Justice Thomas, Who Thinks Federal Child Labor Laws Are Unconstitutional, Complains About Judicial Activism

At a speech to Nebraska law students, Justice Clarence Thomas made a surprising claim — that the Supreme Court has been too activist and should stop second-guessing elected leaders:

[Thomas] told the group that the court is being asked to play too big of a role in the nation’s governance. Currently, he said too many of the difficult decisions are being left to the courts to decide.

“The really hard calls ought to be made by citizens and their political leaders,” Thomas said.

Thomas is, of course, correct that the current Supreme Court has gone out of its way to undermine democracy. Thomas and his four conservative colleagues destroyed meaningful checks on corporate money in politics. They undermined essential workplace protections enacted by democratically elected officials, and they wholeheartedly endorse a privatized, corporate-owned arbitration system which allows powerful corporations to immunize themselves from countless laws.


Moreover, Justice Thomas is by far the worst offender on the Supreme Court. A 2005 Yale study found that Thomas is more likely to strike down an act of Congress than any other member of the Court. Indeed, if given his way, Thomas would return America to an era when fathers competed with their teenaged children for work and African-Americans could legally be excluded from jobs, hotels, and lunch counters:

Congress may regulate activities that “substantially affect interstate commerce.” This “substantial effects” power is the basis of Congress’s authority to make labor laws universal throughout all places of employment.

Yet Justice Clarence Thomas claimed in three separate cases — U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich — that this “substantial effects” test is “at odds with the constitutional design.” It is possible that Thomas’s vision would still allow some limited federal labor regulation — such as a law prohibiting children from becoming railway workers — but anything resembling the essential web of federal laws that protect American workers today would be impossible. […]

In 1964, the Supreme Court unanimously upheld the federal ban on whites-only lunch counters — once again relying on the “substantial effects” test to do so. For this reason, it is likely the Justice Thomas would strike down this and other federal laws protecting civil rights.

So Thomas’ claim that “the court is being asked to play too big of a role in the nation’s governance” is quite true — and all that Thomas needs to do to fix this problem is to quit the relentless campaign of judicial activism he began the minute he joined the Supreme Court.