guideposts for resolving cases.

In writing those opinions, Thomas performs a similar role that Justice Rehnquist played in the 1970s. On the so-called Nixon Court, Rehnquist was frequently the lone dissenter, and often took those opportunities to explain why the underlying doctrine that the majority was seeking to apply was itself mistaken. Rehnquist was unlikely to swing his colleagues on the Burger Court, but he was laying down markers for the future. He helped to build the conservative legal movement that bore fruit during the Reagan administration and resulted in more justices who sympathized with his views. He brought the Court to him (at least partly).

Thomas is rarely the lone dissenter. At least some other justices generally share his bottom-line conclusions on how a case should be resolved. But Thomas is frequently willing to write separately in order to challenge the reasoning adopted even by his fellow conservative justices. He provides the voice of the true originalist faith. Thomas may never be able to collect those markers, but the role of ideological purist can often bear fruit in the future as lawyers, judges, and political activists find inspiration in the constitutional vision expressed in those opinions. In trying to influence future generations, Thomas has gone about his work more quietly than Scalia, but with no less thoughtfulness and care.

Keith Whittington

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is the author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas, 1999) and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007). He is the co-author (with Howard Gillman and Mark Graber) of American Constitutionalism (Oxford, 2013).

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