A quarter century ago, America was approaching a consensus regarding how our Constitution should be read.
To be sure, contentious issues such as affirmative action and abortion remained, but these issues were relatively marginal compared to the nation-defining questions that dominated much of the twentieth century. No one outside of a small lunatic fringe still argued, in 1991, that the federal ban on whites-only lunch counters is unconstitutional. There was no serious risk that the Supreme Court would dismantle the Voting Rights Act. Or that the Court would strike down basic labor protections such as the minimum wage.
All of that changed after the late President George H.W. Bush placed Justice Clarence Thomas on the Supreme Court.
Justice Thomas may be the most underestimated person in American law. As I wrote last June, “no justice did more to shape a political movement’s sense of what it can achieve through litigation.” Thomas is quiet on the bench and has minimal influence on his colleagues, but he’s had a tremendous influence on the conservative legal movement.
His plans to dismantle the federal administrative state now dominate both the Federalist Society and the Trump administration. His opinions suggesting that much of the New Deal and the Great Society are unconstitutional taught a generation of conservative law students to dream of a world where every law they disagree with is struck down by the Supreme Court. At least six of Trump’s federal appellate nominees are former Thomas clerks.
As I wrote in June, “Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.”
The brief rise and stunning fall of Tentherism
Beginning in the Gilded Age, moneyed interests invented a bevy of legal doctrines intended to protect their vast fortunes — and for many decades, the Supreme Court embraced these doctrines enthusiastically. At the peak of their influence, these rich man’s doctrines produced Supreme Court opinions striking down federal income taxes, attacking the right to unionize, nixing the minimum wage, and even killing federal child labor laws.
At the height of the Great Depression, however, these rich man’s doctrines became untenable. The nation cried out for an active government that could reinvigorate the economy, and President Franklin Delano Roosevelt won reelection in a landslide after campaigning against this narrow vision of the Constitution. Beginning in 1937, the Court announced that it would no longer tinker with America’s economic policy. The United States should be a democracy, and, with rare exception, the courts should respect Congress’ power to govern.
Since then, a handful of reactionary politicians have tried to revive these rich man’s doctrines. Sen. Barry Goldwater (R-AZ), for example, campaigned for president on his opposition to civil rights laws targeting private companies — citing constitutional doctrines similar to the ones used by opponents of the New Deal. He lost in an historic landslide.
Similarly, in 2010, several very conservative Senate candidates — Joe Miller (R-AK), Sharron Angle (R-NV), John Raese (R-WV) — ran on “tentherism,” the belief that Gilded Age doctrines should be revived to eliminate much of the federal government and its laws. It did not end well for them. With the notable exception of Sen. Mike Lee (R-UT), who hails from one of the reddest states in the country, tentherism was unpopular and most of its most outspoken evangelists lost their races in a year that was otherwise a bonanza for Republicans.
The most anti-democratic branch
Yet, even as these rich man’s doctrines were banished to political Gehenna, one man fought a quiet war to revive many of them. Concurring in United States v. Lopez, Thomas wrote the first of several decisions suggesting that the Court was right to strike down child labor laws in 1918. Thomas’ understanding of congressional power closely resembles the views Barry Goldwater expressed in the 1960s, when Goldwater argued that private companies should be immune from federal civil rights laws.
Similarly, Thomas would dismantle most of the administrative state and tear apart much of America’s labor, health, and environmental regulations in the process. Under the concurring opinion Thomas wrote in Department of Transportation v. Association of American Railroads, laws like the Clean Air Act would become hollow shells.
No one could win a presidential election running on these policies — and few parts of the country would elect a senator or representative who openly campaigned on Thomas’ views. But what Clarence Thomas taught the conservative movement is that it doesn’t need to campaign openly on its most radical ideas. Presidents can run on much more popular ideas and even govern with relative moderation, and allow their judicial nominees to do the heavy lifting for them. They may even be remembered as moderates despite the actions of their nominees. Just look at George H.W. Bush.
— Slate (@Slate) December 3, 2018
When Bush entered office, Thomas’ ideas were unmentionable. Now many of them are orthodoxy in Federalist Society circles. Neil Gorsuch is, if anything, a few steps to Thomas’ right in non-criminal and non-immigration cases. And, while Brett Kavanaugh showed more of an incrementalist streak than Thomas while Kavanaugh was a lower court judge, Kavanaugh also appears quite eager to dismantle much of the administrative state.
It’s hard to exaggerate the long-term implications of Thomas’ successful effort to win the hearts and minds of the conservative legal movement. Among other things, it vastly increases the stakes of each presidential election.
But for the judiciary, Donald Trump would have few legislative accomplishments and no policy accomplishments that could not be swiftly dismantled by a progressive Congress and president. Thanks to Trump’s judges, however, future presidents are likely to spend the next several decades handcuffed by rich man’s legal doctrines.