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Reading the Constitution Right
Clarence Thomass fidelity to our founding documents is making its mark on the Supreme Court.
In 1991, George H. W. Bush nominated 43-year-old court of appeals judge Clarence Thomas, who had been on the bench only 19 months, for a seat on the Supreme Court. The president declared that race played no part in his selection, but the statement was hard to believe. After all, Thomas would replace Thurgood Marshall, the first African-American on the Court. Almost everyone assumed that Bush had caved to political pressure to reserve a black seat on the Court, and filled it with one of the few black conservatives on the bench.
Liberals immediately launched withering attacks on Thomass fitness for the highest court. The dean of the University of Chicagos law school, eminent civil libertarian Geoffrey Stone, echoed the legal academys general opinion when he said: I think, in all candor, [Thomas] fairly could be labeled strange. Not in terms of right or wrong, but in being further outside the mainstream of constitutional interpretation than BorkSupreme Court nominee Robert Bork, that is, whose nomination Senate Democrats had shot down in 1987. Black leaders, despising Thomass political views, were particularly harsh, calling the nominee a chicken-and-biscuit-eating Uncle Tom, a virulent Oreo phenomenon, and an assassin, among other vicious insults. But even conservatives were dubious.
Then, as everyone knows, Thomass former employee, Anita Hill, brought eleventh-hour accusations of sexual harassment against him, testifying before a special Senate hearing in what the nominee dubbed a high-tech lynching. The Hill fiasco nearly derailed Thomass seat on the Court, with many Americans questioning his honesty. The Senate eventually confirmed him in a 5248 votethe smallest margin for any Supreme Court justice in a century.
Whats interesting, and perhaps surprising, is that, 16 Court terms later, Thomas has quietly proved himself to be a serious constitutional thinker, who displaysfor those sympathetic with his conservative jurisprudence, anywayboth great independence and considerable wisdom. Thomas forcefully rejects the notion, long favored by liberals, that the Constitution is a living document and that Supreme Court justices should creatively adjust the meaning of its terms to afford more protection to minorities, to invent such unenumerated rights as the right to privacy, and in general to promote progressive ends that the Left cant seem to win at the ballot box. Instead, he has become the Courts most persuasive exponent of originalismthe view that justices should interpret the Constitution as meaning what it did to those who read the document when it was framed. Since originalism is the jurisprudence most compatible with our republican form of government and the intentions of the Founding Fathers, its looking as though the first President Bush got it right after all when he declared, upon nominating Thomas, that he was the best man for the job.
Such a favorable view of Thomas is relatively new. With the exception of a few evenhanded works such as Scott Gerbers 1998 First Principles, which praised Thomas as a dedicated champion of the Constitution and the Declaration of Independence, most assessments of Thomas tended to be much more critical than favorable. Then two books came along that convincingly argued both that Anita Hill had fabricated her charges and that Thomas was anything but in over his head as a justice: attorney and author Andrew Peyton Thomass Clarence Thomas: A Biography, in 2001; and Atlanta Journal-Constitution reporter Ken Fosketts Judging Thomas: The Life and Times of Clarence Thomas, in 2004.
The books also told the compelling story of Thomass rise from poverty. His taciturn grandfather, Myers Anderson, had abandoned Thomass mother when she was a small child, and initially, he wanted nothing to do with young Clarence or his brother. But when Thomass mother married a man who didnt want the boys around, Thomass step-grandmother persuaded Anderson to take the boys in, and he raised them, reluctantly, in the small town of Pin Point, Georgia. Anderson did, in his aloof way, come to cherish his grandsons, though he made them work backbreaking hours in his fuel oil and cinderblock business and on his farm. By the time Thomas entered high school, a segregated Catholic academy in Savannah, he and his brother had learned self-reliance, as well as how to build houses, plant crops, fix machines, and string fences. From this hardscrabble backgroundwhere he grew up speaking Gullah, or Geechee, a southern African-American Creole blend of African languages and Elizabethan EnglishThomas made his way to a Missouri Catholic seminary, Holy Cross College, and Yale Law School, shedding Gullah along the way.
Thomas credits his grandfather and the Savannah nuns with everything that he has since achieved, and it does seem that he acquired from them the rock-ribbed fortitude, the energy, and the thick skin that have enabled him to ignore his critics and to revel in his work on the Court. Thats certainly a more plausible psychological inference than one finds in Kevin Merida and Michael Fletchers recent Supreme Discomfort, which regards Thomass conservative jurisprudence as payback for the liberals who tried to Bork him.
When Thomas took his seat on the Court, Justice Byron White gave him some advice about how to respond to the views of his new colleagues: Dont change your mind unless youre truly persuaded.
Thomas paid attention, showing his fierce independent streak in one of his first cases, Hudson v. McMillan (1992). The suit involved a black Louisiana prisoner named Keith Hudson. Guards had beaten him as a supervisor looked on, telling them not to have too much fun, leaving the inmate with a cracked lip, a broken dental plate, loosened teeth, and cuts and bruises, according to Hudsons testimony. Hudson brought a civil rights claim, arguing that he had suffered cruel and unusual punishment, which the Eighth Amendment prohibits. In conference, eight of the Courts nine justices agreed.
Thomas dissented, urging that Hudsons injuries were actually minor and that the Constitutions cruel and unusual language, correctly understood as the framers did, ought to be limited, at a minimum, to significant injury. In my view, he explained, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment. Further, Thomas pointed out, the Eighth Amendment originally referred to the sentence meted out at trial, not to the incarceration conditions that followed. Any decision to abandon these historical understandings should be up to the people, acting through legislation or constitutional amendment, not to the unelected members of the Court.
Thomass dissent audaciously countered the Courts dominant criminal jurisprudence over the last four decades, which has freely expanded the meaning and scope of cruel and unusualfor example, ruling that it prohibits imposing the death penalty on juveniles or the mentally impaired. Only Antonin Scalia agreed with him, and Hudson won the case by a 72 vote. The episode earned Thomas a memorable sobriquet from the New York Times: the youngest, cruelest justice.
Despite Thomass willingness to go against the grain, critics have often charged that he is subservient to the man the Times calls his mentor: fellow originalist Scalia. And its true that Thomas concurs more often with Scalia than with any other justice. In one of his lighter moments, he mused that Scalia must have implanted a chip in his brain to control his jurisprudence. But Thomas is no Scalia clone; in fact, hes even more committed to originalism than is the elder justice. Scalia, for instance, has said that he might temper his originalism to accommodate long-standing Court precedent. Thomas believes that, when given the chance, the Court should right its past errorseven if it means overturning settled law.
Fittingly, Thomas has emerged as a muscular proponent of states rights, again countering decades worth of constitutional law, which has cut back on state power and signed off on a massive expansion of the federal government. Thomas makes clear that, for him, the ultimate source of the Constitutions authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole. This compact theory of the Constitution has a tricky history. Jefferson and Madisonthe father of the Constitution himselfadopted it in the crisis of the late 1790s; so did the Southern states when they withdrew from the Union. Its a controversial idea, to say the least, and it flies in the face not only of much modern legal theory but also of the views of some nineteenth-century jurists, including Supreme Court justice Joseph Story, in his celebrated and influential 1833 Commentaries on the Constitution.
Equally boldly, and again in accordance with his views of the primacy of state power, Thomas argues that modern jurisprudence fundamentally misunderstandsignores might be a better way of putting itthe notion of reserved powers from the Tenth Amendment, which holds that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Taking the Tenth Amendment seriously would mean imposing a more modest role on the central government.
Thomass states-rights leanings show up most clearly in his dissent in U.S. Term Limits, Inc. v. Thornton (1995), a case in which the Court ruled unconstitutional Arkansass imposition of term limits on its congressional representatives. The Constitution, reasoned the Court, already listed certain qualifications for congressional officea representative must be at least 25 years old, for example, and a senator 30and no state could add to those restrictions. The Court had read Storys treatise, which not only rejected the compact theory but also asserted that the states sole reserved powers were those that they enjoyed before the framing of the Constitution. Because none of the states at the time had placed term limits on their national representatives, it followed that they didnt have the power to do it now.
Thomas didnt buy it, opining that the majority made a mistake in relying on Storys constrained interpretation of reserved powers. Story was not a member of the Founding generation, and his Commentaries on the Constitution were written a half-century after the framing, Thomas noted. Rather than representing the original understanding of the Constitution, they represent only his own understanding. Storys assertion conflicts with both the plain language of the Tenth Amendment and the underlying theory of the Constitution. Surveying the historical period shortly after the Constitutions ratification, Thomas also showed that at least some states had imposed restrictions on qualifications for office beyond those that the Constitution specifiedimplying that the document, as the founding era interpreted it, permitted them. Therefore, Thomas concluded, since there was no explicit constitutional denial of the power of setting congressional term limits, the people of the states should retain it.
As a simple matter of text and original understanding, Thomas may well have been right, and the venerated Story wrong.
Thomas has also taken on the modern Courts misinterpretation of the First Amendments religion clause, which has barred states and localities from promoting religion in the public square. The clause provides that Congress . . . shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Since its decision in Everson v. Board of Education of Ewing Township (1947), the Court has interpreted that to mean a nearly impenetrable wall of separation should stand between church and stateand has applied the principle not only to the federal government but also to state and local governments. For example, the Warren Court barred state-sanctioned public school prayer or Bible reading. More recently, the Court has forbidden public schools to invite clergymen to give benedictions at graduations, or to allow student-led prayer at football games.
But recent work of legal historians, including my own, has shown that the religion clauses real purpose was likely to protect the state establishments of religion that still existed in 1791 in Connecticut, Massachusetts, and Virginia, and probably also the religious restrictions for voting or for holding public office that 11 states had on the books at the time. Endorsing this view, Thomasalone on the Courtwrote in his concurrence in Elk Grove Unified School District v. Newdow (2004) that the text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. As he bluntly put it, the Constitution left religion to the States.
Justice Thomass views on abortion similarly reflect his belief that, according to the Constitution, its up to the states to decide the most important matters of domestic law. In his dissent in Stenberg v. Carhart (2000), joined by justices Rehnquist and Scalia, Thomas affirmed that Roe v. Wade, which in 1973 declared that the constitutional right to privacy included the right for a woman to choose to terminate her pregnancy, was grievously wrong. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother, said Thomas. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so. It seems that those liberals who feared that a Justice Thomas would vote to reverse Roe v. Wade, and return the issue of abortion to state voters, were correct.
Thomass most powerful opinions, however, concern race. In his viewwhich not all originalists sharethe Fourteenth Amendments provision forbidding states from depriving any person of the equal protection of the laws, together with Fifth Amendment federal due-process protections, means that the Constitution is colorblind, pure and simple.
In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court, narrowing the range of permissible race-conscious policies, found that a federal affirmative-action program that gave preferences to minorities in awarding contracts had to show a compelling governmental interestand be narrowly tailored to address itto pass constitutional muster. Thomas concurred, but made clear that he would have gone much further: I believe that there is a moral [and] constitutional equivalence . . . between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. No matter the laws intentions, Thomas maintained, under our Constitution, the government may not make distinctions on the basis of race.
For Thomas, the core of racial preference programs was a paternalism at war with the principle of inherent equality that underlies and infuses our Constitution. To support his assertion, he cited the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal. As Scott Gerber observes, Thomass striking argument seeks to incorporate the notion of equality that inheres in the Declaration into the Constitution itself. The Adarand concurrence also argues that so-called benign discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete and that inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the governments use of race. In short, said Thomas, these programs stamp minorities with a badge of inferiority.
Thomas would know that from experience. Consider Tim Russerts 2004 interview of Harry Reid of Nevada, then the Senate minority leader. Reid feared that George W. Bush might name Thomas to replace William Rehnquist, who had just died, as chief justice. Reid granted that Thomas was one smart guy but said that he couldnt support him for chief justice because he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I dontI just dont think that hes done a good job as a Supreme Court justice.
Many people of good faith disagree with Thomass opinions. But they cant plausibly accuse him of poor writing. In a 2001 speech at the American Enterprise Institute, Thomas said: Whenever possible, the Court and judges generally should adopt clear, bright-line rules that, as I like to say to my law clerks, you can explain to the gas station attendant as easily as to a law professor. Thomas has passed this demanding test of lucidity pretty successfully. Its a shame Russert didnt press Reid to name some Thomas opinions he considers to be poorly written, the Wall Street Journals James Taranto commented. In the absence of such examples, one cant help but suspect that the new Senate Democratic leader is simply stereotyping Thomas as unintelligent because he is black.
The most important Supreme Court decisions on counting by race in recent years have both involved the University of Michigan, and Thomass opinions in those cases are his clearest and most passionate statements on race and the law. In Gratz v. Bollinger, the Court deemed unconstitutional Michigans undergraduate admissions program, which blatantly used quotas, and Thomas concurred. I would hold that a States use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.
But in Grutter v. Bollinger, the Court approved Michigans law schools admissions program, which claimed that race was just one factor among many considered in admissionsthough the statistical evidence implied the existence of thinly veiled quotas. Sandra Day OConnor, writing for the majority, held that the schools desire to achieve diversity was a compelling interest, sufficient to support taking race into account, and that its admissions program was narrowly tailored enough to be constitutional.
Thomass dramatic dissent, joined in pertinent part by Scalia, began by quoting a speech that former slave Frederick Douglass made to abolitionists in 1865. The American people have always been anxious to know what they shall do with us, Douglass had said. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs!
Lamenting the fact that the minority students benefiting from Michigans preferential admissions treatment tended to do poorly compared with their classmates, Thomas observed that the Law School seeks only a facadeit is sufficient that the class looks right, even if it does not perform right. Even more pointedly, he added, All the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.
Thomass dissent questioned the integrationist ideal itself as harmful to blacks in an educational context. He pointed to the growing evidence that racial (and other sorts of) heterogeneity actually impairs learning among black students and to social-science studies showing that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that black students attending HBCs report higher academic achievement than those attending predominantly white colleges. One might question Thomass reliance on social-science datasuch data are often misleading, incomplete, or mistaken. But the majoritys claim that diversity is valuable to education similarly relies on social science. And as a black man who experienced both segregated education in the South and integrated education in the North, Thomas can speak with unusual personal authority on the subject of race and education.
Thomass Grutter dissent was fearless in another way, too. In U.S. v. Virginia (1996), the Court had ruled that the all-male Virginia Military Institute violated the equal protection clause, and so had to start admitting women. Thomas hadnt participated in that case because his son was then attending VMI. But it was more than a little curious, he pointed out now, that the Court was willing to defer, on the grounds of academic freedom, to the Michigan law schools wish to count by race for the purposes of achieving diversitybut that it had been unwilling to defer to a less fashionable Southern military institution when it sought to remain single-sex in order to fulfill its goals of discipline and maintaining military traditions.
Thomass critics often describe him as the kind of judge who endangers our democracy and our rights, because his jurisprudence would permit state establishments of religion, and in general allow states to legislate morality in many other ways, including restricting abortion. In a splendid over-the-top performance, one leading scholar even calls Thomass sort of jurisprudence fundamentalism and argues that its adherence to an original understanding of a document is similar to the Koranic fundamentalism of an Osama bin Laden.
But it isnt clear, to put it mildly, how showing fidelity to our republics founding document and ideals is undemocratic. In fact, Thomass philosophy, which he can trace to Alexander Hamilton, the first originalist, is far more democratic than the leftist alternative. Thomas takes seriously the document that Americans representatives ratified in 1789 and insists that only Americans representatives change it todaynot nine unrepresentative lawyers, ephors sitting in a marble palace in Washington.
This isnt to say that Thomass behavior as a justice doesnt occasionally leave something to be desired. For instance, it would be helpful to lawyers presenting casesand to law professors, and maybe even to gas station attendants seeking to understand his jurisprudenceif Thomas spoke up more during oral arguments, giving us better insight into his thought. Still, he must hope that the unvarnished views in his pungent dissents and concurrences (he has written few majority opinions on what has been, until recently, a liberal Court) will one day become the law of the land. If the relatively young Thomas endures for another generation on the Court, as he says hed like to, that hope may well become reality.
Those now beginning to review Thomass work more seriously have found it to be much more influential on other justices thinking than his critics would have anticipated. In Jan Crawford Greenburgs groundbreaking Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2007), a Thomas comes into focus who is anything but the African-American cyber-puppet programmed by the wily Scalia. Greenburg shows, for example, not only that Thomas has been unafraid to stake out principled positions when he was the only voice in dissent, but also, in several notable cases, that his draft opinions persuaded Scalia and Rehnquist to change their votes and join him in dissents. With the appointments of John Roberts and Samuel Alito, there may be two more originalist justices for Thomas to influence.
Far from being an embarrassment to the Supreme Court, Thomas is contributing some of its most forceful and learned opinions. Even more remarkable, perhaps, is his willingness to go against the prevailing constitutional wisdom. Race probably did play some part in his selection. But by the time he retires, the general assessment will doubtless be that he was one of the most influential justices of his time.