It’s “how long has it been since Clarence Thomas asked a question?” season again! At irregular intervals, journalists like to remind the nation that Justice Thomas doesn’t like to ask questions from the bench. Here’s a 2011 piece discussing Thomas’s “5-Year Silence,” a 2012 piece regarding his “Six Years of Silence,” and and 2013 piece pondering “Why Clarence Thomas STILL Hasn’t Asked A Question In Seven Years.” This year, the New Yorker’s Jeffrey Toobin kicks off the season with the provocative title “Clarence Thomas’s Disgraceful Silence.”
“Disgraceful” is a strong word. But Thomas’s taciturn approach during oral arguments is certainly unfortunate in one important way. It perpetuates a myth that Thomas is a lightweight, disengaged from his work and unequal to the task of jousting with his more intellectually gifted colleagues. In its most virulent form, this myth paints Thomas as a mere puppet of Justice Antonin Scalia.
Toobin, to his credit, does not fall into this trap. His piece labeling Thomas’s silence “disgraceful” also notes that, when Thomas is not hearing oral arguments, he’s “imported once outré conservative ideas, about such issues as gun rights under the Second Amendment and deregulation of political campaigns, into the mainstream.” In 2011, Toobin laid out some of Thomas’s contributions to the law in greater detail. He also quotes Yale law Professor Akhil Reed Amar, who compares Thomas to the late Justice Hugo Black: “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”
Thomas And Black
It’s a bit of an exaggeration to suggest that Thomas has reshaped the law in his own image — Thomas wants to shrink the federal government’s power to the point where national bans on child labor and whites-only lunch counters are unconstitutional, a position that no other justice has taken. And it would also be an exaggeration to claim that Thomas has had as substantial an influence on the law as Justice Black. Before Black joined the Supreme Court, most of the Bill of Rights were understood to apply only to the federal government — states were free to violate them without interference from the federal judiciary. Black, more than any other justice, made it his project to ensure that these rights would bind state lawmakers just as tightly as they bind Congress, and he was largely successful in that project.
Nevertheless, the comparison between Black and Thomas is apt in that both men hew to versions of what is sometimes labeled “originalism” — the belief that the Constitution should be interpreted primarily by looking to its text and what the framers hoped to accomplish with that text, or, at least, how the framers and their contemporaries would have understood the text. “I would follow what I believe was the original purpose of the Fourteenth Amendment,” Black explained in a dissenting opinion laying out his belief that the entire Bill of Rights should apply to the states. “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.”
Similarly, in his opinion disavowing decades of precedent permitting things like federal labor laws and bans on private discrimination, Thomas claims that “our case law has drifted far from the original understanding of the Commerce Clause,” and calls for the Court to adopt a view of federal power that, in his opinion, is “more faithful to the original understanding of that Clause.”
Yet, despite these parallels in their approach to constitutional interpretation, Black was widely perceived as a liberal during his time on the bench, while Thomas is the most conservative justice to sit on the Supreme Court since the Roosevelt Administration. Indeed, Black attributed his own appointment to the Supreme Court to President Franklin Roosevelt’s desire to keep the justices from hobbling federal action. “I was against using due process to force the views of judges on the country,” Black said in 1967. “I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.” (Thomas, it should be noted, does not root his attempts to shrink federal power in “due process” either. But Black also had little love of Thomas’s reading of congressional power.)
Legitimizing Radical Change
Indeed, Black’s embrace of orginalism needs to be understood in terms of the reason Roosevelt put him on the Court in the first place. When Black became a justice in 1937, the Court had just recently abandoned decades of decisions holding progressive legislation unconstitutional, often on very tenuous grounds that had little basis in the text of the Constitution. Black viewed these decisions as illegitimate, but as a judge he could not simply ignore them because he didn’t like the results they produced.
Unlike legislators who are elected and derive their legitimacy from the will of the people, judges are not allowed to (or, at least, not supposed to) change the law just because they feel like it. They must root their decisions in authoritative legal sources that exist beyond their own desires. Supreme Court precedents are one of these sources. When a judge cites precedent, they legitimize their decision by grounding it in preexisting legal doctrines that they themselves may have played little or no role in shaping.
But what if a judge is dissatisfied with precedent?
The genius of Black’s appeal to constitutional text and the original purposes of the framers, is that it allowed him to root his own decisions in something even more authoritative than the precedents he despised. In the era when justices routinely struck down child labor laws and similar regulations, according to Black, “the power of legislatures became what this Court would declare it to be at a particular time” regardless of whether the text of the Constitution justified these limits on legislative power. Black, by contrast, promised to restore the true Constitution that his predecessors had abandoned.
But, of course, that is exactly the same rhetorical ploy that Thomas pulls in his opinions. In Thomas’s constitutional narrative, things like federal child labor laws aren’t unconstitutional just because Clarence Thomas says so, they are unconstitutional because they are not “faithful to the original understanding” of the Constitution.
Originalism, in other words, enables a justice who wants to bring about radical, sweeping change to the Constitution to argue that this change is legitimate even if it finds no support in prior jurisprudence. It is a tactic that can be deployed by liberals like Black and by conservatives like Thomas. And when it succeeds, it can transform the Constitution into something that judges of the previous era would barely recognize.
One Of The Most Dangerous Men In America
Much of Thomas’s vision of the Constitution, however, is easy to recognize. It is often the very same vision Roosevelt appointed justices like Black to roll back, a vision rooted less in the original understanding of the Constitution than in a narrow understanding of the Constitution that President George Washington rejected in the very early days of the Republic.
Twenty-five years ago, this narrow vision was so thoroughly discredited that no justice would dare endorse it. Indeed, even President Ronald Reagan promised to appoint judges who embrace “judicial restraint” in lieu of judges who embrace Thomas’s brand of aggressive judicial activism (although the actual record of his appointees is somewhat more nuanced).
Thomas’s mere presence on the Court, combined with his efforts to grant legitimacy to long discarded doctrines, gives credibility to this narrow vision of the Constitution that it could otherwise never enjoy. Before the Tea Party even existed, before Sen. Rand Paul (R-KY) claimed that the “hard part about believing in freedom” is allowing whites-only lunch counters to exist — and before three of Thomas’s colleagues joined him in trying to judicially repeal the Affordable Care Act based on a legal argument that, in one Reagan-appointed judge’s words, had no basis “in either the text of the Constitution or Supreme Court precedent” — Thomas sat silently on the Supreme Court’s bench, pondering how to transform the Tea Party’s wildest dreams into reality.
Clarence Thomas is not a lightweight. He is one of the more intelligent members of the Supreme Court. And he is one of the most dangerous men in America. Progressives dismiss his intellect at their peril.