A brilliant piece in The New Yorker by Jeffrey Toobin about Supreme Court Justice Clarence Thomas. Thomas, appointed by George H. Bush, is arguably the most conservative Justice on the Court since the 1930s. He adheres to a very strict originalist and textualist reading of the Constitution, meaning that he believes it should be applied to the twenty-first century the way the Founders intended it for society in the late eighteenth century (whoever came up with this comically absurd idea should receive a prize). In addition to that, unlike the other textualist Justices Antonin Scalia and Samuel Alito, Thomas has no qualm about ignoring precendent in court rulings: when he thinks a previous decision is wrong in his interpretation of the Constitution, he will overturn it. In Thomas’ case, this also means historically exploring how the inhabitants of the thirteen American colonies two-and-a-half century ago meant this or that piece of law.
Adhering to a very strict originalist interpretation of the Constitution means that you believe that only a very small, limited government is constitutionally allowed (just like it was intended back then). If if were up to justices like Thomas, the US government would have no business regulating anything in the American economy or society (although they have, of course, no qualms about executive branch overreach when it comes to military affairs or torture). This leads to predictable conservative positions on such issues as gun rights and federalism, but also – and here it comes – on healthcare. The Obama administration has relied on a ‘broad’ interpretation of the Commerce Clause, which by New Deal-era judicial interpretation has allowed the federal government to intervene in the (trans-state) economy, to mandate individuals to buy health insurance. But it is very much the question whether the current conservative Court, including Justice Thomas, will uphold this interpretation of the Commerce Clause. It is very much possible that Obama’s healthcare reform law will sometime soon be judged unconstitutional by the Supreme Court.
Why is this piece on Clarence Thomas so relevant in this context? Well, because according to Toobin, Justice Thomas’ once extreme positions on various issues he has held since his 1991 confirmation have in the past twenty years become more mainstream. Take, for example, the gun rights issue. Among conservatives today, it is commonplace to argue that the lines in the Constitution about ‘the right to keep and bear arms’ apply to individuals, allowing personal gun rights. But just two decades ago (I didn’t know this), this was considered a radical position in a legal profession that held that the lines apply to state militias only, thus warranting more strict regulation on guns. It was Thomas who came up with the former interpretation, striking down Bill Clinton’s 1999 Brady Bill, and ever since, gun rights in the US have expanded. The same thing has happened on other issues: Thomas’ positions, at first considered radical, move the borders of the acceptable and allow judicial discourse to shift rightwards.
In the era that has seen the rise of the Tea Party out of protests against healthcare reform, the same thing could happen to Obama’s laws. Or, the piece warns, even more broadly to the entire 1930s New Deal-era constellation of laws and regulation that have awarded the federal government a role in protecting the people against the worst excesses of capitalism. Clarence Thomas and his wife are frequent speakers and ardent supporters of the Tea Party and other manifestations of extreme rightwing politics. These people want to take the economy back to the 1920s law of the jungle. In the words of Walter Russell Mead at the American Interest, their goal is to bring the Blue Empire down…
So read this must-read profile of Clarence Thomas to see why he has already been compared to Lord of the Rings’ Frodo – an overlooked actor slowly but steadily moving towards his goal, not taken seriously by his opponents until it is too late.
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 conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
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.
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.