The Triumph Of Clarence Thomas

A new look at Clarence Thomas's 20 years on the Supreme Court, from a critic, is surprisingly positive.

Jeffrey Toobin is out with a fascinating, must-read, piece on Clarence Thomas in The New Yorker that is drawing attention because of it’s reappraisal of Thomas’s jurisprudence. In it Toobin, who clearly disagrees with Thomas in many respects, concludes that the Justice has had a profound influence on the Court’s direction in the past 20 years, and that he’s not the intellectual dunce that his critics on the left have characterized him ever since the Anita Hill hearings came to an end:

These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication….

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

As just one example of how Thomas has influenced the direction of the law in the United States, even in dissent, Toobin cites a part of the Constitution that, up until very recently, was largely moribund and forgotten. It starts with the 1997 case Printz v. United States in which the Supreme Court struck down certain provision of the Brady Handgun Control Act of 1993. Thomas joined Justice Scalia in the majority opinion in that case, but also filed a concurring opinion where he said this:

The Second Amendment similarly appears to contain an express limitation on the government’s authority. That Amendment provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections.

Since the Plaintiff’s in Printz had not raised the Second Amendment in their arguments, largely because it had long been considered a dead letter in the law, the Court didn’t rule on it. Nonetheless, as Toobin notes, Thomas’s short concurrence did gain the attention of some people:

The Brady bill also made it a crime for an individual who was covered by a domestic-violence protection order to possess a firearm. In 1999, Timothy Emerson, a doctor in Green County, Texas, who was involved in a messy divorce, challenged the constitutionality of that law, on the ground that it violated the Second Amendment. A federal district court, relying heavily on Thomas’s concurring opinion in Printz, concluded that the Second Amendment did confer an individual right to bear arms and threw out the indictment. In 2001, the Fifth Circuit Court of Appeals reinstated Emerson’s indictment, but again cited Thomas’s opinion in calling for a new understanding of the Second Amendment.

Thomas’s opinion also drew the attention of Clark Neily III and Steve Simpson, two libertarian lawyers who wanted to bring a test case to the Supreme Court. They approached Robert Levy, a software and financial entrepreneur with libertarian views who in his fifties had sold his company and gone to law school. “There was an outpouring of scholarship, including from liberals, indicating that the Second Amendment secured an individual right,” Levy told me. “You had the Bush Administration taking that position. And you had the Emerson decision, citing Thomas’s Printz opinion.” Levy agreed to underwrite the costs, and he hired Alan Gura, a young lawyer from Virginia, to argue the case.

That case was District of Columbia v. Heller, and the Supreme Court ultimately ruled that the District of Columbia’s total ban on handgun ownership by citizens was unconstitutional. More importantly, though, the Court essentially adopted the argument that Thomas made in his Printz concurrence that the Second Amendment was a personal right, not a collective one. Last year, in McDonald v. Chicago, the Court held that the Second Amendment applied to the states under the doctrine of incorporation, a decision that actually reversed a decision from the late 19th Century. Now, Federal Courts at all levels are dealing with the question of just how far the Second Amendment goes in protecting an individual’s right to keep and bear arms, and it all started with one paragraph in a two page concurrence by a Supreme Court Justice that most people on the left have dismissed, incorrectly, as a dim-witted fool.

Walter Russell Mead, whose own piece is also highly recommended as a companion to Toobin’s, is among those on the left who seem to have been blown away by Toobin’s work, and seems to have come to realize that he and many others on the left have underestimated Thomas significantly:

There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Both Toobin and Mead point out that Thomas has been playing the same “voice in the wilderness” role with respect to the Tenth Amendment and the Commerce Clause that he once did with the Second Amendment. As we’ve seen in several of the rulings on the constitutionality of the Affordable Care Act, his interpretation of a limited Congressional commerce power and a more expansive Tenth Amendment are no longer outside the judicial mainstream. As Mead notes, with obvious disdain, acceptance of Thomas’s view on these Constitutional provisions have the potential to be far reaching:

Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down. Whole cabinet departments would close.

The federal government would not wither away completely; even on a narrow reading of the commerce clause (the clause that places the regulation of interstate commerce among Congress’ enumerated powers), Washington would exercise considerable authority over the national economy. But the balance between the states and the feds would change, and among other things, our federal tax burdens would fall, but the costs of state government would rise.

Even relatively minor changes in these areas of the law — more restrictions of the power of Congress, and greater freedom for the states under the 10th Amendment — would have a potentially far-reaching impact. Absent the ability to cobble together the supermajority required to amend the Constitution, the left (and some on the right) would be required to accept the fact that they just won’t be able to accomplish some of the things they’d like to, at least not on the Federal level. Potentially, it would lead to a re-invigoration of politics at the state level as people come to realize that it is there that the real battles will have to be fought. Most of all, though, it would put America on a different road than the one we’ve been on over the past 75 years or so.

Toobin’s article isn’t all about the law, though, he touches on the Anita Hill case, of course, and Thomas’s wife Virginia’s involvement in the Tea Party movement. But he also provides a glimpse into Thomas the man, such as here where he talks about why Thomas is largely alone among the Justice in singling out non-Ivy League law students as his Law Clerks:

“We talk about diversity. The real problem of our Court is that it’s all Ivy League,” Thomas said. Currently, all nine Justices attended law school at either Harvard or Yale. “Correct me if I’m wrong, but I think there are other law schools out there,” he said. Alone among his colleagues, Thomas usually selects at least some of his law clerks from less prominent schools. In recent years, his clerks have included graduates of the law schools of Creighton University, in Nebraska; Rutgers; George Mason; and the University of Utah.

“I grew up with maids, and janitors, and yard people,” he told the students at Stetson. “It gives you a perspective on society. You’re looking from the bottom up, and how people see it from that direction. . . . You understand why people are angry or upset. You understand why they become rich soil for class envy and class hatred, or class warfare. You see how they become easy pickings for people who have snake-oil merchants for solving all their problems. But you develop a respect for them without condescension. You develop an attitude that we are all inherently equal regardless of who went to school and who did not—that there can be smart people who did not have any book learning and never had a chance.”

Thomas continued, “There’s a difference between being poor and being stupid. And you’re stupid for thinking that they’re stupid. As my granddaddy would say, you’re just an educated fool. . . . I am passionate about preserving liberty so that people can rise from that to go to the Supreme Court.”

This isn’t the Clarence Thomas that most people know, and it’s certainly not the one created by the prejudices of the left. It’s man who revealed himself in his autobiography, My Grandfather’s Son.

Clarence Thomas’s story is one that should be an inspiration to all Americans regardless of race, religion, or gender. Here is a man, a black man, who was born in the poorest part of Georgia in an era when Jim Crow still reigned supreme. He was born into a single-parent family — his father having abandoned his mother early on — and lived for a time in some of the most excruciating, heart-wrenching, conditions of poverty conceivable in modern America. And yet he succeeded. He excelled in high school, graduated college, and graduated from one of the most prominent law schools in the country. Eventually he went on to a well-regarded career in the government and then found himself standing next to the President of the United States on a summer day in 1991 being nominated to the Supreme Court of the United States.

That’s the kind of story that anyone should appreciate and, yet, until Toobin’s reappraisal, the common opinion of Thomas was that he was a lazy dolt. It’s nice to see someone finally correcting that particular slander.

FILED UNDER: Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. BigFire says:

    There really isn’t much of a point in trying to convince people with deeply held belief, such as Thomas’s stupidity. For example, during oral argument of any case, Thomas will almost never have any questions to any of the attorney, unlike Kennedy or Scalia. However, he relied on memos and briefs as his methods of inquiry in making his decision. That’s not theatrics that right thinking people can see, so he must be dumb.

  2. sam says:

    “Toobin’s article isn’t all about the law, though, he touches on the Anita Hill case, of course,”

    Yes he does:

    The Thomas-Hill hearings remain one of the great set pieces of recent American history. Even twenty years later, the facts are familiar. Anita Hill, also a graduate of Yale Law School, worked on Thomas’s staff at the Department of Education and at the Equal Employment Opportunity Commission. According to her testimony, Thomas made a series of crude advances to her, which included references to pornographic movies starring Long Dong Silver and utterances like “Who has put pubic hair on my Coke?” Thomas denied her allegations categorically and denounced the hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”

    Thomas was confirmed in the Senate by a vote of fifty-two to forty-eight, and neither the Judiciary Committee nor any other part of the government has since seen fit to reëxamine the Thomas-Hill controversy. Still, a good deal of evidence has since emerged about the protagonists and their testimony. Even near the end of the hearings, several other women who had worked for Thomas were prepared to testify and corroborate Hill’s testimony that Thomas had a history of making female subordinates uncomfortable with personal and sexual talk. The group included Angela Wright, Rose Jourdain, and Sukari Hardnett; other associates of Thomas, among them Kaye Savage and Fred Cooke, would have testified about the nominee’s long-standing interest in pornography, which would have corroborated Hill’s account. But Joseph Biden, the chairman of the Judiciary Committee at the time, decided not to call these witnesses. This year, Lillian McEwen, a Washington lawyer who had a long-term romantic relationship with Thomas before he met Ginni, published a memoir, “D.C. Unmasked & Undressed.” She, too, remarked on the Justice’s “strong interest in pornography,” and she also said that Thomas scrutinized his work colleagues as prospective sexual partners. In short, virtually all the evidence that has emerged since the hearings corroborates Hill’s version of events. [my emphasis]

  3. Rick DeMent says:

    I have no problem with the idea that the 2nd is an individual right, but the founders debate over the 2nd makes it very clear that the scope of the right is in the context of defence of the country in general and to eliminate the need for a standing army in specific. Until the vanguards of original intent start directing as much zeal to dismantiling the armed forces as they do to narrowing the commerce clause then color me unimpressed with their objectivity. Same goes for throwing out whole cloth such non-sense as corperations = leagle persons and money = speech.

  4. Franklin says:

    Very interesting. I think a lot of people respect Toobin’s opinion so this could very influential in how history views Thomas.

  5. Jay Tea says:

    The revelations that so many of the ideals and principles of the Tea Party movement are championed by — and, indeed, can be argued, come from a black man could mean the death knell of the horrible, terrible, evil, racist Tea Partiers.

    (do I really need to add a /sarc?)

    Another wretched legacy of the Thomas hearings: the vermin at Media Matters for America. David Brock got his first “break” with his book, “The Real Anita Hill,” which he later repudiated when he did his face-turn from right-wing attack dog to left-wing attack dog and founded MMfA.

    J.

  6. steve says:

    About what you would expect if you picked the youngest, most conservative person you could find to nominate to the SCOTUS (who had any chance of being approved).

    Steve

  7. MBunge says:

    Most of all, though, it would put America on a different road than the one we’ve been on over the past 75 years or so.

    Have you ever actually taken a look at what 1936 America was like? Why do you have such disdain for the only country you’ve ever known?

    Mike

  8. Ben Wolf says:

    Another wretched legacy of the Thomas hearings: the vermin at Media Matters for America. David Brock got his first “break” with his book, “The Real Anita Hill,” which he later repudiated when he did his face-turn from right-wing attack dog to left-wing attack dog and founded MMfA.

    What does this have to do with the apology he owes Republican Anita Hill?

  9. ponce says:

    I think this was the plot to “Being There”

  10. Tsar Nicholas says:

    Thomas always will be a lightning rod for the left-wing — FYI, they don’t like “uppity” blacks in places like SoHo, Pacific Heights, Chevy Chase, Dedham or Beverly Hills — but truth be told Thomas is and always has been a very fine Justice.

    Overall I’d rate Thomas the 4th-best Justice of my lifetime, following only Rehnquist, Scalia and John Harlan.

  11. @Jay Tea: Hey now, Jay! Brocksie found religion and turned the other cheek!

  12. WR says:

    I’m perfectly willing to believe Thomas isn’t stupid. That just means he’s even more corrupt and evil than I would have given him credit for.

  13. Jim Henley says:

    Walter Russell Mead is “on the Left???”

  14. Jay Tea says:

    @Ben Wolf: What does this have to do with the apology he owes Republican Anita Hill?

    Not a frakking thing. Just noting that the Thomas hearings started a chain of events that culminated in the formation of the thoroughly execrable Soros buttmonkeys known as Media Matters.

    J.

  15. The problem of Thomas is neither his blackness or his supposed dumbness, but his opinions on Criminal Justice.

  16. WR says:

    @Jay Tea: In Jay world, “butt monkey” means “someone who tells the truth when Rush and Sean lie.” Apparently truth is still a hard concept for him.

  17. Console says:

    Law is law.

    Thomas is easily the most consistent of the conservatives. Since law is based on cutesy rhetoric, and the ability to bullshit, logical consistency (which doesn’t take a whole lot of practice) is overlooked. So hacks like Scalia always got the glory.

    Btw, liberals always had a reason to hate Thomas. He’s a black conservative. Conservatives though have to own up to the fact they always treated him like Scalia’s sidekick, even though Scalia was obviously a complete hack.

  18. Jay Tea says:

    @WR: Media Matters is an illegal organization (operating in violation of their charter and tax laws) with a history of lying to advance its agenda. Documentation available upon request (unlike your “Rick Perry murdered innocent people” BS).

    Back to your kennel, lickspittle.

    J.

  19. Ben Wolf says:

    By all means, let’s continue changing the subject to meanie liberals and illegal websites. Meanwhile anyone with a modicum of respect for women as equals in the workplace should dislike and disapprove of Thomas. He established a record for treating female co-workers as things placed there for his own entertainment purposes, and twenty years later when the evidence of it is virtually ironclad (despite the work of pricks like Brock and Limbaugh to destroy Anita Hill’s reputation) the man has yet to apologize. We still live in a country where if one can just get promoted quickly enough little things like law and ethics will no longer apply. Thomas is an embarassment who harmed fellow citizens simply because he could.

  20. Robert in SF says:

    @Jay Tea, I would like to see some citations on the MM’s supposed history of lying that you claim is out there…unless it turns out you are referencing some miss-citations within their articles.

    I have always tempered my reliance on their research and articles (with *full* quotes in context) with the realization that they sometimes drew conclusions about intent or beliefs from certain events or statements that weren’t reasonably supported, but I have always found them to be thorough and trustworthy overall….

    And on the subject at hand, as I didn’t follow politics until the last few years, and now mostly sporadically and using mainstream sources, could someone please cite some of these supposed liberals who called Justice Thomas “dumb”, or “ignorant”? Because I cannot recall any such insults from any recognized liberal or in left-leaning commentary or opinion. Maybe some persons, on the street, or in a layman’s fit of anger or frustration, might have said this, but a reasoned or focused treatise that includes this statement, with full intent? Doubtful…not denied, just doubtful.

  21. Fog says:

    “Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down.”

    MBunge asks the right question. Are we willing to go back to 1936? What many conservatives ignore is that the New Deal was not intended to destroy capitalism. The 1930s were a volatile time. Communism and fascism appeared to dividing the world between them. FDR created the New Deal to pacify the lower classes, and forestall any revolutions here. It was not an imaginary threat. The Depression had created serious doubt about the benefits of capitalism for society as a whole, and FDR needed some way to convince people that, despite its flaws, capitalism was still the best system for everyone. Hence the New Deal (its effect on the economy is still subject for debate, but I would argue that the social and psychological effect was more important overall). FDR saved and preserved American capitalism and was rewarded with accusations that he was a traitor to his class.

  22. Rob in CT says:

    Well said, Fog.

    I have no opinion on Justice Thomas’ intelligence. I do think it’s clear that he’s a radical. Now you might agree with his radical views and want to turn the clock back to pre-New Deal America. I don’t. That’s my issue with Thomas.

  23. Jay Tea says:

    @Robert in SF: OK, a quick Googling come up with some rather choice examples.

    1) MMfA spread a report of racist things Rush Limbaugh allegedly said. On that list, Limbaugh was quoted as saying “slavery had its merits” and praising James Earl Ray — which Limbaugh denied ever saying, and MMfA had to say they couldn’t source those particular ones — but they had plenty more examples if those were not true. This was when Limbaugh was apparently trying to buy part of an NFL team, and that was a factor in him being denied.

    2) Here’s a perfect example from my colleague, Lorie Byrd: http://wizbangblog.com/content/2009/09/17/another-distortion-and-attempt-to-defend-acorn-by-attacking-the-messenger-1.php

    3) Media Matters’ legal charter — under which they get their tax-exempt status — declares that their purpose is to expose and counter conservative misinformation in the press. Now, their founder says that their purpose is to wage war against Fox News, which they deem the propaganda arm of the Republican party. When an organization whose tax-exempt status is contingent on their “non-partisan” basis boasts that they want to destroy a faction of one political party (simply applying their own words, not agreeing with them — applying their own internal logic), then their “non-partisan” status should be history.

    J.

  24. Jay Tea says:

    @Fog: But the argument remains accurate: those are not part of the enumerated powers. Weren’t then, aren’t now.

    J.

  25. James H says:

    I never believed Thomas was stupid or a dunce; I mostly believed he was outside of the mainstream and a bit too confident in his ability to divine the Founders’ original intent. But every so often in law school, I found myself nodding along as I read one of his opinions. The man made some good points.

    My own conception of him really began to change in the mid aughts, when I read an article about some of what he does behind the scenes. Despite his opposition to affirmative action, he had served as a mentor and contact for a number of young African-Americans in the legal profession and in politics, sometimes helping those on the other side of the aisle.

    It told me something about the man. And I regret not reading his memoir; I suspect I shall need to make it next on my list.

  26. WR says:

    @Jay Tea: Hey, an anonymous internet troll with a history of lying called MM criminals, so it must be true!

  27. Robert in SF says:

    @Jay Tea: I can only review the examples you provide…

    re: “1) MMfA spread a report of racist things Rush Limbaugh allegedly said.”
    They ran updates it looks like, and the article I found was their report about the column someone else wrote about the issue. Sorry, but this isn’t a culture of lying and misrepresentation of facts, and issues, and I can’t support them on it, but won’t condemn them either off this one example.

    re: “2) Here’s a perfect example from my colleague, Lorie Byrd:”
    Sorry, but the MM story seems right to me. Glenn Beck presented it as fact, with a casual aside of admitting he was spreading rumor and gossip, unfounded and without corroboration, and Glenn focuses on the ACORN aspect, and not on the media’s reaction and investigation of her statements…

    The emphasis of their report seems to be on the inflammatory nature of Glenn Beck, with a lazy refernece or writing style that missed one key fact: Beck did admit he hadn’t confirmed if the woman’s husband was still alive or if she even had a husband…but that wasn’t the point of their article…it was the Glenn Beck and Fox News were alarmists when it involved ACORN and wouldn’t let a little factual integrity get in the way of a good smear campaign….So MMFA was lazy or too casual in their write up…but no points here against them for that.

    re: “3) Media Matters’ legal charter — under which they get their tax-exempt status — ”
    Sorry, but you state they claim their ” purpose is to expose and counter conservative misinformation in the press.” But how exactly is that non-partisan, that you later claim is supposed to be non-partisan? And *is* Fox News a propaganda arm of the Republic Party, or not? If so, then what’s the problem with challenging them? And if not, they it doesn’t matter if MM does tackle them, since it’s not partisan?

    Maybe I don’t understand how tax exempt works? Are they a charity? Or a non-profit? Or what? And if so, then what are the rules around their having to be non-partisan to remain tax exempt?

  28. James in LA says:

    I have no opinion on Justice Thomas’ intelligence. But his mendacity at his own confirmation hearing is a stain on the court that will remain until he is retired. His influence on the court must be seen in that light.