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.