Jewish World Review Aug. 26, 1999 /13 Elul 5759
Andrew Peyton Thomas
Today, conservatives admire Thomas for the moral courage he has displayed, both in his confirmation hearings and in the case law he has authored. Many also see him as a tragic figure, a man whose views, combined with his race, doomed him to a nationally televised humiliation. Yet the manner in which he endured that fate calls to mind the observation that misfortune nobly borne is good fortune. What is often overlooked, furthermore, is the extent of his ultimate triumph. Except for Ronald Reagan, Clarence Thomas is arguably the only major figure in recent American public life to have collided full force with the liberal establishment and emerged the stronger. Newt Gingrich and Kenneth Starr, for example, fared far worse. Thomas, by contrast, can survey the wreckage of political and ideological actors whose encounter with him left them reduced in credibility and power.
Consider feminists and liberal black organizations, the most formidable interest groups to oppose his confirmation. Both were at the acme of their political influence when the hearings began. Both now are in obvious decline, in part because of the fight they picked with Thomas. Feminist leaders held up Anita Hill's dubious last-minute accusations of sexual harassment as establishing a standard that would henceforth disqualify boorish men from high office. Yet the same feminists now apologize for a president whose twenty years of gross sexual misconduct make Hill's assertions look more trivial than ever. This hypocrisy is not lost on the public–and how could it be, when feminists made the Thomas hearings so memorable?
Old-guard civil rights leaders similarly elevated the Thomas hearings, making them–along with the Rodney King riots and the O.J. Simpson trial–one of the defining events of the decade in race relations. But in the end, a majority of blacks supported Thomas's confirmation. In working so feverishly to ruin Thomas, grand old civil rights groups like the NAACP appeared intolerant and hidebound. In the process, they squandered much good will among blacks and whites alike.
With the Cold War behind us, the most momentous political battles of our time occur in the judiciary, an arena liberals have dominated for 40 years. Those who would carry the conservative banner in the judicial arena need not only guts but a spirit of rebellion. Thomas has both in abundance. Indeed, the critics who insisted on closely scrutinizing his "temperament" during the confirmation process were onto something, for temperament can serve as a rough surrogate for character. His opponents rightly feared a jurist whose commitment to conservative principles was unyielding.
Throughout his life, Thomas had shown the very independence and integrity they dreaded. He grew up black and Catholic in rural Georgia. He matured into a man zealous enough to train for the priesthood, yet autonomous enough to drop out of both the seminary and the Catholic Church after overhearing a white seminarian delight in the assassination of Martin Luther King Jr. Thomas defied the poverty and racism of his youth by attending college in the northeast, at Holy Cross and Yale Law School. His first job out of law school was working for the Republican attorney general of Missouri, John Danforth; he later served in two high-profile posts in the Reagan administration. Thomas, in short, was not a likely recruit for People for the American Way.
As a black conservative lawyer, Thomas challenged his foes' hegemony over the judicial branch. It is hard for whites to appreciate the courage required of blacks who, like Thomas, defy the reigning orthodoxy of their group. Four centuries of organized subjugation in North America have made black Americans almost uniquely cohesive. For a black lawyer to oppose the old-line civil rights establishment–which still pretends to the leadership of black America–means professional and personal ostracism. For Thomas, it meant being stamped "Uncle Thomas"; Jesse Jackson condemned him as a "traitor." The price rose higher still when the opponents of his confirmation set out publicly to mortify and destroy him.
Thomas was willing to pay this price because the alternative was philosophical surrender. A recurring theme of his speeches and court opinions is individuals' God-given right to think for themselves. Freedom of conscience, fount of the subsidiary rights in the First Amendment, is the liberty that Thomas seems to value above all others. In the most poignant speech of his career, delivered in July 1998 amid protests including a staged walk-out, Thomas told the mostly black National Bar Association that he had not come to defend his views. Rather, he had accepted the group's invitation to speak, despite the resulting controversy, in order "to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black. I come to state that I am a man, free to think for myself and do as I please."
In his jurisprudence, Justice Thomas has revealed the extent of his own independence of mind–though you will not learn this from the media, who insist on diminishing him as one who merely follows the lead of Justice Antonin Scalia. Last May, a front-page article in the Washington Post repeated the mantra: "For the past eight years," asserted reporter Joan Biskupic, "Supreme Court Justice Clarence Thomas has walked in the shadow of Antonin Scalia." In Thomas's early years, she explained, "he let Scalia hold the pen: Whatever their joint views, Scalia, 63, tended to write them up. Thomas, 50, merely signed on." Only recently, Biskupic said, has this subservience begun to wane.
A certain deference to like-minded fellow justices would be understandable in any freshman on the Court. The stubborn fact, however, is that this assertion about Thomas is untrue, yet another falsehood besmirching the black conservative who got away. From his very first term, he has written some of the Court's most impressive opinions of recent years.
Thomas offered an early taste of things to come in his dissenting opinion in Hudson v. McMillian (1992). This dissent, which Scalia joined, is one of the most devastating critiques of prisoners'-rights jurisprudence ever written. An inmate had brought suit over injuries inflicted by prison guards. A federal magistrate described these injuries as "minor." The majority voted to repeal the requirement that an inmate prove a "significant injury" before being able to sue for violation of the Eighth Amendment's ban on cruel and unusual punishment. Thomas excoriated the majority for warping the Constitution "beyond all bounds of history and precedent." He reminded them, "The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation." For his opinion in Hudson, the New York Times branded Thomas "the youngest, cruelest justice."
In subsequent terms, Thomas has further established his identity as an independent thinker and the court's most rigorous conservative. In his first full term, 1992-93, Thomas joined Scalia in five concurring opinions, one dissent, and one opinion concurring in part and dissenting in part–a very small fraction of the 107 total cases that yielded full court opinions. Thomas wrote six concurrences of his own; and he wrote one dissent, which Scalia joined. Thomas was more likely to join Chief Justice William Rehnquist in dissent (twice) or other members of the court (thrice) than Scalia. In 81 of the 107 cases, Thomas voted with the majority, as did Scalia a comparable percentage of the time (Thomas wrote the majority opinion in 11 cases). By 1995, according to an analysis by the St. Louis Post-Dispatch, Thomas had become the second most prolific opinion writer on the court. He has authored some of the longest separate opinions in the history of the court, opinions that are sometimes longer than those of the majority.
Thomas has been extraordinarily faithful to originalism, the theory that judges should abide by the original intentions of the Framers of the Constitution. Originalism typically squares off against the "living Constitution" theories of the Left, which hold that judges must update the Constitution by interpreting it in line with contemporary liberal theories of justice. In opposing the anti-democratic jurisprudence of the "living Constitution," originalism is really shorthand for commitment to the rule of law.
Thomas has been the court's most consistent originalist–more so than Scalia or Rehnquist. He also has been the most aggressive advocate of overturning liberal precedents, some of which are now many decades old. In United States v. Lopez (1995), for example, the High Court struck down the federal Gun-Free School Zones Act, which made it a federal offense to knowingly possess a firearm within a school zone. The Court held that the law exceeded Congress's authority to regulate under the commerce clause. This was the High Court's first departure from 60 years of rulings upholding the federal government's power to regulate the nation virtually as it pleases.
In a concurring opinion, Thomas complained that the majority in Lopez did not go far enough. He argued that the Court should consider returning to the commerce clause jurisprudence that held sway prior to the New Deal. He talked of the "wrong turn" made "in the 1930s from a century and a half of precedent." He added, "My review of the case law indicates that the substantial effects test [the liberal interpretation of the commerce clause] is but an innovation of the 20th century." Such a statement, penned on the eve of the 21st century, was a remarkable and–to conservatives–charming declaration.
In cases involving criminal justice, Thomas has urged the curtailing or overturning of criminals' rights invented by the Warren Court and subsequent court majorities. In his dissenting opinion in Thompson v. Keohane (1995), which Rehnquist joined, Thomas scolded the majority for its expansion of Miranda rights. Thomas concurred in Scalia's opinion in Lewis v. Casey (1996), which vacated a lower court's injunction micromanaging Arizona's prison law libraries. Yet Thomas used the occasion to call for scrapping altogether Bounds v. Smith (1977), the Burger Court ruling that created the bogus right to prison law libraries in the first place.
Last term, in City of Chicago v. Morales (1999), Thomas dissented from the majority's decision to invalidate a Chicago ordinance prohibiting gang members from loitering in public places. In an opinion joined by Rehnquist and Scalia, Thomas argued, "I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery." He denied flatly the majority's contention that the "asserted 'freedom to loiter for innocent purposes'" was "'deeply rooted in the Nation's history and tradition.'" Thomas went so far as to question the court's 1973 ruling in Papachristou v. City of Jacksonville, which overturned the nation's vagrancy laws.
In one area, civil rights, Thomas's originalism has been more complicated. This is a vexing realm of jurisprudence, for the inescapable reason that the Framers of the Constitution and, later, of the Fourteenth Amendment did not fully share our current commitment to racial equality. Here, Thomas has espoused the theory advanced by Professor Harry Jaffa of the Claremont Institute. Jaffa argues that the Constitution should be interpreted in light of the Declaration of Independence, notably its statement that "all men are created equal." In a Lincoln Day speech last February to a Claremont Institute gathering in Washington, Thomas repeatedly singled out Jaffa for his guiding work. Thomas is a firm believer in Jaffa's theory, presaged by Lincoln's Gettysburg Address, and accordingly has cited the Declaration as an authority in several opinions.
Even so, Thomas is scarcely a liberal activist in civil rights, and he continues to draw the ire of liberal black organizations. In a concurring opinion in Missouri v. Jenkins (1995), he became the first justice to criticize aspects of the landmark Brown v. Board of Education decision directly, questioning the social science on which it famously relied. In Adarand Constructors, Inc. v. Pena (1995), which involved federal set-asides for minority contractors, the majority applied the strict-scrutiny standard to all government classifications based on race. Thomas hailed this decision in a concurring opinion that cited the Declaration of Independence.
Thomas's concurring opinion in Holder v. Hall (1994), which Scalia joined, exhorted the Court to roll back another liberal precedent, the 1986 ruling in Thornburgh v. Gingles. Gingles had begun the Court's descent into the quagmire of racial gerrymandering, holding that the Voting Rights Act guarantees not merely equal access to the ballot but also something approaching proportionate representation based on race.
In his concurrence in Holder, Thomas repeated his lifelong insistence that people should not be expected to "all think alike" simply because they belong to a given racial or ethnic group. In unusually strong language, he accused the court of acting like "Platonic guardians" and a "politburo" in prior civil rights cases. "In my view," he remonstrated, "our current practice should not continue. Not for another Term, not until the next case, not for another day."
How does Thomas compare with the court's other two conservatives? Rehnquist almost always can be counted on to resist further liberal judicial activism. But he has produced or signed onto very few opinions advocating the reversal of liberal precedents. Generally, he shows little stomach for the fight that such upheaval would provoke in the High Court and in American society. He remains a jurist with conservative instincts, but one whose veneration for precedent–even ill-begotten precedent–leads him to accept the leftward ratchet of the Court's recent jurisprudence.
Scalia, in contrast, has the temperament–that word again–of a conservative radical capable of leading a counterrevolution. A brilliant intellect and the best writer on the Court since Oliver Wendell Holmes, Scalia was blessed with all the mental tools necessary to spearhead a conservative rebellion against baleful precedent. Yet he has not gained acceptance in this role. There are several possible reasons. Unlike Thomas, whose opinions are spirited but not strident, Scalia clearly enjoys promulgating feisty opinions; he is loath to subordinate his wicked pen to something as uninspiring as collegiality. More fundamentally, Scalia has not been as consistent an originalist as Thomas.
Scalia has endorsed a doctrine of "plain meaning" for interpreting the Constitution. In practice, this has led to some quirky outcomes. In Coy v. Iowa (1988), for example, Scalia wrote the majority opinion in which the Court struck down an Iowa law permitting a screen to be placed at trial between an alleged pedophile and his two young accusers. The case pitted tough-on-crime sentiment versus concerns for genuine civil liberties, in this case the Sixth Amendment right to "confront" one's accuser at trial. But Scalia decided the case without even consulting the intentions of the Framers. Instead, he sought the plain meaning of "confront"–by parsing the Latin roots of the word and invoking authorities as diverse as Shakespeare and President Eisenhower's description of folkways in Abilene, Kansas. He ridiculed the dissent for finding Dean Wigmore's famous treatise on evidence more persuasive than these offbeat citations.
Scalia's First Amendment jurisprudence has also been puzzling. Before Thomas joined the Court, Scalia's rulings on the First Amendment could have been written by almost any Ivy League law professor. In 1989, Scalia joined the majority in Texas v. Johnson in finding a new constitutional right to burn flags. In the same year, he and Rehnquist voted to gut the law banning "dial-a-porn" telephone operations–an anti-historical ruling rightly condemned by Robert Bork, among others.
At least in regard to the First Amendment, which has generated jurisprudence greatly befouling the culture, Thomas's presence seems to have pricked Scalia's conscience. After Thomas joined the Court, Scalia's jurisprudence in this critical area began to move back toward originalism, or at least traditionalism. In McIntyre v. Ohio Elections Commission (1995) and 44 Liquormart, Inc. v. Rhode Island (1996), Scalia stated that in interpreting the First Amendment, he would consult above all the "long accepted practices of the American people." This marked a dramatic break for Scalia, for such "long accepted practices" do not include any trendy right to burn flags.
In McIntyre, the state of Ohio had prohibited the distribution of anonymous literature in political campaigns, and had fined a person $100 for violating the law. The Supreme Court struck down the law on First Amendment grounds. Thomas joined the majority but filed a concurring opinion, in which he chastised the majority for its breezy history lessons. He criticized its reliance on Shakespeare, Mark Twain, and Voltaire in stitching together a constitutional history; "these are irrelevant to our analysis," he reminded the majority, "because [they shed] no light on what the phrases 'free speech' or 'free press' meant to the people who drafted and ratified the First Amendment." Thomas offered instead an impressive history of the treatment of anonymous pamphlets from the time of the Constitution's adoption, including a discussion of the many revolutionary and early U.S. tracts that conscripted the names of great Romans (Publius, Cato, Brutus, et al.) as noms de guerre. Thomas concluded that "after reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion."
In a dissent joined by Rehnquist, Scalia said he would have upheld the Ohio law because there is no constitutional right to anonymous electioneering. He centered his opinion not on the "plain meaning" of the First Amendment but on tradition: He defended the law by noting that similar regulations exist in every state except California, and they have a "pedigree dating back to the end of the 19th century." Proving that "anonymous electioneering was used frequently is not to establish that it was a constitutional right," he conceded. He added, however, "A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality."
The problem with Scalia's treatment, as Thomas recognized, is that such statutes date back only one hundred years, not to the framing of the First Amendment. Still, Scalia's dissent proffered extensive legal history, erected good guideposts for future decisions, and rightly questioned the validity of a new right that could have been envisioned and protected explicitly at the time of the framing.
And what of the long-standing laws against flag-burning, which, under Scalia's reasoning in McIntyre, seemingly should have been upheld rather than swept away? Scalia was honest and humble enough to deal directly with this discrepancy. But the strained distinction he drew in his dissent–he maintained that the "bedrock principle" at the heart of the First Amendment safeguarded flag-burning but not anonymous pamphleteering–did not seem to persuade even him. By any reasonable measure, political literature is far more central to freedom of speech than flag-burning, and flag-burning is hardly a tradition of long standing. In short, Scalia was implicitly forced by Thomas to reckon with a blunder in his own earlier jurisprudence.
Without Thomas, Scalia's public soul-searching in this important area of the law simply would not have happened. Thomas forced Scalia to confront his missteps by authoring an opinion that held up Scalia's contradictory views in stark terms. Scalia, in his concurring opinion in 44 Liquormart, cited his dissent in McIntyre the previous year, proclaiming: "I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of 'the freedom of speech,' and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people." Granted, Scalia's straining continued. But in these First Amendment skirmishes, Thomas has effaced any perception that he is a clone of Scalia. In fact, the opposite is true: He has nudged Scalia back toward the conservative fold.
To be sure, there have been instances when Thomas has departed from originalism. He joined the majority in Reno v. ACLU (1997), which unanimously struck down the Communications Decency Act, a federal law prohibiting transmission of obscene or indecent communications over the Internet to children, on First Amendment grounds. Thomas is a staunch defender of commercial free speech, and perhaps this tendency, combined with his passion for liberty, motivated his decision. Whatever his reasons, this holding was divorced from the relevant constitutional history.
But perfection is not an attribute of human justice. Over the
last eight years, Clarence Thomas has been the Court's most
faithful and valiant defender of the intent of the Framers. In
this, he has proved himself uniquely qualified to be the next
chief justice, should a Republican president select Rehnquist's
successor. To honor the intentions of long-deceased leaders
is normally an act of humility. In this age, however, when
liberal precedents of relatively recent vintage flout the nation's
older traditions, defenders of the Constitution are forced to
rebel, combining humility with boldness. Clarence Thomas has
been doing this all his life, without wavering or complaint. In
the process, he has emerged as a man of unbreakable
character and our greatest public
08/20/99: The Case For Censorship