Thomas’s Full-Throated Originalism: Ralph Rossum Responds

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.

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One of the “Most Activist Judges We Have Right Now”

When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.

In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.

So which of these justices most often votes to strike down laws “passed by the people”? The answer is

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Toobin’s Disgrace

clarence-thomasJeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.”

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Ralph Rossum on Understanding Clarence Thomas

In my view, when historians look back on this period of the Supreme Court, Justice Clarence Thomas will be seen as extremely important justice. While Justice Scalia will be seen as the justice who initially developed modern originalism on the Court, Justice Thomas will be seen as the justice who most consistently pursued the doctrine. Although Thomas’s decisions may have fewer adherents on the Supreme Court, he has exerted influence in other ways by making previous positions that were not discussed in government bodies – such as returning to the pre-New Deal Commerce Clause – to be part of the conversation. His differences with Justice Scalia also shows to the world that originalism comes in various stripes.

It is therefore a welcome event that Ralph Rossum is publishing a new book on Justice Thomas’s jurisprudence. Rossum’s other work suggests that this is likely to be an excellent book and is one that I hope to read in the near future. Here is a description of the book:

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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

The Most Dangerous Justice? “Natural right is dynamite”

Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution.  He focused far less on specific legal issues and more on the enduring love of country  “we the people” give it.  He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.

The coverage in the Washington Post and New York Times emphasized different aspects of the conversation.  The Times probed his views of religious diversity in America and on the Court.

The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.”  Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?

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The Constitutional Jurisprudence of Justice Clarence Thomas

Play

This discussion with Professor Ralph Rossum of Claremont McKenna College explores the jurisprudence of Supreme Court Justice Clarence Thomas.  Rossum posits that Justice Thomas practices an “original general meaning” approach that seeks concord among the three major strands of originalist theory. Justice Thomas incorporates both the framers’ original intent and that of the states’ constitutional ratifying conventions, as well as Justice Antonin Scalia’s public meaning methodology. Thus Justice Thomas, rather than standing underneath the stature of Justice Scalia, among others, may have a far richer constitutional hermeneutic than many of his originalist brethren. Rossum also discusses Justice Thomas’ appeals to the natural right teaching of the Declaration of Independence in certain decisions.