While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.
Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.
But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:
It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.
While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.