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Clarence Thomas, Judicial Statesman

I have a confession to make. I do not often read The New Yorker. For a long time now, I have thought of it as yet one more place where liberals go to sneer. I do not think that I have ever learned anything from perusing “The Talk of the Town.” Its chief function is to reinforce the prejudices of those who seek to validate their sophistication by subscribing to the rag.

Every once in a while, of course, there is an article of genuine interest in the magazine. Usually, it has as its focus a foreign country about which the American public knows little and its author, a great deal. Closer to home, however, The New Yorker is, if anything, more predictable than The New York Times, and that is saying a lot. In recent years, Pravda on the Hudson has had an almost impeccable record as a purveyor of leftist agitprop.

I take it, then, as a sign of the remarkable times in which we live that Jeffrey Toobin has a lengthy piece in the current issue of The New Yorker in which he displays, alongside the usual sneering and slander, a grudging and wary but nonetheless profound respect for Justice Clarence Thomas. It is worth reading. The whole thing is worth reading – for it suggests on Toobin’s part a sneaking suspicion that we are at the beginning of an age in which the jurisprudence of Clarence Thomas will predominate.

In one passage, Toobin quotes Akhil Reed Amar, a professor at Yale Law School,  who suggests that Thomas deserves comparison with Hugo Black: “Both were Southerners who came to the Court young and with very little judicial experience. 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.”

Liberals are accustomed – in a manner suggesting profound racial prejudice on their part – to sneer at Thomas and to treat him as nothing more than a safe vote for whatever Justice Antonin Scalia has in mind. It will be very hard for them to digest  and come to grips with what Toobin has to say, and it is no less remarkable that a hardcore left-liberal  such as Toobin is willing to say it. This is the sort of thing, like the recognition that the Rosenbergs really were Soviet spies, that is apt to pry people loose from doctrinaire liberalism and to set them adrift on a current that leads inexorably to rethinking the pieties they hold most dear. One wonders whether Toobin himself has drifted from his moorings – for it is the burden of his argument that Clarence Thomas is the intellectual leader of the Supreme Court and that what makes him a leader is the simple fact that the opinions he has written since he came to the bench are more principled and coherent than those of any of the other Justices.

Put simply, Thomas is an originalist. It is his view that the only way in which one can legitimately read the Constitution is in light of the understanding of those who framed it in 1787, defended and attacked it that year and the next, and ratified it in the end. For almost seventy-five years, judicial conservatives have acquiesced in the novelties foisted on us by liberal Justices. In signaling their surrender, they have repeatedly fallen back on the legal principle of stare decisis, which asserts that one must stick to what has been decided and honor and build on legal precedent. The conservatives, Thomas contends, have abandoned interpreting the Constitution as written and have put in its place prior jurisprudence. In consequence, he argues, a vast corpus of law has been built on a series of egregious and preposterous errors.

As Toobin makes clear in his piece, the question at issue is this: Which takes precedence – the duty of the Justices to accept judicial precedent, or their duty to enforce the Constitution itself? Thomas broke long ago with the other conservatives on the court – and, in opinion after opinion, buttressed with careful historical investigation, he has intransigently laid out an argument that is gradually winning over the other Justices. And, to make matters worse, Toobin laments, he is winning because of the force and integrity of the argument he makes. Toobin is persuaded that, by the force of the line of reasoning that he has developed, Thomas will compel the Court to declare Obamacare unconstitutional.

I suspect that Toobin is right. There is nothing more absurd and contrary to the principle of federalism and the notion that ours is a government of limited powers than the jurisprudence on the commerce clause in the Constitution. For almost one hundred fifty years, this clause – which confers on Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes” – was, in a common-sense fashion, understood as leaving the regulation of commerce within particular states to the jurisdiction of those particular states. Since 1937, however, it has been interpreted by the courts as granting to Congress the legal authority not only to regulate commerce that takes place solely within particular states but even to forbid farmers from growing grain on their own farms, which is not to be sold to anyone but is to be fed to their own livestock.

In pointing to the scandalous character of contemporary jurisprudence on this and many another matter, Thomas has called into question not only the legitimacy of Barack Obama’s New Foundation but also that of the Great Society and even the New Deal. He is like the little boy who obstreperously pointed out that the Emperor has no clothes, and to an ever-increasing degree jurists and Americans more generally are taking note of the Emperor’s nakedness. As Walter Russell Mead has suggested in a blogpost responding to Toobin’s article, “Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.”

I have said it once, and I will say it again and again and again. We are in the midst of a peaceful revolution requiring a return to this nation’s first principles. If we can find a standard-bearer willing to bear that standard, willing to advocate a restoration of constitutional government in the United States, we can set things straight that began going awry almost exactly a century ago. If, on the other hand, our standard-bearer in 2012 is just another managerial progressive arguing that — if he were President, he could adjust a valve here and there, reduce public debts a smidgen, and make the old administrative state run like a top — we are done for. The hour is late.

  1. iWc

    Oh, I so want to believe that this is prophetic.

  2. Paul A. Rahe
    C
    anon_academic: One minor point on the Toobin piece is that he brings up the whole “recusal” trope on Obamacare (on the grounds that Mrs. Thomas has been a vocal critic of the law) and begrudgingly admits that SCOTUS judges make their own decisions about recusal. 

    I really admire the cojones it takes for the left to argue that Justice Thomas should recuse himself from adjudicating a law because his spouse doesn’t like it while not mentioning that his colleague, Justice Kagan, was the solicitor general during the law’s legislative history.

    I don’t have any problem with both Thomas and Kagan hearing the case, but attacking Thomas on this is a pretty big stone to be throwing from a pretty brittle glass house. · Aug 29 at 8:56pm

    Yes, what a world we live in! The friends of feminism want to hold a man responsible for the opinions expressed by his wife. Can you imagine the uproar if the conservatives were making such an argument?

  3. David Guaspari

    I’ve heard it argued that stare decisis has (or should have) less force on constitutional rulings than on rulings about statutory law.  The reason is that a bad decision about a statute is easily corrected by the legislature — and if the legislature does not correct a ruling, that counts as evidence that it was right (or, at least, that the current legislature would be willing to rewrite the original law to agree).  By contrast, the only practical way to correct a bad constitutional decision is for a court to break with the precedent.   

    This makes sense to me.  What do the legal scholars say?

  4. Pseudodionysius

    Invite me to the funeral service for the emanating penumbra.

  5. Pseudodionysius

    And I’m sure that Richard Epstein will have no views on this matter.

  6. The King Prawn

     I may owe my life to Justice Thomas. One of the first classes I took for my major was ConLaw. One assignment was to read and discuss the Kelo decision. After reading the opinion I feared (not figuratively) I was on the verge of a stroke or a cardiac event. Reading Thomas’ dissent restored peace to my soul. He is an anchor that prevents the entire nation from being dragged over the precipice.

  7. Cobalt Blue

    I can’t help but think that George H. W. Bush did Thomas a disservice by the timing of his nomination, specifically to fill the vacancy of Thurgood Marshall. It was the replacement of the first black Supreme Court Justice with the second. It tainted the nomination by making it appear politically cowardly, as if he thought he needed to placate the left by naming another black to the high court. But liberals were apoplectic that such an apostate would replace the iconic Marshall (how often has Justice Thomas been the subject of racial derision of the “Uncle Tom” variety) – so the attacks on him were unprecedentedly personal.  Despite his confirmation, the battle to achieve it was brutal and nasty and its effects linger – he’s never been able to achieve to level of respect from the general public that has been accorded much more mediocre Justices.

    Perhaps this article is a sign that such respect is finally being accorded.

  8. Severely Ltd.
    anon_academic: One minor point on the Toobin piece is that he brings up the whole “recusal” trope on Obamacare (on the grounds that Mrs. Thomas has been a vocal critic of the law) and begrudgingly admits that SCOTUS judges make their own decisions about recusal. 

    I’ve been puzzled about the whole recusal argument (concerning Obamacare) presented by the MSM. Toobin brings up the issue early in the article and returns to it two-thirds through and in the last half of that paragraph drops this gem:

    Patrick Longan, who holds a chair in ethics and professionalism at the law school of Mercer University, in Macon, Georgia, disagrees. “The standard is whether there is something materially to be gained by the judge or his spouse from the outcome of the litigation,” he said. “It’s hard for me to see how his vote in the case would help her materially, one way or the other.”

    Ahhhhh! If this is true, the whole demand-for-recusal house of cards collapses. Toobin covers himself by making quick, unobtrusive mention of it, but this seems to put an end to the whole issue.

  9. David John
    If we can find a standard-bearer willing to bear that standard, willing to advocate a restoration of constitutional government in the United States, we can set things straight that began going awry almost exactly a century ago. 

    Only Ron Paul comes to mind. Thanks for your excellent blog post.

  10. michael kelley

    “For a long time now, I have thought of it as yet one more place where liberals go to sneer.”

    Huh.  A wise man once wrote, “…..sneering is the coin in which modern intellectuals trade.”

    And he was right.

    These are new times, another beginning for the mysteriously redemptive American Republic.

  11. Mel Foil

    Thomas knows better than most that a flexible “living” Constitution is no friend of the individual–especially an unpopular individual with unpopular ideas, or the member of an unpopular group. Southern lynch mobs did nothing beyond “breath life” and “run hot blood” into old dead and settled law.

  12. Illiniguy

    When I was in law school, Hugo Black’s opinions were those I liked to read the most. He had a straightforward way of writing, and Justice Thomas’ writing is in the same vein. It’s always irritated me to listen to confirmation hearings where senators beat a nominee over the head with stare decisis. Judges swear an oath to uphold the Constitution, not precedent. The book “Twilight of Individual Liberty” by Hamilton Vreeland should be read by anyone interested in learning how the commerce clause was twisted and expanded in such a way as to give the Federal government ever more power.

  13. Cas Balicki

    What a wonderful post. The only thing to wish for is that it is prescient.

  14. anon_academic

    One minor point on the Toobin piece is that he brings up the whole “recusal” trope on Obamacare (on the grounds that Mrs. Thomas has been a vocal critic of the law) and begrudgingly admits that SCOTUS judges make their own decisions about recusal. 

    I really admire the cojones it takes for the left to argue that Justice Thomas should recuse himself from adjudicating a law because his spouse doesn’t like it while not mentioning that his colleague, Justice Kagan, was the solicitor general during the law’s legislative history.

    I don’t have any problem with both Thomas and Kagan hearing the case, but attacking Thomas on this is a pretty big stone to be throwing from a pretty brittle glass house.

  15. Keith Preston

    It will be interesting to see if Toobin’s piece gives him any “Juan Williams” type of experiences.  His social calendar might become much freer, if you know what I mean…

    Will he be shocked?

  16. Keith Preston

    ricochet server burp…

  17. Paul A. Rahe
    C
    Keith Preston: It will be interesting to see if Toobin’s piece gives him any “Juan Williams” type of experiences.  His social calendar might become much freer, if you know what I mean…

    Will he be shocked? · Aug 30 at 9:02am

    He might be.

  18. Alex Metcalf

    I remember once I read Bill Kristol saying that he considered Thomas the most impressive conservative in American public life; it is a hard charge to dispute.  For myself, during con law class, reading a Thomas dissent after a simultaneously stale and imaginative (not a trait on which strong constitutional jurisprudence is often based) Breyer opinion was a welcome respite.  

  19. Illiniguy
    Paul A. Rahe

    Keith Preston: It will be interesting to see if Toobin’s piece gives him any “Juan Williams” type of experiences.  His social calendar might become much freer, if you know what I mean…

    Will he be shocked? · Aug 30 at 9:02am

    He might be. · Aug 30 at 10:10am

    Limbaugh just discussed the Toobin piece on his show, and his take is that the article is not so much a backhanded homage as it is aimed at the Left, to serve as a warning that they’d better ratchet up the pressure to get Justice Thomas to recuse himself from the Obamacare debate. As opposed to suffering the Juan Williams fate, Rush sees him more as a Paul Revere.

  20. Chris Johnson

     ” It will be very hard for them to digest  and come to grips with what Toobin has to say, and it is no less remarkable that a hardcore left-liberal  such as Toobin is willing to say it.”

    This comment and others, seem to ignore just how awful Toobin really is, and ascribe to him qualities he does not possess.  Read as what it is, Toobin, I have great concerns.  Here’s what I suspect, given the source:

    Toobin is laying out, for the rubes and the thugs, the necessity for an Alinskyite assault on Thomas.  He has identified for the left’s ground troops, the prime target.  I don’t recall all the steps, but they include isolate, demonize, etc.  In short, I see SEIU campouts on the front lawn of the Thomas’ home, just as a minimum.  The left already hates him and now, I believe, Toobin is unleashing them, by making them aware that he is more than just somebody to ridicule.